Sunil Kumar @ Anil v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 3RD DAY OF JULY 2017 / 12TH ASHADHA, 1939** **CRL.A.No. 2821 of 2008** **-----------------------** **SC.NO.236/2006 OF ADDITIONAL DISTRICT & SESSIONS COURT(FAST TRACK COURT NO.III (AD HOC)), MANJERI. CP.NO.75/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR.** **.......** **APPELLANT/ACCUSED NO.2:** **-----------------------** **SUNIL KUMAR @ ANIL, S/O.SREEDHARAN, CHARUVIL HOUSE, MATTUKOLLY, CHENGANNOOR, PATHANAMTHITTA.** **BY ADVS.SMT.K.V.BHADRA KUMARI SMT.ANILA GEORGE** **RESPONDENT/COMPLAINANT:** **----------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT.PRIYA SHANAVAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/ 03.03.2018.** ## **K.P. JYOTHINDRANATH, J.** **-------------------------------------------** Criminal Appeal No. 2821 of 2008 **------------------------------------------------------** Dated this the 3[rd] day of July, 2017 ## JUDGMENT This Criminal Appeal is preferred by Sunil Kumar, who was the 2[nd] accused in SC No.236/2006 on the files of the Additional Sessions Court, Fast Track-III,(Adhoc) Manjeri. Conviction was under Section 489(B) read with Section 34 of the Indian Penal Code. Originally, there were three accused in the party array. The case against the accused 1 and 3 was split up and appellant herein faced the trial. He was convicted under Section 489(B) read with Section 34 of the Indian Penal Code and the sentence was to undergo rigorous imprisonment for 3 ½ years and to pay a fine of Rs.5,000/- with default rigorous imprisonment for six months. 2. The facts in a nutshell is as follows:- On 11.05.2000, on getting secret information, the Sub Inspector of Police, Kalpakamcheri conducted search in room No.202 of Popular lodge in Athavanad Panchayat, wherein the appellant herein was found along with two other accused in possession of counterfeit Indian made currencies of denomination of 100 and 10 and thereby, committed the above offence. Criminal Appeal No.2821 of 2008 2 3. I heard the learned counsel appearing for the appellant. The learned counsel raised a threefold argument before this Court. The learned counsel submitted before this Court that in this case, actually there was no arrest of the appellant as alleged by the prosecution. The submission is that he was taken into custody from somewhere else and was implicated in this case. He was aged only 26 years at that time. The second argument advanced before this Court is that here is a case, where there was no search and seizure. It is the admitted case of the prosecution that no memorandum of search marked before this Court. Even though the detecting officer claimed that search memorandum was prepared, it was not seen marked in the proceedings. The only inference that can be drawn is that no such memorandum of search was available or prepared. It is the further submission that in this case a search list is also not marked before the court. The evidence of the detecting officer in this regard was that a form was not available as such mahazar prepared. But the details that will be available in a search list should have been in the mahazar so prepared or marked before the court. It is submitted that when the memorandum of search Criminal Appeal No.2821 of 2008 3 as well as the search list is not available before the court, it can be only considered as a case where there was no search conducted by the police. When there is no legal search, then the whole case built upon a seizure allegedly made upon such an alleged search will also fail i.e., the case of the appellant is that when there is no legal search or the seizure is an illegal one, then the whole case now presented or build up by the prosecution also will fail. 4. The next aspect highlighted before this Court is that here is a case where the prosecution originally registered for an offence under Section 489(B) of the Indian Penal Code. No report changing the offence is seen marked in this case. It is further submission made before this Court that when original case of the prosecution was under Section 489(C) of the Indian Penal Code and it was changed into 489(B), there should be material to substantiate the same. It is the submission that the ingredients of an offence under Section 489(B) and 489(C) are different and distinct. There will be no over lapping of ingredients in respect of the said offences. Under such circumstances, when there is a change of offence, there should be a report to the same before 4 Criminal Appeal No.2821 of 2008 the court and such materials should be legally brought before the court. In this case only five witnesses were examined. Those witnesses are only to show that such a seizure was made from the alleged room. Now on the back ground of lack of memorandum of search and search list and further when there is no independent witnesses were summoned and signed in the mahazar and examined before the court and the prosecution case is to the effect that there was trafficking of the currency notes and in support of the same, evidence is lacking, no conviction will lie. It is the submission that no conviction can be entered into by the court on such materials and the conviction entered are incorrect and against the settled legal position. In support of such an argument, the learned counsel produced before this Court the decision of **Sukumaran P.O.@ Kunhukunhu v. SI of Police, Ambalavayal and Another** reported in [2016 (4) KHC 660]. It is a case where originally the offence alleged was under Section 489(B) and (C) of the Indian Penal Code. But considering the fact that there was illegality in conducting search and appreciating the materials produced, the court found that the ingredients of both the sections were not proved by the prosecutor and the accused 5 Criminal Appeal No.2821 of 2008 ## acquitted. 5. Apart from the same, it is also the submission that when the offence under Section 489 (B) of the Indian Penal Code is not alleged or proved by the prosecution and the prosecution originally got only a case that offence was 489(C), then also mere possession will not be sufficient to convict the accused. It is also submitted before this Court that in this case, admittedly there were three persons in the room and as per the prosecution case, the door of the room was not latched but only closed and they just opened and entered and three persons were seen. The appellant herein was one among them. Thus, from below the cot two bags were seized. There was no case for the prosecution that any one of the bag was seized from the direct possession of this person. In a case like this, exclusive and conscious possession has to be proved by the prosecution. When, as per the prosecution case itself, the bag was received from under a cot, then all the three persons therein cannot be alleged as in joint possession of the same. The submission of the learned counsel is that if only one person is therein, then it can be inferred that he is the person who kept it therein and if the room was taken by this 6 person and if there was any evidence to show that appellant is the person who taken on lease, the room then also inference can be drawn. When no such evidence is before the court and three persons were seen therein and further there is nothing to show exclusive and conscious possession of fake notes. Even if admitting for argument sake that he was therein, it can only be inferred that he was arrested from therein and some contraband was seized from the place where he was arrested. It cannot be extended for exclusive conscious possession of the fake notes. Thus it is the submission that the ingredients of Section 489(C) also will be lacking in respect of the accused herein. Thus, he is entitled for acquittal. 6. The learned Public Prosecutor submitted before this Court that here is a case where the offence is alleged under Section 489(B) of the Indian Penal Code. The prosecution produced and marked MOI and 2 bags as well as counterfeit notes and report from the mint was marked as Ext.P8. It is submitted before this Court that this is not a case where one or two notes were seized or seen in possession. Originally the crime was registered under Section 489(C) of the Indian Penal Code. But on questioning and Criminal Appeal No.2821 of 2008 7 on investigation, it was found that it was a case where parting of counterfeit notes in between the three persons were therein. Under such circumstances, when the final report was filed, the offence was changed into one under Section 489(B) of the Indian Penal Code. It is the submission that when the allegation was trafficking of the counterfeit notes in between the persons and huge number of notes were available in the room and nobody else was inside the room, the burden is squarely upon the accused to show their innocence. Surely, here is a case where the appellant herein got a case that he was not arrested from therein. When he got a specific case that he was not arrested from therein, then the burden will be heavily upon him. A statement that he was not arrested from therein will counter blast upon the appellant when it is not substantiated by legal materials. On the other hand, the circumstances under which the accused came to the said room is upon the accused to explain. When no explanation is coming, or no evidence regarding his case that he was not arrested from therein is produced, it can be assumed and presumed that he is in possession of counterfeit notes which was seen in the room. All the persons present therein are now accused. Criminal Appeal No.2821 of 2008 8 7. After hearing both counsel, I perused the evidence in this case. PW1 is the detecting officer, he deposed before the court that he was the Sub Inspector of Kalpakamcheri during that period. He got a telephonic information regarding the transaction of counterfeited notes in Room No.202 in Popular Lodge. He prepared a search memo and forwarded to the court and entry made in GD and reached at the above room and opened the door and entered. Three persons were seen and he identified the accused as one among them and his evidence is that a black bag was seized under the cot and another red bag was seen on the table top. Those bags were marked as MOI and MO2 respectively. When the black bag was opened he found 232 fake notes of denomination of 100 and 69 bundles of 10 rupees. Altogether there were 6,538 counterfeited notes. He marked the notes of 100 denomination as MO3 series and that of 10 Rupee denomination as MO4 series. It is further deposed that he was convinced that it was counterfeited notes. Accused arrested, notes seized and seizure mahazar prepared. The mahazar was marked as Ext.P5. During cross examination, he admitted that the search memorandum is not marked or not available. He 9 further deposed during cross examination that even though body search was conducted, no incriminating material was seen and further deposed that independent witnesses were the cashier and receptionist of the lodge. PW2 is an Assistant Sub Inspector who accompanied PW1. He also supported and corroborated the evidence of PW1. PW3 is the receptionist, he also deposed that accused along with two others took a room in the lodge and accused and two others took room No.202 in his lodge. He further deposed that in the midnight, a search was conducted by the Circle Inspector Kalpakamcheri and MOI and MO2 were seized. He admitted that he had signed in Ext.P5. He also signed in scene mahazar. During cross examination, he deposed that room was taken in the name of one Manoj. PW4 is the Circle Inspector who conducted partial investigation. He deposed that he had seized the register and mahazar prepared for the same was marked as Ext.P5 and the photo copy of the page No.102 was marked as Ext.P6. PW5 is the Crime Branch Detective Inspector who conducted further investigation in this case. He deposed that a request to get the expert report was forwarded to the Security Press Nasik and the report so obtained is Ext.P8. 10 Criminal Appeal No.2821 of 2008 8. In this case, surely the source of notes or who brought the notes in the room was not seen investigated or brought on evidence. The whole aspect now proved before the court is that a search was conducted in room No.202 of the Popular lodge and contraband seized. But surely, a search memorandum and search list was not there and instead of preparing a search list only a seizure mahazar was seen produced. The settled legal position regarding a search is that illegality does not vitiate seizure, unless it has caused prejudice to the accused i.e., when the seized article is before the court, reliance can be made on the same. In this case, the seized article was nothing but counterfeit notes. As per Ext.P8 it can be seen that it was counterfeit notes, surely the case of the prosecution was that police got it from room No.202. As per the evidence of PW1 to 3, it can be seen that accused was present in the room. The said evidence is reliable. When such a huge sum, that is more than 6000 counterfeit notes were seized, it is the duty of the person present therein to explain his presence. Under such circumstances, surely, the ingredients of Section 489(B) is not seen made out, but at the very same time, it can be inferred that they were in the joint possession of the same Criminal Appeal No.2821 of 2008 11 especially in the light of the evidence of PW3 to the effect that three person jointly took room No.202. There is nothing to disbelieve the evidence of PW3 in this regard. When jointly room was taken and from therein the fake notes seized, that also a seizable amount of counterfeit notes, then the possession can be inferred. The conviction under Section 489(B) is set aside and converted to one under Section 489(C) of the Indian Penal Code. Thus, the only question is that of sentence. Now, the learned counsel submitted before this Court that the appellant was aged only 26 years at the time of incident. Considering the totality of the case, the appellant is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- with default simple imprisonment for three months. With the above modification on the side of the conviction and sentence, this appeal is partly allowed. Sd/- **K.P. JYOTHINDRANATH, JUDGE** SKV