Delhi District Court
Branch : Cbi, EouV/EoIi, New Delhi Cbi vs . Kulwant Rai. Pages 1 Of 20 on 28 January, 2017
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CNR No. : DLND01-000455-2013
SC No. : 8896/2016
FIR No. : RC 220 2012 E0019 EOU-V/EO-II
U/S : 489B/489C IPC
Branch : CBI, EOU-V/EO-II, New Delhi
CBI
Versus
Kulwant Rai
S/o Sh Joginder Pal
R/o H. No. 7/159, Moh. Mukatpura,
Banga, Nawashahr,
Distt. Shahid Bhagat Singh Nagar,
Punjab. ......... Accused.
Date of receipt of file in this Court : 02.01.2017
Date when arguments were heard : 19.01.2017
Date of judgment : 28.01.2017
JUDGMENT
1 The above said accused has been charge sheeted by CBI for commission of offences punishable under section 489B/489C IPC.
SC No. : 8896/2016FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 1 of 20 2 Copy of charge sheet was supplied to the accused by Ld. CMM, Patiala House
Courts, New Delhi. The learned CMM after complying with the provisions of section 207 Cr.P.C, committed the case to the court of Sessions as the offences punishable under section 489B/489C IPC are exclusively triable by the Sessions court. 3 Story of the prosecution in brief which can be culled out from the charge sheet is as follows:-
(a) The instant case was registered by CBI on the complaint of Sh Sandeep Kumar Rawal, Dy. Commissioner (Preventive), Customs, IGI Airport, New Delhi regarding the seizure of Fake Indian Currency Notes (FICN) having face value of Rs 6,01,500/- on 11/12.09.2012 by team of Customs (Preventive) Unit, IGI Airport, New Delhi following interception of accused Kulwant Rai who arrived from Bangkok at IGI Airport and apprehended by the Customs authorities.
(b) On 11.09.2012 the accused Kulwant Rai landed at IGI Airport, New Delhi from Bangkok by flight No. TG-315. Due to his suspicious movements and an abnormal bulge in the lower part of both of his legs, he was intercepted by Customs officials, his baggage was examined and his personal search was made by Customs officials after serving him a notice u/s 102 of The Customs Act, 1962. During his personal search, bundles of FICN were found concealed in the socks of both his legs. At that time, the currency notes were counted as 301 notes of Rs 1000/- denomination and 601 notes of Rs 500/- denomination, having total face value of Rs 6,01,500/-. The said currency notes were suspected to be fake / counterfeit and in order to confirm their genuineness, those notes along with accused were taken to counter of Central Bank of India, located at arrival hall of IGI Airport, New Delhi. The recovered notes were subjected to check through a machine installed there to detect the fake / counterfeit Indian currency notes and said machine rejected all said recovered notes which prima facie confirmed that said notes were fake. Accordingly, the said FICNs were seized under the Customs Act, 1962 vide panchnama dated 11/12.09.2012. The said panchnama was prepared by the customs officials at the spot which was signed by all SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 2 of 20 concerned including the independent witnesses.
(c) During inquiry, on 12.09.2012, the statement of accused Kulwant Rai was also recorded u/s 108 of the Customs Act, 1962 by customs officials. In the said statement, the accused inter alia stated that he left for Bangkok from India with one Kuldeep Singh Dua on 07.09.2012 by flight no. TG-324, said Kuldeep Singh Dua handed over to him 06 bundles of notes of Rs 500/- denomination and 03 bundles of notes of Rs 1000/- denomination at Bangkok and asked him to carry said currency notes to India to deliver the same to one person who would contact him on his mobile phone after arrival at India. In the said statement, he further mentioned that he was promised by Kuldeep Singh Dua for payment of handsome amount on completion of said delivery.
He stated that on the advise of Kuldeep Singh Dua, he concealed above said FICNs in his socks, carried the same to India for its delivery and that he was not aware about the identity of a person who was supposed to take the delivery of said FICNs from him on his arrival at India. The accused Kulwant Rai was thereafter arrested by the customs authorities on 12.09.2012 under provisions of Section 104 of Customs Act, 1962.
(d) The present case was registered by CBI on 13.09.2012 u/s 120B r/w Section 489B and 489C IPC. The accused was thereafter arrested by CBI in this case on 15.09.2012. The police custody remand of accused was granted. The disclosure statement of accused was recorded. During investigation, searches at the residence of accused Kulwant Rai and also that of Kuldeep Singh Dua were conducted at Nawashahr, Punjab on 19.09.2012 and 20.09.2012, however, no incriminating document / material could be recovered.
(e) On 09.11.2012, the sealed packet said to contain 301 notes of Rs 1000/- denomination and 601 notes of Rs 500/- denomination having total face value of Rs 6,01,500/- (as per panchnama dated 11/12.09.2012 as prepared by customs authorities) was taken over by CBI from the customs authorities in sealed condition. To ascertain the genuineness of said seized currency notes through scientific SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 3 of 20 examination, the said sealed packet was forwarded by CBI to Bank Note Press (BNP), Dewas, MP vide letter dated 23.11.2012. The experts of BNP, Dewas on opening said packet observed few discrepancies vide their letter dated 24.11.2012 including that total number of notes of Rs 500/- denomination and Rs 1000/- denomination were found 600 and 300 in number respectively instead of 601 and 301 respectively as was mentioned in above said panchnama prepared by customs. Citing said discrepancies, the above said packet was resealed by BNP, Dewas using their official seal and was returned back to CBI without giving any expert opinion on the same.
(f) An application was moved by CBI in the court of Ld. CMM, Tis Hazari, Delhi for obtaining the permission to open said sealed packet as was received back from BNP, Dewas for counting the seized currency notes and to make a list of same in presence of seizing officer and independent witnesses associated with the seizure proceeding made by the customs authorities. The said Ld. Court, however, observed that there was no mention of fact of finding the seal intact by BNP, Dewas before opening the sealed packet in their forwarding letter, therefore, upon directions of the court, CBI requested BNP, Dewas to confirm the said fact, which vide letter dated 08.12.2012 confirmed the fact that the seal of the packet containing seized FICNs was intact at the time of receiving the same from CBI and its opening. After receiving said reply, a fresh application was moved by CBI before the court of Ld. CMM, Tis Hazari Courts, Delhi for seeking permission of the court for opening, counting and re-sealing the said sealed packet for the purpose of preparing the list of seized FICNs, which was allowed by that court vide order dated 15.12.2012.
(g) On 22.12.2012, the said packet containing seized FICNs was opened in presence of seizing officer, the independent witnesses associated with the seizure and a fresh independent witness at CBI office. The FICNs were taken out from the packet, were counted and a list was prepared according to the denomination of the notes. It was found that the said sealed packet in fact contained 600 notes instead of 601 notes of Rs 500/- denomination and 300 notes instead of 301 notes of Rs 1000/-
SC No. : 8896/2016FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 4 of 20
denomination and they were having a total face value of Rs 6,00,000/-. The observations made by the BNP, Dewas in their forwarding letter dated 24.11.2012 was found correct. The said FICNs were again kept in a packet and were re-sealed by using a CBI seal. Written proceedings in that regard were also prepared.
(h) The said packet with the seal of CBI was again forwarded to the BNP, Dewas, MP for their scientific examination and expert opinion as regards their genuineness. Vide letter dated 06.03.2013 issued under the signatures of Sh D K Srivastava, Technical Officer / Assistant Works Manager, CNE Cell, BNP, Dewas, MP, it was opined that the above said currency notes were 'counterfeit notes'.
(i) During investigation, the identity of above said Kuldeep Singh Dua was confirmed and a Look Out Circular (LOC) was got issued against him on 20.09.2012.
(j) During investigation, the officials of customs authorities and independent witnesses associated with seizure were examined and claimed that finding of one currency note each less of Rs 1000/- denomination and Rs 500/- denomination was a human error which took place during the counting of seized FICNs.
(k) It has been specifically mentioned in the charge sheet by the IO that during investigation neither accused Kulwant Rai could produce any material in support of his claim that seized FICNs were handed over to him by Kuldeep Singh Dua @ Kuldeep Singh at Bangkok for its further delivery to some one in India nor any evidence could emerge in support of his above said claim or to establish the involvement of Kuldeep Singh Dua @ Kuldeep Singh in the instant case. It was further mentioned in the charge sheet by the IO that no case could be made out against Kuldeep Singh Dua @ Kuldeep Singh with the evidence collected during the investigation. The record would infact show that said Kuldeep Singh has been kept in Col. No. 12 of the charge sheet as not charge sheeted.
(l) The accused Kulwant Rai was thus charge sheeted u/s 489B/489C IPC. 4 On the basis of material placed on record, charge u/s 489B/489C IPC was framed against the accused Kulwant Rai by Ld. Predecessor of this court on SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 5 of 20 06.08.2014. The accused pleaded not guilty and claimed trial. The case was thereafter fixed for prosecution evidence.
5 The prosecution in support of its case has examined total 11 witnesses and thereafter the prosecution evidence was closed.
6 PW-1 Sh Praduman Kumar Yadav has deposed that on 11.09.2012 he was posted at IGI Airport at Terminal-3 as a Superintendent Customs, his officer told him that one person was suspicious at belt no. 13 in arrival hall, said person was chased by his officer Sh Prithish Kumar Chakravorty/PW2, PW2 followed that person after crossing the green channel, said person/accused Kulwant Rai was intercepted and was asked whether he was having any dutiable item / contraband. He deposed that the accused told them that he was not having any such item. In the presence of two panch witnesses also, the accused declined to declare anything, PW2 issued him a notice u/s 102 Customs Act, 1962 for his personal search, the accused was found carrying notes in his socks, a panchnama was prepared by PW2 in presence of witnesses and the statement of accused dated 12.09.2012 was recorded u/s 108 Customs Act, 1962 which has been proved as Ex PW1/A bearing signatures of PW1 at point A. He deposed that in the said statement, the accused stated that he was carrying fake currency.
7 PW2 Sh Prithish Chakrovorty was posted as Insp. (Air Customs Officer) at T- 3, IGI Airport, New Delhi. He is the customs officer who as per the case of the prosecution intercepted and searched the accused and recovered FICN from him. The notice u/s 102 Customs Act, 1962 dated 11.09.2012 as given by PW2 to the accused for his personal search has been proved as Ex PW2/1. The three currency bundles of Rs 1000/- denomination amounting to Rs 3,00,000/- were proved as Ex P1A, Ex P1B and Ex P1C respectively. The 06 currency bundles of Rs 500/- denomination amounting to Rs 3,00,000/- were proved as Ex P1D, Ex P1E, Ex P1F, Ex P1G, Ex P1H and Ex P1I. The socks of the accused from which the above said FICNs were allegedly recovered have been proved as Ex Q1 and Ex Q2. The tin SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 6 of 20 container in which the FICN and socks were initially arranged by the customs officers at the spot has been proved as Ex R-1. The white cloth wrapper in which the paper box and socks were wrapped with noting on them has been proved as Ex R-2 and Ex R-3. The torn paper in which the FICNs were wrapped has been proved as Ex R-4. One piece of paper which was written by the witness and signed by the accused and panchas at point A, B, C and D respectively which was used for sealing the container containing the case property i.e. FICN, socks and torn papers has been proved as Ex R-5. The panchnama dated 11/12.09.2012 regarding FICNs prepared by PW2 in the presence of two panchas has been proved as Ex PW2/B. The arrest memo of the accused by customs authorities has been proved as Ex PW2/C. The receipt of handing over of the documents to the CBI by customs authorities has been proved as Ex PW2/D. His testimony shall be discussed in detail during the course of the judgment.
8 PW3 Sh Pradeep Kumar is an independent panch witness during the recovery and seizure proceedings by the customs from the accused. The panchnama Ex PW2/B bears his signatures at point B. He is also a witness to the fresh panchnama dated 22.12.2012 prepared by the CBI. The same has been proved as Ex PW3/A bearing his signatures at point A. The proceedings held on 22.12.2012 at the office of CBI has been proved as Ex PW3/B bearing signatures of PW3 at point B. His testimony would also be discussed during the course of the judgment. 9 PW4 Sh. I P Singh has deposed that during the year 2012 he was posted as Sr Manager, Punjab National Bank, CAD, Head Office, Bhikaji Cama Palace, New Delhi. He deposed that on 22.12.2012, he was instructed by his Chief Manager to report to CBI office, CGO complex, New Delhi and reached there at 10.30am. He is a witness to the proceedings dated 22.12.2012 done at the office of CBI regarding the recounting of the notes and preparation of the list of number of notes. He has deposed to the effect that a sealed packet containing seized FICNs having intact seal of BNP, Dewas was opened in his presence and other witnesses including PW2, PW3 SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 7 of 20 and PW7 Balbir Sharma and has deposed that 600 notes of Rs 500/- denomination and 300 notes of Rs 1000/- denomination i.e. totaling Rs 6,00,000/- were found in it. The said panchnama Ex PW3/A including annexures i.e. list bears signatures of PW3 at point D. He deposed that from the packet one pair of socks and piece of white marking clothes were also taken out which were sealed separately by IO with the seal impression C.B. I. E.O.U. VI. and seal impression was taken on a white sheet Ex PW4/1. He deposed that the said seal was handed over to him for safe custody. He also proved the case property.
10 PW5 Sh Rohit Kumar Gupta is a formal witness who produced the file bearing No. VIII (AP) 10/P&I/81-B/2012 in regard to RC No. 220, 2012, EOO19. 11 PW6 Sh Nirmal Das was posted as Jr. Assistant at SDM office, Nawashahr, Punjab in the year 2012 and is a witness to the search proceedings at the house of Kuldeep Singh and also of accused Kulwant Rai. The search memo dated 19.09.2012 at the house of Kuldeep Singh has been proved as Ex PW6/1. The search memo dated 20.09.2012 at the house of accused Kulwant Rai has been proved as Ex PW6/2. He is a formal witness as nothing incriminating is stated to have been recovered from the house of accused Kulwant Rai.
12 PW7 Sh Balbir Sharma like PW3 is an independent panch witness during recovery proceedings by customs vide panchnama Ex PW2/B and also a witness to proceedings dated 22.12.2012 in the office of CBI including the panchnama dated 22.12.2012 Ex PW3/A. He has primarily deposed on the lines of testimony of PW3. 13 PW8 Sh Sandeep Kumar Rawal was posted as Deputy Commissioner (Preventive), Customs in the year 2012 at IGI Airport and had a role of monitoring the investigation conducted by Inspector and Supdts. of the department of customs. The file regarding the present case was submitted to him on 12.09.2012 by the Supdt. He deposed to the effect that later on the present case was forwarded to CBI vide letter / complaint dated 13.09.2012 which has been proved as Ex PW8/A. He also deposed that later on some documents were also forwarded to CBI vide letter dated 18.09.2012 SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 8 of 20 Ex PW8/B. 14 PW9 Sh.D.K.Srivastava was posted as Technical Officer, Bank Note Press (BNP), Dewas, M.P. during the period 2012 and is an expert in identifying FICN. The letter dated 23.11.2012 along with its annexures by which CBI sent FICNs to the General Manager, BNP, Dewas for examination has been proved as Ex PW9/A. He deposed that he sent back the case properties along with other documents to CBI office in sealed condition as during the counting of the notes he found some discrepancies in total amount. The said letter dated 24.11.2012 from PW9 to the SP CBI regarding discrepancies found during counting of FICNs has been proved as Ex PW9/B bearing signatures of PW9 at point A. He deposed that on 07.12.2012 CBI again sent a letter to General Manager, BNP, Dewas, M.P. vide which CBI sought clarifications on letter Ex PW9/B regarding the fact if the case property was sealed, the facsimile of the seal was compared and also mentioned of inadvertently not mentioning the description of the seal by BNP while resealing the packet nor its facsimile had been provided with the letter sent to CBI. The said letter is Ex PW9/C. The letter dated 08.12.2012 by Officer Technical, BNP, Dewas to CBI by which the desired clarification was given has been proved as Ex PW9/D. The report dated 06.03.2013 of PW9 in which he gave his expert opinion on the FICNs stating that the said FICNs of Rs. 1000/- denomination and Rs. 500/- denomination were counterfeit notes has been proved as Ex PW9/E. 15 PW10 Ms.Romi Bagga has deposed that at the relevant time she was posted as Station Superintendent under Mr. Panatta Meesuwan, Station Manager at IGI Airport, Thai Airways. She deposed on 05.03.2013 SI Mohit Kumar sought information regarding the boarding and travel of accused Kulwant Rai on dated 07.09.2012. PW10 gave the list of passengers manifest vide covering letter dated 05.03.2013 ExPW10/A. The said manifest is Ex PW10/B. She deposed that she sent the said manifest with covering letter to SI Mohit Kumar, CBI through speed post and its envelope is Ex PW10/C. She deposed that the name of the accused was reflecting at SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 9 of 20 point B on Ex PW10/B and that the passenger manifest proves the boarding and traveling of the passenger on the given date.
16 PW11 Inspector Mohit Kumar, CBI is the IO of the case. The arrest memo dated 15.09.2012 qua the accused is Ex PW11/A and the permission from the learned court in that regard is Ex PW11/B. He inter alia deposed that during the search at the residence of the accused, one e-ticket in respect of accused dated 03.09.2012 of Thai Royal Ticketing was recovered which is Ex PW11/C. The order dated 15.12.2012 of the court of learned ACMM (West) vide which de-sealing of the packet for the purpose of preparing an inventory of actual alleged currency notes with their relevant particulars was allowed has been proved as Ex PW11/D. He inter alia deposed that during the examination of the relevant witnesses it came on record that the discrepancy (regarding total number of notes) crept in the cause of human error. The sealed cover in which the expert report Ex PW9/E was received in the office of CBI from BNP, Dewas is Ex PW11/E. The charge sheet has been proved as Ex PW11/F. The FIR dated 13.09.2012 of this case is Ex PW11/G. The e-challan is Ex PW11/J and the hash value certificate is Ex PW11/H. 17 Statement of accused under section 313 Cr.P.C was recorded on 16.11.2016 by the learned predecessor of this court. In the said statement, the accused denied the material incriminating circumstances appearing in prosecution evidence on record against him. He inter alia stated that his statement was obtained under pressure by the customs officials. He stated that he had been falsely implicated in this case and the FICNs were planted upon him by the Custom officials. He preferred not to lead any defence evidence.
18 I have heard the final arguments and perused the record.
19 Learned PP for CBI argued that by the testimony of PW2,PW3 and PW7 the prosecution has been able to prove that the FICNs to the tune of Rs. 6 lakhs were recovered from the accused in the intervening night of 11/12.09.2012 at IGI Airport. She argued that the accused was found trafficking in FICNs and was also found in SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 10 of 20 possession of said FICNs to the tune of Rs.6 lakhs knowing and having reasons to believe the same to be a forged and counterfeited and intending to use them as genuine. She contended that the prosecution /CBI has been able to prove its case against the accused beyond reasonable doubt and prayed that the accused should be convicted under section 489B / 489C IPC. She further contended that the accused in his statement under section 108 Customs Act, 1962 Ex PW1/A has admitted his guilt. IO in the presence of learned PP for CBI argued that the discrepancy regarding the number of currency notes as mentioned in panchnama of customs Ex PW2/B as highlighted in letter Ex PW9/B was only due to some human error by the Customs officials and also due to wrong application of some computer software by them. Ld. PP for CBI argued that permission was taken from the court after which fresh panchnama was prepared by CBI on 22.12.2012 in the presence of recovery witnesses of the Airport and also in the presence of PW4. She contended that the report Ex PW9/E from BNP,Dewas, M.P. would show that the recovered notes were counterfeit notes. She also relied upon the judgment of Hon'ble Supreme Court of India in case K.Hashim Vs. State of Tamil Nadu, Appeal ( CRL)185 of 2004 as decided on 17.11.2014. She thus prayed that the accused be convicted in this case us 489B/489C.
20 Per contra, learned defence counsel argued that the prosecution has miserably failed to prove the charge against the accused. He contended that the recovery of FICNs from the accused is itself doubtful as major discrepancies were noted and reflected in letter Ex.PW9/B of BNP, Dewas, M.P including the number of currency notes and the non mentioning of any seal on the box. He contended that the recovery and case property would itself become doubtful because if some currency notes can be taken out, changed or added to the box containing the case property then the case property becomes totally unreliable. He argued that the panchnama Ex PW2/B talks of photographs of accused with goods stacked in socks from the mobile phone with prints and signatures of accused, however, said photographs were not on record. He SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 11 of 20 contended that the statement Ex PW1/A of the accused was obtained under pressure by the customs officials and the said stand has also been taken by the accused in his statement under section 313 Cr.P.C. He contended that no government servant despite availability was joined by customs officials during search and seizure proceedings and FICNs were falsely planted upon the accused. He also argued that the investigation did not reveal as to from where he had arranged or procured huge fake currency notes and nothing has surfaced on record as to, to whom the accused was to deliver the counterfeit currency notes and for what consideration. He in that regard referred to the judgment of Hon'ble Delhi High Court in case State ( Govt. of NCT of Delhi ) vs. Mohd. Iqbal & Anr., CRL. A.1179/2013, decided on 21.03.2016. He also referred to the charge sheet where CBI has given clean chit to Kuldeep Singh Dua @ Kuldeep Singh. He thus prayed that the accused be acquitted in this case. 21 The case against the accused is that in the intervening night of 11/12.09.2012 he was found in possession and was found trafficking in FICNs to the tune of Rs. 6 lakhs in the denomination of 300 notes of Rs 1000/- and 600 notes of Rs. 500/- at IGI Airport knowing and having reasons to believe the same to be forged or counterfeit currency notes and thereby is stated to have committed offences punishable under section 489B/489C IPC.
22 At the very outset, it is pertinent to note that the alleged recovery of FICNs from the accused took place vide panchnama dated 11-12/09/2012. The said panchnama along with the details of Notes Indian Currency of Rs. 1000/- denomination and Rs. 500/- denomination has been proved as Ex PW2/B. The said panchnama specifically mentions that in the presence of the independent panchas PW3 Sh. Praveen Kumar and PW7 Sh. Balbir Sharma, the Custom Officers counted the alleged recovered Indian Currency which was found to be to the tune of Rs.6,01,500/-. The details of notes Indian Currency of Rs. 1000/- denomination as appended with panchnama Ex PW2/B would also show that it mentions 301 total currency Notes of Rs. 1000/- denomination and 601 total currency Notes of Rs.500/-
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denomination. The IO during arguments has explained that as far as the details of currency notes of Rs. 500/- denomination are concerned, it was in fact 300 currency Notes as the Note no.7BK 142830 was inadvertently repeated in the said list of customs at entry no. 5 and 33. As per the case of prosecution, when the said packet was sent to BNP, Dewas for opinion, the experts of BNP, Dewas on opening said packet found certain discrepancies vide their letter dated 24.11.2012 Ex PW9/B in both the currency notes of Rs 1000/- denomination as well as Rs. 500/- denomination. The discrepancies as mentioned in Ex PW9/B are as under :-
" 1.Rs.500/- deno.
a) No. of pieces of Rs. 500/- deno. actually found 600 notes instead of 601 notes. b) Sr. No.of note 7BK 142830 and 7BK 144625 are mentioned in your list but these notes are not available in the bundle.
c) 7BK 147322 and 7BK 143816 not mentioned in the list but available in the bundle.
2.Rs.1000/- deno.
a) Total FICNs of Rs. 1000/- notes there only 300 notes instead of 301 notes.
b) Series No. of note 6CH 547102 is mentioned in your list but not available in the bundle.
c) In your list Sr. No. 83 to 100 is not matching with actual notes." Upon application of CBI, the court vide order dated 15.12.2012 allowed for opening, counting and re-sealing the said sealed packet for the purpose of preparing the list of seized FICNs. On 22.12.2012, the said packet containing seized FICNs was opened in the presence of PW 11 Inspector Mohit Kumar i.e IO of this case from CBI, PW2 ( seizing officer from Customs ), PW3 and PW7 (Panch witnesses from the panchnama Ex PW2/B of Customs ) and PW4 Sh. I.P. Singh ( independent witness associated by CBI ). The said proceedings have been proved as Ex PW3/B with fresh list of FICNs of Rs. 1000/- denomination and Rs. 500/- denomination proved as Ex PW3/A. The said list would show that the said packet in fact now contained Rs. 3 SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 13 of 20 lakhs ( 300 Notes of Rs. 1000/- denomination ) and further Rs. 3 lakhs ( 600 Notes of Rs. 500/- denomination). It is also pertinent to note that earlier vide letter dated 08.12.2012 ExPW9/D, the official from BNP, Dewas, MP also provided the information that the said sealed packet was found seal intact before de-sealing the same by their office as per specimen of 'seal no 6' sent by the office of CBI along with forwarding letter. It was further mentioned in letter Ex PW9/D that thereafter the said packet was opened / de-sealed by them in the presence of constable Jagbir Singh CBI, certain discrepancies as mentioned in letter ExPW9/B were observed, consequently suspected seized FICN were put in white polythene and was again resealed with the office seal of BNP, Dewas in the presence of Ct. Jagbir Singh. 23 The said packet was further sent by CBI again after the proceedings dated 22.12.2012 to BNP, Dewas for expert opinion and vide report Ex PW9/E, it was opined that the said notes of Rs. 1000/-and Rs. 500/- denomination were counterfeit notes.
24 It is thus clear that initially when the alleged FICNs were recovered from the accused by PW2 in the presence of PW3 and PW7 vide panchnama ExPW2/B then there were 301 Rs. 1000/- Notes and there were 600 Rs. 500/- Notes (one currency note of Rs. 500/- was repeated in the entry of annexure with panchnama ExPW2/B ). The CBI has failed to explain as to how the packet containing above said currency notes which was allegedly seized by Customs could contain one currency note with no. 6CH 547102 of Rs. 1000/- denomination extra but when it was opened firstly by BNP, Dewas and thereafter by CBI on 22.12.2012 then the said currency note was missing from it. The CBI has further failed to explain as to how the two currency notes of Rs.500/- denomination with number 7BK 147322 and 7BK 143816 were present and mentioned in the panchnama Ex PW2/B of Customs but were missing when opened by BNP, Dewas and later on by CBI during proceedings dated 22.12.2012 Ex PW3/B. The said discrepancies have been aptly mentioned in letter dated 24.11.2012 Ex PW9/B of BNP, Dewas, MP to CBI. The explanation sought to SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 14 of 20 be rendered by learned PP for CBI and IO to the effect that it was only a human error is absolutely not tenable and could not be proved on record by the CBI. It is further pertinent to note that PW2 ( seizing officer of Customs ) in his examination in chief deposed to the effect that the currency notes were counted and recorded and were found to be Rs. 6,01,500/- which were handed over to CBI in sealed container and they (CBI) on their part had sent the same container to Dewas for verifying the currency notes and it was found that the currency notes were amounting to Rs.6 lakhs. PW2 was recalled for his further examination on application moved by CBI in which he inter alia deposed to the effect that he was called by CBI for recounting proceedings on 22.12.2012 at the office of CBI, the proceedings were drawn in his presence, the FICN were de-sealed, counted in his presence and it was found to be Rs. 6 lacs of face value instead of Rs. 6,01,500/-. PW2 on his own in his examination in chief has not given any explanation as to how the said alleged recovered FICNs of Rs. 6,01,500/- could be reduced to Rs. 6,00,000/- and that too in a sealed packet whose seal was opened allegedly for the first time by the BNP, Dewas, wherein the above said discrepancies mentioned in letter Ex PW9/B were noticed. Interestingly, PW3 Sh. Pradeep Kumar who is a panch witness to panchnama Ex PW2/B of Customs and also to recounting proceedings dated 22.12.2012 ExPW3/B / ExPW3/A of CBI, deposed inter alia in his examination in chief that the accused was personally searched, FICN was recovered from his socks to the tune of Rs. 6 lakhs, the FICN were counted, the notes were counted by Custom officers, it was Rs. 6,00,000/- and the panchnama prepared by the Custom official Ex PW2/B bears his signatures along with annexures at point B. In his cross examination by ld defence counsel, PW3 inter alia deposed that one note of Rs. 1000/- and one note of Rs. 500/- was less in the seized currency. As discussed above, the panchnama of Customs department ExPW2/B would in fact show that Rs. 6,01,500/- were mentioned after counting and a separate list as annexures of number of currency notes was also prepared. PW-3 has deposed in his examination in chief in total contradiction to the said panchnama Ex SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 15 of 20 PW2/B although he was a signatory to it. Another panch witness PW7 to panchnama Ex PW2/B and proceedings of CBI ExPW3/A / ExPW3/B has also not explained any thing in his testimony as to how the total number of currency notes were different in the same sealed packet and even how serial number of some Rs. 500/- notes were although mentioned in the list prepared by the customs but were not found later on and some serial numbers which were not mentioned in the list but were subsequently found in the bundle /packet. No explanation has also come forth as to how one currency note of specific serial number 6CH 547102 of Rs. 1000/- denomination was missing from the bundle. The major material discrepancies as mentioned in letter ExPW9/B of BNP, Dewas has not been explained by CBI even by subsequent proceedings Ex PW3/A / ExPW3/B. The said discrepancies are very material in nature. The said circumstances and material lacunae raises a very strong doubt over the authenticity of the case property as well as the alleged recovery of FICNs from the accused vide panchnama ExPW2/B by the customs. The said panchnama ExPW2/B also becomes doubtful in view of the above said discrepancies which have not been explained on record and also in view of the testimony of PW3, a panch witness, who as mentioned above deposed that Rs. 6 lakhs were recovered from the accused vide panchnama ExPW2/B to which he was a signatory but in fact it has been mentioned in ExPW2/B that Rs.6,01,500/- were allegedly recovered and that too after counting by Customs officers they had prepared a separate list of the serials number of the notes. As the recovery, case property and panchnama ExPW2/B becomes doubtful along with the above said discrepancies in the packet containing notes and as the testimony of material panch witnesses also becomes doubtful, therefore, it can be safely held that the prosecution has failed to prove beyond reasonable doubt that said FICNs were in fact recovered from the accused. In that regard there is substance in the submissions of learned defence counsel that if some currency notes can be taken out, changed or added to the packet containing the case property then the entire case property becomes totally unreliable. When the recovery itself becomes highly SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 16 of 20 doubtful then the charge of possession and trafficking of FICNs against the accused would also not survive and the accused who is entitled to benefit of doubt is entitled to acquittal under section 489B/489C IPC.
25 It would be pertinent to mention that the IO in the presence of learned PP for CBI argued that the discrepancies regarding the number of currency notes as mentioned in the panchnama Ex PW2/B as highlighted in letter Ex PW9/B was only due to some human error by the customs officials and also due to wrong application of some computer software by them. In that regard, PW 11/ IO has inter alia deposed in his examination in chief that during the examination of relevant witnesses it came on record that the said discrepancies crept in because of human error. Firstly, no mention of any wrong application of any computer software has been mentioned in the testimony of PW11 or any other material witness including PW2, PW3 and PW7. Secondly, as discussed above, the CBI has also failed to prove that the said material discrepancies were only due to some human error which has also not been deposed or explained by any witness and specifically by the witnesses PW2, PW3, PW7 and PW11. Moreover, when serial numbers of some notes are either missing or found and did not tally with the actual currency, then it can not be said that it was only a case of human error. In fact all the proceedings of the customs department including the alleged recovery of FICNs, panchnama Ex PW2/B along with its annexures and all related proceedings of the customs become highly doubtful and unworthy of any credence. The CBI and the IO through subsequent proceedings Ex PW3/A / Ex PW3/B would not be and in fact have not been able to explain the said material discrepancies. It is absolutely fatal to the case of prosecution.
26 The learned PP for CBI has also referred to the statement of accused under section 108 Customs Act, 1962 dated 12.09.2012 Ex PW1/A and argued that in the said admissible statement the accused has admitted his guilt and therefore he should be convicted under section 489B/489C IPC. The learned defence counsel on the other hand has argued that the said statement of the accused was obtained under SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 17 of 20 pressure by the customs officials and the said stand has also been taken by the accused in his statement under section 313Cr.P.C. The learned defence counsel in that regard also referred to the chargesheet wherein CBI had given a clean chit to Kuldeep Singh Dua @ Kuldeep Singh.
The statement ExPW1/A would show that the accused Kulwant Rai inter alia stated that Kuldeep Singh had handed over to him six bundles of Notes of Rs. 500/- denomination and three bundles of Notes of Rs. 1000/- denomination in the Apartment (at Bangkok) and had advised him to take that currency to India and promised to pay him Rs. 20,000/- on his arrival. He also stated that he did not know the whereabouts of the person to whom he had to hand over said currency notes in India. He also stated that Kuldeep Singh told him that some one would contact him on his mobile number for taking delivery of those currency notes after providing reference from Kuldeep Singh.
In the said context, firstly, no weight can be given to said statement as in view of the above said discussion, the alleged recovery, panchnama and the proceedings of Customs department in that regard have not been relied upon and have been held to be doubtful. Secondly, the chargesheet itself gives a clean chit to said Kuldeep Singh Dua @ Kuldeep Singh by mentioning that during investigation neither accused could produce any material in support of his claim that seized FICNs were handed over to him by Kuldeep Singh at Bangkok for its further delivery to some one in India nor any evidence could emerge in support of his said claim or establishing the involvement of Kuldeep Singh in the instant case. It was further mentioned in the chargesheet that no case could be made out against Kuldeep Singh with the evidence collected during the investigation. The said Kuldeep Singh was also in fact kept in column no.12 of the chargesheet as the person not charge-sheeted. It thus seems that CBI after investigation has itself given clean chit to said Kuldeep Singh and in the said circumstances also, the accused Kulwant Rai can not be convicted solely on the basis of his said statement under section 108 Customs Act, 1962 Ex PW1/A. The charge of SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 18 of 20 alleged trafficking i.e giving and taking or trade in counterfeit currency notes under section 489B IPC is also demolished against the accused as said Kuldeep Singh has been given a clean chit by the CBI.
27 In the present case after giving a clean chit to said Kuldeep Singh, the investigation has not revealed as to from where the accused had arranged or procured the huge fake currency notes. Nothing has also surfaced on record as to, to whom the accused was to deliver the counterfeit currency notes. The record would show that at the time of conducting personal search of the accused as mentioned in panchnama Ex PW2/B, one mobile phone NOKIA C300 with SIM no. 07355444713 was recovered from the accused, however, the investigating officer or the Customs Officials have not proved any call detail records of the same and it is also unclear as to whom said mobile belonged. As discussed above, the entire recovery, seizure proceedings etc as done by the customs department from the accused have already been held to be doubtful. The panchnama Ex PW2/B mentions of the Customs Officer taking photographs of the accused with 'goods' stacked in the socks from the mobile, the connecting of mobile to the desktop computer, taking out a printout of the photograph from the computer and the accused putting his dated signatures on the same. It is an admitted position and record would also show that no such photograph has been proved on record by the prosecution. These are further material lacunae in the case of prosecution raising a doubt over the case of the prosecution. The benefit of doubt goes in favour of the accused who is entitled to acquittal in this case. My views are substantiated by the judgment of Hon'ble Delhi High Court in case State ( Govt of NCT of Delhi ) Vs. Mohd. Iqbal ( Supra ).
28 There can not be any doubt over the law as laid down in the judgment of Hon'ble Apex Court in the case of K.Hashim ( Supra ), as relied upon by learned PP for CBI, however, it is distinguishable from the facts of the present case and would not help the prosecution in any manner against the accused.
29 In view of the above said discussion, the prosecution has failed to prove SC No. : 8896/2016 FIR No. : RC 220 2012 E0019 EOUV/EOII U/S : 489B/489C IPC Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 19 of 20
beyond reasonable doubt the charge against the accused to the effect that in the intervening night of 11/12.09.2012 he was found in possession and was found trafficking in FICNs to the tune of Rs. 6 lakhs in the denomination of 300 notes of Rs 1000/- and 600 notes of Rs. 500/- at IGI Airport knowing and having reasons to believe the same to be forged or counterfeit currency notes. He is thus liable to be acquitted in this case under section 489B and 489C IPC.
30 The accused Kulwant Rai is accordingly acquitted in the present case under section 489B/489C IPC. The bail bonds of the accused are cancelled and his surety is discharged.
31 The case property of the present case is confiscated to the State and be disposed of as per rules.
32 File be consigned to record room.
Announced in the open
Court on 28.01.2017 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS/NEW DELHI.
SC No. : 8896/2016
FIR No. : RC 220 2012 E0019 EOUV/EOII
U/S : 489B/489C IPC
Branch : CBI, EOUV/EOII, New Delhi CBI Vs. Kulwant Rai. Pages 20 of 20