Mojammel Haque @ Mussammil Haque @Babu vs State Of Kerala on 14 August, 2024

[Cites 36, Cited by 0]

Kerala High Court

Mojammel Haque @ Mussammil Haque @Babu vs State Of Kerala on 14 August, 2024

These appeals arise from S.C.No.3 of 2015 on the files of the Special Court for NIA Cases, Ernakulam. Among the appeals, Crl.A.No.292 of 2017 is preferred by the first accused in the case and Crl.A.No.332 of 2017 is preferred by accused 2 to 6 therein. The first accused stands convicted and sentenced for offences punishable under Sections 489B and 489C read with Section 34 of the Indian Penal Code (IPC) and accused 2 to 6 stand convicted and sentenced for the offence punishable under Section 489C read with Section 34 of IPC.

2. The accused hail from Malda District in West Bengal. The accusation against them as in the final report is that on 17.09.2012, at about 7 p.m., the first accused tendered Crl.Appeal Nos.292 & 332 of 2017 -: 6 :- 2024:KER:61991 a counterfeit Indian currency note of Rs.1000/- (the note) at a mobile shop for purchasing a recharge coupon and on examining the said note, the shop owner entertained a doubt as to the genuineness of the note and consequently, he detained the first accused and informed the matter to the police. Upon receiving information, a police party headed by the Sub Inspector of Police, Manjeri reached the shop, verified the note and having found that the note is not genuine, searched the body of the first accused and found four other identical notes in the pocket of his shirt. After seizing the notes tendered and possessed by the first accused, a case was registered against him by Manjeri Police. On interrogation after the arrest, the first accused disclosed to the Sub Inspector of Police that he has kept some more identical notes in the room where he was staying and when the Sub Inspector of Police took the first accused to his room as guided by him, he took out and handed over to the Sub Inspector of Police from a suitcase kept in the room, 45 other identical notes. When the police party went to the room of the first accused, accused 2 to 6 were present in the room. When the Sub Inspector of Police Crl.Appeal Nos.292 & 332 of 2017 -: 7 :- 2024:KER:61991 searched their body, it was found that they were also in possession of identical counterfeit currency notes. The offences alleged against the accused, in the circumstances, were the offences punishable under Sections 489B and 489C of IPC.

3. Although the case was one registered by the local police, its investigation was taken over by the CB-CID and later, having regard to the seriousness of the offences alleged against the accused, the National Investigation Agency (NIA) took over the investigation, completed the same and submitted the final report.

4. On the appearance of the accused, after completing the procedural requirements, the Special Court framed charges against them and read over and explained the same to them through a translator, to which they pleaded not guilty. Since the accused denied the charges, the prosecution examined 19 witnesses as PWs 1 to 19 and proved through them 31 documents as Exts. P1 to P31. MOs 1 to MO9 series are the material objects in the case. Thereupon, the accused were questioned under Section 313 of the Code of Criminal Crl.Appeal Nos.292 & 332 of 2017 -: 8 :- 2024:KER:61991 Procedure, 1973 (the Code) so as to enable them personally to explain the incriminating circumstances appearing against them in the evidence. They denied the evidence and maintained that they are innocent. As the case was not one fit for acquittal in terms of Section 232 of the Code, the accused were called upon thereafter to enter on their defence. The accused examined two witnesses as DW1 and DW2 and proved through DW2 a document as Ext.D1. Thereupon, on an elaborate consideration of the facts and circumstances of the case, the Special Court found the first accused guilty of the offences punishable under Sections 489B and 489C read with Section 34 of IPC and accused Nos.2 to 6 guilty of the offence punishable under Sections 489C read with Section 34 IPC. Accordingly, the accused were convicted, and the first accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.25000/- for the offence punishable under Section 489B IPC and rigorous imprisonment for three years for the offence punishable under Section 489C read with Section 34 IPC. Accused 2 to 6 were sentenced to undergo rigorous imprisonment for three years for the offence Crl.Appeal Nos.292 & 332 of 2017 -: 9 :- 2024:KER:61991 punishable under Section 489C read with Section 34 IPC. The accused are aggrieved by their conviction and sentence and hence these appeals.

5. Heard Sri.V. John Sebastian Ralph, the learned counsel for the first accused, Sri. P. Samsudin, the learned counsel for accused 2 to 6 and Sri. AR.L.Sundaresan, the learned Additional Solicitor General of India for the National Investigation Agency.

6. The following are the points that arise for consideration:

(i) whether the prosecution has proved beyond reasonable doubt that the first accused used as genuine, a counterfeit currency note, knowing or having reason to believe the same to be counterfeit; and

(ii) whether the prosecution has proved beyond reasonable doubt that accused 1 to 6 possessed counterfeit currency notes knowing or having reason to believe the same to be counterfeit and with the intention of using the same as genuine or that it may be used as genuine.

7. Points (i) and (ii). PW1 was the owner of the shop where the first accused allegedly tendered the note for Crl.Appeal Nos.292 & 332 of 2017 -: 10 :- 2024:KER:61991 purchase of a mobile recharge coupon. PW1 deposed the said fact in his evidence, after identifying the first accused. According to PW1, as he entertained a doubt as to the genuineness of the note tendered by the first accused, he showed the note to his friend, Firoz who was present in the shop and to a few others and since all of them entertained doubt as to the genuineness of the note, PW1 informed the matter to the police. It was deposed by PW1 that when he entertained a doubt as to the genuineness of the note, the first accused panicked and attempted to go away from the shop. It was also deposed by PW1 that the police party headed by the Sub Inspector of Police, Manjeri came to the shop after sometime and since the Sub Inspector of Police also entertained a doubt as to the genuineness of the note, he searched the body of the first accused and recovered from his pocket four more similar notes. It was deposed by PW1 that on being satisfied that the note tendered by the first accused as also the notes recovered from his pocket are counterfeit, the Sub Inspector of Police took the first accused into custody. PW1 identified MO1 as the note tendered by the first accused and Crl.Appeal Nos.292 & 332 of 2017 -: 11 :- 2024:KER:61991 MO2 series as the notes recovered by the Sub Inspector of Police from the pocket of the first accused. PW2 is Firoz referred to by PW1 in his evidence. PW2, after identifying the first accused, gave evidence consistent with the evidence tendered by PW1. PW2 also identified MO1 as the note tendered by the first accused and MO2 series as the notes recovered by the Sub Inspector of Police from the pocket of the first accused. PW2 is a witness to Ext.P1 mahazar in terms of which the Sub Inspector of Police seized the note tendered by the first accused as also the notes recovered from his pocket and PW2 affirmed the said fact also in his evidence. PW3 is another witness to Ext.P1 mahazar and he confirmed the said fact in his evidence.

8. PW14 was the Sub Inspector of Police, Manjeri during September, 2012. PW14 deposed that at about 7.15 p.m. on 17.09.2012, he received an information that a currency note of Rs.1000/- tendered by a person in a mobile shop at Manjeri appeared to be not genuine and that he is being withheld there, and when PW14 proceeded to that shop, PW1 handed over to him the said currency note as one Crl.Appeal Nos.292 & 332 of 2017 -: 12 :- 2024:KER:61991 tendered by the person who was sitting in a chair there at that time. It was deposed by PW14 that since the said note was found to be prima facie counterfeit, he conducted a search of the body of that person and recovered from his pocket four other similar notes as well. It was deposed by PW14 that among the notes recovered from his pocket, going by the numbers printed therein, two belong to 9BT series, one belongs to 6AV series and one belongs to 5BK series. It was deposed by PW14 that he seized the said notes and arrested the accused. It was also deposed by PW14 that on the way to the police station, he got down at the Manjeri Branch of the State Bank of India and ensured that the currency notes seized by him are counterfeit. PW14 also identified MO1 and MO2 series as the notes seized by him from the first accused. It was also deposed by PW14 that during the interrogation of the first accused with the help of PW7, the Home Guard at the police station who was proficient in Hindi, it was disclosed by the first accused that "1000 തന ന ടകൾ ഞ ൻ ത മസകന നക ഴപറമൽ ഉള മറയൽ ന ചടണ എനന നക ണ നപ യ ൽ പണ" ഇരകന സലവ", പണവ" എടത തര "" and pursuant to the said disclosure, the first accused was Crl.Appeal Nos.292 & 332 of 2017 -: 13 :- 2024:KER:61991 taken to that room and when he reached the building with the police party, he saw three persons running away from the building. It was also deposed by PW14 that when the first accused opened the door of the room, there were five persons therein and the first accused took out and handed over to PW14 two bundles of currency notes from a suitcase kept in the room, of which one bundle was of new notes similar to the notes seized from the first accused at the shop of PW1 and the other bundle was genuine Indian currency notes, and as it was found that the new notes handed over to PW14 by the first accused were prima facie counterfeit, PW14 seized the bundles as per Ext.P3 mahazar. PW14 identified MO3 series as the new notes seized from the suitcase kept in the room of the first accused. It was also deposed by PW14 that thereupon, he conducted search of the body of the persons who were found in the room and he found that they are also in possession of notes similar to the notes seized from the first accused and he seized the same also. PW14 deposed that he recovered three currency notes from the second accused which were identified by him as MO4 series, four currency notes from the third Crl.Appeal Nos.292 & 332 of 2017 -: 14 :- 2024:KER:61991 accused which were identified by him as MO5 series, four currency notes from the fourth accused which were identified by him as MO6 series, five currency notes from the fifth accused which were identified by him as MO7 series and one currency note from the sixth accused which was identified by him as MO8. PW14 identified the five persons found in the room of the first accused as accused 2 to 6. During cross- examination, PW14 admitted that the suitcase from which the first accused took out the bundles of notes was not locked nor concealed in the room.

9. PW5 was the Manager of the Manjeri Branch of State Bank of India at the relavant time. PW5 deposed that on 17.09.2012 at about 8.30 p.m., the Sub Inspector of Police, Manjeri came to the Branch for confirmation about the genuineness of 5 currency notes and PW5 confirmed that those are counterfeit. PW5 identified MO1 and MO2 series notes as the notes shown to him by the Sub Inspector of Police.

10. PW6 is a person who was running an eatery in one of the rooms in the ground floor of a two storied building owned by PW8 at the place called Kozhiparambu. PW6 Crl.Appeal Nos.292 & 332 of 2017 -: 15 :- 2024:KER:61991 identified the first accused as a person residing in the room above his shop in the first floor of the building. PW6 deposed that on 17.09.2012 at about 9.25 p.m., when the police party came to the building with the first accused, three of the roommates of the first accused ran away from the building. It was also deposed by PW6 that he accompanied the police party to the room in the first floor of the building and when they entered the room, accused 2 to 6 were there and they attempted to run away and the police party prevented them from doing so. PW6 also deposed that he witnessed the seizure of the notes by PW14 from the suitcase as also from the body of accused 2 to 6.

11. PW7 is an ex-service man. PW7 was working as Home Guard in Manjeri Police Station during 2011. PW7 deposed that he is proficient in Hindi, and on the request of PW14, he translated the statements given by the first accused during his interrogation and PW14 recorded the same. It was also deposed by PW7 that thereupon PW14 took the first accused to Kozhiparambu, as guided by him and PW7 accompanied them. PW7 also deposed that when the police Crl.Appeal Nos.292 & 332 of 2017 -: 16 :- 2024:KER:61991 jeep stopped in front of a double storied building, three persons who were sitting then on the staircase of the building ran away towards the back of the building. PW7 also deposed that he accompanied PW14 to a room on the first floor of the building as guided by the first accused and witnessed the seizure of the bundles of notes from the suitcase kept therein as also from the body of accused 2 to 6. In cross-examination, PW7 clarified that the first accused was conversing with him in Hindi and that PW7 is not proficient in Bengali.

12. PW8 is the owner of the two storied building referred to by PW6. PW8 deposed that she rented out the room from where currency notes were seized by PW14 to accused 1 and 2 during 2012 and during the relevant period, accused 3 to 6 were also residing with the said accused. PW15 was the Joint Director of the Regional Forensic Science Laboratory, Thrissur as on 29.07.2013. PW15 deposed that on the said day, she examined 67 1000-rupee currency notes as produced in the subject case and the same were found to be counterfeit. PW19 was the officer attached to NIA, Kochi who conducted the investigation in the case and it was PW19 who took steps to Crl.Appeal Nos.292 & 332 of 2017 -: 17 :- 2024:KER:61991 forward the currency notes seized from the accused for examination to the Security Printing and Minting Corporation of India Limited, Nasik. Ext.P30 is the forwarding note submitted by PW19 in this regard and Ext.P31 is the report on Ext.P30, which was admitted in evidence in the light of the provision contained in Section 293 of the Code. Ext.P31 report also affirms the fact that the currency notes referred to above are counterfeit. In addition, it is stated in the said report that they are high-quality counterfeit notes. It is on the strength of the evidence discussed above that the Special Court came to the conclusion that the accused are guilty of the charges levelled against them.

13. Before considering the question whether the evidence let in by the prosecution would establish the guilt of the accused beyond reasonable doubt, it is necessary to deal with the contentions advanced by the learned counsel for the accused. One of the contentions seriously pressed into service by the learned counsel for the first accused pertains to the admissibility of the evidence tendered by PW14 as regards the disclosure stated to have been made to him by the first Crl.Appeal Nos.292 & 332 of 2017 -: 18 :- 2024:KER:61991 accused and the consequent recovery of MO3 series notes. In terms of Section 27 of the Indian Evidence Act, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, then so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. As noticed, the evidence tendered by PW14 in this regard is that it was disclosed to him by the first accused during interrogation that "1000 തന ന ടകൾ ഞ ൻ ത മസകന നക ഴപറമൽ ഉള മറയൽ ന ചടണ എനന നക ണ നപ യ ൽ പണ" ഇരകന സലവ", പണവ" എടത തര "". Admittedly, the first accused is not proficient in Malayalam as he hails from West Bengal and is only proficient in Bengali. PW14 does not claim that he is proficient in Bengali. The explanation offered by PW14 to justify his evidence that the first accused made such a disclosure is that PW7 who is proficient in Hindi translated the disclosure and it is the translated version of the disclosure that was recorded by him. PW7 who hails from Manjeri deposed in his chief-examination itself that he was informed by PW14 that the latter was unable to follow the language spoken to by the Crl.Appeal Nos.292 & 332 of 2017 -: 19 :- 2024:KER:61991 first accused. As noted, the stand taken by PW7 in his evidence is that the first accused made the disclosure as deposed by PW14 in Hindi and the same was recorded by PW14. The statement made by the first accused in Hindi which is stated to have been recorded by PW14, is not proved in the case. It is to be noted that the disclosure which is proved in the case is only a disclosure stated to have been made by the first accused in Hindi and translated into Malayalam by PW7. In other words, there is no evidence as to what statement was made by the first accused. During cross-examination, even though PW7 admitted in response to a question put to him by the counsel for the first accused that the first accused spoke to him in a language which is a mixture of Bengali and Hindi, PW7 later clarified that the first accused spoke to him only in Hindi and that he does not know Bengali. A reading of the evidence tendered by PW7 would indicate that the first accused was speaking only in a language which is a mixture of Hindi and Bengali as was initially stated by him and it was on a realisation that he is not expected to take such a stand that he corrected himself and deposed that the first accused gave Crl.Appeal Nos.292 & 332 of 2017 -: 20 :- 2024:KER:61991 statement in Hindi. It is relevant in this connection to note that PW14 is a person who interrogated the first accused at the shop of PW1 in Hindi and if PW14 is a person proficient in Hindi, inasmuch as PW7 deposed in his evidence that PW14 could not understand the language spoken by the first accused, it can be inferred that the first accused was not speaking in Hindi and as spoken to by PW7 initially, the first accused might have spoken in a language which is a mixture of Hindi and Bengali and this might have been the reason as to why PW14 availed the services of PW7 for translating the statements of the first accused. If that be so, the disclosure stated to have been made by the first accused as deposed by PW14 is only an inference PW7 made from the conversation he had with the first accused. In a case of this nature, inasmuch as the translator himself was not proficient in the language spoken to by the accused, it is obligatory on the part of the investigating officer to record the actual statements made by the accused. A similar situation was dealt with by a Division Bench of this Court in Sanjay Oraon v. State of Kerala, 2021 SCC OnLine Ker 2514. The relevant passages of the Crl.Appeal Nos.292 & 332 of 2017 -: 21 :- 2024:KER:61991 concurring opinion of Justice K.Vinod Chandran on the point in the said case read thus:

"............ However, I wish to add one aspect regarding the recovery effected as per the statement of the accused which would again inure to the accused. The confession so far as it is permissible under S.27 is marked as Ext.P6(a) which is in Malayalam. The accused was a native of West Bengal and not proficient in Malayalam. So much is evident from the S.313 questioning. S.313 questions though recorded in Malayalam the Trial Judge has specifically noticed that they were translated in Hindi by an Advocate to enable the accused to understand the same. The answers were recorded in Hindi itself and so was the further statement made by the accused. Ext.P6(a) however is in chaste Malayalam, obviously the words of the translator and and not of the accused. The statement from Ext.P6(a) indicates that it was recorded on questioning the accused after the arrest in the presence of a Home Guard who is conversant with Hindi. In that circumstance the exact words of the accused ought to have been recorded and the translation appended. Here, in passing it is to be mentioned that the translator was also not examined, which even if done, in the present case, we are afraid would not cure the defect. On this aspect we refer to 1942 AIR (Cal) 593 Naresh Chandra Das v. Emperor. Athappa Goundan v. Emperor MANU/TN/0455/1937 was quoted where it was observed that "statements made by an accused person which are or may be provable under Section 27, Evidence Act, should be clearly and carefully recorded by the police officer concerned. They should be recorded in the first person, that is to say, as far as possible in the actual words of the accused. They should not be paraphrased. Obviously, if what a man says is to be used in evidence his own words should be used and not a rendering into third person of the purport of the statement. With such a record of the statement before him it will then be for the trial Judge to decide how much of it is admissible under the section." (sic) It was then held so :

44. The observations are indeed of much weight. Apart from any other consideration there is always the weakness of testimony to oral utterances. One's assertion of what another said is subject to a special weakness, viz., the risk of defective perception of words uttered orally. The specific features of weakness in such a case are : (1) the perception of the words may be imperfect, either by perceiving words differently from the reality, or by perceiving a part of them only; (2) the memory of them may be imperfect; (3) the narration of them may be different; (4) no data are Crl.Appeal Nos.292 & 332 of 2017 -: 22 :- 2024:KER:61991 available for determining which of these is the source of error and for checking possible error. Then there is the illusion of recollection which may confuse facts with conjecture. When a man's fate is made to depend upon a statement on the ground that it is his own statement, such a statement should be provable after excluding as much as practicable all such possible sources of error.

[Emphasis supplied by underlining] If perception, memory and narration could fail in the case of a statement recorded in a language in which both the person uttering the same and recording it are conversant with; then the pitfalls in translation cannot be overemphasized. We are quite aware that Athappa Goundan to the extent it held that any information under Section 27 which served to connect the object discovered with the crime/offence charged was admissible, has been overruled in Pulukuri Kottayya v. Emperor (AIR 1947 PC 67). So much of the statement which evinces some or any connection with the crime has been held to be not admissible by the Privy Council; which now remains the established position. In fact in Naresh Chandra Das the said finding in Athappa Goundan was not approved and a different view was taken (Paragraph 52); as was subsequently declared by the Privy Council. However the proposition that the exact words of the accused should be recorded survives.

In the instant case what has been recorded is what has been stated by the translator and obviously even the Police Officer who recorded it does not know whether the words are an exact translation. We garner further support from (1999 (3) KLT OnLine 1136 (SC) = AIR 2000 SC 591) Mujeeb & Ors. v. State of Kerala: "Though according to Investigating Officer the recovery was made on the basis of statement of the accused but we find from the evidence that actual words in verbatim leading to recovery were not recorded by the Investigating Officer" (sic). Therein the recorded statement was in the third person. But the principle applies squarely even when the accused speaks in a language not familiar to the person recording it, when a translation is warranted, where a third person comes in between the accused and the Investigating Officer. The person recording the statement obviously is not aware of what the accused says and it is the translator's words that are recorded. When it comes to Court the satisfaction of the Court also stands substituted by the satisfaction of the translator. The accused is left in the dark as to how his words are reflected in the statement and in the translated form he has no chance of challenging it. We have a prevalence of such situations in India, a multi-lingual nation and this State, being a favoured destination of migrant Crl.Appeal Nos.292 & 332 of 2017 -: 23 :- 2024:KER:61991 labourers. I would also respectfully refer to the concluding portion of my learned Sister's Judgment which eloquently speaks of the sad plight of the migrant labourers who are left to the vagaries of official apathy and native scorn. These migrant labourers from marginalised sections of society are mostly illiterate and are often familiar only with their native language and dialect; pithily said, for the uninitiated, a 'peculiar tongue'. Proof of such a statement after excluding all possible sources of error can be achieved only if the statement, as their Lordships in the fore cited decisions held; is recorded verbatim in the language spoken and a translation appended. In that event even the translator need not be examined and the Prosecution or the Court can get the services of a responsible person, like a language teacher, to opine on the exact words spoken to verify the genuineness of the recorded translation. We also extract the further declaration of Naresh Chandra Das in Para 49:

.........In order thus to be admissible against the accused under Section 27; (1) the information must be the one given by the accused the statement conveying the information must be his own statement in his own language and then (2) only so much of the information as is necessary and sufficient to cause the discovery will be admissible.' (sic)"

[underlining by me] It is seen that later in Siju Kurian v. State of Karnataka, 2023 SCC OnLine SC 429, the Apex Court clarified that merely because the disclosure made by the accused is translated from one language to another language and recorded in a third language, it cannot be contended that what has been recorded is not admissible in evidence, if the translator comes forward and gives evidence in the case. Paragraph 32 of the judgment of the Apex Court in Siju Kurian reads thus:

"32. It is a trite law that in pursuance to a voluntary Crl.Appeal Nos.292 & 332 of 2017 -: 24 :- 2024:KER:61991 statement made by the accused, a fact must be discovered which was in the exclusive knowledge of the accused alone. In such circumstances, that part of the voluntary statement which leads to the discovery of a new fact which was only in the knowledge of the accused would become admissible under S.27. Such statement should have been voluntarily made and the facts stated therein should not have been in the knowhow of others. In this background when the deposition of PW - 10 is perused it would leave no manner of doubt in our mind that statement of the accused (Ex.P - 2) having been recorded being voluntary and when the statement is being recorded in the language not known to the accused, the assistance of interpreter if taken by the police cannot be found fault with. The ultimate test of the said statement made by the accused having been noted down as told by the accused or not would be of paramount consideration. If the answer is in the affirmative then necessarily said statement will have to be held as passing the test of law as otherwise not. Merely because the translation was made from Malayalam to Tamil and written down in Kannada would not suggest that such statement be held to be either not being voluntary or the said statement having been recorded improperly. The interpreter having entered the witness box and tendered himself for cross-examination which resulted in nothing worthwhile having been elicited for discarding his evidence, it cannot be gainsaid by the accused that said statement at Ex.P - 2 is to be ignored or rejected or discarded. Merely because PW - 10 did not know how to read and write Malayalam does not ipso facto make the contents of Ex.P - 2 to be disbelieved. On the other hand, he states that he is from Kerala and he knows how to speak Malayalam. What was required to be performed by him was to pose the question as stated by the witness to the accused and the answers given to such questions are to be stated to the police for being recorded as stated by the accused. In fact, there is not even a suggestion made to PW - 10 about the contents of Ex.P - 2 being incorrect."

It is explicit from the judgment referred to above that the ratio therein is that if the interpreter is examined and if the evidence tendered by him as regards the translation made by him, is acceptable, the evidence as to the disclosure is not Crl.Appeal Nos.292 & 332 of 2017 -: 25 :- 2024:KER:61991 liable to be rejected merely for the reason that it was translated by an interpreter and what was recorded is the translated version. Reverting to the facts of this case, the evidence tendered by the translator, namely PW7 is not fully reliable, for there is no satisfactory evidence as to the language in which the first accused made the disclosure and that PW7 was proficient in that language. In other words, there is no satisfactory evidence in this case as to the language in which the disclosure was made by the first accused to PW14. Had the disclosure made by the first accused been recorded in the language in which he spoke, there would not have been any difficulty in accepting the evidence tendered by PW14. Inasmuch as the said course has not been followed, according to us, it is not safe to place reliance on the evidence tendered by PW14 as regards the disclosure made by the first accused.

14. One of the contentions advanced by the learned counsel for accused 2 to 6 is that the recovery of MO4 to MO7 series and MO8 note is highly artificial and from the attendant circumstances, it is evident that they were planted in their body either from the counterfeit currency notes Crl.Appeal Nos.292 & 332 of 2017 -: 26 :- 2024:KER:61991 possessed by the first accused or from the bundle kept in the suitcase in the room. It was argued by the learned counsel that accused 2 to 6 were about to sleep at the time when the police party came to the room and no one would keep currency in their pocket when they go to sleep. It was argued by the learned counsel that the fact that nothing else has been recovered from them in the search would also show that the recovered notes were planted in their body. We do not find any merit in this argument, at all. First of all, there is no reason for PW14 to falsely implicate accused 2 to 6 in the crime, if they were not found to be in possession of counterfeit currency notes by planting the same in their body, secured from other sources. As deposed by PW1, the counterfeit notes possessed by the first accused were seized by PW14 himself from the shop of PW1. Later, when PW14 came to the room of the accused, he was accompanied by PW6 and PW7. Both PW6 and PW7 confirmed in their evidence that MO4 to MO7 series and MO8 note were seized by PW14 from accused 2 to 6. There is no reason to disbelieve the evidence tendered by these two witnesses in this regard. We take this view also for the reason Crl.Appeal Nos.292 & 332 of 2017 -: 27 :- 2024:KER:61991 that MO3 series notes seized from the suitcase kept in the room are counterfeit currency notes printed in 6AV series, whereas the notes seized from accused 2 to 6 are not exclusively notes printed in 6AV series. In other words, the source of the notes seized from accused 2 to 6 is different. The contention advanced by the learned counsel for accused 2 to 6 in this regard, in the circumstances, is only to be rejected.

15. Another argument seriously pressed into service by the learned counsel for the accused in unison relates to the non-compliance of the provisions of the Code by PW14, as regards the searches and seizures conducted by him. It was argued by the learned counsel that search memos were not prepared before conducting the search in the room of the accused and that the search memo stated to have been prepared for conducting search in the room adjacent to the said room has not been produced. It was also argued that provisions contained in Sections 100 and 165 of the Code are statutory protections guaranteed to the individual and in the guise of a discovery under Section 27 of the Indian Evidence Act, these procedures cannot be violated. It was also argued by Crl.Appeal Nos.292 & 332 of 2017 -: 28 :- 2024:KER:61991 the learned counsel that the search list as mandated by the statute is only a contemporaneous document that can vouch the fact that the articles seized were articles seized in the presence of the accused. According to the learned counsel, inasmuch as the report of the expert are admitted in evidence without examination of the witnesses concerned in terms of Section 293 of the Code, the procedural safe guards are to be scrupulously followed. We do not find any merit in this argument also. Even though a search has been conducted by PW14 in the room adjacent to the room in which accused were residing, the search was not fruitful. As such, according to us, non-production of the search memo prepared for the same is not of any relevance. As far as the search conducted by PW14 in the room in which accused were residing, the specific case of the prosecution is that MO3 series counterfeit currency notes were recovered from the room based on the information furnished by the first accused. According to us, in a situation of this nature where the police party proceeds to a place based on the information furnished by the accused, it is not obligatory to comply with the statutory provision concerning Crl.Appeal Nos.292 & 332 of 2017 -: 29 :- 2024:KER:61991 searches and seizures. Regarding the remaining recoveries, the materials indicate that they are only chance recoveries and a police officer is not expected to comply with the statutory provision regarding searches and seizures in respect of the same. Even assuming that there is any statutory violation, according to us, the same will not in anyway vitiate the trial. It is worth referring in this regard to the judgment of the Apex Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299. Paragraphs 6 and 7 of the said judgment read thus:

"6. At this juncture we may also dispose of one of the contentions that failure to comply with the provisions of CrPC in respect of search and seizure even up to that stage would also vitiate the trial. This aspect has been considered in a number of cases and it has been held that the violation of the provisions particularly that of Sections 100, 102, 103 or 165 CrPC strictly per se does not vitiate the prosecution case. If there is such violation, what the courts have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record. Under Section 100 CrPC the officer conducting search under a warrant should call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search. Section 165 CrPC lays down that whenever an officer-in-charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in-charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer after recording in writing the grounds of his belief and specifying in Crl.Appeal Nos.292 & 332 of 2017 -: 30 :- 2024:KER:61991 such writing, may proceed to search or to cause search to be made. Section 165(4) lays down that the provisions of this Code as to search warrants and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under Section 165 also. The scope of these two sections have been examined in a number of cases. In State of Punjab v. Wassan Singh [(1981) 2 SCC 1 :

1981 SCC (Cri) 292] this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In Sunder Singh v. State of U.P. [AIR 1956 SC 411 : 1956 Cri LJ 801] it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v. P.K. Pathak [(1980) 2 SCC 259 : 1980 SCC (Cri) 428 : AIR 1980 SC 1224] it is held that absence of any independent witness from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act. In Radha Kishan v. State of U.P. [AIR 1963 SC 822 : 1963 Supp (1) SCR 408 : (1963) 2 LLJ 667] it is held that irregularity in a search would, however, cast a duty upon the court to scrutinise the evidence regarding the search very carefully. In Matajog Dobey v. H.C. Bhari [AIR 1956 SC 44 : (1955) 2 SCR 925 : 1956 Cri LJ 140] it is held that when the salutory provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with these provisions. In State of Maharashtra v. Natwarlal Damodardas Soni [(1980) 4 SCC 669 : 1981 SCC (Cri) 98 : AIR 1980 SC 593] after referring to the above-mentioned decisions, this Court observed as under :

(SCC p. 673, para 9) "Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs."

7. It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the effect of the same on the main case Crl.Appeal Nos.292 & 332 of 2017 -: 31 :- 2024:KER:61991 depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. In Deepak Ghanshyam Naik v. State of Maharashtra [1989 Cri LJ 1181 : 1989 Mah LJ 276 (Bom)] a case arising under the NDPS Act, a Division Bench of the Bombay High Court considered the effect of non-

compliance of Section 100(4) namely that two or more independent respectable inhabitants of the locality were not called to be present during the search and that on the other hand two Panchas of different locality were called to be present. The Division Bench considered the explanation that Parnaka was at a distance of half a kilometre from the place of occurrence and they called the Panch witnesses from that place and that they could not call somebody present on the road where the incident took place and held that there was no material to hold that Panch witnesses from Parnaka were in any way motivated to falsely implicate the accused. In Sunil Kumar v. State [1990 Cri LJ 414 (Del)] again a case arising under the NDPS Act, the Delhi High Court while considering the scope of Section 42 of the NDPS Act and Section 100(4) of CrPC observed that failure to associate independent persons in the search in a given situation would not affect the prosecution case in toto and the same cannot be thrown out or doubted on that ground alone. In this case it has also been observed that provisions of Sections 41 or 42 would not be attracted at this stage when the police had secret information that some persons would be reaching in a public place while in transit and the information was not about the specific presence of a contraband but was only about the likelihood of such articles being brought. It thus emerges that when the police, while acting under the provisions of CrPC as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of CrPC. At this stage if there is any non-compliance of the provisions of Section 100 or Section 165 CrPC that by itself Crl.Appeal Nos.292 & 332 of 2017 -: 32 :- 2024:KER:61991 cannot be a ground to reject the prosecution case outright. The effect of such non-compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the NDPS Act the question of complying with the provisions of the said Act including Section 50 at that stage would not arise. When the contraband seized during such arrests or searches attracts the provisions of NDPS Act then from that stage the remaining relevant provisions of NDPS Act would be attracted and the further steps have to be taken in accordance with the provisions of the said Act." No doubt, when statutory provisions have not been complied with, it may affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution, but the effect of non-compliance depends on the facts and circumstances of the case, and as evident from the paragraphs of the judgement extracted above, what ought to be done in such cases by the Court is to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of the search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected, owing to non-compliance. Reverting to the facts, there is no case for the accused that any prejudice has been caused to them on account of non- Crl.Appeal Nos.292 & 332 of 2017 -: 33 :- 2024:KER:61991 compliance of the statutory provisions concerning search and seizure, if at all the same were required. In the circumstances, according to us, the argument advanced by the learned counsel in this regard is also liable to be rejected.

16. Another argument raised by the learned counsel for the first accused is that there is no evidence in this case as to when the seized counterfeit currency notes were produced before the court. It was pointed out by the learned counsel that Ext.P29 forwarding note shows that the counterfeit currency notes were produced only after five days of the seizures, namely on 22.09.2012. According to the learned counsel, the said delay is fatal to the prosecution. It was also argued by the learned counsel that there is nothing on record to show that the seized counterfeit currency notes were sealed at the time of seizure or that the same were produced before the court in a sealed cover. According to the learned counsel, the conduct of PW14 in not keeping the seized counterfeit currency notes in a sealed cover immediately after the seizure and also the conduct of PW14 in producing the counterfeit notes before the court in an unsealed cover, are Crl.Appeal Nos.292 & 332 of 2017 -: 34 :- 2024:KER:61991 fatal to the prosecution. True, unexplained delay in producing seized articles before the court along with the circumstances that the articles were not packed and sealed at the time of seizure, may create a doubt as to whether the seizure was effected in the manner alleged by the prosecution. But, in a case of the present nature, merely for the reason that the seized counterfeit currency notes were not packed and sealed at the time of seizure and merely for the reason that there is a delay of five days in producing the seized articles before court, it cannot be said that the trial of the case was vitiated for, the particulars of the series in which the counterfeit notes are printed as recorded in the mahazars prepared at the time of seizure tally with the reports of the experts who have certified that they are counterfeit. We take this view also for the reason that the accused have not raised any contention that any prejudice has been caused to them on account of the delay and on account of the fact that the seized articles were not packed at the time of seizure or produced before the Court in a sealed cover. The contention aforesaid also, in the circumstances, is liable to be rejected.

Crl.Appeal Nos.292 & 332 of 2017 -: 35 :- 2024:KER:61991

17. Another contention raised by the learned counsel for the accused is that no questions were asked during the questioning of the accused under Section 313 of the Code regarding their knowledge or reason to believe that the currency notes possessed by them, are counterfeit. We do not find any merit in this argument also for, what is required to be brought to the notice of the accused during their questioning under Section 313 of the Code is circumstances appearing in the evidence against them. The knowledge or reasons for the accused to believe that the notes possessed by them are counterfeit, are inferences to be made by the court from the evidence let in by the prosecution, after taking into consideration, the explanation offered by the accused while being questioned under Section 313 of the Code.

18. Now we shall come to the main contention raised by the learned counsel for the accused. The contention is that unlike other felonies like murder, dacoity etc., this is a case in which actus reus namely, possession of counterfeit currency is a permitted conduct and is not an offence unless accompanied by mens rea namely, the knowledge or reason to Crl.Appeal Nos.292 & 332 of 2017 -: 36 :- 2024:KER:61991 believe that such currency is counterfeit. As such, according to the learned counsel, it is obligatory for the prosecution to prove in every case that the possession of counterfeit currency notes by the accused, is with the knowledge or reason to believe that the same is counterfeit. The submission made by the learned counsel in unison in this regard is that there is absolutely no evidence in this case to show that the accused either knew or had any reason to believe that the currency notes possessed by them were counterfeit. It was argued vehemently by the learned counsel that the only evidence relied on by the prosecution to show that the accused knew that the currency notes possessed by them were counterfeit, is the alleged conduct of the first accused in becoming panic- stricken when PW1 doubted the genuineness of the currency note tendered by the first accused and his alleged conduct in attempting to leave the shop of PW1 at that time. The alleged conduct of accused 2 to 6 in attempting to leave the room where they were staying when the police party entered the room, is also highlighted by the prosecution as a circumstance, sufficient, for the court to infer that the accused knew that the Crl.Appeal Nos.292 & 332 of 2017 -: 37 :- 2024:KER:61991 currency notes possessed by them were counterfeit. According to the learned counsel, the said conduct of the accused is not sufficient for the court to infer that the accused knew that the currency notes possessed by them are counterfeit. It was argued by the learned counsel that the accused being persons belonging to a lower strata of the society, merely for the reason that the first accused became panic-stricken when PW1 doubted the genuineness of the currency note tendered by him, is not a circumstance to infer that he knew that the tendered currency note is counterfeit, for anybody placed in his position under such circumstances, would get perplexed and panic-stricken. Similarly, it was argued that the conduct of the first accused in attempting to leave the shop of PW1 and the conduct of accused 2 to 6 in attempting to leave the room cannot also be taken as circumstances to infer that the accused had knowledge that the currency notes possessed by them were counterfeit, for the same is also conduct expected of from persons coming from the background of the accused, as they cannot be blamed for being afraid of the police. It was also argued by the learned counsel that inasmuch as it has Crl.Appeal Nos.292 & 332 of 2017 -: 38 :- 2024:KER:61991 come out in evidence that the counterfeit currency notes possessed by the accused were high-quality counterfeit currency notes, that too, printed in paper having the same thickness as that of genuine currency notes, as disclosed in the reports of the experts, it is all the more good reason for the court to believe that the possession, if any, of such notes by the accused is without the knowledge that the said notes were counterfeit.

19. In reply to the arguments advanced by the learned counsel for the accused that the evidence tendered by the prosecution is not sufficient for the court to infer that the accused had the requisite knowledge, the learned Additional Solicitor General pointed out that even though it is certified by the experts that the counterfeit currency notes possessed by the accused were high-quality currency notes, the fact that PW1 and his friend Firoz could identify the currency note tendered by the first accused as a counterfeit currency note, is sufficient for the court to infer that the accused possessed the same with the requisite knowledge. The learned Additional Solicitor General relied on a few judgments in support of his Crl.Appeal Nos.292 & 332 of 2017 -: 39 :- 2024:KER:61991 argument. That apart, it was also argued by the learned Additional Solicitor General in reply to the contention aforesaid that inasmuch as it is established in the case that the currency notes recovered from the accused were counterfeit, it was obligatory for the accused to explain the source from which they obtained the same when they were questioned under Section 313 of the Code, and in the absence of any explanation from them as to the source from which they obtained the same, it has to be presumed that they knew that the currency notes possessed by them were counterfeit. Alternatively, it was also argued by the learned Additional Solicitor General that the knowledge or reason to believe that the currency notes possessed by the accused were counterfeit, is a fact known only to them and inasmuch as the accused have not offered any explanation as to the source of the counterfeit currency notes, it can certainly be presumed that they had the requisite knowledge or reason to believe that the same were counterfeit.

20. In reply to the arguments advanced by the learned Additional Solicitor General of India, the learned Crl.Appeal Nos.292 & 332 of 2017 -: 40 :- 2024:KER:61991 counsel for the first accused submitted that the accused have no obligation to give any reply to the questions put to them. Placing reliance on Sub-section (3) of Section 313 of the Code which provides that the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to him, it was argued by the learned counsel for the first accused that adverse inference cannot be drawn against the accused merely for the reason that they have not replied to the questions put to them in their examination under Section 313 of the Code as regards the evidence that they were found in possession of currency notes which were counterfeit.

21. We have examined the rival arguments advanced by the learned counsel for the parties on this point. It is trite that answers under Section 313 of the Code is recorded to meet the requirement of the principles of natural justice as it mandates that an accused may be given an opportunity to furnish explanation of the incriminating circumstances which came against him in the trial. However, his statement cannot be made a basis for his conviction. His Crl.Appeal Nos.292 & 332 of 2017 -: 41 :- 2024:KER:61991 answers to the questions put to him under Section 313 of the Code cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Inasmuch as the statements of the accused does not form the substantive part of evidence, it can be used only for appreciating the evidence led by the prosecution. In case the prosecution evidence is not found sufficient to sustain the conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. At the same time, according to us, there is no impediment in law in drawing an adverse inference against the accused if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. Such an inference would not, in any manner, affect the right to silence available to the accused, for the option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of the crime. In Phula Singh v. State of H.P., (2014) 4 SCC 9, the said position has been reiterated. Paragraph 11 of the judgment in the said case reads thus:

Crl.Appeal Nos.292 & 332 of 2017 -: 42 :- 2024:KER:61991 "11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law."

22. As noted, the pointed question in this case is whether the evidence let in by the prosecution would show that the possession of the counterfeit currency notes by the accused was with the knowledge that the same were counterfeit or whether they had any reason to believe that the same are counterfeit. Having regard to the totality of the facts and circumstances of the case, we are of the view that the possession of the counterfeit notes by the accused was with the knowledge that they were counterfeit. We hold so, for more than one reason. No doubt, merely for the reason that a person was perplexed or panic-stricken when a currency note tendered by him was found to be counterfeit, it cannot be concluded that he knew that the currency note is a counterfeit one. But, his conduct in attempting to leave the place forthwith is an indication that he knew that the currency note is a counterfeit one, although it cannot be said solely based on the Crl.Appeal Nos.292 & 332 of 2017 -: 43 :- 2024:KER:61991 same that he knew that the currency note is a counterfeit one. However, it is to be noted that the first accused attempted to leave the shop even before PW1 came to the conclusion that the currency note tendered by the first accused was a counterfeit note. Be that as it may, when PW14 questioned the first accused at the shop of PW1 on a suspicion about the genuineness of the currency note tendered by him, regard being had to the common course of natural events, human conduct and public as also private business, in their relation to the facts of this case, the first accused ought to have disclosed to PW14 then and there, the source from which he obtained MO1 currency note. The first accused has no case that he has disclosed the source of counterfeit currency notes to PW14. Be that as it may, PW14 recovered on the same day itself, 45 similar counterfeit currency notes from the suitcase kept in the room in which he was staying at the relevant time. It has come out that the said 45 currency notes were printed in a series namely "6AV" and one of the counterfeit currency note recovered from the first accused at the shop of PW1 also belonged to the same series. Apart from the counterfeit Crl.Appeal Nos.292 & 332 of 2017 -: 44 :- 2024:KER:61991 currency notes, it has come out in evidence that there was another bundle of genuine currency notes also, separately tied and kept in the same suitcase. The identity of the series number in the counterfeit currency notes recovered from the first accused and from the suitcase would show that the counterfeit currency notes recovered from the suitcase, were also kept by the first accused. As noticed, even though the first accused was not obliged to give an answer when he was questioned under 313 of the Code about the possession of the counterfeit currency note tendered by him, the court can certainly make an inference, if there is no plausible explanation from the accused to the pertinent circumstances proved in the case namely, that a large quantity of the counterfeit currency notes, not expected to be possessed under normal circumstances by a migrant labourer, were recovered from his possession. The above circumstances, coupled with the fact that three of his room mates who were sitting on the staircase of the building in which the accused were staying ran away from that place when the police party reached the building and the remaining persons in the room attempted to leave the Crl.Appeal Nos.292 & 332 of 2017 -: 45 :- 2024:KER:61991 room when the police party entered the room, would establish beyond reasonable doubt that the first accused possessed the counterfeit currency notes recovered from him with the knowledge that they are counterfeit. As far as accused 2 to 6 are concerned, as already noticed, inasmuch as they were residing along with the first accused, and inasmuch as they attempted to leave the room in which a large quantity of counterfeit currency notes were stored separately from genuine currency notes, we have no doubt in our mind that they also possessed counterfeit currency notes, with the knowledge that they were counterfeit.

23. As already noticed, there is no dispute in this case to the fact that the note tendered by the first accused to PW1 namely MO1, the notes recovered by PW14 from the first accused namely, MO2 series, the notes recovered by PW14 from the suitcase kept in the room of the first accused namely, MO3 series and the notes recovered by PW14 from accused 2 to 6 namely, MO4 to MO7 series as also MO8 note were counterfeit notes. The evidence tendered by PW1 would establish beyond reasonable doubt that the case set out by Crl.Appeal Nos.292 & 332 of 2017 -: 46 :- 2024:KER:61991 PW1 was that the first accused tendered MO1 counterfeit currency note for purchase of a mobile recharge coupon. We have found from the materials on record that the possession of the counterfeit notes by the accused was with the knowledge that the same is counterfeit. The possession of counterfeit currency notes by persons in the background of the accused in large quantities can only be with the intention of using the same as genuine, when they are unable to disclose the source from where they obtained the same. In the circumstances, the finding rendered by the Special Court that the accused are guilty of the offences alleged against them, is in order.

The appeals, in the circumstances, are devoid of merits and are, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.PRATHEEP KUMAR, JUDGE.

ds 30.07.2024

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