Madras High Court
S.Ramaswamy vs State Rep. By on 5 November, 2001
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 5-11-2001
Coram:
The Honourable Mr. Justice M. KARPAGAVINAYAGAM
CRIMINAL APPEAL No.3 of 1991
and CRIMINAL APPEAL NO. 38,50,65 of 1991
...
S.Ramaswamy .. Appellant (A1) in
C.A.3 of 1991
1. T.S. Kandasamy
2. S.V.Subramanian .. Appellants(A3 & A5)
in C.A. 38 of 1991
A.L.Thirunavukarasu .. Appellant (A2) in
C.A. 50 of 1991
Shenbagaraj .. Appellant (A4) in
C.A. 65 of 1991
vs.
State rep. by
Deputy Superintendent of Police,
C.B.I., Madras. .. Respondent in all
the above appeals.
Criminal Appeals against the Judgment dated 19.12.1990 in S.C.No.35
of 1988 on the file of the VIII Addl. Sessions Judge, Chennai.
! For Appellant in : Mr.S.A.Rajan
C.A.3 of 1991
For Appellants in : Mr.K.Srinivasan
C.A.38 of 1991
For Appellant in : Mr.M.Ravindran, S.C.
C.A.50 of 1991
For Appellant in : Mr.N.Paul Vasanthakumar
C.A.65 of 1991
^ For Respondent : Mr.E.Jacob R.Daniel,
Spl.Public Prosecutor
for C.B.I. Cases.
...
: COMMON JUDGMENT
The appellants in the above appeals were convicted for the offences
under Sections 120-B, 255, 256, 257 and 259 I.P.C. Challenging the same,
Ramaswamy (A1) has filed the appeal in C.A. No.3 of 1991, Thirunavukarasu
(A2) has filed the appeal in C.A.No.50 of 1991, Kandaswamy (A3) and
Subramanian (A5) have filed the appeal in C.A. No.38 of 19 91 and
Shenbagaraj (A4) has filed the appeal in C.A. No.65 of 1991.
2. Originally along with the appellants, A6 and A7 were tried for various
offences and ultimately, the trial Court acquitted A6 and A7 and convicted
the appellants alone as under:(a) Ramaswamy (A1), the appellant in C.A. 3 of
1991, was convicted for the offences under Sections 255 and 256 I.P.C. and
sentenced to undergo R.I. for 3 years and to pay a fine of Rs.1,000/-, in
default to undergo R.I. for six months on each count.
(b) Thirunavukarasu (A2), the appellant in C.A.No.50 of 1991, was convicted
for the offences under Sections 256 and 257 I.P.C. and sentenced to undergo
R.I. for 3 years and to pay a fine of Rs.1,00 0/-, in default to undergo
R.I. for six months on each count.
(c) Kandaswamy (A3), the first appellant in C.A. No.38 of 19 98, was
convicted for the offence under Section 255 I.P.C. and sentenced to undergo
R.I. for 3 years and to pay a fine of Rs.1,000/-, in default to undergo
R.I. for six months. Though he was tried for the offence under Section 259
I.P.C., he was acquitted in respect of that charge.
(d) Shenbagaraj (A4), the appellant in C.A.No.65 of 1991, was convicted for
the offence under Section 259 I.P.C. and sentenced to undergo R.I. for 3
years and to pay a fine of Rs.1,000/-, in default to undergo R.I. for six
months.
(e) Subramanian (A5), the second appellant in C.A. No.38 of 1991, was
convicted for the offence under Section 255 I.P.C. and sentenced to undergo
R.I. for 3 years and to pay a fine of Rs.1,000/-, in default to undergo R.I.
for 6 months.
3. Though all the appellants were convicted for the offence under Section
120-B I.P.C., no separate sentence was imposed upon them.
4. The crux of indictment as against the appellants and other accused is
that they entered into a criminal conspiracy between 198 3 and 1986 to print
counterfeit Central Excise stamps to evade Central Excise stamp duty payable
on safety match boxes using film negatives and printing plates. In
pursuance of the above conspiracy, Ramaswamy (A1), Kandaswamy (A3) and
Subramanian (A5) printed counterfeit Central Excise stamps at the Offset
Printing Press of Ramaswamy (A1). Thirunavukarasu (A2) facilitated printing
of counterfeit Central Excise stamps by providing film negatives of Central
Excise band rolls and from these film negatives, printing plates were made
for printing counterfeit Central Excise stamps. Subramanian (A5) despatched
these Central Excise counterfeit stamps in the names of M/s.Orient Paper
Mart and M/s.Rose Paper Stores through M/s.Southern Roadways Transport
Company to various places including Kovilpatti in various trips.
Shenbagaraj (A4) took delivery of the counterfeit stamps sent by Subramanian
(A5) and concealed the same in a secret place. Thereafter, Shenbagaraj
(A4), Raju (A6) and Sannasi (A7) distributed the counterfeit Central Excise
stamps to various match factories in and around Kovilpatti.
5. To prove these allegations, the prosecution examined P. Ws.1 to 24, filed
Exs.P-1 to P-134 and marked M.Os.1 to 13.
6. On conclusion of trial, the appellants/accused were questioned under
Section 313 Cr.P.C. and they denied their complicity in the crime.
7. On appraisal of evidence on record, the trial Court convicted the
appellants in respect of the offences referred to above and acquitted A6 and
A7. Hence, these appeals by the appellants (A1 to A5).
8. Mr.S.A.Rajan, the learned counsel appearing for the first accused,
Mr.M.Ravindran, the learned senior counsel appearing for the second accused,
Mr.K.Srinivasan, the learned counsel appearing for the third and fifth accused
and Mr.Paul Vasanthakumar, the learned counsel appearing for the fourth
accused would argue at length pointing out various infirmities in the
materials relied upon by the prosecution.
9. In reply, Mr.E.Jacob R.Daniel, the learned Special Public Prosecutor for
C.B.I. Cases, would contend justifying the reasonings given by the trial
Court for imposing conviction and sentence upon the appellants.
10. I have carefully considered the submissions made by the learned counsel
for both sides and perused the materials available on record.
11. Before analysing the merits of the submissions made by either of the
parties, it would be worthwhile to refer to the important materials placed
by the prosecution before the trial Court, which would reveal the
chronological events so that we can have a full picture of the various acts
committed by the accused as well as instances involving the efforts taken by
the Investigating Officers to collect the materials against the accused.
These things are given below in a nutshell.
(a) Mr.Ragothaman, Deputy Superintendent of Police, C.B.I., Bangalore
(P.W.11) was investigating the Crime No.R.C.32 of 1985 relating to fake
Indian Airlines tickets printed and sold in the open market. In regard to
the said case, P.W.11 searched the premises of Ramaswamy (A1) on 20.2.1986
and seized the materials including the materials which are relevant for this
case under Ex.P-31 search list, namely, M.Os.6 to 9 four zinc sheet printing
plates containing the matter of Central Excise band roll along with M.O.10
note book containing the entries made by P.W.15 Ravi, an employee of A1 with
reference to the printing of counterfeit Central Excise stamps. P.W.9
Inspector, Income Tax Department, witnessed the search. A1 was present and
he signed in Ex.P-31 search list.
(b) On knowing the involvement of Kandaswamy (A3) in this case, P.W.11 on
22.2.1986 between 7.00 A.M. and 7.45 A.M. went to the premises of A3 at
Royapettah and seized various materials under Ex.P-32 search list. As per the
same, Item No.1 in Ex.P-32 relates to six sheets of Central Excise band
rolls and the same were marked as M.O.12 series. Item No.2 relates to cash
memo sales books of M/s.Orient Paper Mart, Madras and the same was marked as
Ex.P-65. Item No.3 in Ex.P-32 is the cash bill book of M/s.Rose Pa per
Stores, Madras and the same was marked as Ex.P-66. A3 was present
throughout the search and he signed in Ex.P-32 in the presence of P.W.10
Senior Personnel Officer, Indian Airlines.
(c) On further information that Thirunavukarasu (A2) is also involved in the
crime, on the same day, i.e., 22.2.1986, P.W.11 searched the office premises
of Thirunavukarasu (A2) at Madras-1 between 7 .50 A.M. and 8.30 A.M.
Ex.P-33 is the search list. A2 was present. Item No.1 in Ex.P-33 is the film
negative of Central Excise band roll containing 120 Nos. and the same were
marked as M.O.11 series.
(d) On being informed by P.W.11 Deputy Superindent of Police, the
Superintendent of Police, C.B.I., Bangalore, sent a letter dated 22.2.1986
to the Superintendent of Police, C.B.I., Economic Offences Wing, Madras
incorporating the details of the seizures made from A1 to A3 and requested for
taking action against the accused. The said letter was marked as Ex.P-34. On
the strength of Ex.P-34 letter, P. W.24 Baskaran Thambi, Deputy
Superintendent of Police, registered a case in Crime No.4 of 1986 against A1
to A3 for the offences under Sections 120-B, 420 and 255 to 259, I.P.C. The
F.I.R. Is Ex.P-133.
(e) After registering the F.I.R., P.W.24 Deputy Superintendent of Police
interrogated A1 and A3. On coming to know about the involvement of A5 and
A7 who are the residents of Kovilpatti, P.W.24 went to Kovilpatti with his
team for further investigation.
(f) On 24.2.1986, P.W.24 Deputy Superintendent of Police searched the
premises of A5 Subramanian at No.32, Soundarapandian Street, Kovilpatti in the
presence of P.W.4 Venkataraman, Inspector, Central Excise, Kovilpatti
between 7.00 A.M. and 7.30 A.M. Ex.P-15 is the search list. Throughout the
search, one Kotteeswaran, brother-in- law of A5 was present. Four items were
seized. Item No.2 is the rubber stamp "For Orient Paper Mart, Proprietor"
and the same was marked as M.O.5. Item No.1 relates to three inland letters
and these were marked as Ex.P-16 series. The first letter was written by A3
to A5 to the residential address of A5 at No.32 Soundarapandian Street,
Kovilpatti. The second letter was also addressed to A5 to the same address.
The third letter was written by A5 from Madras to his wife at No.32 ,
Soundarapandian Street, Kovilpatti.
(g) On the same day, P.W.24 Deputy Superintendent of Police examined P.Ws.2,
3 and 8 and collected information with regard to taking of delivery of two
parcels in gunny bags sent in the name of Kalirajan by A5 and the same was
taken delivery by A4 Shenbagaraj. Therefore, P.W.24 on the same day, at
4.30 P.M. arrested A4. On the basis of the confession given by A4, P.W.24,
in the presence of P.W.4 Venkataraman, recovered two gunny bags concealed in
a secluded place, the admissible portion of which was marked as Ex.P-17.
From these two gunny bags (M.Os.1 and 3), yellow and blue colour Central
Excise stamps (M.Os.2 and 4) were seized under Ex.P-29 mahazar.
(h) P.W.24 examined P.W.15 Ravi, who was working in the printing press of
A1. He stated that on the instruction given by his employer (A1), he
printed the counterfeit Central Excise stamps with the help of M.Os.6 to 9
zinc sheet printing plates brought by A3 and A5 and after the printing work
was over, A3 and A5 packed and took delivery of the same with them. On
examination of P.W.15, it was found that the entries in M.O.10 note book,
which was seized from A1, were found to be written by P.W.15.
(i) P.W.24 sent these M.Os.6 to 9 zinc sheet printing sheets seized from the
premises of A1, M.O.12 Central Excise band rolls seized from the premises of
A3, M.O.11 film negatives seized from the office of A2 and M.Os.1 and 3
gunny bags and M.Os.2 and 4 yellow and blue colour Central Excise stamps
seized from the premises of A4 for scientific analysis and examination
through requisition Ex.P-67 dated 25 .3.1986. P.W.20 Lakshminaraynan, an
Expert, sent his opinion Ex.P-68 on 29.7.1986 stating that M.Os.6 and 9
printing plates were made from M.O.11 film negatives and M.Os. 2 and 4
yellow and blue colour Central Excise stamps were forged ones and the same
were made from M.Os.6 to 9 printing plates.
(j) Ex.P-65 cash memo sales book in the name of Orient Paper Mark was seized
from the house of A3 on 22.2.1986 by P.W.11. Ex.P-66 cash bill book of
M/s.Rose Paper Stores, Madras was also seized from his premises. P.W.24
examined P.W.18 Accountant working in M/s. Orient Paper Mart, who stated that
Ex.P-65 Bill Book did not belong to M/s.Orient Paper Mark. M.O.5, the rubber
stamp in the name of M/s. Orient Paper Mark was seized from the house of A5
Subramanian by P.W.24. P.W.18 stated that M.O.5 did not belong to their
company and similarly, P.W.24 examined P.W.19, a Partner of M/s.Rose Paper
Stores, who stated that Ex.P-66 Bill book in the name of M/s.Rose Paper
Stores did not belong to their shop.
(k) P.W.24 examined P.W.17 Manager of Thangam Lodge, Periamet. He stated
that during the relevant period, Subramnaian (A5) had stayed in the said
lodge. As per the entries made in Exs.P-49 to 64, Subramanian (A5) has
given his address as "32, Soundarapandian Street, Kovilpatti". Then, P.W.24
examined P.W.21 Purushothaman, who was working in Southern Roadways
Transport Company, Chennai. He stated that parcels were sent with Exs.P-69,
71, 73,75, 77, 79, 81, 83, 85,87, 89, 91, 93, 124 and 125 forwarding notes,
which contain the handwriting of Subramanian (A5) for having sent the
parcels to various places including Kovilpatti. P.W.24 sent these documents
for the opinion of Handwriting Expert along with the signature of A5.
P.W.22 Handwriting Expert in Ex.P-129 dated 30.6.1986 opined that the
forwarding notes were prepared and signed by A5.
12. On the basis of these materials, the prosecution projected its case by
stating that A1 to A5 entered into a criminal conspiracy at Madras,
Kovilpatti and other places to print the counterfeit Central Excise stamps
in the printing press of A1 using M.Os.6 to 9 printing plates made from
M.O.11 film negatives provided by A2 and despatched the same to various
places under the guise of paper bundles sent by M/s.Orient Paper Mart and
M/s.Rose Paper Stores, Chennai to evade Central Excise duty on safety match
boxes and thereby, they committed the offences under Sections 120-B, 255,
256, 257 and 259 I.P.C.
13. The following factors are brought to light by the prosecution in the
present case through various materials.
(a) Ramaswamy (A1), Kandaswamy (A3) and Subramanian (A5) printed counterfeit
Central Excise stamps by using M.Os.6 to 9 printing plates made by M.O.11
film negatives supplied by Thirunavukarasu (A2) through P.W.15 Ravi in the
offset printing press of Ramaswamy (A1). M.O.11 film negatives used for
making M.Os.6 to 9 printing plates were seized from the office of A2 under
Ex.P-33. After making the printing plates, namely, M.Os.6 to 9, A1 to A3
printed the counterfeit Central Excise stamps at the printing press of A1.
P.W.15 made entries about the printing work done in M.O.10 note book. M.Os.6
to 9 printing plates and M.O.10 note book were seized from the premises of
A1 under Ex.P-31. These factors have been spoken to by P.Ws.11 Deputy
Superintendent of Police, P.W.9, P.W.10 and P.W.15 through whom M.Os.6 to 9,
M.O.11 and Exs.P-31 to P-33 were marked.
(b) After the collection of the counterfeit Central Excise stamps, A3 and A5
were sending the same in the name of M/s.Orient Paper Mart and M/s.Rose
Paper Stores through Southern Roadways, Madras to various places under the
guise of paper bundles. P.W.11 Deputy Superintendent of Police on 22.2.1986
recovered Ex.P-65 cash memo sales book in the name of M/s.Orient Paper Mart
under Ex.P-32 search list from the house of A3. He also recovered Ex.P-66
cash bill book of M/s. Rose Paper Stores. These exhibits, namely, Exs.P-65
and P-66 seized from the premises of A3, are forged ones. P.W.18
Chellaperumal working as Accountant in M/s.Orient Paper Mart and P.W.19
Viyadut Ali Khan, a Partner of M/s.Rose Paper Stores would speak about
Exs.P-65 and P-66 that they are not genuine.
(c) P.W.24 Deputy Superintendent of Police in the presence of P.W.4 searched
the house of A5 at No.32 Soundarapandian Street, Kovilpatti under Ex.P-15
search list and recovered M.O.5 rubber stamp " For Orient Paper Mart,
Proprietor". P.W.24 also seized some letters Ex.P-16 series to show that A5
was permanently residing in the said address. During the course of search
made by P.W.24, one Kotteeswaran, brother-in-law of A5, was present. A5 sent
the parcels through M/s. Southern Roadways Transport Company through various
forwarding notes Exs.P-69, 71, 73, 75, 77, 79, etc. P.W.21 Purushothaman
working in the M/s.Southern Roadways Transport Company would speak about the
handing over of the parcels by A5. The handwriting contained in these
exhibits was also found to be the handwriting of A5 as per Ex.P-129 opinion
given by P.W.22 Handwriting Expert.
(d) P.W.17 Satyam, Manager of Thangam Lodge, Periamet identified the entries
made in Exs.P-49 to 64 Lodge Attendance Registers and stated that A5 came
and stayed in the lodge during the relevant period and he had given his
address as "No.32, Soundarapandian Street, Kovilpatti".
(e) Using Ex.P-12 lorry receipt, A5 sent two gunny bags addressed to
Kalirajan, Kovilpatti under the guise of paper bundles. These gunny bags
were taken delivery from P.W.2 Thirumalai Kumar, a Clerk working in TVS
Lorry booking office at Kovilpatti, by Shenbagaraj ( A4). A4 signed on the
back of Ex.P-12 lorry receipt as Kalirajan. P.W.8 on behalf of A4 took
delivery of these gunny bags on the basis of the signature of A4 in Ex.P-12.
On 24.2.2986, P.W.24 Deputy Superintendent of Police arrested A4 and
obtained his confession. Then, he identified the gunny bags containing the
counterfeit Central Excise stamps concealed near his house. The admissible
portion of his confession is Ex.P-17. M.Os.1 to 4 were recovered under
Ex.P-29 mahazar in the presence of P.W.4. M.Os.1 and 3 are the gunny bags
and M.Os.2 and 4 are the yellow and blue colour counterfeit Central Excise
stamps.
(f) After recovery, P.W.24 sent Ex.P-67 requisition to P.W.20 Expert
forwarding the said M.Os. for scientific analysis and examination. P.W.20
Expert, after examination, gave Ex.P-68 opinion on 29.7.1986 stating that
M.Os.2 and 4 the yellow and blue colour Central Excise stamps were the
counterfeit Central Excise stamps and these counterfeit stamps were printed
by using M.Os.6 to 9 printing plates made from M.O.11 film negatives.
14. In the light of the above materials, it is contended by the prosecution
that the conviction imposed upon the appellants by the trial Court is
justified.
15. Let us now discuss the various points raised by the learned counsel for
the appellants.
16. The contentions of Mr.S.A.Rajan, the learned counsel appearing for the
first accused, are as follows:-
"The evidence of P.W.9 mahazar witness, P.W.11 Deputy Superintendent of
Police and P.W.15 Ravi, an employee of A1, are not sufficient to base the
conviction against A1. P.W.15, though was working for some time in the
printing press of A1, left the service and when he came back again
requesting for job, the same was denied. Therefore, he was inimical towards
the first accused. He was not able to state exactly as to how many times A3
and A5 visited the press. He stated that M.Os.6 to 9 were aluminium plates,
whereas P.Ws.9 and 11 would state that they were zinc sheets. Admittedly,
M.Os.6 to 9 were not seized when they were actually used. Even assuming
that M.Os.6 to 9 were seized from the press of A1, there is no evidence to
show that the accused had knowledge about these plates and that there were
attending materials used for printing the forged labels."
17. These contentions, in my view, do not merit acceptance, in view of the
materials available as against the first accused in abundance. The evidence
of P.W.15, who was the employee of the first accused, is so natural and
inspiring. According to him, after seizure of the materials, the press was
closed and therefore, he did not get job from A1. Under those
circumstances, it cannot be concluded that P.W.15 is inimical towards the
first accused.
18. On the other hand, the evidence of P.W.15 is fully corroborated by the
other materials. According to him, under the instructions of A1, he was
printing the counterfeit Central Excise stamps by using M.Os.6 to 9 printing
plates, which were brought by A3 and A5. Though the normal working hours of
the press is only morning to evening, P.W.15 was asked to do the said work
in the night hours between 8 .00 P.M. and 3.00 A.M. The work done was
entered in M.O.10 note book by P.W.15. This was seized by P.W.11 under
Ex.P-31 search list, which was signed by A1. The recovery of these M.Os.
Was spoken to by P.W.9 mahazar witness, who is an Income Tax Officer.
19. Furthermore, there is no suggestion put to P.W.11 that the signature
was obtained from A1 out of threat or coercion. Moreover, P.W.20 Expert
would state that the counterfeit stamps (M.Os.2 and 4) were printed by using
M.Os.6 to 9 printing plates, which were recovered from the premises of A1.
20. In the absence of any reason to reject the evidence of P.W.15, which is
corroborated by other materials, it is clear that A1, in pursuance of the
conspiracy, allowed A3 and A5 to print the counterfeit Central Excise stamps
in his press.
21. In view of the above, the conviction imposed upon the first accused for
the offences under Sections 120-B, 255 and 256 I.P.C. is correct.
22. Now, let us consider the submissions made by Mr.M. Ravindran, the
learned senior counsel appearing for the second accused. The following are
his submissions:-
"The case against A2 rests on the evidence of P.Ws.10 and 11 only. The search
on the premises of A2 was conducted on 22.2.1986. Prior to the search,
P.W.11 conducted search in the house of A3. Even without any statement from
A3 implicating A2, there is no reason as to why P.W.11 came to the house of A2
on the very same day, that too, without obtaining any search warrant. The
first search was conducted on 20.2.1986 in the house of A1. P.W.11 did not
take any steps for two days for obtaining search warrant. The search witness
P.W.10 is not an independent witness. Admittedly, the house of A2 was situate
in a crowded locality. P.W.11 did not call for two respectful inhabitants
for witnessing the search. This is in violation of Section 100 (4) Cr.P.C.
There are contradictions with regard to the place of search and the number
of articles seized. According to P.W.10, six articles were seized under
Ex.P-33 from the Thozhirkoodam of A2. But, in Ex.P-33 search list, it is
stated that 8 articles were seized at 1-A Angamuthu Naicken Street. There is
no evidence with reference to the location of the Thozhirkoodam. The
evidence of P.Ws.10 and 11 are contradictory with each other with reference
to the number of articles seized. Though the search was conducted on
22.2.1986 revealing the involvement of A2, there is no explanation as to why
A2 was arrested six days later (i.e.) on 28.2.1986. In the fake Indian
Airlines tickets case in Crime No.32 of 1985, A2 refused to give evidence as
witness and therefore, he has been implicated falsely in this case."
23. The second accused has been convicted for the offences under Sections
120-B, 256 and 257 I.P.C. Section 256 I.P.C. relates to possession of
instrument for counterfeiting Government stamp. Section 257 I.P.C. refers
to the making of the said instrument for counterfeiting Government stamp.
24. According to P.W.11 Deputy Superintendent of Police, he searched the
premises of A2 in the presence of P.W.10 Indian Airlines Officer and
recovered M.O.11 film negatives containing 120 Central Excise band rolls under
Ex.P-33 search list. According to P.Ws.10 and 11, A2 was present throughout
the search and he signed in Ex.P-33 search list and received the copy.
25. As per Ex.P-68 opinion given by P.W.20 Expert, M.O.11 film negatives,
which were recovered from the premises of A2, were used for making M.Os.6 to
9 printing plates through which M.Os.2 and 4 yellow and blue colour
counterfeit Central Excise stamps were printed.
26. According to the prosecution, P.W.11 Deputy Superintendent of Police,
C.B.I., Bangalore, came to Madras for investigating the case in Crime No.32
of 1985 relating to printing of fake Indian Airlines tickets. On 20.2.1986,
he searched the premises of A1 and on 22 .2.1986, he searched the premises of
A3 and A2 and recovered incriminating materials from the premises of all the
three accused.
27. The connecting link has been brought to light through the opinion of
P.W.20 Expert that M.O.11 film negatives recovered from the premises of A2
were the source for making M.Os.6 to 9 printing plates through which M.Os.2
and 4 counterfeit Central Excise stamps were printed. Therefore, the
recovery of M.O.11 film negatives from the premises of A2 assumes much
significance.
28. It is true that P.W.11 Deputy Superintendent of Police did not obtain
search warrant from the Court concerned before searching the premises of A1
to A3. This is admitted by P.W.11 himself in the cross-examination.
However, P.W.11 would state that before searching the premises, he sent
advance intimation to the Court concerned. This is not challenged in the
cross-examination.
29. On the other hand, it is the evidence of P.W.11 that after recovering
the materials from the house of A1 under Ex.P-31 search list, from the
premises of A3 under Ex.P-32 search list and from the premises of A2 under
Ex.P-33 search list, the properties involved in this case were sent to the
Court concerned. In view of the compliance of the provision of Section 165
Cr.P.C., it cannot be contended that the search conducted in the premises of
A1 to A3 without search warrant is illegal.
30. It is argued that two independent and respectful inhabitants from the
locality were not summoned to witness the search and as such, it is in
violation of Section 100(4) Cr.P.C.
31. In the present case, P.W.10 K.R.Narayanan is the mahazar witness. He
is the resident of No.54 N.C.Colony, Chennai-61. As per Ex.P-33, the search
was conducted at No.1-A Angamuthu Naicken Street, Madras-14. P.W.10 was
working as Senior Personnel Officer, Indian Airlines. According to him, he
was the witness for the first time for the search which was conducted in the
premises of A2 on 22.2.1986. Under those circumstances, merely because the
witnesses from the same street were not called, it cannot be said that
P.W.10 is not a local, respectful and independent witness.
32. Ex.P-33 would prove the incriminating materials. Items 1 to 18 were
seized from the office of A2. Some of the items were seized from the drawer
of the office table kept in the front room, some of the items were seized from
the office room and some other items were seized from the property room. It
only shows that all the properties have been seized only in the same
premises from different rooms in the same address, namely, No.1-A Angamuthu
Naicken Street. It is shown in Column No.4 that the house and office
address of A2 is No.1- A Angamuthu Naicken Street.
33. It is also noticed from Ex.P-33 search list that apart from M.O.11 film
negatives, various film negatives of currency notes, Thiruvallur Transport
Corporation tickets and aluminium plates containing the matter of Entry
Tickets of International Airport Authority of India were recovered from the
premises of A2. This shows that P.W.11 Deputy Superintendent of Police was
able to recover other properties also, while conducting search on the
premises of A2 in a case relating to fake Indian Airlines tickets. But,
those things has not been marked in this case as they would relate to some
other case.
34. In Ex.P-33 search list itself, it is mentioned in Column No.6 that the
search was conducted under Section 165 Cr.P.C. After observing all the legal
formalities, in Column No.7, it is stated that Thirunavukarasu (A2) was
present throughout the search and no damage or injury was caused to the
person or property during the search.
35. It is seen from Ex.P-33 search list that below the signatures of P.W.11
Deputy Superintendent of Police and one Ramaraj, Inspector of Police, CBI,
Madras, P.W.10 K.R.Narayanan, Senior Personnel Officer, Indian Airlines and
one Rudramurthy, Superintendent, Indian Airlines signed in Ex.P-33. The
second accused also put his signature endorsing that he received the copy of
Ex.P-33 search list.
36. So, the evidence of P.W.11 and P.W.10 would clearly show that the
search was conducted in the premises of A2 at No.1-A Angamuthu Naicken
Street in the office room and the property room and 18 items of which M.O.11
is the film negatives were recovered and during the search, A2 was present.
No suggestion was put either to P.W.10 or to P.W.11 to the effect that his
signature in Ex.P-33 was obtained by the C.B.I. police out of coercion or
threat.
37. Only in the statement under Section 313 Cr.P.C., the second accused
stated that he was detained by the C.B.I. police on 20.2 .1986 and in the
C.B.I. office, his signatures were obtained in white papers and that he had
no knowledge about the search conducted in his premises. This defence has
been pleaded belatedly by the second accused only at the time of questioning
under Section 313 Cr.P.C. and no such suggesion was put to the witnesses
concerned, namely, P.Ws.10 and 11. Furthermore, it is not the case of A2 that
he complained to the Judicial Magistrate concerned, who remanded him to
custody on 28.2.1986, regarding his illegal custody from 20.2.1986 to
28.2.1986.
38. It is further contended on behalf of A2 that there is no explanation by
P.W.11 as to how A2 was traced. This submission lacks substance. According
to P.W.11, he conducted search in the premises of A1 on 20.2.1986 and on
information, he went to the house of A3 on 22.2.1986 in the morning and
conducted search in the house of A3. On getting further information, he
straightaway came to the house of A2 and conducted search in the premises of
A2 in the presence of A2 and recovered M.O.11 film negatives and other
incriminating materials relating to other cases.
39. It is the specific evidence of P.W.11 that he came to know through the
search conducted on 20.2.1986 and 22.2.1986 that A1 to A3 were clandestinely
printing the counterfeit Central Excise stamps by using M.Os.6 to 9 printing
plates prepared through M.O.11 negative films and accordingly, he sent a
report on 22.2.1986 to the Superintendent of Police, C.B.I., Bangalore who
in turn sent Ex.P-34 letter dated 22.2.1986 to the Superintendent of Police,
C.B.I. Economic Wings, Madras mentioning these facts and requesting him to
take further action in this matter. On receipt of the same, P.W.24 Baskaran
Thambi, the Deputy Superintendent of Police, was directed to register a case
and take action on Ex.P-34 report. In the said report, it is mentioned that
A3 gave information to P.W.11 that Ex.P11 film negatives of Central Excise
band rolls were available with A2, who was helping him to prepare M.Os.6 to
9 printing plates from the said M.O.11 film negatives. So, the source of
information, as pointed out by P.W.11, was also mentioned in Ex.P-34.
Therefore, this contention also fails.
40. The mere admission by P.W.11 in the cross-examination that he did not
record any confession from A1 and A3 would not mean that P.W.11 did not get
any information from A3 regarding M.O.11 film negatives available with A2.
The earliest documents Ex.P-31 search list prepared in the premises of A1,
Ex.P-32 search list prepared in the premises of A3 and Ex.P-33 search list
prepared in the premises of A2 have been clearly mentioned in Ex.P-34 letter
sent by the Superintendent of Police, C.B.I., Bangalore to the
Superintendent of Police, C.B.I., Economic Offence Wing, Madras. Therefore,
none of the contentions urged by the learned counsel for the second accused
would merit acceptance.
41. As indicated above, the evidence of P.W.20 Expert is giving a
connecting link for establishing the acts committed by the accused in
pursuance of the conspiracy. According to him, M.O.11 film negatives were
used for making M.Os.6 to 9 printing plates through which M.Os.2 and 4
counterfeit Central Excise stamps were printed and the opinion of P.W.20
Expert is Ex.P-68. This is corroborated by the evidence of P.W.15, who
printed the counterfeit Central Excise stamps on the instruction of A1 in
the presence of A3 and A5.
42. When it is the specific evidence of P.W.20 Expert that M.O.11 film
negatives were used for making M.Os.6 to 9 printing plates, no suggestion
was put to him that the said M.O.11 film negatives were not used. It is
suggested to P.W.10 that he was afraid of C.B.I., since he was involved in the
fake Indian Airlines tickets case. There is no basis for such suggestion,
which was correctly denied by P. W.10. P.W.10 was a responsible Officer
working as Senior Personnel Officer in Indian Airlines. There is no
necessity for him to speak falsehood against A2 to the effect that M.O.11
film negatives were seized from the premises of A2 in his presence.
43. As noted above, the signature of the second accused in Ex.P-33 search
list has not been disputed. A perusal of Ex.P-33 would not show that the
signature of A2 was obtained only in blank white papers. Ex.P-33 shows that
it is a printed matter covering several pages in which the signature of the
second accused was obtained in the last column.
44. Under these circumstances, the conviction imposed upon the second
accused for the offences under Sections 120-B, 256 and 257 I.P.C. is correct.
45. It would now be appropriate to refer about the materials against both
A3 and A5, as the prosecution has placed common materials to prove the
offence as against these accused.
46. The learned counsel for the third accused has submitted the following
contentions:-
"Though the third accused was acquitted in respect of the offence under
Section 259 I.P.C., he was convicted under Sections 120-B and 255 I.P.C. on
the basis of insufficient materials. The implication of A3 is based on the
information given by A1. But, P.W.11 Deputy Superintendent of Police did
not record any confession statement either from A1 or A3. The presence of
A3 during the search was doubtful, since P.W.10 did not tell P.W.24
Investigating Officer that A3 was present. According to P.W.11, A3 was
arrested by him on 22.2.1986, whereas P.W.10 stated that he did not know
about the same. On the other hand, P.W.24 would state that A3 was not
arrested on 22.2.1986 and he was arrested only on 28.2.1986. In Ex.P-34,
there is no mention about the presence of P.W.10 during the search. According
to P.W.10, the third accused signed Ex.P-32 search list only once. But,
Ex.P-3 2 contains the signature of A3 in Tamil and also in English.
Therefore, P.W.10 could not have been present during the search. The
evidence of P.W.15 was not reliable as there is no material to prove as to how
P.W.15 was traced by the prosecution. P.W.13 would state that five years
back A3 placed orders for M.O.5 rubber stamp and took delivery of the same.
P.W.13 further stated that he told P.W.24 that he knew A3 only in that
context. No such statement was made by P.W.24."
47. The learned counsel for the fifth accused has made the following
submission:-
"The alleged recovery of M.O.10 note book was made from the premises of A1
on 22.2.1986. According to prosecution, this would relate to the entries
made by P.W.15 regarding the printing work done to A3 and A5 in the press of
A1. If really M.O.10 had been recovered on 22.2.1986, there is no reason as
to why the name of A5 was not mentioned in Ex.P-34. While the search was
conducted at No.32 Soundarapandian Street Kovilpatti, A5 was not present.
Ex.P-15 series inland letters do not contain any incriminating substance.
Admittedly, the house in which the search was conducted did not belong to
A5. P.W.15 is an accomplice. Ex.P-129 opinion given by P.W.22 Handwriting
Expert as against A5 has not been corroborated."
48. A3 and A5 were convicted for the offences under Sections 120-B and 255
I.P.C. According to the prosecution, A1, A3 and A5 printed the counterfeit
Central Excise stamps at the Offset Printing Press of A1. P.W.15 would
state that A1 and A5 brought M.Os.6 to 9 printing plates and by using the
same, the counterfeit Central Excise stamps were printed by him at the press
of A1 on the instruction of A1 during the night hours in the presence of A3
and A5 and after the printing was over, they packed and took the same with
them. P.W.15 had made entries regarding the work done in M.O.10 note book.
These entries would show that A3 and A5 printed the counterfeit Central
Excise stamps in the printing press of A1.
49. As noted above, as per the opinion of P.W.20 Expert M. Os.6 to 9
printing plates were used for printing the counterfeit Central Excise
stamps. On 22.2.1986, the search was conducted in the house of A3 by P.W.11
in the presence of P.W.10 and M.O.12 series Central Excise band rolls were
recovered from him and the same were found to be genuine. Ex.P-65 cash memo
sales book relating to Orient Paper Mart and Ex.P-66 cash bill book relating
to Rose Paper Stores were recovered from the premises of A3. Since M.O.12
series Central Excise band rolls were found to be genuine, as per the
opinion given by P.W.20 Expert, A3 was acquitted in respect of the offence
under Section 259 I.P.C.
50. As stated above, P.W.15 would speak about the role of A3 and A5. After
collecting the counterfeit Central Excise stamps printed, A5 sent the
parcels through M/s.Southern Roadways Company as if M/s.Orient Paper Mart and
Rose Paper Stores were the despatchers.
51. P.W.18 Chellaperumal, who was working as Accountant in M/s.Orient Paper
Mart during the relevant period, deposed that Ex.P-65 cash memo sales book
seized from the premises of A3 did not belong to M/s.Orient Paper Mart. He
also stated that M.O.5 rubber stamp in the name M/s.Orient Paper Mart
recovered from the house of A5 did not belong to M/s.Orient Paper Mart.
Therefore, it is clear that Ex.P-65 and M.O.5 in the name of M/s.Orient Paper
Mart were got prepared by A3 and A5 to despatch the counterfeit Central Excise
stamps from Madras to various places under the guise of paper bundles.
52. Similarly, P.W.19 Vidyadut Ali Khan, who was a Partner in M/s.Rose
Paper Stores, would state that Ex.P-66 cash bill book in the name of
M/s.Rose Paper Stores, which was seized from the house of A3, did not belong
to M/s.Rose Paper Stores.
53. These things would show that A3 and A5 went to press of A1 and with the
help of P.W.15 printed counterfeit Central Excise stamps and despatched the
same to various places by using Exs.P-65 and P-66 forged bill books of
M/s.Orient Paper Mart and M/s.Rose Paper Stores which were recovered from
the house of A3 and by using M.O.5 forged rubber stamp of M/s.Orient Paper
Mart which was recovered from the house of A5.
54. It is true that A5 was not present at Door No.32 Soundarapandian
Street, Kovilpatti, when the search was conducted. But, one Kotteeswaran,
the brother-in-law of A5, was present during the course of search.
According to P.W.4, the mahazar witness, M.O.5 rubber stamp "for Orient
Paper Mart, Proprietor" was recovered from the house of A5 at No.32
Soundarapandian Street, Kovilpatti. P.W.24 seized Ex.P-16 series letters,
which would show that though the said house belonged to Kotteeswaran, the
brother-in-law of A5, A5 was presently residing in the said address and
receiving these letters.
55. P.W.24, the Investigating Officer, would state that during the course
of search in the house of A5, the said Kotteeswaran was present and he also
signed in Ex.P-15 search list. The first letter was written by A3 to A5 to
the said address. The second letter was also addressed to A5 to the said
address. The third letter was sent by A5 himself to his wife to the same
address from Madras. Therefore, it cannot be contended that A5 was not
residing in the place where the search was conducted by P.W.24 in the presence
of P.W.4.
56. Further, it has been established through P.W.22 Handwriting Expert that
the said letters were written by A3 to A5 to the said address. There is no
challenge either by A3 or by A5 that the said letters were not written by A3
to A5 or Kotteeswaran, who signed during the course of search, was not his
brother-in-law. Moreover, the acquittal of A3 in respect of the offence
under Section 259 I.P.C. would not have any bearing with reference to the
conviction under Section 255 I.P.C.
57. According to prosecution, after collection of these stamps printed, A5
sent the parcels to various parties through M/s. Southern Roadways Company as
if M/s.Orient Paper Mart and M/s.Rose Paper Stores were the despatchers.
P.W.21, the employee of M/s.Southern Roadways Company would produce Exs.P-69
to P-71 forwarding notes signed by the sender on behalf of M/s.Orient Paper
Mart. P.W.18, who was working in M/s.Orient Paper Mart, would state that no
such forwarding notes were sent by them. On the other hand, Ex.P-129
opinion given by P.W.22 Handwriting Expert would show that the said writings
were made by A5. Admittedly, A5 has no connection with M/s.Orient Paper
Mart.
58. As noted above, as spoken to by P.Ws.4 and 24, M.O.5 was recovered from
the house of A5. That apart, P.W.17, the Manager of Thangam Lodge, Periamet,
would speak that during the relevant period, A5 stayed in the said lodge and
through him, Exs.P-49 to P-64 were marked. In these documents, A5
Subramaniam had given his address as No.32 Soundarapandian Street,
Kovilpatti and the same had been written by A5 himself. Apart from that, A5
sent two gunny bag parcels addressed to Kalirajan, Kovilpatti under the
guise of paper bundles by using Ex.P-12 lorry receipt.
59. As noted above, P.W.15 would adduce evidence to the effect that A3 and
A5 came to the press of A1 and printed the counterfeit Central Excise stamps
by using M.O.6 to 9 printing plates. According to him, after the printing
work was over, A3 and A5 used to leave M.Os.6 to 9 printing plates in the
press itself and destroyed the waste.
60. P.W.15 cannot be considered to be an accomplice, as there is no
material to show that he knew that they were committing some offence.
According to him, as an employee under A1, he carried out the instruction of
A1 by printing the stamps by using M.Os.6 to 9 and he made entries in
respect of the said work in M.O.10 note book.
61. It may be true that A5's name was not mentioned in Ex.P-34. The reason
is obvious. P.W.15 was traced only later. The search conducted in the
house of A1 to A3 by P.W.11 had revealed the involvement of A1 to A3 alone
at that stage. Once P.W.24 Deputy Superintendent of Police took up the
investigation, he was able to spread the net and find out the involvement of
other accused also. Therefore, the non-inclusion of A5 in Ex.P-34 would not
in any way help the case of the defence.
62. On the other hand, as discussed above, the evidence of P.W.15, P.W.4,
P.W.24, P.W.17, P.W.18 and P.W.19 and the materials recovered from the house
of A3 and A5 would clearly show that both A3 and A5, in pursuance of the
conspiracy hatched with others, printed the counterfeit Central Excise
stamps and distributed the same to various places in the name of M/s.Orient
Paper Mart and M/s.Rose Paper Stores under the guise of paper bundles.
63. These materials would show that the evidence of P.W.15 as against A3
and A5 has been substantially corroborated by the other oral and documentary
evidence. Consequently, it has to be held that the conviction imposed upon A3
and A5 for the offences under Sections 120-B and 255 I.P.C. are liable to
be confirmed.
64. Let us now come to the case of A4.
65. The learned counsel for A4, by adopting the arguments advanced by A3
and A5, would submit that the conviction imposed on A4 merely on the
evidence of P.W.1, who is an approver, cannot be sustained, as the materials
available on record would not be sufficient to convict A4 for the offences
under Section 120-B and 259 I.P.C.
66. Section 259 I.P.C. provides possession of counterfeit Government
stamp. According to prosecution, A4 took delivery of the parcels containing
the counterfeit Central Excise stamps sent by A5, which were distributed
through P.W.1 to various factories. The evidence of P.W.1, an approver,
would show that on the request made by A4, he worked in several safety match
factories and used to remove the genuine band rolls and replace them with
the counterfeit band rolls given by A4. He would also state that on the
instruction of A4, he used to take delivery of the band rolls.
67. Apart from that, the evidence of P.W.8 would show that at the instance
of A4, he took delivery of the band roll parcels under Exs.P-124 and P-125.
This is addressed as Kalirajan, Kovilpatti in Exs.P-124 and P-125. The
addressee was mentioned as Kalirajan, No.125 Main Road, Kovilpatti. P.W.7
Inbaraj would state that no such person was available in the premises at
No.125 Main Road, Kovilpatti.
68. P.W.2 Thirumalaikumar, who was working in TVS Lorry Booking office at
Kovilpatti, would state that on 22.2.1986, A4 Shenbagaraj visited his office
with Ex.P-12 and took delivery of two gunny bag parcels sent in the name of
Kalirajan. On the back of Ex.P-12 lorry receipt, A4 Shenbagaraj signed and
took delivery of the said two gunny bag parcels coming in the name of
Kalirajan. P.W.8 N.Shenbagaraj also would corroborate the statement of P.W.2.
69. According to prosecution, though the evidence of P.W.2, who was working
in TVS Lorry Booking Office, Kovilpatti, two gunny bag parcels in the name
of Kalirajan was taken delivery by A4 and P.W.8 and they were kept concealed
near his house. On the basis of the statement of these witnesses, on
24.2.1986, P.W.24 Deputy Superintendent of Police arrested A4 in the
presence of P.W.4 Inspector of Central Excise, Kovilpatti. A4 gave a
confession to the effect that he took delivery of the counterfeit Central
Excise stamps sent in the name of Kalirajan by A5 from Madras. The
admissible portion of his confession is marked as Ex.P-17. He would also
point out the place where the parcels were kept concealed. Accordingly,
P.W.24 and other officials were taken to a secluded place near his house and
M.Os. 1 and 3 two gunny bags and M.Os.2 and 4 yellow and blue colour
Central Excise stamps were seized in the presence of P.W.4 under Ex.P-29
recovery mahazar. The gunny bags also contained the address of Kalirajan,
Kovilpatti. P.W.24 sent M.Os.2 and 4 along with other articles for
analysis. P.W.20 Analyst submitted Ex.P-68 opinion to the effect that
M.Os.2 and 4 Central Excise stamps were counterfeit stamps and the same were
printed with the use of M.Os.6 to 9 printing plates.
70. The evidence of P.W.22 Handwriting Expert would show that the
handwriting in Ex.P-12 was made by A4. As such, the participation of A4 has
been clearly established by the evidence of P.W.8, P.W.4, P.W.24 and by
Ex.P-12, P-17, P-29 and M.Os.1 to 4. P.W.1 approver would also speak about
the fact that A4 used to remove the genuine band rolls and replace them with
the counterfeit band rolls.
71. In the light of these materials, it cannot be said that there is no
sufficient material. The whole reading of the evidence, both oral and
documentary, would clearly show that A1 to A5 were the parties to the
conspiracy and each one of them had played an important role in execution of
the said conspiracy and as a result of this, the counterfeit Central Excise
stamps were printed at the press of A1 by A3 and A5 through M.O.11 film
negatives supplied by A2, and A3 and A5 sent the same to A4 under the guise
of paper bundles, as if M/s. Orient Paper Mart and M/s.Rose Paper Stores were
the despatchers and after receiving the parcels, A4 distributed one portion
of the counterfeit Central Excise stamps to various safety match factories
and kept concealed the other portion in his house.
72. Thus, it is clear that the prosecution has established the offences for
which the accused have been convicted and as such, there is no reason to
hold that the findings with regard to conviction and the reasonings for those
findings given by the trial Court are not justified.
73. Therefore, these appeals have no merits and consequently, the same are
liable to be dismissed.
74. In the result, these appeals are dismissed. The conviction and
sentence imposed upon the appellants (A1 to A5) by the trial Court are
confirmed. The trial Court is directed to take steps to secure the custody
of the appellants to undergo the remaining period of sentence. 5-11-2001
Index: Yes dpp /True copy/ Sd/
Asst.Registrar
To: 1.The VIII Addl. Sessions Judge, City Civil Court, Chennai.
2.-do
Through the Principal Judge,City CivilCourt, Chennai.
3. The Special Public Prosecutor for CBI Cases, High Court, Chennai.
M. KARPAGAVINAYAGAM, J.
Judgment in CRL. APPEAL Nos.3, 38, 50 and 65 of 1991 5-11-2001