Delhi District Court
State vs . Mohd. Subhan & Ors. on 15 June, 2011
State vs. Mohd. Subhan & Ors.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 32/09
FIR No. 269/08
PS H.N. Din
U/s 489A/489B/489D IPC
State Vs. 1. Mohd. Subhan, S/o Mohd. Arjul, R/o
Village Salgudi, PS Kadon Gaon,
District Kishan Ganj, Bihar.
2. Mohd. Nayeem, S/o Mohd. Kasheer,
R/o Village Amaljhari, PS Thakur
Ganj, District Kishan Ganj, Bihar.
3. Mohd. Suhail, S/o Sh. Meer Ali, R/o
Puraba Kandi, District Shariyat Pur,
Bangladesh.
Date of institution : 07.01.2009
Date when arguments were heard : 06.06.2011
Date of Judgment : 14.06.2011
JUDGMENT
The prosecution case is that on 10.08.2008, SI Rajinder Singh of SC No. 269/08 1/22 State vs. Mohd. Subhan & Ors.
SOS, Crime Branch received an information about three persons who were involved in making fake Indian currency notes of 500, 100 and 50 denomination and used to exchange these fake Indian currency notes with the genuine currency notes and that these three persons would be coming at the bus stand near Rajiv Gandhi Smriti Van. This information was given to the Senior Officers and the team consisting of ASI Ravinder, ASI Devender, HC Ragender, Ct. Vikal Singh and Ct. Ajay Rana and SI Rajinder Singh was formed. The secret informer was also with them. After reaching the spot, SI Rajinder Singh gave a currency note of Rs. 1,000/ bearing No. 9CF01078 to HC Ragender and instructed him to exchange this original currency note with fake currency notes to be supplied by those persons. At about 4.15 pm, three persons (all the three accused) were seen near the red light under the flyover. They were identified by the secret informer. HC Ragender who was deputed as a decoy customer, had a dealing with those persons and in exchange of the genuine currency note of Rs. 1,000/ denomination bearing No. 9CF01078, he received two fake Indian currency notes of Rs. 500/ denomination bearing No. 2DB387849 from the accused Mohd. Subhan, he received 10 notes of Rs. 100/ denomination bearing No. 5VM604941 from accused Suhail and 20 fake Indian currency notes of the denomination of Rs. 50/ bearing No. 1LD233668 from accused Mohd. Nayeem. After completing the deal, he gave the preplanned indication and all the accused were, therefore, apprehended by the police party. All the currency notes were SC No. 269/08 2/22 State vs. Mohd. Subhan & Ors.
seized by the Investigating Officer. During the further search of the person of the accused persons, 48 fake Indian currency notes of the denomination of Rs. 500/ were also recovered from accused Mohd. Subhan alongwith the original note of Rs. 1,000/ denomination given to him by HC Ragender. The accused Mohd. Suhail was found in possession of 60 fake Indian currency notes of the denomination of Rs. 50/ and the accused Mohd. Nayeem was found in possession of 80 fake Indian currency notes of the denomination of Rs. 50/. All these fake Indian currency notes recovered from the accused were seized. SI Rajinder Singh prepared the rukka and sent Cosntable Vikal Singh for registration of the FIR. After the FIR was registered, the investigation was assigned to SI P.C. Yadav who reached the spot. He interrogated the accused persons and recorded their disclosure statements. The accused disclosed about the preparation of the fake currency notes by them with the help of a coloured printer cum scanner. Pursuant to this disclosure statement, a raid was conducted at the rented residence of the accused persons on the first floor of property No. E234, Gali No.8, Shastri Park, Delhi. This raid by the police led to the recovery of fake Indian Currency notes in the denominations of 500, 100 and 50. Some unfinished sheets containing the impression of Rs. 100/ and Rs. 50/ were also recovered at the instance of the accused. The printer and the scanner found at the said premises alongwith three empty coloured cartridges were seized by the Investigating Officer. The fake Indian currency notes recovered from the accused persons and at their instance, SC No. 269/08 3/22 State vs. Mohd. Subhan & Ors.
were sent to Currency Note Press, Nasik. Rest of the case property deposited at Malkhana, PS H.N. Din. After completing the investigation, the charge sheet was filed for the offence U/s 489A/489B/489D IPC against all accused and Section 14 of the Foreigners Act, was also invoked against Mohd. Suhail as he was found to be Bangladeshi national and was without any travel document.
2. The accused when charged with the offence U/s 489A/489 B/489D IPC read with Section 34 IPC, denied the charge and claimed the trial. The accused Mohd. Suhail was further charged for the offence U/s 14 of the Foreigners Act as he was not having any valid, legal travel document with him. He pleaded not guilty to this charge as well.
3. The prosecution then led the evidence and examined following witnesses: 3.1 PW1 is W/ASI Renu Bala. She was the Duty Officer who had registered the FIR No. 269/08 (Ex. PW1/A) on the basis of the rukka sent by SI Rajinder Singh through Constable Vikal Singh. 3.2 PW2 is HC Ragender. He was the decoy customer.
3.3 PW3 is Constable Vikal Singh. He was the member of the police raiding party.
3.4 PW4 is SI Rajinder Singh.
3.5 PW5 is SI P.C. Yadav, the Investigating Officer in the case. 3.6 PW6 is Constable Kheta Ram, who had deposited the case SC No. 269/08 4/22 State vs. Mohd. Subhan & Ors.
property i.e the fake Indian currency notes, at Currency Note Press, Nasik on 29.09.2008.
4. PW2 HC Ragender, PW3 Ct. Vikal Singh and PW4 SI Rajinder Singh have deposed on the same line to the effect that on 10.08.2008, a secret information was received in the office of the Crime Branch at about 2.00 pm that three persons would come at the bus stand of Sarai Kale Khan near Rajiv Gandhi Smriti Van. SI Rajinder Singh (PW4) conveyed this information to the ACP of the area and Inspector K.P. Singh and he was in turn directed to conduct the raid. SI Rajinder Singh formed the raiding party consisting of ASI Ravinder, ASI Devender, HC Ragender, Ct. Vikal Singh and Ct. Ajay Rana. They left their office in a Government Gypsy with the secret informer and reached at the bus stand Sarai Kale Khan at 2.45 pm. SI Rajinder Singh handed over the genuine currency note of Rs. 1,000/ (Ex. P8) to HC Ragender (PW2) and instructed him to struck a deal with the accused persons. This currency note was duly signed by SI Rajinder Singh. Before this currency note was given to HC Ragender (PW2), his personal search was conducted vide the memo Ex. PW1/A and the currency note was handed over to him vide memo Ex. PW3/A. At about 4.00 pm, three boys came from the side of Yamuna River Flyover. They were pointed out by the secret informer. Those three persons came near the bus stand and stood on the patri. HC Ragender went to struck the deal and after having a deal with them, gave an indication. He handed over the original currency note of Rs. 1,000/ (Ex. P8) to the accused Mohd. SC No. 269/08 5/22
Subhan who gave him two fake currency notes of Rs. 500/ denomination. Accused Mohd. Subhan took 10 currency notes of Rs. 100/ denomination from accused Mohd. Suhail and 20 currency notes of Rs. 50/ denomination from accused Mohd. Nayeem. All the currency notes of three different denominations were kept in three different transparent polythene bags and sealed with the seal of R.S and these pulandas were seized vide memo Ex. PW2/A. The further search of the accused Mohd. Subhan led to the recovery of 48 fake currency notes of Rs. 500/ denomination alongwith the original currency notes of Rs. 1,000/ denomination given by HC Ragender (PW2) to him. These were sealed in a pulanda and were seized vide memo Ex. PW2/B. The search of the accused Mohd. Subhan had resulted in recovery of 68 fake currency notes of Rs. 100/ denomination which were also kept in a polythene bag and after sealing the same with the seal of R.S, the bag was seized vide memo Ex. PW2/C. Similarly, 80 fake currency notes of Rs. 50/ denomination recovered from the accused Mohd. Nayeem were also kept in a polythene bag and sealed with the seal of R.S and seized as per the memo Ex. PW2/D. PW4 SI Rajinder Singh sent the rukka Ex. PW4/A which led to the registration of the FIR Ex. PW1/A.
5. PW5 SI P.C. Yadav has deposed that the investigation was marked to him on 10.08.2008 and he reached Rajiv Gandhi Smriti Van, Sarai Kale Khan Bus Terminal at about 7.35 pm where he met SI Rajinder Singh with the other members of his raiding team and all the three accused persons. SI Rajinder Singh had produced the accused persons before him SC No. 269/08 6/22 State vs. Mohd. Subhan & Ors.
alongwith the case property and the documents. He further deposed that he arrested the accused Mohd. Nayeem, Mohd. Subhan and Mohd. Suhail vide arrest memo Ex. PW3/C, 3/E and 3/G respectively. He also recorded the disclosure statement of the accused persons namely Mohd. Subhan, Mohd. Nayeem and Mohd. Suhail vide Ex. PW3/I, 3/J and 3/K respectively. He prepared the site plan Ex. PW5/A at the instance of SI Rajinder Singh. He further deposed that the accused Mohd. Subhan had led the police party to house No. E234, Gali No.8, Shastri Park, Delhi and got recovered 122 currency notes of 500 denomination and 140 currency notes of 50 denomination from them. He further deposed that 10 sheets of paper on which the currency notes of 50 and 100 denomination were printed, were also seized. The printer cum scanner was also recovered from this premises which was also seized. The fake currency notes of 100 and 500 denomination recovered were kept in a transparent polythene bag and were sealed with the seal of D.K and the imprinted sheets were also kept in a separate pulanda. These pulandas were seized vide memo Ex. PW3/L. During the investigation, he recorded the statement of witnesses and sent the fake Indian currency notes to the Currency Note Press, Nasik and after completing the investigation, filed the charge sheet in the court.
6. The accused in their statement U/s 313 Cr.P.C have categorically denied the recovery of counterfeit notes from their possession. The accused Mohd. Subhan, whose disclosure statement had led to the recovery of 122 fake currency notes of 500 denomination and 140 notes of SC No. 269/08 7/22 State vs. Mohd. Subhan & Ors.
50 denomination alongwith the printer and the scanner from house No. E234, Gali No.8, Shastri Park, New Delhi, has completely denied any recovery being made at his instance. The accused Mohd. Subhan has also filed the written statement U/s 313 Cr.P.C in which he stated that he was lifted from his residence in Gali No.8, Shastri Park, New Delhi by the Crime Branch officials on 06.08.2008. First he was kept at PS Seelam Pur and Ashram till 11.08.2008. On 11.08.2008, he was produced in the court and was sent to judicial custody. He further stated that during the investigation he was inquired about one Shakila and he had replied that he is not having any knowledge about the said Shakila. He further stated that the crime branch officials brought him to Ashram where he was shown a bundle of currency notes of Rs. 50,000/ at the police station and was asked whether it was genuine or fake. He further stated that he is a junk dealer by professions and he has been lifted from his house by the police without even the knowledge of his landlord. It may not be out of the place to mention here that the accused Mohd. Subhan has not given his house number in his written statement and simply mentioned the gali number of the locality. The other two accused namely Mohd. Nayeem and Mohd. Suhail have taken the similar stand and deny completely the recovery of counterfeit notes from their possession. They sought the liberty to file written statement but did not file. None of the accused preferred to lead evidence in defence.
7. I have heard the arguments from the Ld. Addl. Public prosecutor SC No. 269/08 8/22 State vs. Mohd. Subhan & Ors.
for state and the respective counsels for accused persons.
8. The Ld. Addl. PP for state has argued that the recovery of the counterfeit currency notes from the possession of the accused stands proved from the statement of PW2 HC Ragender, PW3 Constable Vikal Singh and PW4 SI Rajinder Singh. He further argued that the recovery of 122 fake currency notes of 500 denomination and 140 fake currency notes of 50 denomination were recovered from the possession of the accused Mohd. Subhan at his instance from house No. E234, Gali No.8, Shastri Park, New Delhi. Apart from that, they had 10 sheets of paper on which currency notes of 50 and 100 denomination were printed. A printer cum scanner was also recovered at the instance of the accused Mohd. Subhan. The Ld. Addl. PP further argued that the accused persons not only were having fake Indian currency notes but they were also engaged in making fake currency notes with intention to sell them and the recovery of the instrument of making fake currency notes prove this fact.
9. On the contrary, the Ld. Counsel for accused persons have refuted the arguments of the Ld. Addl. PP and it was submitted by the Ld. Defence Counsel for accused Mohd. Subhan that the prosecution case suffer from number of lacunas and the prosecution failed to discharge its burden of proving the case against the accused beyond reasonable doubt. He argued that the prosecution has not examined Inspector K.P. Singh who had given the currency note of Rs. 1000/ denomination to SI Rajinder Singh (PW4). It is further argued that Inspector K.P. Singh was not even SC No. 269/08 9/22 State vs. Mohd. Subhan & Ors.
cited as a witness. As regard the recovery at the instance of accused Mohd. Subhan from House No. E234, Gali No.8, Shastri Park, New Delhi, he submitted that the evidence in this regard is not convincing, therefore, cannot be believed. He submitted that PW5 SI P.C. Yadav has stated in the cross examination that the disclosure statement of the accused was recorded in the office of SOS, Crime Branch and they left the office to visit Shastri Park at about 10.15 pm alongwith 5/6 police officials. PW2 HC Ragender on the other hand has stated in the cross examination that all the members of the raiding party alongwith SI P.C. Yadav (PW5) and three accused persons straightaway went to Shastri Park for conducting the raid and had reached there at about 7/8 pm. This contradiction, he argued, bring to fore the inherent weakness of the prosecution case and the falsity therein. He further argued that no site plan of the place of recovery has been prepared and no evidence has been collected that the printer and the scanner allegedly recovered at the instance of the accused Mohd. Subhan was used for printing counterfeit currency notes. The disclosure statement of the accused Mohd. Subhan with regard to the use of this printer and the scanner for the purpose of making counterfeit currency notes is not admissible in evidence. It was further argued that no evidence has been collected with regard to the working condition of this printer and the scanner. It was also argued that the personal search of the accused as per the statement of witnesses has been conducted on the spot and during the personal search of the accused Mohd. Subhan, nothing was recovered. Ex. SC No. 269/08 10/22
PW3/R shows nil recovery during the personal search of the accused Mohd. Subhan. PW5 has deposed that when the accused Mohd. Subhan was taken to house No. E234, Gali No.8, Shastri Park, New Delhi, the accused himself had opened the lock of the door. He deposed that the key was recovered from the accused Mohd. Subhan from his personal search but it was not mentioned in the memo. The Ld. Defence Counsel argued that this shows the hollowness of the prosecution case as the witness has tried to make improvement in the statement in the court in support of the prosecution case.
10. The Ld. Counsel for accused Mohd. Suhail and Mohd. Nayeem has argued that the recovery has been planted upon the accused persons. He further argued that as per prosecution case, the instrument of making counterfeit currency notes like printer and the scanner have been recovered at the instance of accused Mohd. Subhan and the accused Mohd. Nayeem and Mohd. Suhail did not even accompany the police party to this place of recovery and there is no other evidence to connect these two accused with the recovery effected at the instance of the accused Mohd. Subhan, therefore, Section 34 IPC cannot be invoked against them to implicate them for the offence U/s 489A IPC and U/s 489D IPC. He further argued that it is strange that only a printer and the scanner has been recovered but no CPU or computer monitor has been recovered. The prosecution has been unable to show how a printer and the scanner can be used to make counterfeit notes without a CPU and computer monitor. Thus, he argued, SC No. 269/08 11/22 State vs. Mohd. Subhan & Ors.
no case is made out against these accused persons.
11. The accused have been charged for the offence U/s 489B r/w/s 34 IPC, U/s 489A r/w/s 34 IPC and U/s 489D r/w/s 34 IPC.
12. To prove this offence U/s 489B IPC, the prosecution required to prove the sale, purchase, receipt, trafficking or use of counterfeit currency notes as genuine. To establish a charge U/s 489A IPC, the prosecution is required to prove beyond doubt that the accused had counterfeited the recovered fake currency notes. The offence U/s 489D IPC relates to making, or buying, selling or possessing instrument or material for forging or counterfeiting currency notes or bank notes.
13. The case of the prosecution is that the accused were trafficking in forged/ counterfeited Indian currency notes and when the police party had reached the spot, HC Ragender (PW2) was made a decoy customer and was handed over one currency note of Rs. 1000/ denomination (Ex. P8) to purchase fake currency notes by SI Rajinder Singh (PW4) and he was directed to exchange the fake currency note with the original note given to him. PW2 has deposed that when the accused came, they were pointed out by the secret informer and he had approached them to struck a deal. The accused Mohd. Subhan agreed to pay three times of fake currency notes in lieu of one original currency note. He further deposed that he handed over the currency note of Rs. 1000/ denomination to the accused Mohd. Subhan which was given to him by SI Rajinder Singh. The accused Mohd. Subhan gave him two currency notes of Rs. 500/ SC No. 269/08 12/22 State vs. Mohd. Subhan & Ors.
denomination and he had taken 10 currency notes of Rs. 100/ denomination from the accused Mohd. Suhail and 20 currency notes of Rs. 50/ denomination from the accused Mohd. Nayeem.
14. After the deal was struck and the transaction took place, the indication was given to the IO and the accused were apprehended. The accused was searched and the search of accused Mohd. Subhan led to the recovery of 48 fake currency notes of 500 denomination and the search of the accused Mohd. Suhail led to recovery of 60 fake currency notes of 100 denomination and the search of accused Mohd. Nayeem led to recovery of 80 fake currency notes of 50 denomination from their possession. These currency notes so recovered, were seized vide memo Ex. PW2/B, Ex. PW2/C and Ex. PW2/D respectively. Regarding the recovery of fake currency notes which were seized vide memo Ex. PW2/B, 2/C and 2/D, the statement of PW3 Ct. Vikal Singh corroborates PW2 HC Ragender. PW4 SI Rajinder Singh has also deposed on the same line.
15. The case property so recovered from the accused persons were deposited in the police malkhana and the currency notes so recovered from the accused persons were sent to Currency Note Press, Nasik through Ct. Kheta Ram (PW6). He deposed that he had collected the case property pertaining to this case in duly sealed condition from MHC (M), PS Hazrat Nizamuddin and had taken the same to Currency Note Press, Nasik and deposited the same there on 29.09.2008 in duly sealed condition. He deposed that till he was in custody of the case property, there was no SC No. 269/08 13/22 State vs. Mohd. Subhan & Ors.
tampering with the same by anyone. The Currency Note Press report has been placed on record as Ex. PW5/B. The report of the Currency Note Press, Nasik is admissible in evidence U/s 292/293 Criminal Procedure Code. As per this report, the suspected currency notes of 50, 100 and 500 denomination received in intact sealed condition by hand through Ct. Kheta Ram (PW6 in this case) were returned in sealed condition after examination. It was opined that the "referred suspected notes are counterfeit notes due to absence of security features." Thus, in view of the Report of the Currency Note Press, Nasik, Ex. PW5/B the notes which the prosecution allege were recovered from the possession of the accused persons were counterfeit currency notes.
16. The question arise about the recovery of currency notes recovered from the possession of the accused. The prosecution alleges that the accused have been apprehended on the basis of a secret information and they were found in possession of fake Indian currency notes. It was the submission of the Ld. Counsel for accused persons that no public person had been joined in the raid despite having a prior information with the police officers nor any serious effort was made to join public witness. This alleged recovery from the accused cannot be believed solely on the basis of evidence of police officials. At the outset, it may be stated that the statement of police officials is to be given same credit as other witness. Their statement cannot be given less evidentiary value simply because of their official status. Joining of public person in such raid, no doubt, lends SC No. 269/08 14/22 State vs. Mohd. Subhan & Ors.
credence to the prosecution case but it may not be feasible all the time to have public witness while police conducts a raid. It is a common knowledge that public does not want to get involved with police in criminal cases. The reluctance of the common man to join raiding parties organized by the police is due to the reason that public persons do not want to involve themselves in the investigation as they apprehend a lot of inconvenience during the trial. Therefore, the absence of public witness in the raiding party of the police cannot be taken as a ground to disbelieve the statement of police officials. The statement of witness, public or official, has to be considered on the basis of its intrinsic worth.
17. Now, coming to the statement of the prosecution witnesses, PW2 HC Ragender, PW3 Ct. Vikal Singh and PW4 SI Rajinder Singh have deposed almost on the same line. Of course, there are some variations in the statement occurring in the cross examination but these variations are not on any material point and do not relate to the initial raid in which three accused have been apprehended with the fake currency notes. The accused persons have not taken any plea that there was any enemity or illwill between them and the witnesses. There is no reason for the police officials to depose falsely against the accused and implicate them in a false case. Nothing has come on the record to show that the police officials had planted the recovery upon the accused persons. In a similar case decided by the Hon'ble Delhi High Court in Criminal Appeal No. 1059/06 and Criminal Appeal No. 20/07 titled as Anish & Ors. vs. State of NCT and SC No. 269/08 15/22 State vs. Mohd. Subhan & Ors.
Nand Kishore vs. State of Delhi, it was observed as under: "The appellants do not claim that there was any enemity or illwill between them or any of these witnesses. Therefore, there could have been no reason for them to depose falsely against the appellants and implicate them in a false case. Their testimony cannot be rejected merely because they happen to be police officials." As observed by the Hon'ble Supreme Court in Tahir vs. State (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raza Khima vs. The State of Saurashtra AIR 1956 SC 217, that the presumption that a person acts honestly and legally applies as much in favour of the police officials as of others. It is not proper and permissible to doubt the evidence of police officials."
18. The witnesses of the prosecution PW2 HC Ragender, PW3 Ct. Vikal Singh and PW4 SI Rajinder Singh have categorically deposed about the recovery of the counterfeit currency notes from the possession of the accused persons and this court has no reason to doubt their statement in this regard.
19. Now the question arise about the applicability of Section 489B SC No. 269/08 16/22 State vs. Mohd. Subhan & Ors.
IPC. It reads as under: "489B Using as genuine, forged or counterfeit currency notes or banknotes Whoever sells to, or buys or receives from any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currencynote or banknote, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with (imprisonment for life) or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."
20. To prove the allegation of the offence U/s 489B IPC, the prosecution is required to prove the sale, purchase, receipt, trafficking or use of counterfeit currency as genuine. The accused have taken the plea that nothing has been recovered from their possession and they were not having any fake currency note in their possession. So far as the status of the currency notes which were sent to the Currency Note Press, Nasik is concerned, it has been established that those currency notes were fake Indian currency notes and the report Ex. PW5/B confirms this. Once it is proved that the accused were in possession of the currency notes, then it was for the accused persons to explain how they came to possess these currency notes. The accused instead of giving any explanation as to how they came to possess these currency notes, took the plea that they were not in possession of the currency notes at all. When a person found in SC No. 269/08 17/22 State vs. Mohd. Subhan & Ors.
possession of a counterfeit currency note, instead of giving any explanation for such possession of the counterfeit notes, completely deny the possession of the currency notes and such a plea is not found trustworthy in view of the evidence led by the prosecution, then the logical inference can be drawn that the accused has "reason to believe" that the currency notes recovered from him were counterfeit currency notes. Section 489B IPC speaks about the "knowledge" of the accused that he is in possession of the counterfeit currency notes or a "reason for him to believe" that he was in possession of the counterfeit currency notes. Thus, mens rea is an essential element for the offence U/s 489B IPC. This mens rea of an accused is a state of mind and cannot be proved by direct evidence and has to be inferred from the circumstances. The possession of a counterfeit currency note coupled with the denial of possession without any attempt to explain how he came into possession of the currency notes, is sufficient to infer the requisite knowledge and the intention on the part of an accused. It is not the case of the accused persons that they came to acquire the fake currency notes innocently. Their possession of the counterfeit currency notes undisputedly point to the fact that they have received the currency notes from some source. When the accused keep silent, it is not possible for the prosecution to prove how the accused came into possession of the counterfeit currency notes. There cannot be any dispute that the prosecution has to prove all the ingredients of the offence. "But when prosecution has proved all that it could have and the circumstances proved by it indicates towards the guilt SC No. 269/08 18/22 State vs. Mohd. Subhan & Ors.
of the accused, in that case, if there exist a fact which is only in the knowledge of the accused and that fact is compatible with his innocence, it is for the accused to bring such a fact in the notice of the court {Anish vs. State of NCT of Delhi (Supra)}."
21. In the above mentioned case, the accused was found in possession of the fake currency notes and he had totally denied the possession of the fake Indian currency notes. His conviction was upheld by the Hon'ble High Court as the accused failed to offer any explanation regarding his possession of those currency notes and observed as under: "The fact as to how the appellants came into possession of these currency notes is a fact especially in the knowledge of the appellants and in view of Section 106 of the Evidence Act when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If the person found in possession of currency notes does not tell the court as to how it had come into their possession and choses to altogether deny his possession of such currency notes, the court would be justified in inferring that he had received those notes from someone."
22. Thus, in view of the evidence on the record, the logical conclusion would be that the accused persons were in "receipt" of the fake Indian currency notes with the intention of trafficking in the same. This SC No. 269/08 19/22 State vs. Mohd. Subhan & Ors.
prove the offence U/s 489B IPC against them.
23. Now the question arise about the applicability of Section 489A IPC and 489D IPC. The Ld. Counsel for accused persons had argued that firstly, the recovery of the printer cum scanner and some printed papers having the print of currency notes of 100 and 50 denomination, itself is doubtful and even if it is accepted to be correct, still there is no evidence to show that the printer, scanner etc. recovered from house No. E234, Gali No.8, Shastri Park, New Delhi, were used for counterfeiting the recovered fake currency notes. Similarly, there is no evidence that this printer and scanner have been used for making counterfeit currency notes. Therefore, merely possessing these printer and the scanner will not prove the case U/s 489D IPC.
24. Admittedly, the printer recovered from the house No. E234, Gali No.8, Shastri Park, New Delhi, was not sent to the FSL or to any other expert for the examination to seek opinion whether the printer and the cartridges have been used for counterfeiting recovered currency notes. Thus, there is no evidence to connect the recovered printer with the currency notes recovered from the possession of the accused persons. The disclosure statement (Ex. PW3/I) of the accused Mohd. Subhan, on which the prosecution rely, that this printer was used for making the fake Indian currency notes recovered from them is not admissible in evidence. Therefore, the evidence with regard to the applicability of Section 489A IPC and 489D IPC is lacking. The nonexamination of the printer, scanner SC No. 269/08 20/22 State vs. Mohd. Subhan & Ors.
and the cartridges at the CFSL or by any other expert in this field has left a vacuum in the evidence of the prosecution to connect the recovered counterfeit currency notes with these articles. In a similar case in Sunil Kumar vs. State in Criminal Appeal No. 570/08 (Delhi High Court) decided on 28.03.2011, the accused was found in possession of a printer, scanner, paper blade cutter etc. but the Hon'ble High Court did not find the recovery itself sufficient to conclude that the recovered material was actually the equipment for printing the counterfeit currency notes or that they were the instruments for making or forging counterfeit currency notes. Similarly, in the present case, there is no evidence which could lead to draw an inference that the printer and the cartridge recovered were actually meant for the purpose of forging or counterfeiting currency notes. Thus, it is held that the prosecution is unable to prove and establish the charge U/s 489A IPC and 489D IPC against the accused persons for want of sufficient evidence.
25. Now the question comes about the accused Mohd. Suhail who has also been charged for the offence U/s 14 of the Foreigners Act. PW5 SI P.C. Yadav has deposed that the accused Mohd. Suhail was a Bangladeshi National and he could not produce any valid travel document or permission for his presence in India. When the accused Mohd. Suhail was confronted with this evidence in the statement U/s 313 Cr.P.C, he admitted this as correct. The accused Mohd. Suhail when arrested had given his address as resident of Village Purbakhandi, District Shariyat Pur, SC No. 269/08 21/22 State vs. Mohd. Subhan & Ors.
Bangladesh. When his statement was recorded U/s 313 Cr.P.C, he had again given the same particulars of his residence. The accused Mohd. Suhail admittedly has no valid travel document to stay and reside in India.
26. Section 14A of the Foreigners Act, 1946 provides the punishment for a person who enters India or stay in India without valid documents required for such entry or stay in India. The accused Mohd. Subhan has been found in India without any valid travel documents. Thus, the offence under section 14A of the Foreigners Act, 1946 against him stands proved beyond doubt.
27. In view of the above discussion, all the accused persons namely Mohd. Subhan, Mohd. Nayeem and Mohd. Suhail are held guilty for the offence under section 489B IPC and convicted accordingly. However, the prosecution failed to prove the charge for the offence U/s 489A IPC and U/s 489D IPC against the accused persons and they are acquitted of the said charges. The accused Mohd. Suhail is further held guilty for the offence U/s 14A of the Foreigners Act and convicted accordingly.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 14.06.2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 269/08 22/22
State vs. Mohd. Subhan & Ors.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 32/09
FIR No. 269/08
PS H.N. Din
U/s 489A/489B/489D/34 IPC and Section 14 Foreigners Act.
State Vs. 1. Mohd. Subhan, S/o Mohd. Arjul, R/o Village Salgudi, PS Kadon Gaon, District Kishan Ganj, Bihar.
2. Mohd. Nayeem, S/o Mohd. Kasheer, R/o Village Amaljhari, PS Thakur Ganj, District Kishan Ganj, Bihar.
3. Mohd. Suhail, S/o Sh. Meer Ali, R/o Puraba Kandi, District Shariyat Pur, Bangladesh.
Order on Sentence I have heard the arguments on the point of sentence.
1. All the three convicts have been held guilty for the offence under section 489B IPC read with Section 34 IPC and the convict Mohd. Suhail is also held guilty for the offence under section 14A of the SC No. 269/08 23/22 State vs. Mohd. Subhan & Ors.
2. Ld. Addl. P.P for the state has submitted that the convicts have been engaged in trafficking of fake Indian currency notes. He submits that the offence is serious in nature and, therefore, the convicts may be awarded the maximum sentence.
3. Sh. Rajiv Jain, Ld. Counsel for convict Mohd. Subhan has submitted that a leniency may be shown in awarding sentence to the convict keeping in view his family circumstances. He stated that the convict Mohd. Subhan has three children. He is the sole bread earner of the family and he has no previous criminal record. He submitted that convict Mohd. Subhan was released earlier on interim bail in November 2010 and he did not misuse the liberty of interim bail. He further submitted that the family members of Mohd. Subhan reside at the native place in Bihar and they will be on the verge of starvation if the convict Mohd. Subhan is further kept in the custody for a longer duration.
4. It is submitted by the convict Mohd. Nayeem that he has no previous criminal record and he is already in custody since the date of his arrest.
5. The convict Mohd. Suhail submits that he had come to India to earn his livelihood and he is in custody since the date of his arrest.
6. I have considered the facts and circumstances of the case. Sentencing is a difficult part of the trial. The court has to consider the nature and the gravity of the offence as well as the peculiar circumstances SC No. 269/08 24/22 State vs. Mohd. Subhan & Ors.
of the case. No doubt using and possessing the fake currency notes is a serious offence and as it has economic ramification. Therefore, severe punishment is provided for such offence. However, the gravity of the offence needs to be taken into consideration before awarding a sentence. For this reason, the Legislature has given an option to the court to punish the convicts for the offence under section 489B IPC with Life Imprisonment or with Imprisonment which may extend to 10 years.
7. The purpose of punishment to a person who has committed an offence is to make him realize his fault and to deter him from repeating such act in the future. But simply deterrence is not the sole purpose of punishment. The reformative aspect of punishment is also need to be taken into account. A person must be given an opportunity to reform himself. But at the same time, unwarranted sympathy in serious cases may not be called for. Therefore, a balance has to be struck between the interest of the individual concern and that of the society at large.
8. Keeping in view all the facts and circumstances of the case, the convict Mohd. Subhan, Mohd. Nayeem and Mohd. Suhail are sentenced to Four Years Rigorous Imprisonment for the offence under section 489B IPC and are also sentenced to pay fine of Rs 1,500/ each in default to undergo Simple Imprisonment for two months.
9. The convict Mohd. Suhail is a Bangladesh National. For the offence under section 14A of the Foreigners Act, 1946, he is sentenced SC No. 269/08 25/22 State vs. Mohd. Subhan & Ors.
to Four Years Rigorous Imprisonment and further sentenced to pay fine of Rs 1,000/, in default to undergo Simple Imprisonment for one month.
The convict Mohd. Suhail shall be deported to his native country after the sentence is completed.
All the sentences shall run concurrently. Benefit of section 428 Cr. P.C be given to all the convicts.
Copy of judgment and order on sentence be given to the convicts free of cost and one copy be sent to the SHO, PS H.N. Din and the Superintendent, Central Jail, Tihar for compliance.
File be consigned to Record Room.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 15.06.2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 269/08 26/22