Azmulla Ansari @ Sahil Ansari vs The State Of Bihar
2023 Latest Caselaw 5188 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.49 of 2017
        Arising Out of PS. Case No.-15 Year-2012 Thana- ECONOMIC OFFENCES, BIHAR
                                          District- Patna
     ======================================================

Azmulla Ansari @ Sahil Ansari Son of Reyazul Ansari, Resident of Village- Pujhan Patjirwa, P.S.- Shripur, Pujha, District- West Champaran.

... ... Appellant/s Versus

1. The State of Bihar Bihar

2. The Economic Offences Unit, Bihar, Patna Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 1186 of 2016 Arising Out of PS. Case No.-15 Year-2012 Thana- ECONOMIC OFFENCES, BIHAR District- Patna ====================================================== Amit Kumar son of Girish Chandra Sinha, resident of Village- Vaunahari, P.S.- Adapur, District- East Champaran.

... ... Appellant/s

Versus The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 49 of 2017) For the Appellant/s : Mr.Umesh Chandra Verma, Adv.

Mr. Abhishek Kumar, Adv.

Mr. Hemant Ray, Adv.

     For E.O.U.          :     Mrs. Soni Srivastava, Adv.
     For the State       :     Ms.Shashi Bala Verma, A.P.P.
     (In CRIMINAL APPEAL (DB) No. 1186 of 2016)
     For the Appellant/s :     Mr. Ajay Thakur, Adv.
                               Mr.Md.Imteyaz Ahmad, Adv
     For E.O.U.          :     Mrs. Soni Srivastava, Adv.
     For the State       :     Mr. Ganesh Prasad Jaiswal, A.P.P.

====================================================== Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)

Date : 09-10-2023 Both the appeals have been taken up together and are

being disposed off by this common judgment.

2. These appeals are directed against the judgment of

conviction dated 30.09.2016 and order of sentence dated

01.10.2016, passed by learned Additional Sessions Judge - IX,

East Champaran, Motihari in Sessions Trial No. 188 of 2013/Serial

No. 101 of 2015 arising out of Economic Offence Unit Patna P.S.

Case No. 15 of 2012 whereby the appellants have been held guilty

for the offences punishable under Sections 489(B), 489(C)/120(B)

of the I.P.C. and have been sentenced to undergo imprisonment for

life, to pay a fine of Rs. 10,000/- each under Section 489(B) of the

I.P.C.; rigorous imprisonment for five years each, to pay a fine of

Rs. 5,000/- each under Section 489(C) of the I.P.C.; imprisonment

for life and to pay a fine of Rs. 10,000/- under Section 120(B) of

the I.P.C. In default of payment of fine, the appellants have been

directed to suffer further six months rigorous imprisonment. The

sentences, however, have been ordered to run concurrently.

3. According to the written statement (Ext. 3) of the

informant (P.W. 9), the occurrence took place on 10.09.2012 for Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

which written statement was given to the Officer-in-charge of the

Economic Offence Police Station, Bihar, Patna whereafter the

F.I.R. was registered.

4. The prosecution case, in brief, is that on 09.09.2012,

the informant received confidential information that on

10.09.2012, a significant quantity of counterfeit currency notes

was to arrive at the Motihari bus stand. The smugglers, originating

from Kaliachak, Malda Town, West Bengal, are perhaps

responsible for this operation, and they intend to transport the

consignment of counterfeit currency to Raxaul.

5. Based on such information, a team of police officials

was constituted, including Deepak Prakash (PW-7), Sanjeev

Kumar (PW-2), Rajesh Narayan Verma (PW- 5), Krishna Kumar

Gupta (PW- 4), Vijay Kumar (PW- 1) and Ashok Kumar Rai(PW-

10).

6. The informant (PW-9) has alleged that on 10 th of

September 2012 at approximately 9:00 A.M., he along with his

team arrived at Chhatauni Chowk near Motihari Bus Stand and

apprehended two individuals. Upon questioning, they identified

themselves as Azmulla Ansari @ Sahil Ansari and Amit Kumar. A

motorcycle belonging to the appellant/Amit Kumar was also

seized. During the search, a black bag containing 878 counterfeit Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

Indian currency notes of 1000 denomination, alongwith a black

colored mobile phone of Nokia company, was recovered from the

possession of appellant/Azmulla Ansari @ Sahil Ansari.

Additionally, it was asserted that the counterfeit Indian currency

notes of 1000 denomination totaling about Rs. 20,000/- alongwith

a mobile phone of Carbon company was recovered from the

possession of appellant/Amit Kumar.

7. When appellant/Amit Kumar was interrogated he

disclosed that his brother-in-law/Deependra Kumar and his cousin/

Sudhir Kumar Kushwaha had come to his residence about six

months ago and had asked him to join the business of fake

currency notes. They obtained fake currency from Matahur @

Mansoor, Kaliachak, Malda, West Bengal and circulated it in the

local market to earn profits. It is alleged that on the day of the

occurrence, co-accused Sudhir Kushwaha had told the

appellant/Amit Kumar that co-accused/Sattar Miyan and

appellant/Azmulla Ansari @ Sahil Ansari would carry the fake

currency to Chhatauni Bus Stand, Motihari. Appellant/Amit

Kumar met appellant/Azmulla Ansari @ Sahil Ansari at the Bus

Stand.

8. On the basis of the written statement (Ext. 3) of the

informant (PW- 9), Economic Offence Bihar, Patna P.S. Case No. Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

15 of 2012 dated 10.09.2012 was initially registered under

Sections 489(A), 489(B), 489(C), 120(B) of the I.P.C. and later on,

Section 16 of the Unlawful Activities (Prevention) Act, 1967, was

added. Routine investigations followed. The statement of the

witnesses came to be recorded and on completion of the

investigation, charge-sheet was submitted against the appellants

under Sections 489(A), 489(B), 489(C), 120(B) of I.P.C. The

investigation was kept pending in respect of other co-accused

persons. The learned Trial court was pleased to frame charges

against the appellants under Sections 489(A), 489(B), 489(C),

120(B) of I.P.C. to which they pleaded not guilty and claimed to be

tried.

9. In order to bring home the guilt of the appellants, the

prosecution examined altogether fourteen witnesses. PW-1 Vijay

Kumar, PW-2 Sanjeev Kumar, PW-3 Musafir Miyan, PW-4,

Krishna Kumar Gupta, PW-5 Rajesh Narayan Verma, PW-6

Vishwanath Patel, PW- 7 Deepak Prakash, PW- 8 Tejmul Haque,

PW-9 Vinay Krishna (Informant) PW-10 Ashok Kumar Rai, PW-

11 Jai Prakash Yadav, PW- 12 Jai Narayan Prasad, PW-13 Sanjeev

Kumar and PW-14 Sanjay Kumar I (I.O.).

Prosecution has relied upon following documentary

evidence on record:-

Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

Ext. 1 - Seizure list of appellant/Azmulla Ansari. Ext. 2 - Seizure list of appellant/Amit Kumar. Ext. 3 - Written statement.

Ext. 4 - Order of S.H.O. on written statement to register FIR.

Ext. 4/1 - Writing and signature of S.H.O. on formal FIR.

Ext. 5 - CAF of Mob. No.- 7209783520.

Ext. 5/1 - CAF of Mob. No.- 7549322229 Ext. 6 - CAF and CDR of Mob. No.- 7209783520 Ext. 6/1 - CAF and CDR of Mob. No.- 7549322229 Ext. 7 - Forensic Science Laboratory and investigation report of seized notes.

Ext. 8 - Certificate of Cyber Crime Cell issued by Sanjeev Kumar.

Ext. 9 - Charge-sheet No. 09/12 dated 05.12.2012. Ext. 10 - Confessional statement of appellant/Amit Kumar.

Ext.10/a - Confessional statement of appellant/Azmulla Ansari @ Sahil Ansari.

Prosecution has also proved the Material Ext. X/1 to

X/20 as counterfeit Indian currency recovered from appellant/Amit

Kumar and Material Ext. X/21 to X/898 as counterfeit Indian

currency recovered from appellant/Azmulla Ansari @ Sahil Ansari

and both the material exhibits bear the signature of Ashu Kumar,

Scientist of FSL.

Appellant/Amit Kumar has also relied upon following

documentary evidence in his defence:-

Ext. A - Admit card of Graduation of appellant/Amit Kumar.

Ext. B - Web copy of admit card of Amit Kumar issued by SSC, Allahabad.

Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

No document has been produced on behalf of the

appellant/Azmulla Ansari @ Sahil Ansari in his defence.

However, the defence of the appellants as gathered from

the cross examination of PWs. as well as from their statements

under Section 313 of Cr.P.C. is of total denial of the charge.

10. After hearing the parties, the learned Trial court

convicted the appellants and sentenced them as aforesaid.

11. The learned counsel for the appellants has submitted

that the prosecution has failed to prove the case under Section 489

(B) of the IPC against the appellants. The conviction therefore

under Section 489 (B) is bad in law. The conspiracy angle has not

been proved by the prosecution as the I.O. had not made any

investigation regarding the role played by the associates as had

been alleged in the F.I.R. It has also not been proved as to how the

counterfeit currency was carried to the said bus stand from

Kaliachak, Malda Town, West Bengal and who were the persons,

who brought in the smuggled counterfeit Indian currency. The I.O.

has not made proper investigation with regard to the role assigned

to the other associates in the smuggling of counterfeit Indian

currency. He has further submitted that there is contradiction in the

evidence of PWs-1, 2, 4, 5, 7, 9 and 10, who are police personnel

and their evidence cannot be relied upon. The seizure list witnesses Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

have not supported the case of the prosecution. Not a single

independent witness has supported the case of the prosecution. It

has further submitted that the prosecution failed to prove that the

money, which was shown to have been recovered from the

possession of the appellants, was factually sent to the FSL for its

examination. No police official from Chhatauni Police Station has

been examined in the present case. The prosecution has not proved

the mobile number or other call details as per law and on this

ground alone, the learned Trial court erred in convicting the

appellants under Section 120(B) of the IPC. There was no material

before the Trial court to find the appellants guilty under Sections

489(B) and 489(C) of the IPC.

12. On the contrary, the learned counsel appearing for

the Economic Offence Unit assisted by the learned A.P.P. has

submitted that the statement of informant (PW-9) unequivocally

supports the story of prosecution regarding the time, manner and

place of occurrence. The appellants were found in suspicious

condition and they attempted to flee away on seeing the police

party. The raiding team, on the basis of reliable confidential

information, had reached at Chhatauni Bus Stand and had

apprehended the appellants with counterfeit currencies. All the

members of raiding team have supported and corroborated the Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

story of prosecution. The other PWs have also supported the story

of prosecution as narrated by the informant (PW-9).

13. Sanjay Kumar I (PW-14), who is the I.O. of the case,

has supported and corroborated the story of prosecution. The FSL

report also confirms that the recovery made from both the

appellants, was of counterfeit currency. There was no reason to

disbelieve the version of the informant and other members of

raiding team merely because they belonged to the police service.

It has further been submitted that in a catena of judgments, the

Hon'ble Supreme Court has held that the prosecution story cannot

be thrown out merely because of prosecution witnesses being

police officials.

14. It is imperative to meticulously examine the

testimony of PW-9, who is the informant of this case. He had

provided a detailed account of elucidating how the raiding team

successfully apprehended the appellants. He has reiterated what he

had stated in his written report. During the cross examination, he

could not be discredited on the issue of recovery of counterfeit

currency from the appellants.

15. PWs. 1, 4 and 5 were the members of raiding team

who have categorically supported the version of PW-9 regarding

such recovery of counterfeit currency from the possession of Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

appellants/Azmullah Ansari and Amit Kumar. PW-4 had identified

both the appellants in court.

16. Sanjeev Kumar (PW-2) is also member of raiding

team. He had prepared the seizure list of counterfeit currency

which was recovered from the possession of the appellant/Azmulla

Ansari. It bears his writing and signature and has been marked as

Exhibit-1.

17. Deepak Prakash (PW-7) is also one of the members

of the raiding team. He had prepared the seizure list of 20

counterfeit Indian notes of 1000 denomination which was

recovered from the possession of the appellant/Amit Kumar.

Seizure list bears his writing and signature which stands marked as

Exhibit-2.

18. Ashok Kumar Rai (PW-10) is the driver at E.O.U.

Police Station at Patna. He has stated that he alongwith the raiding

team arrived at Chhautauni Bus Stand, Motihari from where all

the police officials went away separately. He has stated that two

persons were apprehended and both were taken to Patna on the

vehicle.

19. Jai Prakash Yadav (PW-11) and Jai Narayan Prasad

(PW-12), both have supported the story of prosecution. PW-11 has

stated that confessional statement of appellant/Azmulla Ansari was Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

recorded in which he has admitted his guilt. PW-12 has stated that

confessional statement of appellant/Amit Kumar was recorded in

which he has also admitted his guilt.

20. Sanjeev Kumar (PW-13) has stated during

examination-in-chief that he demanded CDR from 10.08.2012 to

10.09.2012 and CAF from the concerned telephony company on

the basis of direction given by the I.O. (PW-14) which reflects

communication between the appellants and others.

21. Sanjay Kumar I (PW-14) is I.O. of the case. He has

supported the story of prosecution and has stated that he had

received the written statement of S.I. of E.O.U.; seizure list and the

sealed exhibits. During the course of investigation, he had

recorded the re-statement of informant and had also taken the

detailed statements of other PWs. He sent the seized counterfeit

Indian currency to FSL, Patna. The report of seized items

recovered from each of the appellants confirms that all the notes

were not genuine Indian currency. On the basis of CDR of seized

mobiles and the confessional statement of appellants, he came to

the conclusion that the appellants were in contact with the other

accused for circulating the counterfeit Indian currency. Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

22. Musafir Miyan (PW-3) and Tejmul Haque (PW-8)

have not supported the case of prosecution and have been declared

hostile.

23. Vishwanath Patel (PW-6) is an independent witness

also is the witness of seizure list. He has not supported the case of

the prosecution and has taken an about turn at the trial.

24. It is pertinent to note here that seized counterfeit

currency were sent to FSL for examination. The result of

examination reveals that all the notes were counterfeit currency.

25. In the present case, we do not find any compliance

of Section 65-B of the Indian Evidence Act as has been explained

in Anvar P.V. Vs. P.K. Basheer & Ors.; (2014) 10 SCC 473 and

Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal &

Ors.; (2020) 7 SCC 1. There is no certificate on record as

contemplated under Section 65-B of the Indian Evidence Act,

1872. This definitely makes the evidence with respect to the

CDRs, which is the sole basis for proving the case of conspiracy as

against the appellants, as inadmissible in the eyes of law.

26. PW-13 could not have certified that the CDRs of

various telephones were obtained through the telephone

companies, which information was generated in usual course. Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

27. In the present case, the CDR is inadmissible piece of

evidence because of non-compliance of Section 65-B of the Indian

Evidence Act.

28. The written statement covers broadly two aspects of

the story of prosecution. The first aspect is related with how the

police officials alongwith the informant proceeded towards

Chhatauni Bus Stand, Motihari on the basis of reliable confidential

information and how the trap was laid by constituting raiding

team. When the team came nearer, the suspects began to leave the

place of occurrence but they were apprehended and significant

quantity of counterfeit notes were recovered from their possession.

The second part of the written statement is based upon the

disclosure made by appellant/Amit Kumar. On that point, the I.O.

(PW-14) has not made any investigation regarding the linkages of

the appellants and their associates and the modus of circulation of

counterfeit Indian currency. Nothing has been whispered in the

investigation regarding the other associates of the appellants. Ext.

6 and 6/1 do not reflect that appellants were associated with other

accused as nothing has been collected by the I.O. during the

investigation regarding the activities of other associates who were

directly or indirectly linked with the appellants. Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

29. In this way, the offence under Section 120(B) of the

IPC is not made out against the appellants/ Azmulla Ansari @

Sahil Ansari and Amit Kumar. The judgment of the Trial court

with regard to the offence of Section 120(B) of the IPC thus is not

justified and, hence, the same is set aside.

30. It is evident that huge quantity of counterfeit Indian

currency was recovered from the possession of the

appellant/Azmulla Ansari @ Sahil Ansari and the evidence of

PWs. 9, 14 and others who have prepared the seizure lists have

specifically supported the prosecution story. There is no reason to

disbelieve the version of PW-9 and other PWs. as same is

corroborated and supported by other witnesses and material

available on record.

31. Hence, the conviction of the appellant/Azmulla

Ansari @ Sahil Ansari under Sections 489(B) and 489(C) is

upheld.

32. The appellant/Amit Kumar from whose possession

only 20 counterfeit Indian currency of 1000 denomination was

recovered and on the said point the evidence of prosecution

witnesses are quite consistent and there is no reason to disbelieve

the version of prosecution witnesses. So far as the nature of

recovery is concerned, prudently and pragmatically no offence is Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

made out under Section 489(B) of the IPC against the

appellant/Amit Kumar. Hence, the conviction of appellant/Amit

Kumar under Section 489(B) of the IPC is set aside but his

conviction under Section 489 (C) is upheld.

33. The counsel of the appellants have submitted that

both the appellants were of having young age at the time of alleged

occurrence and they have the chances to streamline their life for

better future. The counsel for the appellants further submitted that

the I.O. has not produced any material that appellants have any

criminal background.

34. In the light of the aforesaid submission, we deem it

appropriate to reduce the sentence of the appellant/Amit Kumar to

the period already undergone by him, which would meet the ends

of justice. Hence, the sentence imposed against the appellant/Amit

Kumar vide order dated 01.10.2016 is reduced to period of custody

which he has already undergone.

35. So far as sentence of the appellant/Azmulla Ansari

@ Sahil Ansari is concerned, he has been sentenced to life

imprisonment under Section 489(B) of the IPC. We find that in the

attending circumstances, a ten years rigorous imprisonment would

be sufficient to meet the ends of the justice.

Patna High Court CR. APP (DB) No.49 of 2017 dt.09-10-2023

36. During the trial, the appellant Azmulla Ansari @

Sahil Ansari was in custody from 10.09.2012 to 16.08.2013 and

thereafter he is in custody since the date of judgment of conviction

i.e. 30.09.2016. The total period of custody undergone by the

appellant is near about 08 years. His sentence is thus altered to ten

years rigorous imprisonment.

37. The appellant/Amit Kumar is on bail, his liabilities

under the bail bonds is cancelled.

38. In the aforesaid manner, both the appeals are partly

allowed.

(Alok Kumar Pandey, J)

(Ashutosh Kumar, J)

alok/shahzad-

AFR/NAFR                NAFR
CAV DATE                25.09.2023
Uploading Date          09.10.2023
Transmission Date       09.10.2023