Rekha Dikshit ORDER
Ritu Raj Awasthi, J.
1. Heard Mr. Amit Srivastava, learned counsel for the appellants as well as Ms. Ruhi Siddiqui, learned Additional Government Advocate appearing on behalf of the State-respondent and perused the relevant records.
2. The instant criminal appeal under Section 374 (2) Cr.P.C. has been preferred by the appellants, namely, Inamul Haque and Israil, challenging the judgment of conviction and punishment dated 15.12.2009, passed by learned Additional Sessions Judge/FTC 1st, Faizabad, in Sessions Trial No. 598 of 2009; State v. Inamul Haque and another, relating to case Crime No. 31 of 2009, under Sections 489-B and 489-C IPC, Police Station G.R.P., District Faizabad, whereby the appellants have been convicted for the offence under Section 489-B IPC and sentenced with rigorous imprisonment for life and also with fine of Rs. 25,000/- each with default stipulation of two years additional imprisonment each and for the offence under Section 489-C IPC they were sentenced with rigorous imprisonment of seven years and also with fine of Rs. 25,000/- each.
3. The genesis of the prosecution case, in brief, is that on 12.04.2009 at about 11.30 a.m. at railway station Faizabad Abhimanyu Dhar Dwivedi, Station Officer, GRP, Faizabad on receiving information from an informer carried out search along with Sub Inspector Kr. Rakesh Roshan and nabbed the accused appellants Inamul Haque and Israil and recovered fake currency notes from their possession. On the basis of recovery memo chick FIR was scribed and Case Crime No. 31 of 2009, under Section 489-B and 489-C IPC was registered and requisite entry was made in the report of general diary. Both the accused appellants belong to Police Station Kalia Chak, West Bengal. They confessed that they had counterfeit currency notes which they were carrying with them. They were travelling from Sialdah Express train and had got down at Faizabad railway station. They had come to know that ticket checking was being done ahead of Faizabad. They were in look out to use these fake currency notes. On physical search of the accused-appellants from the right pocket of the trouser worn by appellant-Inamul Haque one packet having 147 notes of currency of Rs. 1,000/- and from the right pocket of trouser worn by the appellant Israil one packet having 96 notes of Rs. 500/- denomination were recovered. The details of these currency notes were noted down, as such, from the accused-appellant Inamul Haque fake currency notes of Rs. 1,43,000/- and from co-accused Israil fake currency notes of Rs. 49,000/- were recovered. The accused-appellants informed that they have brought these fake currency notes from Indo-Bangladesh border and wanted to use these fake currency notes for their financial gains. The recovery memo of the fake currency notes was prepared. Several persons were present at the railway station and had seen the recovery of the fake currency notes from the accused-appellants but none of them came forward to become witness. After completing the formalities the Investigating Officer started the investigation, recorded the statements of witnesses, prepared the site plan and collected the evidence and thereafter submitted the charge sheet against the accused-appellants. The seized currency notes were sent to the Currency Note Press, Nasik (Maharashtra) from where report was obtained. As per the report the said notes were found counterfeit.
4. The appellants were charged by the Court of sessions under Section 489-B and 489-C IPC. The appellants-accused denied the charges and claimed to be tried.
5. In order to prove the charges on behalf of the prosecution six witnesses in all were produced and examined. In the documentary evidence the recovery memo Ex-Ka-1, arrest memo Ex-Ka2 and Ex-Ka-3, charge sheet Ex-Ka-4, site plan Ex-Ka-5, FIR Ex-Ka-6, FIR transcript Ex-Ka-7 and expert opinion Ex-Ka-8 were filed.
6. After recording of evidence the statement of appellants were recorded under Section 313 Cr.P.C., wherein they had denied the facts stated by the prosecution witnesses and claimed that they were falsely implicated by the police, except the fact that they were travelling from Sealdah and their names and address is correct, rest everything is denied. They are bangla speaking persons and therefore the police was not understanding their language and they were taken to the police station where their Rs. 40,000/- has been taken away and police has falsely implicated the appellants.
7. After hearing the arguments learned trial court has convicted the appellants and sentenced them as above.
8. On behalf of the appellants it has been submitted that the learned trial court has wrongly believed the prosecution case, no recovery was made from the possession of the appellants. No independent witness has been examined on behalf of the prosecution. It is submitted that according to the prosecution version only fake currency notes were recovered from the possession of the appellants, their use has not been even alleged by the prosecution. The conviction of the appellants under Section 489-B IPC as such is bad in law.
9. It is contended that the learned trial court has wrongly convicted the appellants under Section 489-B IPC and has sentenced them to undergo life imprisonment which is maximum punishment prescribed, however, no reasons have been given for awarding maximum punishment. In the given facts and circumstances the appellants could be at the most sentenced for ten years rigorous imprisonment.
10. It has been submitted that even if the case of the prosecution is found to be proved the appellants can be convicted under Section 489-C and not under Section 489-B IPC. Section 489-C IPC provides punishment of imprisonment described for a term which may extend to seven years, or with fine, or with both. Moreover, in case the appellants have been convicted and sentenced under Section 489-B IPC then they cannot be convicted under Section 489-C IPC.
11. Submission is that the appellants can be convicted only under Section 489-B or under Section 489-C IPC but cannot be convicted for committing the offence under Section 489-B as well as under Section 489-C IPC simultaneously.
12. Learned Additional Government Advocate appearing on behalf of the State, on the other hand, has argued that the appellants-accused have been caught red handed with the possession of counterfeit fake currency notes. There was no justification for the appellants to carry such huge amount of fake currency notes with them. They had full knowledge and belief that they were carrying fake currency notes and wanted to use the counterfeit currency notes as genuine for their financial gains.
13. Submission is that the appellants are agents of a gang involved in the transportation of counterfeit currency notes. The prosecution has established its case beyond doubt. Learned trial court as such has rightly convicted the appellants under Section 489-B IPC and sentenced them for life imprisonment considering the nature of the crime.
14. Learned Additional Government Advocate in support of her arguments has relied on the judgment of Apex Court in the case of Ponnuswamy v. State 1995 AIR SCW 1788 wherein the appeal preferred by the accused-appellant has been dismissed and the conviction under Section 489-B and 420 IPC by learned trial court and confirmed by the High Court has been found to be correct.
15. Before considering the merits of the rival contentions raised by learned counsel for the appellant and learned Additional Government Advocate appearing for the State the provisions of Section 489-B and 489-C IPC are required to be reproduced:
"[489B. Using as genuine, forged or counterfeit currency-notes or bank-notes. -Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, 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.]
CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for life, or imprisonment for 10 years and fine-Cognizable-Non-bailable-Triable by Court of Session-Non-compoundable.
[489C. Possession of forged or counterfeit currency-notes or bank-notes.-Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.]
CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 7 years, or fine, or both, Cognizable-Bailable-Triable by Court of Session-Non-compoundable."
16. PW-1-Sub Inspector Abhimanyu Dhar Dwivedi was posted, Station Officer at GRP, Faizabad. He was scribe of the FIR. As per the statement of PW-1 he along with PW-2 Constable Manoj Sachan and another Constable Anil Kumar Singh, on receiving tip from the informer that certain persons carrying the counterfeit currency notes have got down at the railway station Faizabad and are in look out for using these counterfeit currency notes as genuine notes for their financial gains, reached at the main gate where they met Sub Inspector Kr. Rakesh Roshan from RPF and he along with SI Kr. Rakesh Roshan from RPF along with certain persons present there started search operation as per the information received from the informer. When they reached near the lobby they saw two persons in the description as given by the informer. They were asked to stop at about 11.30 a.m. and asked to give their names and address. One accused informed his name as Inamul Haque S/o. Haji Isha Mohammad, Police Station Kalia Chak, District Malda, West Bengal and other co-accused has informed his name as Israil S/o. Nizamuddin, Police Station Kalia Chak, District Malda, West Bengal. They confessed their crime. It was informed by them that they were travelling from Sialdah train and when they came to know that certain checking was going on ahead of Faizabad station they got down at the railway station Faizabad and were looking out to use the counterfeit currency notes for their financial gains. Several persons in the public were seeing the recovery of counterfeit currency notes from the appellants-accused persons, however, when asked to become witness they refused to do so. PW-1 has given the details of counterfeit currency notes and has confirmed the fard report prepared by PW-6 Hariom Prakash Tiwari as it also bear his signature.
17. PW-2 Constable Manoj Sachan has supported the case of the prosecution and has stated that he was accompanying PW-1 when the accused-appellants were apprehended and counterfeit currency notes were recovered from them. PW-3 is first Investigating Officer Ram Asrey, whereas PW-4 Virendra Bahadur Singh is the second Investigating Officer. Site plan EX-Ka5 has been confirmed by PW-4. PW-5 Santosh Kumar Yadav has confirmed the report received from the Currency Printing Press, Nasik. He had taken the fake currency notes to Nasik Press for its examination and after obtaining report had submitted the said report before the Court. PW-6 Hariom Prakash Tiwari is the witness of recovery memo.
18. The statements of prosecution witnesses indicates that they have corroborated the offence as narrated in the first information report and are the scribe of the FIR, signed the recovery memo, their departure for patrolling stood corroborated by the report of the general diary, their presence at the relevant place, time and date cannot be doubted upon. During cross-examination no major contradiction had occurred. Merely on the basis of non examination of independent witness we cannot reject the testimonies of these witnesses. More so, when reason for not taking independent witness have been mentioned in the recovery memo and have been clearly stated in their statements, we find that learned trial Court has rightly believed them.
19. From the report of Currency Printing Press, Nasik (Maharashtra) EX-KA-8 it also stands proved that the recovered currency notes were counterfeit. From the evidence of the prosecution witnesses, recovery of these fake notes from the possession of the appellants and report of the Currency Printing Press, Nasik it stands proved that the appellants were in possession of the counterfeit currency notes, as such, the conviction of the appellants under Section 489-C IPC has been rightly made by learned trial Court.
20. The conviction and sentence of the appellants under Section 489-B IPC has been challenged on the ground that mere possession of counterfeit currency notes would not be enough to convict them under Section 489-B IPC. It is necessary that the prosecution must establish that the appellants-applicants were involved in selling or buying or receiving from any other person, or otherwise trafficking in or using as genuine, any forged or counterfeit currency notes or bank note, knowing or having reason to believe the same to be forged or counterfeit notes.
21. Learned Additional Government Advocate, on the other hand, has submitted that the possession of such huge amount of fake currency notes by the appellants in itself is an evidence that they were carrying the fake currency notes to use them as genuine. They had full knowledge about the same. The failure of the appellants to explain the possession of such huge fake currency notes is also an evidence that the appellants had mens rea to use fake currency notes as genuine. Section 106 and 114 (h) of the Evidence Act clearly provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The Court may presume the existence of any fact which it thinks likely to have happened. Section 106, 114 and 114 (h) of Indian Evidence Act read as under:-
"Section 106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Section 114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
The court may presume -------
114(h)-that if a man refuses to answer a question: which he is not compelled to answer by law, the answer, if given, would be unfavourable to him."
22. It was for the appellants to explain how they come in possession of counterfeit currency notes and they had no knowledge that those are counterfeit currency notes. The evidence of recovery of counterfeit currency notes from the appellants as well as their knowledge and their state of mind that they had the knowledge about fake currency is also established from the evidence on record. The Apex Court in the case of State of Maharashtra v. Damu Gopi Nath Shinde and others [MANU/SC/0299/2000 : AIR 2000 SC 1691] has observed as under:
"36. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor MANU/PR/0049/1946 : AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
37. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle.
38. How did the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.
39. In view of the said discovery of the fact, we are inclined to hold that the information supplied by A-2 Guruji that the dead body of Dipak was carried on the motorcycle up to the particular spot is admissible in evidence. That information, therefore, proves the prosecution case to the abovementioned extent."
23. It is established beyond doubt that the appellants had mens rea to use these counterfeit currency notes as genuine for their financial gains. Now, the question for consideration before us is whether the recovery of large number of counterfeit currency notes are sufficient to establish that their possession amounts to an offence punishable under Section 489-B IPC. This section prohibits use of or trafficking with the counterfeit currency notes. Since the appellants had preferred to plead total denial, they had not cared to explain as to why such currency notes were in their possession though according to provisions contained in Section 106 of the Evidence Act the burden was on them to explain it. Their failure to do so raises an adverse inference against them and for such inference we conclude that their possession was not mere conscious possession, they meant either to use the counterfeit currency notes or transport them. In the case of Rayab Jusab Sama v. State of Gujarat [MANU/GJ/0434/1998 : 1999 Cri. L. J. 942] the Division Bench of Gujarat High Court has held the possession of large number of fake currency notes to be a case of active transportation of such notes. The observation made by the Division Bench in that case also substantiates the view formed by us. Para-10 of the judgment reads as under:
"10. The learned counsel for the appellant contended that the prosecution had failed to prove the offence under S. 489-B of the Indian Penal Code even if it is held that the offence of possession the fake currency notes under S. 489-C is proved. This submission is wholly erroneous because the evidence clearly establishes that the appellant was found carrying 250 fake currency notes on a public road in the city of Bhuj concealed in a Thela beneath cloth pieces as alleged in the charge. He was, therefore, transporting the said currency notes at the time when he was apprehended with them. Therefore, this is not a case of mere dormant possession, but, it is a case of active transportation of the currency notes, which would fall within the expression 'traffics in such currency notes.' Section 489-B of the Indian Penal Code clearly contemplates the cases where the counterfeit currency notes are received from any other person as also the cases where a person traffics in such currency notes knowing or having reason to believe the same to be forged or counterfeit. In our opinion, these ingredients of the offence under S. 489-B are clearly established against the appellant. He was not only carrying 250 counterfeit currency notes on 9.4.1996 but he had concealed 101 other such counterfeit currency notes which he later discovered before the Panchas on 12.4.1996. It is, therefore, clearly established that the appellant was trafficking in these counterfeit currency notes which he had received from some source. The appellant is, therefore, rightly held guilty of the offences under Ss. 489-B and 489-C of the Indian Penal Code by the trial Court and we are in complete agreement with the reasoning adopted by the trial Court for reaching its conclusions on this count. We are not concerned in this appeal, as noted above, with the offences under the Passport Act for which the accused was acquitted."
24. In view of above, we come to conclusion that the arguments to challenge the conviction of the appellants under Section 489-B IPC also fail and the charge against the appellants under Section 489-B stands proved beyond reasonable doubt.
25. Now, the question remains as to whether the appellants could have been punished under Section 489-B as well as under Section 489-C IPC simultaneously.
26. In the case of Ashfaque v. State of U.P.1 connected with another case Jaikam v. State of U.P.2 this Court vide judgment and order dated 23.2.2016 has held that the punishment under Section 489-B is a major offence and the offence punishable under Section 489-C IPC is a minor offence. When a person is convicted and sentenced under Section 489-B IPC his conviction under Section 489-C IPC has been held to be not warranted in law. A person cannot be punished twice for the same offence. The relevant paragraph of the judgment of this Court is reproduced as under:
"Here we would like to see and explain that though we are in agreement with the findings recorded by the learned trial Judge that the possession and trafficking of the counterfeit currency notes against the present appellants are established beyond doubt and they have been rightly convicted under Sections 489-B & 489-C IPC but from this juncture we disagree with the learned trial Judge that both the appellants should have been punished on both counts. The offence punishable under Section 489-B IPC is a major offence and offence punishable under Section 489-C IPC is a minor offence. When a person is convicted and sentenced under Section 489-B IPC his conviction under Section 489-C IPC has been held to be not warranted in law. A person cannot be punished twice for the same offence. After convicting the appellants the learned trial Judge should have punished the appellants only for one offence i.e. major offence. In a similar case Justice K.S. Hegde (as His Lordship then was) speaking for the Division Bench of Mysore High Court, has observed in para 33 of the report that if a person has been convicted under Section 489-B IPC, his conviction under Section 489-C IPC becomes redundant vide V. Govindrajalu and others v. State of Mysore MANU/KA/0086/1961 : 1962 (2) Cri. L. J. 765].
In view of above we come to the conclusion that we would like to affirm the conviction of the appellants under Section 489-B and 489-C IPC but we would like to set aside the sentence awarded to the appellants under Section 489-C IPC."
27. In view of above, since the appellants have been convicted and sentenced under Section 489-B IPC there was no need to punish them under Section 489-C. A person cannot be punished twice for the same offence, we set aside the sentence awarded to the appellants under Section 489-C IPC. although the convictions of the appellants under Section 489-B and 489-C are confirmed.
28. Now, we come to sentence part of the impugned judgment. The appellants have been awarded imprisonment for life under Section 489-B IPC. The provisions of Section 489-B IPC would clearly indicates that imprisonment for life is the maximum punishment provided under the said Section, whereas the minimum punishment is imprisonment for a term which may extend to ten years, as such, the discretion has been given under the said Section to award minimum punishment of ten years rigorous imprisonment which may be extended to the imprisonment for life.
29. We have to see whether the learned trial court has exercised its discretion while sentencing the appellants for life imprisonment under Section 489-B IPC. The reasons recorded by learned Trial Court indicates that the learned Trial Court has noticed that trafficking in counterfeit currency notes jeopardize the economic condition of the country, the appellants were the agents of some gang who were involved in dealing in fake currency notes. When we have perused the whole records, we did not find any material which may indicate that the appellants were connected with international criminals or with any terrorist organization. The appellant Inamul Haque was aged about 45 years and the appellant Israil was aged about 40 years at the time of occurrence. We feel that in the present case there is no reason to award maximum punishment of imprisonment for life and the appropriate punishment under Section 489-B IPC shall be the sentence for ten years rigorous imprisonment which would serve the ends of justice. To this extent the criminal appeal deserves to be allowed.
30. In this regard we find support of our view in the judgment of this Court in the case of Ashfaque v. State of U.P. (supra) where the sentence of life imprisonment under Section 489-B IPC has been reduced to sentence of ten years rigorous imprisonment. The relevant paragraph of the above judgment reads as under:-
"The appellants have been awarded imprisonment for life under Section 489-B IPC. It is true that the offence punishable under Section 489-B IPC is punishable with imprisonment for life or with imprisonment for a term which may extend to ten years. In this way, imprisonment for life is the maximum sentence which could be awarded under Section 489-B IPC. Now we have to see whether learned trial Judge has rightly exercised his discretion while sentencing the appellants, we have perused the reasons recorded by him to award maximum sentence. The learned trial Judge has noticed that trafficking in counterfeit currency notes jeopardize the economic condition of the country, it indicates that the appellants had connection with international criminals and terrorist organizations. When we have perused the whole of the record but we could not find any material which shows that the appellants were connected with international criminals or with terrorist organizations. To this extent we find the reasoning of the learned trial Judge is erroneous. Appellant Ashfaque was aged about 25 years and appellant Jaikam was aged about 28 years, keeping in view their age we think that in the present matter imprisonment for life is very harsh sentence because it means the appellants will remain confined in jail till the end of their natural lives that too on the basis of conjectures and surmises. It is their first conviction, their age also persuades us to reduce their sentence, the Hon'ble Apex Court in the case of Samir Mustafabhai Bajariya v. State of Gujarat decided on 26.04.2013 has reduced the rigorous punishment awarded under Section 489-B IPC from 8 years to almost 4 years but in the present case a large number of fake currency notes have been recovered, in such situation, we think instead of imprisonment for life, imprisonment of ten years RI would serve the ends of justice. To this extent appeals deserve to be allowed."
31. Accordingly, the appeal is partly allowed. The conviction of the appellants under Sections 489-B & 489-C IPC is affirmed and their sentences awarded under Section 489-C are set aside. Sentence of imprisonment for life awarded under Section 489-B IPC is altered to undergo rigorous imprisonment of ten years. The fine awarded under Section 489-B IPC is affirmed.
32. To the aforesaid extent the impugned judgment and order dated 15.12.2009, passed by learned Additional Sessions Judge/FTC 1st, Faizabad, in Sessions Trial No. 598 of 2009; State v. Inamul Haque and another, relating to case Crime No. 31 of 2009, Police Station G.R.P., District Faizabad is modified.
33. Office is directed to send a copy of this judgment forthwith to the learned Additional Sessions Judge, Gonda along with the lower court record to ensure compliance.
1Criminal Appeal No. 261 of 2014
2Criminal Appeal No. 262 of 2014
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