Gujarat High Court
Johrabibi D/O Nishal Sayed & vs State Of ... on 27 March, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
R/CR.A/242/1985 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 242 of 1985
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
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1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair copy NO
of the judgment ?
4. Whether this case involves a substantial question NO
of law as to the interpretation of the constitution
of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO
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JOHRABIBI D/O NISHAL SAYED & 1....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
ABATED for the Appellant(s) No. 2
MS SM AHUJA, ADVOCATE for the Appellant(s) No. 1
MR NJ SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 27/03/2014
ORAL JUDGMENT
1. Ambit and purpose of Section 27 of the Evidence Act has Page 1 of 22 R/CR.A/242/1985 JUDGMENT once again arisen for consideration in this case. To that, I may refer little later, first facts of the case. The case of prosecution is use of forged / counterfeit currency note as a genuine note by the appellant and the other accused. The story, as presented by the prosecution, sounds improbable and material on record rules out even remote possibility of conviction. However, the story does find acceptance at the hands of the trial court and material on record failed to shake judicial conscience of the court of first instance. Story unfolded in a moment would show why it is improbable and reference to evidence would show how and why the case is unacceptable.
2. It said to have happened on 26.12.1983. Two ladies (A1 and A2) said to have come to the complainant's shop / larry. The complainant at the relevant time was doing business of ready-made garments and other ancillary items. A1 had said to have selected one towel which was priced at Rs.8/-. A1 gave Rs.100/- note (Article 1). The said currency note appeared as suspicious to the complainant as its number on left hand side and right hand side does not tally. This mismatch of number had led the complainant to rush to inform about this to his partner - at his partner's residence. The partner is said to be residing nearby. The partner, in turn, rushed to inform to the police. In the meanwhile, the complainant had made A1 and A2 to wait on the pretext that he has no required exchange of Rs.100/- currency and he has asked his partner to collect exchange of Rs.100/-. Then, police had said to have arrived and it is the say of the prosecution that police had recorded the panchnama and complaint.
Page 2 of 22R/CR.A/242/1985 JUDGMENT
3. In the judgment under challenge, two accused (A1 and A3) came to be convicted by the trial court and other accused were acquitted. While A3 was convicted for offence under Section 489 (A), (B), (C) and (D), A1 was convicted only for offence under Section 489(C). Pending the appeal, A3 had died. Hence, her appeal abated. In the present appeal, we are concerned only with the case against A1.
4. The case of prosecution rests on evidence of 13 witnesses and on different panchnamas and of course, on RBI report.
5. How these currency notes are fake or forged? In order to consider the case of prosecution as to counterfeit and forged notes, further reference to facts may be made. Upon lodging of the complaint and taking A1 and A2 to the police station and making their interrogation, police had carried out search at the residence of A3. There, the police had said to have found quite few pieces of currency notes of different denomination (of total more than Rs.2600/-) (Exh.44) plus gum, fevi stick, thiner etc. at the residence of A3. All pieces of currency notes were of genuine notes. Further investigation had led the police to one shop - Shop No.20 - at the Capital Commerce Center. At the said shop, the hoarding was placed, it reads thus; 'Hospital of Torn / Damaged Notes.' The shop owner found to be the agent of RBI. Police had found torn, burnt and damaged notes of different denominations worth Rs.7500/- at the shop. It is the say of the prosecution that shop owner etc. are prosecuted by separate sessions case.
6. Further to complete the story, A1 and A2, prior to Page 3 of 22 R/CR.A/242/1985 JUDGMENT coming to the larry of the complainant, had on the same day purchased 500 grams bhajiya from Raipur Bhajiya House. They had said to have purchased 500 grams bhajiya by giving currency note of Rs.100/- denomination (Article 50). The police also found in the investigation that A1 and A2 had about 1 and 1/2 months prior to the date of lodging the complaint, visited one Sun Bakery and said to have purchased 250 grams khari-biscuits, by giving currency note of Rs.100/- denomination (Article 49). Then, A1 and A2 had also said to have visited Jamalbhai's shop and said to have purchased two pillow covers. These accused have said to have given currency note of Rs.100/- denomination (Article 51).
7. Heard learned advocate Ms.S.M.Ahuja for the appellant and learned APP Mr.N.J.Shah for the respondent - State.
8. Learned advocate Ms.Ahuja for the appellant has taken the Court through the record of the case. Learned advocate for the appellant has drawn attention to oral evidence led by the parties. An attention was also drawn to RBI report. Relying and referring on the same, it was submitted that each and every note was verified by the RBI and most of the notes were found half payable or payable. It is only few of the notes were found not payable. Learned advocate has also submitted that with the evidence brought on record by the prosecution, no finding of conviction is possible to record. That learned trial court has seriously erred in recording the finding of conviction against the appellants. On the other hand, learned APP, Mr.Shah has supported the judgment.
9. The findings of the trial court are as under :
Page 4 of 22R/CR.A/242/1985 JUDGMENT (i) It is clear from the evidence of complainant, partner of
complainant and of the police that A1 and A2 had gone to the complainant's 'shop' to purchase the towel. That the accused had purchased the towel by paying through muddamal Article 1 currency note.
(ii) It is established that on 26.12.1983, both the accused had also visited Raipur Bhajiya House's shop and had purchased bhajiya by paying through muddamal currency note (Article 50).
(iii) That it was the intention of the accused to exchange the muddamal currency note under the guise of making purchase of miscellaneous item.
(iv) There is no evidence to link A2 with the commission of offence. The case of the prosecution as presented by it qua A2 is not acceptable.
(v) It is not possible to accept the say of panchas that their signatures were obtained on prepared panchnama. It is the say of the panchas themselves that prior to the present case, they have not served earlier as a panchas and if it is so, Investigating Officer would not have placed reliance on them qua signing of the panchas. So, the say of the panchas that their signatures were obtained on prepared panchnama is not possible to accept.
(vi) It is not the say of the A3 that she had strained relations with the Investigating Officer. In the circumstances of Page 5 of 22 R/CR.A/242/1985 JUDGMENT the case, it is not possible to believe that Investigating Officer has attempted to falsely implicate A3. Further, the items found during the search of house of A3 are such that those items are not easily available in the market.
(vii) The Investigating Officer has no reason to falsely implicate the accused. There is no law that deposition of police should not be believed merely because the witness is a police official.
(viii) That Section 103 of Cr.P.C. is framed so that no undue harassment is caused to the public. But it cannot be so construed that even if the court feels that say of the police official, who has carried out the search is, "true" even then search is not to be believed.
(ix) That reading of the evidence of panchas and of Investigating Officer together, say of Investigating Officer appears to be more reliable.
(x) It is not possible to believe the say of panchas that they have signed the prepared panchnama. It appears that they have deposed only to help the accused.
(xi) It is possible to conclude from the evidence of Investigating Officer that in fact, panchas must have signed the panchnama after reading it and understanding the same, as deposed by the Investigating Officer.
(xii) There is no reason not to believe the say of Investigating Officer. That muddamal articles 4 to 20 are, therefore, Page 6 of 22 R/CR.A/242/1985 JUDGMENT believed to have been recovered from A3's house.
(xiii) It is clear from evidence that A1 and A3 were carrying out work of preparing forged and counterfeit currency notes at their residence and after that A1 was used to go to market to exchange such fake notes.
10. The complainant and his partner (PW-1 and PW-2) supports the case of prosecution. The say of the complainant somehow sounds formal and it is not in nature of inspiring confidence. The complainant says that police on receipt of information about counterfeit note of Article-1, came within 5 to 10 minutes at the complainant's larry. In his cross- examination, he agrees that earlier he has served as a pancha when a lady was burnt in their area and in that case, present I.O. was P.I. / I.O. in that case also. He denies the suggestion that A1 and A2 had not visited his larry at any time and case is got up only to help P.I. He says that when A1 and A2 had visited his larry, there were one or two other customers at his larry. He agrees that any illiterate person would not be able to know / identify that Article-1 currency note is forged or prepared by connecting different pieces of note. Similarly, evidence of PW-2 also is not in nature of inspiring any confidence. It is the say of PW-2 that he was at this home and complainant had informed him that one customer has come at larry with currency note which was in pieces connected. That PW-2 rushed to the police station. In his cross, he says that while he was going to the police station, on the way Head Constable met him and he has asked the Head Constable to go to the complainant's larry.
Page 7 of 22R/CR.A/242/1985 JUDGMENT
11. As to the other evidence on record besides panchnama and evidence of police personnel, there are evidence of two child witnesss (PW-4 and PW-5). They do not support the case of prosecution. The learned trial court had not believed the case against A2 also because of the evidence of PW-4 and PW-
5. Then, we have evidence of PW-3 and PW-6. Police had said to have recovered muddamal currency note from the shops of these witnesses. Police had recovered the muddamal currency note from them by preparing the panchnama. These panchnamas are at Exh.32, 34 and 37. Let us consider these panchnamas. In Exh.32, it is recorded that A1 and A2 had willingly stated in presence of panchas about purchase of 500 grams bhajiya from Raipur Bhajiya House on 26.12.1983. They were to pay Rs.6/- for the purchase of bhajiya. However, they had given muddamal currency note of Rs.100/- denomination at the said shop. The said note is Article 50. The panchnama is carried out on 30.12.1983. It may be stated that police had recovered the currency note (Article 50) from Jayantibhai, who was present at the shop at the relevant time i.e. at the time of preparing panchnama.
12. The other panchnama i.e. Exh.34 is prepared as one Jamalbhai (PW-3) has produced one currency note of Rs.100/- denomination. It is alleged that said Jamalbhai had come to the police station on 30.12.1983 and has produced muddamal currency note (Article 51). Said Jamalbhai says that two ladies had come to his shop to purchase pillow covers. That they have made purchase of Rs.13/- and had given Rs.100/- currency note. That he had returned Rs.87/- to these ladies. In his cross, he says that he cannot say whether these two ladies were A1 and A2 or other.
Page 8 of 22R/CR.A/242/1985 JUDGMENT
13. Lastly, Exh.37 is a panchnama said to have carried out on 28.12.1983. It is the say of the prosecution that A1 and A2 had expressed willingness to show the place from where they have purchased 250 gms. khari-biscuits about one and half months back. Accordingly, they all came at Sun Bakery and on being asked by the police and panchas, one Mohmed Yunus, who was present at Sun Bakery, had said to have produced muddamal currency note of Rs.100/- denomination (Article
49). It appears that Mohmed Yunus is not examined by prosecution.
14. Before considering the case of the appellant and the prosecution, reference may be made to the report of the RBI. It may be stated that only right thing in the present case the police had appeared to have done is to refer to all the currency note to the RBI. The RBI report is at Exh.40. Its material finding reads, thus;
"
I) xxx xxx xxx II) In many cases it is observed that the mutilations have been caused to the notes through deliberate tearing / cutting and removing chips / pieces from lesser important areas of the notes and retaining appropriate areas / numbers, etc. so that they remain payable under the Reserve Bank of India (Note Refund) Rules,1975.
III) In a very few cases the notes are partially charred / burnt mainly on the sides/ edges and this does not in most cases affect their payability in full / half under the rules.
IV) There are a very few pieces, as indicated in the Annexure, where the notes can be either classified as 'built-up' or 'mis-matched'. These notes appear to have Page 9 of 22 R/CR.A/242/1985 JUDGMENT been built-up / mismatched by joining together cleverly or crudely two or multiple pieces of different genuine notes of same denomination. A careful scrutiny of these in bright light can facilitate their detection.
V) All the notes / pieces/ bits in every lot appear to be from genuine note taking into account the salient features."
15. There are quite some irregularities - illegalities in the case. It is the say of the prosecution that police had gone to Raipur Bhajiya House and at Sun Bakery and had recovered muddamal currency notes from there at the instance of the accused. It can only be via Section 27 of the Evidence Act. When Section 27 of the Evidence Act would be attracted?
16. In the leading commentary on Evidence Act i.e. Ratanlal & Dhirajlal (23rd Edition, 2010), the Author analyzes the Section, thus;
(a) there must be information;
(b) it does not matter whether the information
amounts to confession or not;
(c) that person must be in the custody of a police
officer;
(d) in consequence of the information of fact must be
deposed to as discovered;
(e) in such a case so much of the information as
relates distinctly to the fact thereby discovered may be proved.
17. Pulukuri's case is among the most oft-quoted case on Section 27 of the Evidence Act. In that case (Pulukuri's case -
Page 10 of 22R/CR.A/242/1985 JUDGMENT AIR 1947 PC 67) , Beaumont,J. has explained Section 27. Say of Beaumont-J. is considered as locus classicus. Relevant observations made in Para.10 reads, thus;
"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose Page 11 of 22 R/CR.A/242/1985 JUDGMENT that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section.
In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
18. Two aspects of Section 27 are relevant herein; firstly, the extent of information relevant and admissible under Section 27 and secondly, if the discovery is not in pursuance to the information given by the accused while the accused was in custody but, it is by act of the accused, whether the latter discovery would come within the sweep of Section 27 or not. Taking second aspect first, earlier this aspect had assumed quite some importance. This aspect is considered by the Larger Bench in many cases. Earliest case on this aspect is of Queen-Empress v. Nana, 14 Bom. 260. It is five Judges bench judgment. Therein, it was unanimously held by the Bombay High Court that evidence and recovery etc. by the act of the Page 12 of 22 R/CR.A/242/1985 JUDGMENT accused is also admissible.
19. In the present case, panchas of the panchnama (Exh.32) of recovery at Raipur Bhajiya House have turned hostile. It may be noted that it is the say of the panchas about 'information' given by the accused about the place that would be admissible under Section 27 of the Evidence Act. In the present case, it is the say of the panchas that they were called at the police station at midnight and their signatures were obtained on the panchnama. Panchas say that accused has not stated anything in their presence. Thus, there is no information or discovery of information within Section 27, whose admissibility may need to be examined. Reading of the panchnama gives impression that accused themselves may have led to the police at Raipur Bhajiya House and at the Sun Bakery. It is the case of prosecution that police had gone to Jamalbhai's shop along with the accused. However, Jamalbhai was not available and later on, he on his own appeared before the police station and said to have produced muddamal currency note (Article 51). The comment on muddamal currency note (Article 51) may be made little later. Whether other two currency notes i.e. Articles 49 and 50 can be looked into in evidence or not, may be considered.
20. This brings us to consider the extent of information relevant and admissible under Section 27 of the Act. In Ganu Chandra's case - AIR 1932 Bom 286, Beaumont, C.J. had explained the provision in most lucid and simple way;
" Supposing the accused says;
Page 13 of 22
R/CR.A/242/1985 JUDGMENT
"I will produce the share which I received in such and such dacoity resolves itself into four parts : (1) an admission that there was dacoity, (2) an admission that accused took part in it, (3) an admission that accused got part of the property, and (4) statement as to where the property was. That the first three parts are inadmissible and only fourth statement would be admissible in evidence."
21. In that case, accused were tried for dacoity. It was a case of dacoity of Rs.1700/-. "Grate bulk of it consisted of one rupee coins." The main evidence consists of evidence of approver - one of the accused had turned approver and the evidence of confession by three accused. It was held that trial court has committed error in treating whole of the statement, which the panch attributes to the accused as being relevant evidence.
21.1 The view of Bombay High Court in Ganu Chandra's case (Supra) was approved by Privy Council in Pulukuri's case (Supra). It is interesting to refer one Full Bench judgment of Punjab High Court to appreciate the influence of Queen- Empress's case (Supra). The Single Judge of Punjab High Court in Ram Richhapal's case - AIR 1954 Punjab 97 had referred the issue to the Larger Bench. Therein, identical question, viz., admissibility of the evidence of discovery when discovery is at the instance of accused was in issue. Each of the Judges delivered separate judgment. They unanimously followed Queen-Empress's case (supra). In Para.33, it was observed, thus;
"In 1889, '14 Bom 260(B)' was decided. From that time, upwards of sixty years, to the present, thousands of Page 14 of 22 R/CR.A/242/1985 JUDGMENT cases arising under section 27 of the Act have been decided by the Courts of this country on the basis of the rule laid down in that case."
22. In leading book on Law of Evidence of Woodroffe & Ameer Ali (11th Edition), the learned Author quotes Y.H.Rao's book of Law on Admissions and Confessions'. The quote reads, thus;
"The proposition may be graphically represented with effect as in the triangle (∆). If the apex of the triangle (in the bracket) is supposed to represent the crime, and the two angles at the base the object discovered and the accused respectively, it may be laid down that so much of the information is admissible under Sec.27 as serves to connect the two angles at the base with each other, but not either of them with the apex. It is permissible in other words to connect the accused and the object with each other through the information but not either of them with the crime...."
23. Further, what is admissible is say of the accused about the place only i.e. Raipur Bhajiya House etc. and knowledge of the accused about the place is important and admissible. Thomas,J. In Jeet Sing's case - 1999 (4) SCC 370 (Para.27), held that this much scope of Section 27 is well settled. It was held, thus;
"It is now well settled that the discovery of fact referred to in Section 27 of Evidence Act is not the object recovered but the fact embraces the place from which Page 15 of 22 R/CR.A/242/1985 JUDGMENT the object is recovered and the knowledge of the accused as to it (Pulukuri Kottaya's case - 1947 PC 67). The said ratio has received unreserved approval of this Court in successive decisions - Jaffar Hussain Dastigar v.
State of Maharashtra - (1969) 2 SCC 871, K. Chinaswamy Reddy v. State of A.P. - AIR 1962 SC 1788, Evabhadrappa v. State of Karnataka - 1983 (2) SCC 330, Shamshul Kanwar v. Stae of U.P. - (1995) 4 SCC 430 and State of Rajasthan v. Bhupa Singh - (1997) 10 SCC 675."
24. Production of Rs.100/- currency note by Jayantilal of Raipur Bhajiya House hardly helps the prosecution to link up the accused with the said currency note. (See : Ram Kishan's case - AIR 1955 SC 104 - "...but that would not necessarily show his direct connection with the offence. It would merely be linked in the chain of offence which taken along with the other pieces of evidence might go to establish his connection with the crime..."(Para.24). It may also be noted that it is the say of the Jayantilal that generally, everyday 200 to 300 persons / customers visit their shop. Production of muddamal currency note (Article 50) by the shopkeeper after 3 days of the incident and production of muddamal (Article 49) by one Mohmed Yunus, who was said to be present at Sun Bakery after 1 and 1/2 months from the date of incident, are not at all possible to believe. It may also be noted that Article 49 is though currency note of two pieces - RBI found it be valid and payable (Exh.41). Similar or perhaps worse is the case of muddamal currency note (Article 51). Jamalbhai came to the police station and he had said to have produced muddamal currency note (Article 51). Police has recovered the said note by preparing the panchnama. Not only that the production of Page 16 of 22 R/CR.A/242/1985 JUDGMENT this currency note in this fashion does not even remotely link the accused with the crime, on the contrary by production of this note in this fashion, Jamalbhai may be suspected as an accused as the possession of forged or fake note itself is an offence.
25. As to the other irregularities and illegalities, crept in, in the present case, FIR is registered after preparing the panchnama (Exh.29). Though much depends on facts and circumstances of the case, generally speaking, registering such a complaint would hit by Section 162 of Cr.P.C. Such complaint would have no evidentiary value. Even otherwise, as referred above, story of the prosecution is not possible to believe. It is not possible to believe that complainant - a petty shopkeep or rather the person having larry, who is doing business of ready-made garments and other miscellaneous items, would have time, mood and inclination to closely check Rs.100/- note and to see that number on left side and right side tally or not. Assuming for the moment that complainant has undertook the impossible exercise of comparing the number on both the sides, then further say of the prosecution is complainant leaving aside his business, rushes to inform his partner at his partner's residence, who, in turn, said to have rushed to inform the police. That is not all. It is also the say of the prosecution that police instantly responded and prepared the panchnama and registered the case. This story as presented sounds improbable. Then, panchas of the panchnama (Exh.30) are one Chunilal and another Noormohmed. Exh.30 is a panchnama of personal search of A1 and A2. Police had said to have recovered towel purchased by the accused. Both the accused are lady members. Carrying Page 17 of 22 R/CR.A/242/1985 JUDGMENT out of personal search through male panchas is not only irregular but highly deplorable. Police ought to have taken assistance of lady panchas to carry out the search. Further, A3 is a mother of A1. The father of A1 had died earlier. Police had carried out the search at the residence of A3 at 12.30 night. Panchanama (Exh.44) says that search was carried out between 12.30 a.m. to 1.30 a.m. Panchas do not support the say of the I.O. Panchnas says that their signatures were obtained at police station. Admittedly, there were no male members in the family of A1 and A3. Carrying out search at midnight at the place which is inhabited by females only was uncalled for in the circumstances of the case. Further, still, the record shows that A1, A2 and A3 were arrested at 3.00 a.m. on 27.12.1983. There is no arrest panchnama on record. Carrying out the arrest of lady accused without aid of lady police official deserves to be condemned.
26. Reference needs to be made to one material aspect. The trial court has found panchnama to be reliable. It was held that evidence of police personnel, particularly of I.O., is preferable than the evidence of panchas. Holding so and referring Section 103 of Cr.P.C., it has accepted the say of the prosecution. Section 103 deals with search in presence of Magistrate. Reference and reliance on Section 103 of Cr.P.C. is apparently erroneous. Section 100 would be relevant. Section 100 deals with,'persons in-charge of closed place to allow search." The inbuilt safeguard provided in detailed provision of search of a closed place in 'S.100' may be taken note of :
(1) The search should be in presence of at least two or more Page 18 of 22 R/CR.A/242/1985 JUDGMENT independent witness;
(2) Said independent witness should be respectable person preferably of same locality;
(3) If such person from same locality is not available, then police may call such person from, 'any other locality';
(4) Emphasis is on carrying out the search in presence of independent and respectable person. If such persons are not available from same locality, then search should be carried out in presence of such person called from other locality;
(5) It is open to the police to issue order to any independent and respectable person to witness the search;
(6) Any such person to whom request is made by the police, if refuses to witness search, then such person may be hauled up and tried for offence under Section 187 of IPC. Of course, such person may refuse to attend the search on any reasonable cause;
(7) Such person, who witnesses search, need not require to attend the Court as a witness [Section 100(5)];
(8) In reality, what generally happens is that the panchas are invariably called as a witness in the Court and they turned hostile. What is intended by Legislature is to prepare panchnama in presence of, respectable and independent person of the locality so that its formal proof may not be required. In contrast, what happens is quite opposite. Corruption / ACB cases and in most of Page 19 of 22 R/CR.A/242/1985 JUDGMENT NDPS and like cases stand in good contrast - in respect of panchas - compare to other criminal cases;
(9) Search should be carried out in presence of occupant of such place or in presence of some person on his behalf;
(10) List of seizure should be prepared. Such list should be signed by the witnesses.
(11) Copy of seizure list should be given to the occupier of the place;
(12) In case of search of a place inhabited only by the woman is to be carried out or search of a woman is to be carried out, then in later case i.e. search of worman should be by the woman and in former case, presence of other woman is essential. [Section 100(2), Section 47(2) and Section 51(2)].
27. Panchnama said to have been carried out under Section 100 and other panchnamas are of unacceptable nature.
28. Before ending, reference may be made to Section 28. This case also raises question about scope and ambit of Section 28. One important facet surfaces for consideration in the facts of the present case. Section 28 defines 'counterfeit.' It reads, thus;
"28. "Counterfeit".-A person is said to 'counterfeit' who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised.
Explanation 1. xxx xxx xxx
Page 20 of 22
R/CR.A/242/1985 JUDGMENT
Explanation 2 - When a person causes one thing to resemble another thing and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the persons so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised."
28.1 In order to bring into operation Section 28, particularly explanation to Section 28, two conditions ought to be brought on record by the prosecution; (i) that it is the present accused who had intended to cause the deception and (ii) resemblance of forge with original is such that person might be deceived thereby. Apart from the fact that material on record in the present case in respect of these two aspects are of not acceptable nature to believe the case of prosecution, as to the second condition, it can be said that shifting of burden to prove innocence as contemplated in explanation to Section 28, may not come into play in the present case as it is not in dispute that all the currency notes found and seized in the present case are genuine and original notes - though in pieces. Requirement of burden to prove innocence introduced in Section 28 as a counter to the requirement of mens rea. In many cases, offence may be held to be not proved because of absence of mens rea, it can be said that requirement of burden to prove innocence may not come into ply in given case if essential facts to activate the said requirement is absent. This facet of the case of prosecution is doubtful on this ground. However, this facet of Section 28 was not debated at the time of hearing. Therefore, I desist from recording the finding on this.
Page 21 of 22R/CR.A/242/1985 JUDGMENT
29. The case of prosecution fails as evidence of complainant and PW-2 is not reliable and their evidence does not inspire any confidence. Evidence of recovery at the instance of accused is not admissible and such recovery is also vitiated. The case of prosecution has no merit or substance.
30. In the result, the appeal is allowed. The judgment and order, dated 13.3.1985, passed by the learned Additional Sessions Judge, Court No.12, Ahmedabad in Sessions Case No.78 of 1984 is hereby quashed and set aside qua appellant - Johrabibi d/o Nishal Sayed (A1) and she is acquitted of the offences for which she was convicted by the trial court. Bail bond shall stands discharged.
R & P as well as Muddamal be sent back to the trial court concerned. Muddamal be disposed of in accordance with law."
(R.D.KOTHARI, J.) vipul Page 22 of 22