Shahid Zahoor Wani vs State
2015 Latest Caselaw 8960 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : SEPTEMBER 03, 2015
                             DECIDED ON : DECEMBER 02, 2015

+                                  CRL.A. 89/2007

       SHAHID ZAHOOR WANI                                  ..... Appellant
                   Through :              Mr.Ashok Agrawal, Advocate with
                                          Mr.Anuj Kapoor, Advocate.

                                   VERSUS

       STATE                                               ..... Respondent
                             Through :    Mr.Sanjeev Sabharwal, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 27.07.2006 of learned

Additional Sessions Judge in Sessions Case No.42/05 emanating from FIR

No.581/01 registered at Police Station Kotwali by which the appellant

Shahid Zahoor Wani was convicted under Sections 498C IPC, the instant

appeal has been filed by him. By an order dated 31.07.2006, he was

awarded RI for one year with fine `2,000/-.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 12.10.2001 at around 8.00 p.m. near urinal, Azad Hind

Market, Lal Quilla, New Delhi, Wasim Ahmed Lily @ Wasim Ashraf was

apprehended being in possession of forged or counterfeit currency notes.

He was also found in possession of a scanner, colour ink cartridge, key-

board, compact disk, printer, monitor and other articles mentioned in the

seizure memo (mark A) being used for forging or counterfeiting currency

notes at his residence 1940, Third floor, Gali Oonth Wali, Hauz Sui

Walan, Delhi. Pursuant to his disclosure statement, he led the the police

team to Jammu and Kashmir on 18.10.2001 and recovered 497 forged

sheets of counterfeit currency notes in the denomination of `100/- from

the appellant's residence. Statements of the witnesses conversant with the

facts were recorded. Exhibits collected during investigation were sent to

Printing Press, Nasik for examination. Upon completion of investigation,

a charge-sheet was filed against Wasim Ahmed Lily @ Wasim Ashraf,

Suhail Ahmed Shora and Shahid Zahoor Wani (the appellant) for

commission of offences under Sections 489-B, 489-C, and 489-D IPC.

By an order dated 25.10.2002, the appellant was charged for committing

offence under Section 489-C to which he pleaded not guilty and claimed

trial. The prosecution examined 12 witnesses to establish appellant's

guilt. In 313 statement, the appellant denied his involvement in the crime

and pleaded false implication. After considering the rival contentions of

the parties and on appreciation of the evidence, the Trial Court by the

impugned order convicted all of them for the offences mentioned

previously. Being aggrieved and dissatisfied, the appellant has preferred

the instant appeal. It is unclear if the co-convicts have challenged the said

judgment.

3. I have heard the learned counsel for the parties and have

examined the file. On perusal of the Trial Court record, it reveals that

Wasim Ahmed Lily @ Wasim Ashraf was convicted and sentenced to

undergo RI for five years with fine `3,000/- under Sections 489-B and

489-D IPC each and RI for one year with fine `2,000/- under Section 489-

C IPC. Suhail Ahmed Shora and Shahid Zahoor Wani (the appellant) were

sentenced to undergo RI for one year with fine `2,000/- each under

Section 489-C IPC. It is relevant to note that during trial Wasim Ahmed

Lily @ Wasim Ashraf had moved an application to confess his guilt and

to release him for the period already undergone. His plea of confession

was recorded separately by the Trial Court. On perusal of the confession,

it reveals that Wasim Ahmed Lily @ Wasim Ashraf did not implicate the

appellant for the crime. He did not disclose if any counterfeit currency

was ever delivered by him to the appellant. Needless to say, co-convict

Wasim Ahmed Lily @ Wasim Ashraf's confession has no impact upon

the appellant's involvement in the crime.

4. The prosecution has examined PW-1 (Anil Kumar Singh),

Dy.Commandant, BSF, PW-8 (SI Sanjay Dutt) and PW-10 (Insp.Badreesh

Dutt) to prove that pursuant to Wasim Ahmed Lily @ Wasim Ashraf's

disclosure statement, fake Indian currency i.e.497 sheets (Ex.P-14/1 to

497) of denomination of `100 amounting to `1,49,100/- were recovered

from the appellant's house on 18.10.2001 which were seized vide seizure

memo (Ex.PW-1/E). Undoubtedly, no independent public witness was

associated at any stage of the investigation. The local police was not

informed about the said visit to the appellant's residence. The Trial Court

record contains an application written by the Investigating Officer to seek

transit remand. It appears that the arrested accused persons were not

produced before the local court to seek transit remand. It is pertinent to

note that PW-1 (Anil Kumar Singh), Dy.Commandant, BSF, was a prime

witness in Wasim Ahmed Lily @ Wasim Ashraf's apprehension and

recovery of huge counterfeit currency notes from his possession at Delhi

on 12.10.2001. PW-1 had specifically travelled to Delhi to share the

secret information in his possession about Wasim Ahmed Lily @ Wasim

Ashraf's activities whereby he used to deliver counterfeit currency notes

for circulation at Jammu and Kashmir. The Investigating Officer did not

offer any explanation as to why they had reported at BSF Headquarters

after reaching J&K on 18.10.2001 to seek PW-1 (Anil Kumar Singh)'s

assistance who was already a witness to the recovery effected from co-

accused Wasim Ahmed Lily @ Wasim Ashraf on 12.10.2001. PW-1

(Anil Kumar Singh) had no suspicion, whatsoever, upon the appellant any

time before 18.10.2001. He was not aware if Wasim Ahmed Lily @

Wasim Ashraf used to deliver the counterfeit currency notes to him at

J&K. His association in the raiding team creates suspicion about the

recovery of the counterfeit currency sheets from the appellant's residence.

Rukka (Ex.PW-6/A) dated 12.10.2001 records that on interrogation

Wasim Ahmed Lily @ Wasim Ashraf informed that after forging

counterfeit currency notes, he was going to Srinagar to deliver it to his

associate Shahid who along with his companion used to circulate it there

after necessary 'cuttings'. Apparently, appellant's involvement had

emerged in the crime on 12.10.2001 itself. However, no efforts were

made by the Investigating Agency including that of PW-1 to search the

appellant's residence before 18.10.2001. Nothing has come on record to

show if the appellant used to remain in touch with the other co-accused

persons or any fake and counterfeit currency was ever delivered to him at

any particular date. Nothing has come on record if the alleged currency

recovered from the accused on 18.10.2001 from his residence was

delivered on any specific date by the co-accused. It is apt to note that

recovery effected from the appellant's residence was not of finished

counterfeit Indian currency notes. Rather these were in the form of uncut

'sheets' and obviously were not ready for immediate circulation. Nothing

has surfaced to infer if any overt act was done by the appellant with the

said unfinished sheets to make it ready for circulation in the market.

5. Various infirmities have emerged in the statements of the

members of recovery team regarding exact time when they had reached at

the appellant's residence to effect recovery. It is unclear if the house was

in appellant's exclusive possession. Had there been nexus among the

appellant and accused Wasim Ahmed Lily @ Wasim Ashraf and others,

he must not have kept the counterfeit currency notes at his residence after

coming to know about his arrest in Delhi on 12.10.2001. Throughout the

prosecution case was that 497 sheets in the denomination of `100/- were

recovered from the appellant's residence and were seized vide seizure

memo Ex.PW-1/E. However, if all the sheets detailed in Ex.PW-1/E

(i.e.144 sheets of `100 + 122 sheets of `100 + 207 sheets of `100 + 17

sheets of `100) are added the total sheets recovered come to 490 and not

497. The prosecution has failed to reconcile this material inconsistency.

6. From the very inception, the appellant's case was that he was

in the custody of BSF officials since 7/8.10.2001 and was shown to have

been arrested on 18.10.2001. The appellant examined DW-1 (Mohd.Tarik

Dar), Law Officer, posted at Consumer Affairs Department Shahid Ganj,

Srinagar, where the appellant was working as store keeper. He produced

letters/documents (Ex.DW1/A to L) written by their Department about the

appellant's arrest. Document (Ex.DW1/D) reveals that the appellant was

arrested by the BSF authorities during intervening night of 7/8.10.2001

from his residence situated at Kralpora, Chadoora. Name of PW-1 (Anil

Kumar Singh), Dy.Commandant, BSF, finds mention in the said

document. It lends credence to the appellant's defence. PW-8 (SI Sanjay

Dutt) and PW-10 (Insp.Badreesh Dutt) were specifically asked about it in

the cross-examination. They gave evasive replies and expressed their

ignorance about the appellant's arrest on the night intervening 7/8.10.2001

by BSF officers.

7. In the light of the above discussion, I am of the view that the

prosecution has failed to establish its case beyond reasonable doubt

against the appellant. The appellant deserves benefit of doubt.

Conviction and sentence recorded by the Trial Court cannot be sustained.

The appeal is allowed. Conviction and sentence recorded by the Trial

Court are set aside.

8. Trial Court record along with the copy of the order be sent

back forthwith. Intimation be sent to the Superintendent Jail, Tihar.

(S.P.GARG) JUDGE DECEMBER 02, 2015 sa