C.T. Abdul Mansoor s/o C.T. Abbaskutty Haji, Anabagilu, Kasaragod v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942** ## **CRL.A.No.929 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 49/2001 DATED 05-05-2005 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANT/S:** **C.T.ABDUL MANSOOR S/O.C.T.ABBASKUTTY HAJI, ANABAGILU, KASARAGOD.** ## **BY ADV. SRI.M.SASINDRAN** ## **RESPONDENT/S:** **STATE REP.BY STATION HOUSE OFFICER, KASARAGOD.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-10-2020, ALONG WITH CRL.A.2189/2005, THE COURT ON 30-10-2020 DELIVERED THE FOLLOWING:** **CRL.APPEAL No.929 of 2005 2** ## **JUDGMENT** ## **Dated this the 30th day of October 2020 ...** Appellant is the accused in Session Case No.49/2001 on the file of Sessions Court, Kasargod. The appellant and 8 other accused were charge sheeted by the Deputy Superintendent of Police, CBCID, Kozhikode alleging offence punishable under Section 489 (B) and (C) read with Section 34 of IPC. 2. The prosecution case is that, on 01.06.1990 PW1, the then, Sub Inspector of Police Kasargod police station got reliable information that the 1[st] accused was standing besides the new bus stand with a bundle containing counterfeit currency notes. PW1 rushed to the spot in a jeep with police party. A1 who was previously known to PW1 was seen with a bundle at a spot besides the road situated to the south of the bus stand. PW1 approached A1 and collected the bundle in his possession and examined its contents. The bundle contained 25 bundles of ## **CRL.APPEAL No.929 of 2005 3** currency notes, all of them was 10 rupee note denomination with many of them having similar number. PW1 became suspicious about the currency notes and he arrested the 1[st] accused and seized the notes into custody by preparing Ext. P1 Mhazar. PW1 returned to the station and registered Ext. P2 FIR for the offence punishable under Section 489C of IPC. The investigation of the crime was taken over by the Crime Branch, Kannur. PW2, then, Circle Inspector of Crime Branch, Kannur proceeded with the investigation. According to the prosecution, the complicity of accused Nos. 2 to 9 also found in the investigation. Accordingly, Ext.P3 report was filed before the court informing about the same. The offence under section 489 B read with Section 34 of IPC was also added. Accused Nos. 2 to 5 were arrested on 05.06.1990 at Thalangara and seized counterfeit currency notes of 10 rupee denomination from them. On the same day, PW2 arrested accused Nos. 6 to 9 from old bus stand, kasaragod and from them also counterfeit currency notes of 10 rupee notes were seized into custody. The investigation ## **CRL.APPEAL No.929 of 2005 4** thereafter continued by the PW3 Detective Inspector, CBCID Kannur. He produced the counterfeit currency notes seized from the accused with Ext. P13 property list before the court and took steps for sending them over for a scientific examination to the Government Press, Nasik. The report received from that press, after examining the counterfeit notes, is Ext. P15. Scientific examination at the above press revealed that, the notes seized and produced in the case are forged. After completion of the investigation in the crime, PW4, the DySP of Police, Crime Branch, Kannur, laid the charge against the accused, 9 in number, alleging offences punishable under Section 489B and 489C read with Section 34 of IPC. 3. The accused appeared before the lower court and charge was framed under Section 489 B and 489C read with Section 34 of IPC. The accused pleaded not guilty. Accused Nos. 2, 3 and 8 has not faced trial. The other accused faced trial. 4. To substantiate the case, the prosecution examined PW1 to PW4. Exhibits P1 to P15 are the ## **CRL.APPEAL No.929 of 2005 5** exhibits marked on the side of the prosecution. MO1 to MO11 are the material objects. 5. After going through the evidence and documents, the trial court found that, the 1[st] accused is guilty under Section 489 C of IPC. But, he was acquitted under Section 489 B of IPC. Accused Nos. 4 to 7 and 9 were acquitted the offence under Section 489 B and C of IPC. The 1[st] accused was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 25,000/- with a default sentence of imprisonment for one year. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The learned counsel for the appellant submitted that, the seizure of the counterfeit currency notes from the possession of the accused is not proved by the prosecution. The learned counsel taken me through Ext. P1 seizure mahazar in which it is not stated that, the seizure was in the ## **CRL.APPEAL No.929 of 2005 6** presence of independent witnesses. The learned counsel submitted that, the same is fatal to the prosecution. The learned counsel also submitted that, there is no independent witnesses examined before the court to prove the seizure of the counterfeit notes from the possession of the appellant, who is the 1[st] accused in this case. The learned counsel submitted that, for that simple reason, the accused is entitled the benefit of doubt. 8. The learned Public Prosecutor submitted that, the trial court after considering the entire oral and documentary evidence came to the definite conclusion that, the 1[st] accused committed the offence. Therefore, the Prosecutor submitted that, there is nothing to interfere with the conviction and sentence imposed by the trial court. 9. The points for consideration in this case is whether the prosecution is able to prove the offence under Section 489 C of IPC against the appellant/1[st] accused. 10. Altogether, 4 witnesses were examined in ## **CRL.APPEAL No.929 of 2005 7** this case. The prosecution witness No.1 is the Detecting Inspector in this case. He gave evidence before the court below about the seizure in detail. It is true that, no independent witnesses were examined on the side of prosecution to corroborate the evidence of PW1. It is also true that the examination of independent witnesses to prove the search and seizure will strengthen the credibility of the prosecution case. But, simply because the independent witnesses are not examined, the entire prosecution case can not be rejected. In this case there is evidence of PW1. He deposed before the court that, on getting information he proceeded to the place of occurrence and counterfeit notes were seized based on Ext. P1 seizure mahazar. MO1 is the counterfeit notes seized from the possession of the appellant/1[st] accused. It is proved by the prosecution as per Ext. P15 expert opinion that, these notes seized from the possession of the 1[st] accused is counterfeit notes. There is nothing to disbelieve the evidence of PW1 the Detecting Officer. There is no rule that the evidence of ## **CRL.APPEAL No.929 of 2005 8** official witnesses are to be rejected when there is no independent corroboration to the evidence of official witnesses. The counsel for the appellant also submitted that, the MO1 plastic cover by which the counterfeit notes were packed is not mentioned in Ext.P1 mahazar. The counsel also submitted that the seized articles were not sealed from the spot. The counsel also submitted that the seized articles were not produced before the court immediately. The reliability of the search and seizure is considered in detail by the trial court in the impugned judgment. The relevant paragraph is extracted hereunder: _**“11. The evidence of PW1 as to arrest of A1, and seizure of the currency notes, at the time and place alleged , and preparation of P1 mahazar on such seizure at the spot, according to the defence counsel, is too artificial and unworthy of credence. P1 seizure mahazar was prepared over the currency notes seized from the possession of A1 at new bus stand in Kasaragod town. In P1 mahazar particulars of each and every note, 25,000 in total, with their numbers are specified, is canvassed as a circumstance to doubt the value of that document. I do not find any**_ **CRL.APPEAL No.929 of 2005 9** _**merit in that submission. The evidence of PW1 would show that after getting information that A1 with forged currency notes was standing beside new bus stand, at about 9 a.m., immediately, the police party reached the spot and on detection of the forged notes in his possession he was arrested. P1 mahazar would show that the details stated therein as to the particulars of the notes seized could be recorded and completed only by about 2 p.m. That itself is a circumstance vouchsafing the preparation of P1 mahazar at the spot immediately on seizure of the forged notes from A1. The attestors in P1 mahazar resided at far off places and none of the shop keepers conducting business in the vicinity was cited as an attestor is mooted as another challenge to impeach the value of P1 mahazar. PW1 has stated in his evidence that one among the attestors is a jeep driver and the other an autorikshaw driver. He has further stated that the auto driver has his residence within two kilometers from the bus-stand. The challenge raised that the attestors resided at far off places to impeach the merit of P1 mahazar has no force at all. PW1 in discharging his official duties as a police officer on seizure of the forged note from the possession of the accused prepared P1 mahazar in the presence of the attestors who had subscribed their signatures in that document. Merely**_ **CRL.APPEAL No.929 of 2005 10** _**because the attestors happened to be autorikshaw or jeep drivers and not businessmen operating business in the vicinity genuineness of P1 mahazar cannot be doubted, especially in a case of this nature where the sworn testimony of PW1 as to seizure of the contraband from the possession of the accused is found inspiring confidence and acceptable. In P1 seizure mahazar there is no reference as to MO2 plastic cover in which the note bundles were kept, is pointed out by the learned defence counsel as a serious infirmity affecting the value of that mahazar and also creditworthiness of the evidence of PW1 on the seizure of the forged currency notes as alleged. I find that the nonmentioning of MO2 plastic cover in P1 mahazar at the most is an omission not in any way affecting the trustworthiness and reliability on the evidence of PW1 on seizure of the contraband from the possession of the accused (A1). Another challenge raised by the counsel is that on seizure of MO1 series it was not packed, sealed and labeled at the spot. The totality of the facts and circumstances involved in the case surrounding the seizure have to be appreciated and taken into account in examining whether the failure of PW1 in packing, sealing and labeling the notes, that too 25 bundles, each having 100 numbers at the spot, has in any way**_ **CRL.APPEAL No.929 of 2005 11** _**affected the worth of the prosecution case or caused any prejudice to the accused(A1). Nothing has been brought to my notice to show that the nonperformance of the above acts on seizure by PW1 has caused any prejudice to the accused (A1). There is also nothing in the materials produced in the case to show that the contraband seized under P1 mahazar was tampered with in any manner till it was examined at the Currency Notes Press, Nasik, after production before court and sending it over for such examination. So much so, the challenge raised by the defence counsel on the above score also is found to be unworthy of any merit. PW1 even after registration of the crime under P2 F.I.R has not cared to conduct a search over the residential building of A1 is canvassed by the defence counsel as another infirmity and, in fact, as a circumstance indicating that the case was foisted against that accused as contended by him. Investigation over cases involving the seizure of counterfeit or forged notes at that time were conducted by Crime Branch, is spelt out by the evidence tendered in the case. When that be so, after seizure of the contraband the forged notes- from the possession of A1 other than registering the crime under P2 F.I. R. and producing the accused before court PW1 did not proceed with the investigation but had reported the matter**_ **CRL.APPEAL No.929 of 2005 12** _**to his superior cannot at all be viewed as a suspicious circumstance in any way discrediting his evidence. It is evident that nonconducting of a search over the house of A1 on seizure of the contraband from him on registration of the crime by PW1 does not have any significance and it does not affect the merit of his evidence in any manner. The evidence of PW1 as to circumstances under which MO1 series were seized from the possession of A1 on close scrutiny is found to be reliable, convincing and trustworthy. Despite searching cross examination his evidence on seizure of the contraband from the possession of A1 remain unshaken. His evidence on seizure of the forged notes from the possession of A1 is not corroborated by examining any other witness in the given facts of the case is not at all material. His evidence is in fact is corroborated by P1 mahazar , a contemporaneous record prepared over the seizure of the contraband, which in the proved facts adds to the trustworthiness of his sworn testimony. Suffice to state prosecution has established through the evidence of PW1 that A1 was apprehended with possession of MO1 series- forged currency notes of 10 rupees denomination for a total sum of Rs.25,000/-, at the time and place alleged.”**_ 11. I see no reason to disagree with the ## **CRL.APPEAL No.929 of 2005 13** finding of the trial court about the admissibility of the evidence of PW1. The trial court perfectly justified in concluding that MO1 counterfeit notes is seized from his possession. 12. From the above discussions, it is clear that the appellant/1[st] accused committed the offence under Section 489C IPC. Similarly, the trial court is perfectly justified in acquitting the appellant/1[st] accused under 489B IPC because there is absolutely no evidence to attract the offence under Section 489B IPC. 13. The next question to be considered is whether the sentence imposed by the trial court is justified or not. The trial court imposed rigorous imprisonment for two years and to pay a fine of Rs.25,000/- under Section 489(C) IPC. In default of payment of fine, the accused is directed to undergo imprisonment for one year. Imprisonment is not mandatory while imposing sentence under Section 489C IPC. Admittedly, the appellant underwent pre-trial detention for a period of 69 days which is evident from paragraph 20 of the impugned judgment. No other ## **CRL.APPEAL No.929 of 2005 14** case is reported against the appellant by the prosecution. The alleged seizure was in 1990. Now 30 years elapsed. The appellant was a youngster at the time of seizure. The prosecution has no case that he is involved in any other case subsequently. In such circumstances, I think, the substantive sentence can be reduced to the detention already undergone by the appellant. This Court has considered this point in a similar case viz. **Mohammed Koya v. State of Kerala** [2020(3)KLT 441], the relevant portion of the same is extracted hereunder: _**“14. Now regarding the sentence to be imposed on the 1st appellant in Crl.Appeal No.225 of 2008 and the appellant in Crl.Appeal No.211 is to be decided. The trial court imposed rigorous imprisonment for 3 years under Section 489C to them. In this case, the offence under Section 489 C is a lesser offence when considered to the offence under Section 489B IPC. Section 489C is a bailable offence. Section 489C IPC deals the possession of counterfeit note. No previous conviction is reported against these appellants. Moreover, the offence alleged to be committed in this case was on 05.06.1998. Now 22 years elapsed. At this distance of time, the appellants need not be sent to jail again. Moreover, the substantive sentence of imprisonment is not mandatory as per Section 489C IPC. In the last**_ **CRL.APPEAL No.929 of 2005 15** _**paragraph of the judgment of the lower court, it is stated that the accused Muhammed Koaya is entitled to set off for the period from 5.6.1998 to 14.7.1998 and the accused Prasad is entitled to set off from 5.6.1998 to 12.7.1998. Since they already underwent imprisonment for some period, I think, that is enough. In addition to that a fine also can be imposed. Hence, the 1st appellant in Crl.Appeal No.225 of 2008 and the appellant in Crl.Appeal No.211 of 2008 are directed to undergo Rigorous Imprisonment for one month each and to pay a fine of Rs.50,000/- each under Section 489C IPC. In default of payment of fine, appellants will undergo simple imprisonment for a period of three months. Appellants are entitled set off for the period they already undergone.”**_ **==> picture [404 x 14] intentionally omitted <==** I think, the substantive sentence imposed on the appellant can be reduced to two months. Therefore, this criminal appeal is allowed in part with the following manner: i) The conviction imposed on the appellant/1[st] accused under Section 489C is confirmed; ii) The substantive sentence imposed on the appellant/1[st] accused is set aside and reduced to rigorous imprisonment for two months; **CRL.APPEAL No.929 of 2005 16** iii) Fine and default sentence imposed by the trial court are confirmed; iv) Set off is allowed. ## **(Sd/-)** **P.V.KUNHIKRISHNAN** **LU/pkk** **JUDGE**