Jitendra Singh vs The State Of Bihar
2022 Latest Caselaw 4354 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.18 of 2017
          Arising Out of PS. Case No.-2 Year-2014 Thana- A.T.S District- Patna
======================================================

Jitendra Singh Son of Chandrama Singh Resident of Village- Yado Pipra, P.S.- Hathua, District- Gopalganj.

... ... Appellant Versus The State Of Bihar ... ... Respondent ====================================================== Appearance :

For the Appellant        :         Mr. Ajay Kumar Thakur, Advocate
                                   Mr. Rajiv Ranjan, Advocate
For the Respondent       :         Mr. Ajay Mishra, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE KHATIM REZA

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 08-08-2022

In the present criminal appeal, the sole appellant

has put to challenge, the judgment of conviction and the order of

sentence dated 18.11.2016 and 24.11.2016 passed by the learned

Additional Sessions Judge-VIII, Patna in Sessions Trial No. 358

of 2015 as under:-

Sentence Conviction under Section Imprisonment In default of Fine (Rs.) fine 489-B of the Indian Penal For life 7,50,000/- 3 years simple Code imprisonment 489-C of the Indian Penal No separate - -

  Code                              punishment in the
                                     light of Section
                                     71 of the Indian

Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

Penal Code 16 of the Unlawful Activities 1 year simple 10 years 50,000/-

(Prevention) Act imprisonment

2. Ashwani Kumar Chaturvedi, a Sub-Inspector of

Anti Terrorism Squad ("A.T.S." for short) Varanasi, Uttar

Pradesh is the informant (P.W.-2), whose written report is said to

be the basis for registration of the first information report with

A.T.S. Police Station, Patna as A.T.S. P.S. Case No. 02 of 2014

dated 16.10.2014 leveling allegation of commission of the

offence punishable under Sections 489-B/489-C read with

Section 34 of the Indian Penal Code and Sections 16 and 17 of

the Unlawful Activities (Prevention) Act, 1967.

3. The prosecution's case, as unfolded in the said

written report, is that the A.T.S. Uttar Pradesh, Lucknow

Headquarters was getting continuous feedback regarding

presence at large scale counterfeit currency notes in North India

brought from Malda (West Bengal) via Bihar which were being

used up in the Indian market. Thereafter, the informant was

authorized by the Headquarter at Lucknow to collect further

inputs. Accordingly, two personnel, namely, Head Constable

Dhirendra Thakur (P.W.-3) and Junior Inspector Ranvijay Tiwari

(not examined) were deputed to collect the information in this

connection from Malda (West Bengal). In the night of Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

15/16.10.2014, the informant received an information from them

that someone was likely to carry huge quantity of counterfeit

Indian currency notes from Malda to Patna via rail. Based on the

said information, the informant proceeded to Patna Railway

Station with Sub-Inspector Alok Kumar Singh (not examined) in

a government vehicle and driver Sushil Kumar (not examined).

While leaving Varanasi for Patna via road, the informant

instructed Junior Inspector Vijendra Rai (not examined),

Commando Vinod Kumar Singh and Jai Prakash (not examined)

to reach Patna Junction via rail. He also shared the information

with the Inspector A.T.S. Patna, Md. Irshad Alam (P.W.-10) with

a request to him to extend due assistance in the operation.

Acting upon the information received from the informant, the

Inspector Irshad Alam of A.T.S. Bihar (P.W.-10) asked Assistant

Sub-Inspector Dhanraj Kumar (P.W.-5), Sub-Inspector Mintullha

(P.W.-7), Junior Sub-Inspector (female) Sneha Kumari (not

examined), Junior Inspector (female) Swati Singh (P.W.-1),

Junior Inspector Ravikant Mishra (P.W.-9), Junior Inspector

Chandan Ram (not examined), Junior Inspector Bhibhuti Kumar

(P.W.-6), Junior Inspector Vikram Kumar (not examined) with

driver Junior Inspector Birendra Singh (P.W.-8) to join Head

Constable Dhirendra Thakur (P.W.-3) and Junior Inspector Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

Ranvijay Tiwari (not examined) of Varanasi A.T.S., who had

come from Malda for the joint operation. The A.T.S. Varanasi

team and the A.T.S. Bihar team were present at platform No. 5

where the informant also reached. At 5:45 am, four persons de-

boarded Farakka Express, out of whom, two were males and two

were females. The spy signalled towards the appellant, who was

carrying a backpack, as the person who, according to the secret

information, was in possession of counterfeit Indian currency

notes. The spy thereafter left the place. The informant, though,

requested various persons present there to assist the A.T.S. team

in search and seizure after disclosing the purpose of their

operation, none of them except one Sudhir Kumar agreed to be

the seizure list witness.

4. Afterwards, in presence of the said Sudhir Kumar

(not examined) and Constable Ravikant Mishra of A.T.S. Bihar,

the members of police team allowed themselves to be searched

so as to ensure that they were not in possession of any

objectionable material. Subsequently, the A.T.S. personnel

encircled the aforesaid four persons and asked them to stop,

whereafter, the appellant attempted to flee away. He was

immediately apprehended, who disclosed his name and other

details. A search was, thereafter, conducted of his person leading Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

to recovery of Indian currency notes from the said backpack,

which the appellant was carrying. From the possession of other

three persons, who were accompanying the appellant, no

incriminating material was recovered. The appellant, in his

reply, disclosed to the A.T.S. team that the notes were genuine

currencies. He however did not disclose the purpose for carrying

such huge amount of currency notes. The entire occurrence had

taken place in the presence of the crowd which had collected at

the place of occurrence. Subsequently, on intense interrogation,

the appellant confessed that the currency notes were counterfeit

and he used to bring such notes from one Khan Shahab of

Malda, who would supply to him counterfeit currency notes of

Rs. 1,00,000/- (One Lakh) as exchange against genuine currency

notes worth Rs. 32,000/- (Thirty Two Thousand). The appellant

is said to have further disclosed that, previously also, he had

brought counterfeit currency notes and had expended them. He

disclosed the name with the mobile number of the person who

had arranged his association with said Khan Shahab. Nine

hundred notes, each of Rs. 500 denomination (Rs. 4,50,000/-)

and three hundred notes each of Rs. 1000 denomination (Rs.

3,00,000/-) were recovered from the appellant's possession. The

first information report was registered at 11:15 am with the Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

A.T.S. Police Station.

5. Upon completion of investigation, the Investigating

Officer submitted his charge-sheet on 31.03.2015 for

commission of offences punishable under Section 489-B, 489-C

of the Indian Penal Code ('I.P.C.' for short) and Sections 16 and

17 of the Unlawful Activities (Prevention) Act, 1967

(hereinafter referred to as the 'UAP Act'), based on which the

learned Chief Judicial Magistrate, after taking cognizance

committed the case for trial to the Court of Sessions by order

dated 17.05.2015. The charges were thereafter framed against

the appellant for commission of the offences punishable under

Sections 489-B and 489-C of the I.P.C. and Section 17 of the

U.A.P. Act.

6. During the course of trial, altogether 13 witnesses

were examined, all of whom were the members either of A.T.S.

Varanasi or of Patna except P.W.-11, the Senior Scientist,

Forensic Science Laboratory, Patna to prove the F.S.L. report to

the following effect:-

"1. Examinations of all the notes marked as A1 to A900 of denomination Rs. 500/- and B1 to B300 of denomination Rs. 1000/- as described above reveal that all the notes are not genuine Indian Currency Notes but COUNETERFEIT.

2. Preliminary Report on High Quality Counterfeit Indian Currency was already sent to the Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

I.O., A.T.S. Bihar, Patna."

7. Further, the prosecution got exhibited documentary

exhibits (Exhibit-1 to Exhibit-7) and material exhibits (Exhibit-I

to Exhibit-XVI) to substantiate the charge framed against the

appellant. Learned Trial Court after having appreciated the

evidence adduced at the trial, including oral and documentary

evidence as well as the material exhibits, has recorded

conviction of the appellant of the offence punishable under

Section 489-B/489-C of the I.P.C. and Sections 16 of U.A.P.

Act. The appellant has, however, been acquitted of the offence

punishable under Section 17 of the U.A.P. Act giving him

benefit of doubt.

8. We have heard Mr. Ajay Kumar Thakur, learned

counsel appearing on behalf of the appellant and Mr. Ajay

Mishra, learned Additional Public Prosecutor for the State.

9. Mr. Thakur, learned counsel for the appellant, at the

very outset, has drawn the Court's attention to the seizure list

and has submitted, with reference to the oral evidence on record,

that the entire case of the prosecution of recovery of counterfeit

notes from the possession of the appellant becomes doubtful.

He has firstly submitted that the independent seizure list witness

Sudhir Kumar was not enlisted as a prosecution witness, let Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

alone his examination at the trial and there is no explanation put

forth by the prosecution as to why it did not name him in the

charge-sheet as a prosecution witness. This Court's attention has

been drawn to the evidence of Ravikant Mishra (P.W.-9), an

A.T.S. personnel and a seizure list witness to question the

genuineness of the seizure list itself and truthfulness of the

prosecution's case that the seizure list was prepared at the place

where the seizure was made. During his examination-in-chief,

though, he proved his signature available on the seizure list, he

deposed that seizure list was prepared on a plain paper and not

in a format. Mr. Thakur submits that the seizure list, as exhibited

at the trial, is in a printed format which contradicts the

deposition of P.W.-9, the seizure list witness, that the same was

prepared on a plain paper at the Railway Station. P.W.-10, the

team leader of Patna A.T.S., Md. Irshad Alam, in his evidence

has deposed that the seizure list was prepared in three copies in

a computerized format. The seizure list exhibited at the trial thus

falsifies the prosecution's case that it was the same seizure list

which was prepared at the Railway Station. Referring to the

evidence of P.W.-1 and P.W.-4, he has submitted that apparently

all the documents including the seizure list were prepared at the

A.T.S. Police Station and not Railway Station, as is being Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

claimed by the prosecution. He has argued that, based on the

evidence of the prosecution witnesses, all of whom are members

of A.T.S. teams, the prosecution has miserably failed to establish

recovery of counterfeit notes from the possession of the

appellant and, therefore, conviction of the appellant under

Section 489-C of the I.P.C. itself is not sustainable, much less

the offences punishable under Section 489-B and Section 17

U.A.P. Act. He has doubted the very initiation of the

prosecution's case with reference to the first information report

and has submitted that, though, fardbayan of the informant has

been mentioned as the basis for registration of first information

report at Page No. 4, a written report, subsequently prepared,

has been made the basis for registration of first information

report. According to him, there are patent contradictions in the

evidence of the prosecution witnesses with reference to the time

when the Patna A.T.S. received the information first.

Submissions have also been made doubting the prosecution's

case about presence of Ranvijay Tiwari and Dhirendra Thakur

(P.W.-3), who had gone to Malda in the absence of any proof

that they had come from Malda and got down at Patna Railway

Station. According to him, the essential ingredients of the

offence punishable under Section 489-B of the I.P.C. have not Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

been proved by the evidence of the witnesses, inasmuch as,

there is no proof of selling, buying or receiving or otherwise

trafficking or using counterfeit currency notes as genuine notes

by the appellant. Though, in the F.I.R. it has been alleged that

the appellant used to deal with one Khan Shahab of Malda in

receiving counterfeit currency notes, there appears to be no

investigation at all in the said direction, he contends.

10. Mr. Ajay Mishra, learned Additional Public

Prosecutor representing the State, per contra, has argued that the

prosecution, on the basis of evidence adduced at the trial, has

been able to establish a case beyond all reasonable doubts,

recovery of counterfeit currency notes from the appellant's

possession and, thus, the offence punishable under Section 489-

C of the I.P.C. has rightly been held to be proved beyond all

reasonable doubts. He has submitted that once the prosecution

was able to establish its case of commission of offence by the

appellant under Section 489-C of the I.P.C., in the absence of

any satisfactory explanation put forth by the appellant, his

conviction under Section 489-B is also justified and he has

further submitted that his conviction under Section 16 of the

U.A.P. Act by the Trial Court is also sustainable as the act of the

appellant proved at the trial amounts to threatening the Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

economic security of India which falls within the definition of

Terrorist Act under Section 15 of the U.A.P. Act. He has, thus,

submitted that since the recovery of counterfeit currency notes

has been made from the appellant's conscious possession, the

conviction of the appellant under the Unlawful Activities

(Prevention) Act, 1967 is justified. He has relied on a Supreme

Court's decision in case of Durga Prasad Gupta v. State of

Rajasthan reported in (2003) 12 SCC 257 to bolster his

contention.

11. We have carefully gone through the impugned

judgment and order of the Trial Court, the oral and documentary

evidence adduced at the trial as well as the material exhibits

produced at the trial in support of the prosecution's case. We

have given our anxious consideration to the rival submissions

made on behalf of the appellant and the State.

12. The appellant is in custody sincethe date of

occurrence.

13. Before dealing with the evidence adduced at the

trial by the prosecution and the submissions advanced on behalf

of the appellant and the State, we consider it apt to reproduce

Sections 489-B and 489-C of the Indian Penal Code, which read

as under:

"489B. Using as genuine, forged or counterfeit Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

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 2 [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.

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."

14. It would also be beneficial to take note of the

provision under Section 16 of the Unlawful Activities

(Prevention) Act, 1967, which read as under:

"16. Punishment for terrorist act.--(1) Whoever commits a terrorist act shall,--

(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine;

(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."

15. It has been considered apt to firstly discuss on

the point as to whether based on the evidence adduced at the Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

Trial, the prosecution has been able to establish beyond all

reasonable doubts the charge framed against the appellant of

commission of offence punishable under Section 489-C of the

I.P.C.. Stated differently, whether the prosecution can be said to

have established beyond all reasonable doubts, that the appellant

was in possession of counterfeit currency notes. The charge to

the effect that the appellant was found in possession of

counterfeit currency notes can be said to have been proved, if

the recovery of said notes is established beyond all reasonable

doubts with reference to the seizure memo and evidence of

witnesses at the Trial, most importantly, the witnesses to the

seizure list. The question of going into the legality of conviction

of the offence punishable under Section 489-B of the I.P.C. and

Section 16 of the U.A.P. Act will arise only if the finding of

conviction against the appellant by the Trial Court of the offence

punishable under Section 489-C is sustained. If the prosecution

fails to establish charge under Section 489-C of the I.P.C., the

charges under Section 489-B of the I.P.C. and Section 16 of the

U.A.P. Act shall also fail.

16. Be it noted that the currency notes, which

according to the prosecution, were sent to the scientific

examiner have been found to be counterfeit. The question which Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

needs to be examined in the present appeal is as to whether the

prosecution has successfully established its case at the trial that

the currency notes which were duly recovered from the

appellant's possession were the ones sent for scientific

examination.

17. For appreciating the submission made on behalf

of the appellant as noted above, as regards the seizure list

(Exhibit-1), we have perused the same from the original records

which bears the signature of Ravikant Mishra (P.W.-9), one of

the members of the A.T.S. team and an LTI of one Sudhir

Kumar, whose parentage nor the address is available in the

seizure List. Visibly, the search-cum-seizure list (Exhibit-1) has

been prepared on a printed format which contradicts the

evidence of P.W.-9, who in his cross-examination has deposed

that the seizure memo was prepared on a plain paper. Contrary

to his evidence, the seizure list was in fact prepared on a printed

format. Curiously, the police in its charge-sheet, did not mention

the name of Sudhir Kumar, seizure list witness as one of the

witnesses to establish the case of the prosecution. There was,

thus, no occasion for his examination at trial for the prosecution.

Non-disclosure of the parentage or other details for

identification of Sudhir Kumar in the seizure list raises a Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

reasonable doubt as to whether the seizure list was prepared in

the presence of an independent witness who, it is said, had put

his LTI in the seizure list. In any view of the matter, the

independent seizure list witness was an important independent

witness to have stated the truth at the trial, who was withheld by

the prosecution.

18. As has been noticed above, all prosecution

witnesses are officials of A.T.S. who attempted to prove

recovery of counterfeit currency notes from the possession of

the appellant. We are not unmindful of the legal position that

merely on the ground that all the witnesses are officials of the

A.T.S., their evidence cannot be altogether brushed aside.

However, we notice material contradiction in the evidence of

P.W.-9 and other witnesses on the point of preparation of seizure

list including the place where the seizure list was prepared.

19. In our considered view, the act on the part of the

prosecution in withholding the seizure list witness creates

serious doubt in relation to the manner of recovery and the

preparation of seizure list. Withholding the independent

important witness, who according to the prosecution was present

at the place of occurrence and who was a seizure list witness

raises reasonable suspicion. The evidence of the other seizure Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

list witness, a member of A.T.S. team (P.W.-9) also raises a

doubt on the point of preparation of seizure list, inasmuch as, his

evidence that the seizure list was prepared on a plain paper is

contrary to Exhibit-1, the seizure memo, which is in a printed

format. The doubt is thus re-enforced in the background of

evidence of the P.W.-9.

20. There is another crucial aspect of relevance,

which cannot be lost sight of and goes to the root of the matter.

The fardbayan of the informant has been mentioned as the basis

for registration of F.I.R. at page-4. At page-1 of the F.I.R. there

is a tick (✓) mark of "likhit" (written) as the 'type of

information' received for registration of F.I.R.. Page5-7 of the

F.I.R. is a written report prepared by the informant (P.W.-2). The

written report is not addressed to the officer-in-charge of the

police station which has just made a part of the F.I.R.. On the

one hand, fardbayan is said to be the basis for the registration of

F.I.R., a written report not addressed to the officer-in-charge of a

police station is disclosed as the basis for registration of F.I.R.

21. Taking into account all facts and circumstances

noted above, cumulatively, particularly with reference to the

manner of preparation of seizure list to prove recovery of

counterfeit notes from the appellant's possession, in our opinion, Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

the prosecution failed to establish the charge punishable under

Section 489-C of the I.P.C. against the appellant beyond all

reasonable doubts. Contrary finding recorded by the Trial Court,

in our opinion, is not tenable since it has not taken into account

the apparent contradictions in the evidence vis-à-vis the seizure

list and the manner of registration of the F.I.R..

22. One must not forget that one of the important

facet and goal of criminal justice system is to ensure that the

disgrace of criminality is not inflicted upon in an individual

which is crucial for maintaining public confidence in legal

system.

23. Situated thus, in our considered opinion, it is not

safe to uphold the conviction against the appellant of the

offences punishable under Section 489-C of the I.P.C. based on

the evidence of A.T.S. officials only, particularly when the

evidence of one of the two seizure list witnesses and A.T.S.

official was not found to be in consonance with the preparation

of seizure list as is evident from Exhibit-1 and the second

seizure list witness was not examined at the trial.

24. In our view, since conviction of the appellant

under Section 489-C itself is unsustainable, the finding recorded

by the Trial Court of conviction of the offence punishable under Patna High Court CR. APP (DB) No.18 of 2017 dt.08-08-2022

Section 489-B of the I.P.C. and Section 16 of the U.A.P. Act is

also unsustainable.

25. For the reasons discussed hereinabove, the appeal

is allowed.

26. Consequently, the appellant stands acquitted of

the charges punishable under Section 489-B and 489-C of the

I.P.C. and Section 16 of the U.A.P. Act. The impugned judgment

and order passed by learned Additional Sessions Judge,VIII,

Patna in Sessions Trial No. 358 of 2015 is hereby set aside.

27. Let the appellant be released from jail forthwith.

(Chakradhari Sharan Singh, J)

I agree Khatim Reza, J:

( Khatim Reza, J)

K.K.RAO/-

AFR/NAFR                N/A
CAV DATE                28.07.2022
Uploading Date          08.08.2022
Transmission Date       08.08.2022