Allahabad High Court
Mohd. Mahboob Ali @ Sheru @ Sheikh ... vs State Of U.P. on 21 September, 2017
Bench: Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved on : 21.08.2017
Delivered on : 21.09.2017
Court No. - 28
Case :- BAIL No. - 10950 of 2016
Applicant :- Mohd. Mahboob Ali @ Sheru @ Sheikh Alam
Opposite Party :- State Of U.P.
Counsel for Applicant :- Sajeet Singh,Ishan Baghel
Counsel for Opposite Party :- Govt. Advocate,Shiv Nath Tilahri
Hon'ble Mrs. Rekha Dikshit,J.
1. This application is moved by the applicant/accused for bail as the applicant/accused is prosecuted for the offences punishable under Sections 489B, 489C I.P.C. and 16 Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as ''the Act') registered as Case Crime No.02 of 2015, Police Station ATS, District Lucknow.
2. Heard Sri Ishan Baghel (Senior Advocate) assisted by Sri Sajeet Singh, learned counsel for the applicant and Sri Shiv Nath Tilahri, learned AGA for the State.
3. As per prosecution story a vehicle ''Bolero' bearing registration No.B.R. 22P 6092 driven by the applicant was intercepted at Gorakhpur Bus Stand, Gorakhpur at early morning of 02.06.2015. It is further alleged that upon conducting a search of applicant and his bag, the total high quality counterfeit Indian currency of worth Rs.5,04,500/- was recovered from the possession of the applicant, namely, Mohd. Mehboob Ali on 02.06.2015 at 03:45 am from Gorakhpur Bus Stand and the arrest was made at 06:45 am on 02.06.2015. A recovery memo was prepared on the spot at 08:50 am and thereafter aforesaid first information report was registered at Lucknow ATS Headquarters and the investigation was carried out by Sub Inspector, Pramod Kumar Verma, ATS, Lucknow.
4. Learned counsel for applicant/accused has submitted that the applicant/accused is innocent and has not committed any offence.
5. He has further submitted that the alleged place of arrest was a public place but no independent witness has been named in the recovery memo by the prosecution. The Investigating Agency recovered Rs.50,000/- of high quality counterfeit fake currency on the pointing of the accused on 09.06.2015 which is highly improbable as no independent witness is mentioned in the recovery memo. The mandatory provision provided under Section 100 Cr.P.C. regarding independent witness has not been complied with.
6. It has also been argued that there was no material before Investigating Officer which may be a threat to the Unity, Integrity, Security or Economic Security or Sovereignty of India.
7. Learned counsel for the applicant has further pointed out that the mandatory provisions of Section 6 National Investigating Agency Act, 2008 and Section 52 of the Act have not been complied with. Initially, charge-sheet under Section 489-B and 489-C I.P.C. was submitted against the applicant and later on Section 16 of the Act was added and additional charge-sheet was submitted accordingly. The mandatory provisions pertaining to the grant of sanction have neither been followed by the Investigating Officer nor Sanctioning Authority.
8. Lastly, it has been pointed out that there is no evidence of fake currency being brought through Nepal except the statement of accused-applicant, and he has neither engaged in the unlawful activities nor has any concern with the material recovered. It has also been contended that the applicant has no criminal history, this is the first case in which he has been falsely implicated.
9. Per contra, learned AGA for the State has opposed the application and categorically stated in the counter affidavit that the accused-applicant is resident of Nepal and was arrested with the fake currency on 02.06.2015. It has further been submitted that the release of the accused-applicant may peril the economic security of the country as he may repeat the offence, temper with the evidence and also abscond. This application is devoid of merit and deserves to be dismissed.
10. I have considered the submissions advanced by the learned counsel for the parties and perused the record.
11. Learned counsel for the applicant/accused has vehemently argued that as per prosecution case itself there is no evidence of circulation of fake currency which is an offence under Section 489-B I.P.C. which read as follows:
"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.]"
Till date nothing has been shown which may indicate any participation of the applicant in selling, buying, receiving or otherwise trafficking of any forged or counterfeit currency, as such, no prima facie offence under Section 489-B is made out against the applicant.
The sole contention of the prosecution is that the applicant was found in possession of forged or counterfeit currency-notes which is an offence under Section 489-C and the same is punishable up to seven years.
12. The next contention of learned counsel for the applicant/accused pertains to the offence under the Act and has referred rules and provisions which read as follows:
S. 15. Terrorist Act - (1) Whoever does any act with intent to thereaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country -
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause -
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material.
[Explanation - For the purpose of this sub-section -
(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.]
13. It has been argued that there is no evidence of production, smuggling or circulation of high quality counterfeit Indian Paper Currency against the applicant. Moreover, the counterfeit currency has neither been examined nor been declared by the authorised or notified authority that such currency imitates or compromises with the key security features as specified in the Third Schedule. There is no substantial and cogent reason to attribute any Terrorist Act to the applicant.
14. Learned counsel has drawn attention towards the following provisions also which read as follows:
S. 43A. Power to arrest, search, etc. - Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central Government or the State Government, as the case may be, knowing of a design to commit any offence under this Act or has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search a such building, conveyance or place.
S. 43B. Procedure of arrest, seizure etc. - (2) Every person arrested and article seized under section 43A shall be forwarded without unnecessary delay to the officer in charge of the nearest police station.
It has been emphasised that the aforementioned provisions have not been complied with, the arrest and search was not made by the authorised person and the applicant and seized article, i.e., fake currency was not forwarded to the nearest police station without delay as the entire arrest and seizer happened in Gorakhpur but the applicant was sent to Lucknow contrary to the provisions of Section 43-A and 43-B.
15. Learned counsel for the applicant has also referred The Investigation of High Quality Counterfeit Indian Currency Offences Rules, 2013 which read as under:-
Rule 5. Damage to the monetary stability of India - Damage to the monetary stability of India, referred to in section 15 by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, shall be deemed to have been caused, if in addition to other considerations -
(a) seizure is of high quality counterfeit Indian currency of face value of such threshold amount as may be decided by the Central Government from time to time, not being less than rupees one lakh:
Provided that the said threshold limit shall not apply when the counterfeit Indian currency has been intercepted at the international border, international airport or Immigration Check Post;
(b) the seized counterfeit currency includes any one of the three highest denominations issued by the Reserve bank of India, and in circulation at such point in time.
Rule 6. Procedure for applying the provisions of sub-clause (iiia) of clause (a) of sub-section (1) of section 15 read with section 16 - (1) When a case has been registered upon seizure of currency suspected to be high quality counterfeit Indian currency, the Investigating Officer shall forthwith send the seized currency or sample thereof to the authorised or notified forensic authority and the said authority shall forward a preliminary report, as to whether the seized currency is "high quality counterfeit Indian currency" within fifteen days of receipt of such samples.
(2) The Investigating Officer shall forward the seized currency by the quickest means to the notified forensic authority, not later than forty-eight hours of the seizure, and the notified forensic authority shall communicate the results of the examination to the requisitioning officer by the quickest possible means including e-mail or facsimile.
It has also been contended by learned counsel for the applicant/accused that as per above mentioned rules, the currency seized or its sample was not forwarded to the Forensic Authority for a preliminary report, as to whether the seized currency is "high quality counterfeit Indian currency" within the prescribed time limit. No report, as such, has been obtained by the Investigating Officer within the said time limits as mentioned above.
16. Learned counsel for the applicant has also contended that the sanction required as per provisions of Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, has not been obtained and in this context he has referred relevant provisions and rules pertaining to the sanction for prosecution under the said Act which read as follows:-
S. 45. Cognizance of offences - (1) No court shall take cognizance of any offence -
(ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.
The relevant rules are as under: -
"3. Time limit for making a recommendation by the Authority - The Authority shall, under sub-section (2) of section 45 of the Act, make its report containing the recommendations to the Central Government or, as the case may be, the State Government within seven working days of the receipt of the evidence gathered by the Investigating Officer under the Code.
4. Time limit for sanction of prosecution - The Central Government or, as the case may be, the State Government shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority."
It has been argued that the procedure laid down in the aforesaid provisions and rules has not been followed by the prosecution. The time limit prescribed for recommendation by the authority and for decision for sanction of prosecution have also not been complied with. All these instances create a suspicion and lean in favour of the applicant.
17. Learned counsel for applicant has also referred Izharul Haq Abdul Hamid Shaikh and another vs. State of Gujarat (2009) 5 SCC 283, Criminal Appeal No.811 of 2008 with Nos. 813 of 2008 and 453 of 2009, Ravi Sharma @ Arjun @ Mahesh @ Ashok vs. The State of Jharkhand & Others, W.P. (Cr.) No. 91 of 2012 with I.A. No.640 of 2012 and Premkumar Karnaram Choudhary vs. State of Maharashtra, (2017) SCC Online Bom 3352, Bail Application No. 122 of 2017.
18. Learned AGA has argued that the stage of examining validity of the sanction is during trial and placed reliance on C.B.I. vs. Ashok Kumar Aggarwal, 2013 Law Suit (SC) 1178, Criminal Appeal No.1838 of 2013. It has further been argued that the entire procedure has been followed and sanction was filed in time but due to some error it was modified and later on modified sanction was filed.
19. At present the bail of the applicant/accused is under consideration and there appears no reason to delve into the validity of the prosecution sanction and its procedure. This issue may be examined in its entirety during the trial. High quality counterfeit fake currency of Rs.5,54,500/- is said to be recovered from the possession of the accused/applicant. As per prosecution, the applicant is a resident of Nepal and driving licence issued by Nepal authorities, certificate of Nepal citizenship, five visiting cards and debit cards of different banks were also recovered from him. According to the examination report, the referred suspected notes of Rs.500/- and Rs.1,000/- are certified as "high quality counterfeit notes".
20. Having considered the nature of the offence and the act of the accused-applicant, coupled with the fact that high quality fake currency of Rs.5,54,500/- was found to be in possession of the applicant which may put the safety and security of nation at stake and also considering the gravity involving security of the nation, wherein the applicant is actively involved, as such, is not entitled to be released on bail.
21. Accordingly, I do not find any ground for granting bail to the accused applicant.
22. The bail application is accordingly rejected.
(Rekha Dikshit, J.)
Order Date :- 21.9.2017
Nitin Verma
