GULLU @ GHANSHYAM HASHMATRAI LAKHANI vs. THE STATE OF MAHARASHTRA

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2006:BHC-AS:24057
IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION
CRIMINAL APPEAL NO.544 OF 2001
Gulab Jethanand Khemnani,
Age adult, Occupation Business,
Resident of C/o 41-B, Ground Floor,
Sindhi Society, Chembur,
Mumbai - 400 071.
(At present Yerwada Central Jail, ...Appellant
Pune). (Ori.Accd.No.5)
Versus
The State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO.201 OF 2002
Mohd. Parvez Mohd. Jaffar Soda,
Residing - Pakistan Nation,
(At present lodged in Yerwada ...Appellant
Central Prison, Pune - 6) (Ori.Accd.No.1)
Versus
The State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO.445 OF 2001
Gullu @ Gul Ghansham Hashmatrai Lakhani,
Hindu, aged about 38 years,
Permanently residing at Navjivan
Society, R.C.Market, Chembur,
Mumbai - 400 071, and Presently
undergoing sentence at Nasik Road ...Appellant
Central Prison, Nasik Road. (Ori.Accd.No.6)
Versus
The State of Maharashtra
(At the instance of Sakinaka
Police Station, Mumbai). ..Respondents
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WITH
CRIMINAL APPEAL NO.456 OF 2001
1.Tejas @ Teja Manjibhai Patel,
aged about 41 years, residing at
Room No.23, Building No.46,
B-10, Sector-15, Vashi,
Navi Mumbai - 400 705.
(Ori.Accused No.7)
2.Ajgarali Kurban Hussain Mandsarewala,
aged about 47 years, residing at
Essali Palace, IVth floor,
Victoria Garden Road, Byculla,
Mumbai - 400 008.
(Ori.Accused No.8)
3.Raju Ramchand Sachdeo,
aged about 41 years, residing at
MGA Zopadpatti, Room No.4,
Opp. to Building No.26,
Chembur Colony, Chembur,
Mumbai - 400 074.
(Ori.Accused No.9)
(All the Appellants are in Jail ...Appellants
now lodged at Ahmednagar Central (Ori.Accd.Nos.
Prison) 7 to 9)
Versus
1.Asstt.Commissioner of Police,
Sakinaka Division, Mumbai in
respect of Sakinaka Police Station
C.R. No.184/99
2. The State of Maharashtra ...Respondents
WITH
CRIMINAL APPEAL NO.516 OF 2001
Ashok Durgashankar Avasti,
Age: 41 yrs., Occ: business,
r/o.Khandak Road, Dist.Haveli,
Karnataka State.
(At present lodged at Yerwada ...Appellant
Central Prison, Pune). (Ori.Accd.No.4)
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Versus
The State of Maharashtra,
(At the instance of Assistant
Commissioner of Police, Sakinaka
Police Station, Bombay-400 072). ...Respondent
WITH
CRIMINAL APPEAL NO.518 OF 2001
Salim Yaqub Kara,
Age : Adult, R/at Sector 7,
Building NO.60, Room No.9325,
Antop Hill, Sion, Mumbai - 400 022.
(presently undergoing sentence
at Nashik Road Central Prison, ...Appellant
Nashik Road). (Ori.Accd.No.3)
Versus
The State of Maharashtra ...Respondent
(At the instance of Sakinaka
Police Station, Mumbai).
......
Mr.Naveen Chomal for appellant in Appeal No.544 of
2001(org.accused No.5)
Mr.U.S.Vanjara for appellant in Cr.Appeal No.201 of
2002(org.accused No.1)
Mr.Anil Lalla i/b Lalla & Lalla for appellant in
Cr.Appeal No.445 of 2001(org.accused No.6)
Mr.S.G.Rajput for appellant in Cri.Appeal No.456 of
2001(org.accused No.7 to 9).
Mr.Amit Sale i/b. M.L.Patil for appellant in
Cr.Appeal No.516 of 2001(org.accused No.4).
Mr.Q.A.Siddiqui, for appellant in Cri.Appeal No.518
of 2001(org.accused No.3)
Dr.S.S.Tatkare, APP for State in all the matters.
......
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A.M.KHANWILKAR,J
CORAM: A.M.KHANWILKAR,J CORAM: CORAM: A.M.KHANWILKAR,J
DATE : DECEMBER 20/22, 2006. DATE DATE : DECEMBER 20/22, 2006. : DECEMBER 20/22, 2006.
JUDGMENT : JUDGMENT JUDGMENT : :
1. All these appeals can be disposed of together
by a common judgment. These appeals are filed by
accused Nos.1 and 3 to 9 against the Judgment and
Order dated 7th June, 2001 passed by Special Judge
under Maharashtra Control of Organised Crime Act, 1999
(hereinafter referred to as ‘MCOCA’), Greater Bombay,
in M.C.O.C.Special Case No.3 of 1999. The accused
No.2 has died. In so far as accused No.3 is
concerned, he is reported to be absconding. As none
appeared for him, I thought it appropriate to appoint
advocate Siddiqui to espouse the cause of accused No.3
as amicus curiae.
2. The prosecution case is that, on 2nd July,
1999, a secret reliable information was received by
the North-West Region of Mumbai Police about some
persons likely to transact and carry on or engage in
the deal of fake or counterfeit Indian currency from
Twilight building in Raheja Vihar Housing Complex. On
receipt of the said information, API Mr.Nadgouda and
Mr.Pirjadhe working in North-West Region, Mumbai
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Police, gave intimation in that behalf to the Sakinaka
police. The Sakinaka Police were also informed about
the possibility of offenders running away by motor
car. On receipt of this information, Police Inspector
Padwal (P.W.21), PSI Repale (P.W.14) and staff of
Sakinaka Police Station formed a team and proceeded
towards Raheja Vihar Complex. They waited near thee
gate for sometime. At about 1.30 a.m., they noticed a
Tata Estate car bearing No.MH-01-R-4594 approaching
near the security gate of Raheja Complex. The same
was intercepted by the raiding party. Gulab Jethanand
Khemnani-accused No.5 and Salim Yaqub Kara-accused
No.3 were found inside the car. Accused no.5 was
driving the car. The accused No.3 and 5 were searched
separately on the spot. During the said search, the
accused were found in possession of huge quantity of
counterfeit currency notes (in the sum of
Rs.5,50,000/-), which were immediately seized under
panchanama. On further interrogation of accused Nos.
3 and 5, they led the police party to flat No.4 of
Twilight building in Raheja Complex. Mohd. Parvez
Mohd. Jaffer Soda-accused No.1, Kishore @ Lala
Chetanmal Lalwani-Accused No.2 and Ashok Durgashankar
Awasti-Accused No.4 were found inside the said flat.
The accused No.1 is a Pakistani national and was found
in possession of counterfeit notes (Indian currency)
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in the denomination of Rs.500/- in the sum of Rs.3
Lakhs. Search of Accused No.2-Kishore Lalwani, who
was another occupant of the flat, was taken. From his
personal search six bundles each consisting of 100
fake or counterfeit notes in the denomination of 500
(Rs.3 Lakhs) were found. Search of Accused No.4-Ashok
Awasti, who was also found in the said flat, was
taken. He was found in possession of fake or
counterfeit notes of total sum of Rs. One Lakh in the
denomination of Rs.500/-. In addition, genuine Indian
currency notes in the total sum of Rs.2,70,000/- were
also found in a carry bag in the flat. All these five
accused were taken to the Sakinaka Police Station and
a case was registered, being C.R.No.184 of 1999, under
sections 489-A, 489-B, 489-C, 467 r/w 120B read
further with section 34 of the Indian Penal Code, 1860
(hereinafter referred to as the ‘I.P.C.’). It is the
prosecution case that the accused No.3 during the
interrogation, volunteered that he had kept some
counterfeit currency notes in a house and was willing
to point out the same. On the basis of such
disclosure made by accused No.3 the police party
alongwith panchas went to the place shown by him,
which was his house in Antop Hill Central Government
Servants’ Colony. From the said house, seven bundles
each containing 100 fake or counterfeit currency notes
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in the denomination of Rs.500/- of total sum of
Rs.3,50,000/- as also genuine Indian currency notes
valued about Rs.5,90,000/- were seized at his instance
under panchanama. According to the prosecution,
during interrogation it was learnt that the accused
No.2 had handed over some counterfeit Indian currency
notes to accused Nos. 6 to 9. On that information,
accused Nos. 6 to 9 were arrested on or about 9th
July, 1999. Each of these accused during
interrogation showed willingness to disclose the place
where they had kept the counterfeit notes received by
them. Each of these accused Nos.6 to 9 led the police
to recover counterfeit notes from the places shown by
them. The accused Nos. 6, 7 and 8 are concerned,
each of these accused have contributed to the recovery
of three counterfeit notes in the denomination of
Rs.500/- respectively. Whereas, the accused No.9 led
to the recovery of two counterfeit notes of Rs.500/-
each. Counterfeit currency notes recovered at the
instance of accused Nos. 6 to 9 were seized under
separate panchanama. The prosecution case is that
during the investigation, it transpired that the
accused were engaged in continuing unlawful activities
as members of an Organised Crime Syndicate. The
unlawful activities were carried on with the objective
of gaining pecuniary benefits and to destabilise the
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national economy. On the basis of available
information, the concerned officer made recommendation
to the appropriate authority to grant prior approval
for registration of offence under the provisions of
MCOCA, as the provisions of MCOCA had already come
into force by way of MCOCA Ordinance, 1999. After
prior approval was granted by the concerned Authority,
offence under provisions of M.C.O.C. Act came to be
registered against the named accused. After
application of MCOCA provisions, investigation was
proceeded by Assistant Commissioner of Police Mr.
Patil (P.W.22) and after him, by Assistant
Commissioner of Police Mr.Nimgaonkar (P.W.23), aided
and assisted by other police officers under their
control.
3. According to the prosecution, during the
investigation accused No.5 showed willingness to give
his confessional statement. Accordingly,
Investigating officer produced the accused no.5 before
the Officer competent to record such confessional
statement under the provisions of MCOCA. The said
officer in turn himself after being satisfied that the
accused No.5 was willing to make disclosure or
confessional statement voluntarily and without any
pressure whatsoever, only then proceeded to record the
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confessional statement given by him. In his
confessional statement accused No.5 has spoken about
the details as to how he got into this unlawful
activity. He has disclosed about the involvement of
different persons and that similar operations have
since been carried on with a view to make financial
gains and also to destabilise the national economy.
He has named the concerned persons who are mastermind
and those who were associated with the said unlawful
activity, which was being carried on for some time.
During the course of investigation, printout of the
telephone numbers furnished by the accused was taken
out; and from the said printouts it was evident that
the accused were in constant communication interse.
Besides it was noticed that frequent calls were made
by the accused to Karachi in Pakistan and Dubai on
telephone numbers which purportedly belonged to one
Tariq @ Baba (A 12) based in Karachi who was the
henchman of Dawood Ibrahim Kaskar (A 11). On
conclusion of the investigation, charge sheet came to
be filed against the accused including five others.
In all 14 accused have been named by the prosecution
as engaged in the continuing unlawful activity as an
Organised Crime Syndicate including mastermind Dawood
Ibrahim Kaskar and Tariq Baba. However, as the
accused Nos. 10 to 14 are absconding and wanted
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accused, the trial proceeded only against accused Nos.
1 to 9 who were in custody. The Special Court on the
basis of material before it proceeded to frame charges
against accused Nos. 1 to 9, which read thus:
"FIRSTLY: That you accused nos. 1 to 9
abovenamed are members of the organised crime
syndicate/gang aided by Dawood Ibrahim Kaskar
operating from Karachi (Pakistan) indulging
into unlawful activities since July 1998 in
Mumbai and in other parts of India with common
object of gaining undue economic or other
advantages for yourselves singularly and
jointly, as the members of the organised crime
syndicate mentioned above in pursuance of
criminal conspiracy hatched between you and
Dawood Ibrahim Kaskar’s O.C.S. to indulge
into unlawful activity to distribute fake or
counterfeit currency notes in the denomination
of Rs.500/- of Indian currency with object of
gaining pecuniary benefits or such other
advantage to yourselves and with a view to
create chaos in the Indian currency notes
system and economy and thereby you had
committed an offence punishable under section
120-B I.P.C. read with section 3(4) of the
M.C.O.C Act 1999 and therefore within the
cognizance of this Court.
SECONDLY: On 2.7.1999 at about 1.00 a.m.
near the gate known as Raheja Security Gate,
Raheja Vihar Housing Complex, Powai, Mumbai
you accused no.3 Salim Yaqub Kara and you
accused no.5 Gulab Jethanand Khemnani while
you were travelling in a motor car bearing
No.MH-01-R-4594, the said car was intercepted
by police and searched you accused no.5 Gulab
Jethanand Khemnani was found in possession of
fake or counterfeit currency notes totalling
sum of Rs.50,000/- in the denomination of
Rs.500/- of Indian currency while you accused
no.3 Salim Yaqub Kara was found in possession
of fake or counterfeit currency notes
totalling sum of Rs.5 Lakhs in the
denomination of Rs.500/- of Indian currency
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notes. Thus you possessed counterfeit or fake
currency notes knowing or having reason to
believe that the same are forged or
counterfeit currency notes, you had intended
to use them a genuine Indian currency notes
and thereby you had committed an offence
punishable under section 120-B read with
section 489(C) of the I.P.C. as you were
found in possession of counterfeit currency
notes in pursuance of criminal conspiracy at
the instance of or on behalf of the organised
crime syndicate head by Dawood Ibrahim Kaskar
Operating from Karachi (Pakistan).
THIRDLY: On 2.7.1999 during the same night at
about 3.00 a.m. at room No.004 in the
Twilight Building, Raheja Vihar Housing
Complex, Powai, Mumbai, you accused No.2
Kishore @ Lala Chetanmal Lalwani was found in
possession of fake or counterfeit currency
notes totalling sum of Rs.3 Lakhs in the
denomination of Rs.500/- of Indian currency
notes as also one Ericson mobile phone while
you accused no.4 Ashok Durgashankar Awasti was
found in possession of fake or counterfeit
currency notes of total sum of Rs.1 lakh in
the denomination of Rs.500/- of Indian
currency notes as also you were found in
possession of genuine Indian currency notes in
the total sum of Rs.2,70,000/-. While you
accused no.1 Mohd.Parvez Mohd.Jaffar Soda was
found in possession of Pakistan Passport
bearing No.E163607 and Pakistan Airline ticket
as also in possession of fake or counterfeit
currency totalling sum of Rs.3 Lakhs in the
denomination of Rs.500/- or Indian currency
notes. Thus you all were knowing or were
having reason to believe that the fake or
counterfeit currency notes were intended to be
used as genuine in the Indian currency system
with a view to destroy India’s economy in
pursuance of criminal conspiracy hatched at
the instance of organised crime syndicate of
Dawood Ibrahim Kaskar operating from Karachi
(Pakistan). Thus you all have committed an
offence punishable under section 120-B read
with section 489(C) of I.P.C.
FOURTHLY: You accused no.2 Kishor @ Lala
Chetanmal Lalwani in pursuance of criminal
conspiracy as stated above distributed fake or
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counterfeit currency notes in the denomination
of Rs.500/- of Indian Currency notes to
various persons including you accused no.6
Gullu @ Gul @ Ghansham Hasmatrai Lakhani, you
accused no.7 Tejas @ Teja Manjibhai Patel, you
accused no.8 Ajgarali Kurban Hussain
Mandsarewala and you accused no.9 Raju
Ramchand Sachdeo. Thus you accused no.2 in
pursuance of the criminal conspiracy
trafficked in counterfeit or fake currency
notes in the denomination of Rs.500/- of
Indian currency notes knowing or having reason
to believe that the same were counterfeit or
fake currency notes, thereby you accused no.2
had entered into criminal conspiracy with you
accused No.6, you accused no.7 you accused
no.8 and you accused no.9 as you have
committed an offence punishable under section
120-B read with section 489(B) of the I.P.C.
FIFTHLY: Thus since July 1998 more
particularly in July, 1999 you accused nos. 1
to 9 in pursuance of criminal conspiracy
hatched with organised crime syndicate aided
by Dawood Ibrahim Kaskar operating from
Karachi(Pakistan) you had derived fake or
counterfeit Indian currency notes of the
denomination of Rs.500/- for total sum of
Rs.16,05,500/- and trafficked in the same to
obtain illegal monetary advantage in the
genuine currency notes in the sum of
Rs.8,60,000/- obtained from the commission of
organised crime or acquired through the
organised crime syndicate funds. Thus you
have indulged into organised crime punishable
under section 120-B I.P.C. read with section
3(1)(II) of the M.C.O.C.Act 1999.
SIXTHLY: You accused nos. 1 to 9 on the
date, time and place mentioned aforesaid in
pursuance of your criminal conspiracy were
found possessing unaccountable wealth in the
form of genuine currency notes in the sum of
Rs.8.60,000/- derived or obtained from the
commission of organised crime or acquired
through organised crime syndicate, thereby you
have committed an offence punishable under
section 120-B I.P.C. read with section 3(5)
of the M.C.O.C.Act 1999.
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SEVENTHLY: Further on the aforesaid date,
time and place you accused nos. 1 to 9 having
entered into criminal conspiracy at the
instance of organised crime syndicate of
Dawood Ibrahim Kaskar operating from Karachi,
Pakistan were associated with each other
knowingly facilitated the organised crime in
pursuance of the criminal conspiracy hatched
in secret with Dawood Ibrahim Kaskar operating
from Karachi (Pakistan) and with members of
organised crime syndicate, thereby each of you
have committed an offence punishable under
section 3(2) of the M.C.O.C.Act 199 read with
section 120-B I.P.C read further with section
489(A & B ) of the I.P.C
EIGHTHLY: That you accused no.1 Mohd. Parvez
Mohd. Jaffar Soda and you accused No.2 Kishor
@ Lala Chetanmal Lalwani knowingly furnished
false information or suppressed material
information with a view to obtain a passport
and thereby you accused no.1 and accused no.2
have committed an offence punishable under
section 12(1)(b) of the Passport Act and
therefore within the cognizance of this
court."
4. The prosecution examined as many as 26
witnesses. Besides the oral evidence, prosecution
also relied on the documentary evidence. On analysing
the evidence on record, the trial court, in the first
place, held that there is no legal evidence to proceed
against the accused that they were "members of" the
Organised Crime Syndicate as such. However, the trial
Court then held that there is evidence to hold that
accused Nos. 1 to 5 were party to the conspiracy for
carrying on unlawful activities of the Organised crime
Syndicate. The trial Court has positively held that
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the evidence against the accused No.6 to 9 was not
adequate to record similar finding against them. The
trial Court then accepted the prosecution case that
the accused Nos. 1 to 9 were found in possession of
counterfeit notes as well as genuine Indian currency
notes in huge quantity, in particular accused Nos. 1
to 5. Consistent with the reasoning given in the
Judgment, the trial Court proceeded to pass order on
7th June, 2001 which reads thus:
"ORDER
1. Accused nos. 1 to 5 are found guilty
and convicted for offences punishable under
section 120-B I.P.C. and Section 3(2) r/w
section 2(1)(a) of the M.C.O.C.Act 1999 and
each of them are sentenced to suffer R.I. for
10 years and fine in the sum of Rs.5 lakhs
payable by each of them. In default of
payment of fine each of them shall undergo
further R.I.for one year.
2. Accused nos. 1 to 5 are also found
guilty and convicted for offences punishable
under sections 489-B and 489-C I.P.C. read
with section 120-B I.P.C. and each of them
are sentenced to suffer R.I.for 5 years and
fine in the sum of Rs.5000/- payable by each
of them. In default of payment of fine each
of them shall undergo further R.I.for six
months.
3. Accused nos. 1 to 5 are also found
guilty and convicted for offence punishable
under sections 3(5) read with sections 4 of
the M.C.O.C. Act, 1999 read further with
section 120-B I.P.C.and each of them are
sentenced to suffer R.I.for 5 years and fine
in the sum of Rs.2 Lakhs payable by each of
them. In default of payment of fine each of
them shall undergo further R.I. for three
months.
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4. However, for offences under section
12(1)(b) of the Passport Act as against
accused nos. 1 and 2 they are found not
guilty for want of evidence. Hence they are
acquitted of offences punishable under section
12(1)(b) of the Passport Act.
5. Further the offences punishable under
section 3(1)(ii) and section 3(4) of the
M.C.O.C.Act 1999 are held not proved as
against accused nos. 1 to 9 though they were
charged accordingly. Hence they are hereby
acquitted of offences under section 3(1)(ii)
and section 3(4) of the M.C.O.C.Act 1999.
6. Further the offences under sections
3(2), r/w 2(1)(a), 3(5) r/w sec. 4 of the
M.C.O.C.Act read further with section 120-B
I.P.C.are held not proved as against accused
nos. 6 to 9. Hence they are hereby acquitted
of offences punishable under sections 3(2) r/w
section 2(1)(a), 3(5) read with section 4 of
the M.C.O.C.Act read further with section
120-B I.P.C.
7. Accused nos. 6 to 9 are found guilty
and convicted for offences punishable under
sections 489-B and 489-C I.P.C. and sentenced
to suffer R.I. for 3 years each and fine in
the sum of Rs.3000/- each. In default of
payment of fine each of them shall undergo
further R.I. for a period of three months.
8. Substantive sentences of imprisonment
to run concurrently with each other except
sentences imposed in default of payment of
fine. Each of the accused is entitled for
set-off for period imprisonment already
undergone.
9. The genuine currency notes seized in
this case shall stand forfeited to the State
Government and shall be deposited in the State
Treasury.
10. Fake or counterfeit currency notes
seized in the present case shall be sent to
the Government Mint through Commissioner of
Police, Mumbai for final disposal or
destruction according to law.
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11. Article no.13 Mobile phone of Ericson
make shall be sold by auction after Appeal
period is over and sale proceeds thereof shall
be deposited in the State Treasury as it also
stands forfeited to the State Government.
12. The Pakistani Passport, identity card
and Pakistan Airline ticket recovered from
accused no.1 Mohd. Parvez Mohd. Jaffer Soda
shall be returned to the accused no.1 after he
serves out his sentences as directed and
subject to decision in the Appeal if any.
13. The case shall remain on dormant file
as against wanted accused named in the charge
sheet and the case shall revive on application
by the prosecution when wanted accused are
traced and brought to justice.
14. The Judgment dictated in the open
court would require few days time for
transcription thereof. hence the accused be
called to collect copy of judgment on 20th
June, 2001."
5. It appears that the accused No.2 has not filed
any appeal questioning the correctness of the finding
of guilt recorded against him by the trial Court. It
is also seen that the accused No.2 has died on 5th
June, 2005. Significantly, the finding of no guilt
against accused Nos.1 to 9 for offences under Sections
3(1)(ii) and 3(4) of M.C.O.C.A; accused Nos.6 to 9
additionally for offences under Section 3(2) r/w
2(1)(a), 3(5) r/w 4 of MCOCA r/w Section 120B of
I.P.C.; and accused Nos.1 and 2 of Section 12(1)(4)
of the Passport Act, has not been challenged before
this Court.
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6. For the sake of completeness of narration of
events, it needs to be noted that although the accused
No.3 has filed appeal before this Court being Criminal
Appeal No.518 of 2001, however, the said appellant is
reported to be absconding. At the commencement of the
hearing of the companion appeals, therefore, I thought
it necessary to appoint an advocate to espouse the
cause of accused No.3 as amicus curiae. This was done
with a view that if the appeals filed by similarly
placed co-accused were to succeed, the benefit of that
decision would become available to accused No.3 as
well. Even at short notice Mr. Siddiqui, advocate
accepted the request to appear as amicus curiae for
accused No.3. Notably, Mr.Siddiqui gave able
assistance to this Court and presented the case of
accused No.3 from different perspective. Although I
heard Mr.Siddiqui for accused no.3 on merits, I am
disposed to dismiss the appeal of accused No.3, being
a fugitive accused. It is well established that
remedy of appeal is a statutory right. The convict
cannot be permitted to pursue the appeal while he is
absconding. For, one who approaches the Court should
do so with clean hands. If any authority is required
in support, it will be useful to refer to the Judgment
of the Division Bench in the case of Vijay Vijay Vijay
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S.Kshirsagar vs. State of Maharashtra reported in S.Kshirsagar S.Kshirsagar vs. State of Maharashtra reported in vs. State of Maharashtra reported in
2004 All M.R.(Cri) 1603 2004 2004 All M.R.(Cri) 1603. Accordingly, the appeal All M.R.(Cri) 1603
preferred by the accused No.3 is not only dismissed
but direction is issued to the State to forthwith
secure custody of accused No.3 so as to require him to
undergo punishment imposed by the lower Court. If
necessary, the State shall take recourse to remedy
under section 82 and/or 83 of Code of Criminal
Procedure, 1973, if already not done. The State shall
submit compliance report to this Court in that behalf.
7. At the outset, it will be apposite to deal
with the argument of the counsel for accused No.4.
According to him, the State has no legislative
competence to pass or enact a law on the matters
connected with Counterfeit Currency, which subject is
covered by entry 36 read with entry 93 of List-I of
Seventh Schedule of the Constitution. To buttress the
argument that the law relating to the Counterfeit
currency notes is covered by List-I, the learned
counsel would press into service the decision of the
Apex Court in the case of G.V.Ramnarayan V/s. G.V.Ramnarayan V/s. G.V.Ramnarayan V/s.
Superintendent Central Jail reported in AIR 1974 page Superintendent Superintendent Central Jail reported in AIR 1974 page Central Jail reported in AIR 1974 page
41. Reliance is placed on the exposition in 41 41
paragraphs 8 and 9 of this decision. It was argued
that as the accused were tried for offence of
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19
Counterfeit Currency Notes, the provisions of MCOCA
applied to the said prosecution has the effect of
accused being tried for offence in respect of which
laws could be made exclusively by the Parliament and
not the State Legislature.
8. This argument is ill-conceived for more than
one reason. In the first place, this is not an
argument of legislative incompetence of the State
legislature to enact a law to cope up with the
criminal activities of Organised Crime Syndicate or
Gang or for matters connected therewith or incidental
thereto. There can be no argument about legislative
competence of the State legislature to enact such law
having regard to the enabling provisions in the State
List - List II of the seventh schedule such as Entry
Nos.1 and 64 including the entry Nos.1 to 3 of the
Concurrent List - List-III of the Seventh Schedule of
the Constitution. Moreover, the constitutional
validity of the enactment has already been tested by
this Court. The Division Bench of this Court, in the
case of Bharat Shah vs. State of Maharashtra reported Bharat Shah vs. State of Maharashtra reported Bharat Shah vs. State of Maharashtra reported
in 2003 Bom.C.R. (Cri.) 947 in in 2003 Bom.C.R. (Cri.) 947, had occasion to declare 2003 Bom.C.R. (Cri.) 947
that the Act of 1999 was intravires the Constitution,
except the provisions (Sections 13 to 16 thereof)
which are not relevant for our case.
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20
9. As mentioned earlier, the argument canvassed
on behalf of the accused No.4 was not one of
legislative competence of the State to enact such a
law, but is, that the prosecution of accused in
relation to the offence of counterfeit currency notes
cannot be made the foundation to prosecute the accused
for offence punishable under Act of 1999. Else, it
tantamounts to legitimation of power with the State
Legislature to make law on subject which is an
occupied field. This argument clearly overlooks that
the two enactments deal with two different set of
offences. The provisions of Indian Penal Code enacted
by the Parliament deal with the offence of counterfeit
currency notes under Chapter XVIII of the Code,
classified as offence of counterfeit currency notes
and bank notes (Sections 489A to 489E). In the
present case, the accused Nos.1 to 5 have been tried
and found guilty of offence punishable under section
489B and 489C of the I.P.C. At the same time, they
(accused Nos.1 to 5) were tried and have been found
guilty in relation to the offence under the enactment
which is intended for prevention and control of, and
for coping with, criminal activity of organised crime
syndicate or gang or for matters connected therewith
or incidental thereto. The offence under this
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21
enactment deals with the criminal activities of
organised crime syndicate or gang. The organised
crime has been defined under section 2(1)(e) of the
said enactment. For understanding the purport of the
said definition, it will be essential to understand
the definition of "continuing unlawful activities"
(section 2(1)(d)). The expression "organised crime
syndicate" has been defined in section 2(1)(f).
Suffice it to observe that any continuing unlawful
activity by an individual, singly or jointly, either
as a member of an organised crime syndicate or on
behalf of such syndicate, by use of violence or threat
of violence or intimidation, coercion, or other
unlawful means, with the objective of gaining
pecuniary benefits, or gaining undue economic or other
advantage for himself or any other person or promoting
insurgency, results in organised crime. To make the
criminal activities continuing unlawful activities,
the quintessence is that the last criminal activity
indulged by the accused must be a cognizable offence
punishable with imprisonment of 3 years or more,
undertaken either singly or jointly as a member of
organised crime syndicate or on behalf of the
syndicate in respect of which more than one
charge-sheet have been filed before competent court
within preceding period of ten years and that Court
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22
has taken cognizance of such offence. In other words,
singular specified criminal activity would not warrant
action under this enactment. At the same time, if the
earlier criminal activity indulged by organised crime
syndicate or gang, but was anterior to preceding
period of 10 years, cannot be the basis to proceed
against the accused. The enactment of 1999 has been
introduced with the objective of prevention and
control and coping with the organised crime. The
continuing unlawful activity can be with reference to
any enactment. Be it a central enactment or a State
Legislation. That will make no difference. The sweep
of the enactment of 1999 is to deal with the
continuing unlawful activities, which activity is
prohibited by law, for the time being in force.
Accordingly, the argument of accused No.4 about the
legislative competence of the State legislature to
enact the law on the subject is devoid of merit.
10. I shall now proceed to consider the argument
on merits of the case. I propose to segregate the
consideration in two parts. The first is to deal with
the offence under the provisions of MCOCA and I.P.C.
offences, which charges are proved by the prosecution
against the accused Nos. 1 to 5 only, as held by the
Trial Court. The second part will deal with the
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23
prosecution case against accused Nos. 6 to 9, as they
have been convicted simplicitor under section 489B and
489C of I.P.C.
11. Insofar as the prosecution case in relation to
the offence under provision of MCOCA is concerned, as
mentioned earlier, the trial Court has recorded a
clear finding of fact that the prosecution has not
been able to establish that the accused Nos. 1 to 9,
who were tried alongwith other accused Nos. 10 to 14
were "members" of the organised crime syndicate as
such. At the same time, the Trial Court has rightly
taken notice of the fact that other similar cases of
MCOCA offences were pending in the same Court against
the co-accused who were the mastermind of the criminal
conspiracy and were indulging in continuing unlawful
activities and committing organised crime as organised
crime syndicate. The trial Court then has proceeded
to record finding of guilt against accused Nos. 1 to
5 only for offence under Section 120B of I.P.C. and
Section 3(2) r/w Section 2(1)(a) of the MCOCA, as
prosecution succeeded in establishing that the said
accused had conspired, abetted or knowingly
facilitated the commission of an organised crime or
any act preparatory to the organised crime. The trial
Court has also found the accused Nos. 1 to 5 guilty
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24
of offence under section 3(5) r/w section 4 of MCOCA
r/w section 120B of I.P.C. It is in this context I
shall now consider whether the finding reached by the
trial Court on these aspects can be said to be
perverse, manifestly wrong or unacceptable in any
manner.
12. The trial Court has adverted to the relevant
prosecution evidence to record finding against the
accused Nos. 1 to 5, as there is evidence about their
involvement in criminal conspiracy of commission of
organised crime or any act preparatory to organised
crime. On analysing the entire evidence on record
with the assistance of counsel appearing for the
parties, I have no hesitation in taking the view that
the conclusion so reached by the trial Court in this
behalf is unexceptionable. The prosecution case is
established from the evidence of P.W.1, 2 to 4, 12,
13, 17, 18 and 20 to 26. P.W.2 to 4 are panch
witnesses regarding search and seizure of counterfeit
currency notes. P.W.1, P.W.13, P.W.20 to 23 and 26
are police officials, who were engaged in the act of
raiding and collection of evidence. P.W.20 to 23 were
investigating officers at different stages. P.W.12
has deposed about the close association of accused
No.5 and accused No.2. P.W.13 has been examined to
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25
prove the confessional statement of the accused No.5
recorded under his supervision, being the Deputy
Police Commissioner. P.W.17 and P.W.18 have been
examined as experts, who have opined that the currency
notes recovered from the possession of the accused
were counterfeit currency notes. P.W.24 and 25 have
been examined to establish that the mobile phones
recovered from the custody of the accused, amongst
others, were used to contact the kingpin of the
organised crime syndicate such as Dawood Ibrahim
Kaskar (A 11) operating from Karachi through his
henchman Tariq @ Baba (A 12). The said Dawood Ibrahim
Kaskar and Tariq @ Baba have been named as accused
alongwith the present set of accused, being members of
the organised crime syndicate. However, as the said
accused are absconding, the trial proceeded only
against the present accused Nos. 1 to 9.
13. Indeed, the prosecution witnesses have deposed
about the manner in which the accused Nos. 3 and 5
came to be accosted while going towards Twilight
building in Tata Estate car and were found to be in
possession of huge quantity of counterfeit currency
notes. The total value of counterfeit currency notes
recovered from accused no.3 is stated to be Rs.5
Lakhs, whereas from accused No.5 is stated to be
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26
Rs.50,000/- in the denomination of Rs. 500/-
respectively. The accused Nos.3 and 5, after their
arrest, during interrogation on the spot disclosed
that they were going towards flat No.4 in Twilight
building where other accused were waiting for them.
On that information, the police party accordingly
proceeded towards flat No.4 in Twilight building.
After the flat was opened three other accused were
found inside that flat, namely, accused No.1, 2 and 4.
Each of them was found in possession of huge quantity
of counterfeit notes in the denomination of Rs.500/-.
Even large quantity of genuine Indian currency notes
was recovered from the flat. Accused No.1 was found
in possession of counterfeit currency notes in the
value of Rs. 3 lakhs, whereas the accused no.2 in
possession of Rs.3 Lakhs; and accused No.4 in
possession of notes valued at Rs.1 lakh. Besides,
genuine Indian currency notes in the sum of
Rs.2,70,000/- were found in a plastic bag. After such
huge haul of counterfeit currency notes as well as
genuine Indian currency by the raiding police party
from the accused Nos.1 to 5 who came to be apprehended
FLAGRANTE DELICTO FLAGRANTE FLAGRANTE DELICTO, they were taken to the police DELICTO
station and placed under arrest.
14. During the interrogation, accused No.3
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27
volunteered to point out a place where he had
concealed some more counterfeit notes as well genuine
Indian currency notes. Accused No.3 accordingly, led
to the discovery of further counterfeit notes valued
at Rs.3,50,000/- from his house, in the denomination
of Rs.500/-, which was kept in concealed manner. He
also led to the discovery of genuine Indian currency
notes from the same house, kept in a concealed manner
in the value of Rs.5,90,000/-. Significantly, the
accused No.5, during the interrogation, volunteered to
give his confessional statement. P.W.13 has deposed
about this fact. Accordingly, accused No.5 was
produced before P.W.13 Deputy Police Commissioner on
16th August, 1999. P.W.13 has deposed about the
precautions taken by him to ascertain whether the said
accused was willing to make voluntary statement.
P.W.13 after taking custody of accused No.5 in his
office from the staff of Sakinaka Police Station on
behalf of I.O.(ACP) Sakinaka Police Station, had kept
the accused under his control and lock-up in Bandra
Police Station. The accused No.5 was again produced
before him on 18th August, 1999 when P.W.13 decided to
give the accused further time to reconsider whether he
wanted to make voluntary statement. Eventually, when
the P.W.13 was completely satisfied about the
willingness and voluntariness of accused No.5 to make
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28
the statement before him, proceeded to record his
statement on 19th August, 1999. This statement of
accused No.5 gives all necessary details about the
modus operandi of the accused in the commission of the
unlawful activities as well as the persons involved
and the nature of their participation. The accused
No.5 was produced before the Magistrate on 20th
August, 1999, immediately on the next day. No
grievance was made by accused No.5 about any force or
coercion exercised on him to extract the statement
from him. With such overwhelming evidence on record,
conclusion reached by the trial Court recording
finding of guilt against the accused Nos. 1 to 5 is
unexceptionable.
15. Nevertheless, we shall now turn to the
contents of the prosecution evidence. The first set
of prosecution witnesses are those who have deposed
that secret information was received by Shri Nadgauda
and Pirzada about some transaction in respect of
fake/counterfeit currency notes was to take place in
Raheja complex. They have deposed that, that
information was passed on to Sakinaka Police Station.
Pursuant to the said information, a team of police
officials of Sakinaka Police Station was asked to
immediately proceed towards Raheja Complex. The said
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29
team of police officials reached the spot at around
1.00 a.m. and kept watch near the gate of Raheja
Complex. After waiting for some time at about 1.30
a.m., one Tata Estate car in which the accused Nos. 3
and 5 were found, arrived on the scene. Search of the
said accused and the car was taken, when huge quantity
of counterfeit currency notes were recovered from
accused No.3 (Rs.5 Lakhs) and accused No.5
(Rs.50,000/-). This is deposed by police officials,
PW1, PW20 and PW 21. Their version regarding recovery
of huge quantity of counterfeit currency notes on the
spot is corroborated by the evidence of Panch witness
PW 2. These witnesses have also deposed about the
disclosure made by said accused Nos.3 and 5 that they
were proceeding towards Flat No.4 in Twilight building
where other accused were waiting for them.
Accordingly, the police party alongwith the said
accused proceeded towards Flat No.4 where accused Nos.
1, 2 and 4 were arrested on the spot inside the said
flat with incriminating evidence. Before the arrest,
their search was taken when huge quantity of
counterfeit currency notes were recovered from each of
them, namely, Rs.3 Lakhs from accused No.1, Rs.3 Lakhs
from accused No.2 and Rs.1 lakh from accused No.4.
Besides, genuine Indian Currency in the sum of
Rs.2,70,000/- were also found with them in a plastic
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30
bag. Mobile telephones were recovered from these
accused. These events have been unfolded by the
witnesses - P.W.1, P.W.14, P.W.20 and P.W.21 and
corroborated by the evidence of panch witness P.W.2.
P.W.1 has given all the minutest details of the events
as unfolded. He has spoken about the secret
information received by Nadgauda which was passed on
to the Sakinaka Police Station at 1 a.m. when police
Inspector Padwal, PSI Repale P.W.14 and Jadhav P.W.20
and other police staff were present. He has spoken
about the fact that API Nadgauda had also disclosed
that certain persons were likely to escape in a motor
car bearing no. MH-01-R-4594. He has then stated
about the fact that he alongwith API Nadgauda, PSI
Repale (P.W.14) and other police staff went near the
security gate of Raheja Complex. After waiting for a
while the specified car arrived on the scene at 1.30
p.m., which was intercepted and searched. The car was
driven by accused No.5. Accused No.5 has been
identified by this witness in Court. This witness has
also spoken about the recovery of counterfeit currency
notes of Rs.50,000/- in the denomination of Rs.500/-
from accused No.5. This witness has also deposed that
Accused No.3 was also found in the same car and upon
his search counterfeit currency notes in the sum of
Rs.5 Lakhs in the denomination of Rs.500/- were
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31
recovered from him. He has also deposed that
necessary panchanama was drawn. Out of two panchas
prosecution has examined panch witness P.W.2 to
support this position. P.W.1 has then deposed that
the police party proceeded towards Flat No.4 in
Twilight building in Raheja Complex. On reaching
there it was noticed that the accused Nos. 1,2 and 4
were inside the flat and found in possession of huge
quantity of counterfeit currency notes as well as
genuine currency notes. He has spoken about the
procedure followed regarding search and seizure of the
currency notes. This witness has identified the
concerned accused in Court. He has also identified
the fake currency notes seized from the accused
persons. This witness was extensively cross-examined.
Except bringing some minor discrepancies on record,
the defence was unable to shake this witness. In
fact, this witness was cross-examined after the
evidence of panch witnesses was completed. The so
called discrepancies, omissions or improvements
brought on record during the cross of this witness are
not of such a nature so as to doubt the credibility of
this witness. Those are minor variations or
embellishments and trivial discrepancies which are
very natural when the witness is required to depose
before the Court after gap of over one year after the
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32
date of the incident. Emphasis of the accused was on
the fact that Nadguada who is supposed to have given
secret information has not been examined nor the
station diary which records disclosure made by the
Nadgauda has been produced on record. However, these
lapses or shortcomings of the prosecution are not
fatal; nor can be the basis to doubt the truthfulness
of the version given by P.W.1 on material points about
the secret information received and immediately
thereafter raiding party proceeded towards Raheja
Complex for interception of car No. MH-01-R-4594 and
the arrival of vehicle on the scene at about 1.30 a.m.
and the events that are unfolded thereafter. On those
matters the witness has shown consistency even during
the cross-examination. I have no hesitation in taking
the view that this witness has established the
prosecution case on relevant matters to indicate
complicity of the accused Nos. 1 to 5 in the
commission of the alleged offence. Even P.W.20 and
P.W.21, who incidentally also acted as investigating
officers during different stages have corroborated the
version of P.W.1. Even their version is replete of
minor details about the events that unfolded after the
disclosure was made by API Pirzada and API Nadgauda
till the seizure and arrest of accused Nos. 1 to 5 in
flat No.4 of Twilight building in Raheja complex.
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33
Version of these witnesses on material points is
consistent with the version given by P.W.1. Even
these witnesses have been extensively cross-examined
by each of the accused. However, their version has
remained unshaken on relevant matters. There is
nothing on record to assume that these police
officials had some grudge against the accused Nos. 1
to 5 so as to falsely implicate them. On the other
hand, the version of these witnesses is corroborated
by the seizure of huge quantity of counterfeit
currency notes as well as genuine Indian currency
notes and arrest of accused Nos. 1 to 5 on the spot
on 2nd August, 1999. Besides, mobile phones were
recovered from the accused. Several international
calls (particularly to Karachi-Pakistan and Dubai)
made from the stated mobile phones have been
established from the evidence of P.W.24 and 25. It is
a different matter that the prosecution has not been
able to further establish that the international
numbers were actually of Dawood Ibrahim Kaskar (A 11)
or Tariq @ Baba (A 12). Significantly, however, the
same telephone numbers were disclosed by accused no.5
in his voluntary confessional statement. Be that as
it may, during the interrogation, Accused No.3
volunteered to show the place where he had concealed
some more counterfeit currency notes as well as
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34
genuine Indian currency notes in huge quantity. On
his disclosure, recovery of further counterfeit
currency notes in the sum of Rs.3,50,000/- in the
denomination of Rs.500/- was made, kept in a concealed
manner in a flat at Antop Hill. In addition, genuine
Indian currency notes in the value of Rs.5,90,000/-
kept in a concealed position in a plastic bag was
recovered from the said house at Antop Hill.
16. Be that as it may, during interrogation,
accused no.5 showed his willingness to give his
confessional statement to the Investigation Officer in
the Sakinaka Police Station. Accordingly, as required
by the provisions of MCOCA, the matter was taken at
the level of Additional police Commissioner Zone VII
who in turn instructed P.W.13, who at the relevant
time in August, 1999 was working as Deputy Police
Commissioner Zone-VII, to record the confessional
statement of accused No.5 (accused in Sakinaka Police
station in C.R.No. 14 of 1999). That intimation was
received in writing by P.W.13 on 12th August, 1999.
He has proved the said communication in his evidence.
P.W.13 has then deposed that on 16th August, 1999 the
accused No.5 was produced before him in his office by
staff of Sakinaka Police station on behalf of the
Investigating Officer (ACP) of Sakinaka division. He
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35
has deposed that he ordered the staff of Sakinaka
Police Station to leave his office and to leave behind
accused No.5 in his office. He has stated that the
accused No.5 was then initially kept in the custody of
police constable in his office; and later on asked
the police constable to leave his chamber. On
ensuring that there was no one else, PW 13 asked
certain questions to accused No.5 about his
willingness to make confessional statement. PW 13 has
deposed that he recorded the questions and answers
given by the accused in his own handwriting in Hindi
language. He has then stated that the accused No.5
answered those questions. He has then stated that
contents were typed by steno in his office
contemporaneously. He has also deposed that he read
over the contents of the statement to accused no.5 and
he signed below the statement whereafter the accused
no.5 put his initial below the statement. He has also
deposed that he countersigned the statement. The said
statement is proved in the evidence (Exh.70). He has
categorically stated that besides him, stenographer
and accused No.5, there was no one else in his chamber
when the questions were recorded. He has also deposed
that he had informed the accused that he was not bound
to give confessional statement regarding his
involvement in the offence. P.W.13 has also deposed
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36
that he had disclosed his designation to the accused
no.5 that he was Deputy Police Commissioner Zone VII
and was not concerned with the investigation in any
way. He has also deposed that the accused No.5 was
asked whether police had harassed him or used any
force, ill-treatment or induced or promised him - to
which the accused No.5 replied in the negative. He
has also deposed that the accused No.5 was informed
that whatever statement was to be made by him will be
used in evidence against him, on the basis of which he
may suffer some punishment. He has then deposed that
he thought it necessary to free the accused No.5 from
any pressure, for which he gave 36 hours to the said
accused to reconsider the matter. He has deposed that
custody of accused No.5 was then given to Bandra
Police Station with instructions that the accused
should be kept in the custody of Bandra Police Station
and no relatives, friends or anybody connected with
the case should be allowed to meet the accused during
the reflection period. Those instructions were given
by him in writing, which have been proved in evidence
(Exh.71). He has deposed that the accused was
accordingly kept in Bandra Police Station and produced
before him on 18th August, 1999 at about 16.00 hours.
He has given the details of the procedure followed by
him to ascertain whether the accused was wanting to
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37
give statement willingly or was under any pressure.
Even on 18th August, 1999, P.W.13 was satisfied that
the accused No.5 was willing to make statement and
there was no influence over him. Nevertheless, he
thought of giving one more opportunity to the said
accused. Therefore, the accused was sent back to
Bandra Police Station for being produced on 19th
August, 1999. He has deposed about the proceedings on
18th August, 1999, which has been proved (Exh.72). He
has also produced letter sent to Senior Police
Inspector Bandra Police Station regarding written
instructions of ensuring not to allow any one
connected with the case to meet the said accused.
That document is also proved. He has then deposed
that the accused No.5 was produced before him by
Bandra Police Station on 19th August, 1999 at
Government Guest House, Kherwadi at about 10 a.m. PW
13 has explained that this was done to provide free
atmosphere to the accused and relieve him of all
pressures. PW 13 has deposed that he then asked all
the police staff to go out of the room and ensured
that nobody connected with the case was present in his
chamber during the question answer session. He has
then deposed that on talking with the accused No.5, he
was more than satisfied that the said accused was
willing to make voluntary confessional statement.
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38
Only thereafter he proceeded to record statement of
accused No.5. Proceeding were recorded by P.W.13
himself in his own handwriting in question answer
form. He has deposed about the measures taken by him
to impress upon the accused that he was free not to
make confessional statement. He also ensured that the
accused was not making statement under any pressure
threat, coercion or inducement. He has deposed that
after recording the confession, signature of accused
was obtained after the contents were read over to the
accused. Thereafter, P.W.13 himself countersigned the
statement. While doing that, he certified that he was
fully satisfied that the statement given by the
accused No.5 was voluntary. That confessional
statement has been proved and exhibited as Exh. 70A.
The evidence indicates that almost two and a half
hours were consumed in recording of this confessional
statement (Exh. 70A). This witness has then deposed
that the accused was immediately produced before the
Magistrate on the next day i.e. on 20th August, 1999
in compliance of section 18 of the MCOCA. This
witness has identified the accused No.5 in Court. It
needs to be mentioned that when the accused No.5 was
produced before the Magistrate on 20th August, 1999 no
grievance was made by this accused about any pressure,
coercion or inducement, on account of which he gave
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39
the statement before P.W.13. The Magistrate has
recorded statement of accused No.5 which is proved and
marked Exh.75. Although the P.W.13 has been
extensively cross-examined by the accused there is
nothing to doubt the credentials of P.W.13. On the
other hand, on reading the entire evidence as a whole,
it is more than obvious that P.W.13 took utmost care
and adopted a fair procedure and also complied with
all the essential formalities to ensure that the
accused No.5 was making statement voluntarily. Indeed
the accused No.5 has retracted the statement, however,
that was done only on 15th November, 1999. Obviously
this retraction was under legal advise. Neither
before P.W.13 nor before the Magistrate when accused
No.5 was produced on 20th August, 1999, or even
thereafter for almost three months, the accused made
any grievance or complaint about involuntariness of
the statement recorded by P.W.13. It is well
established position that such retraction is of no
avail. Even such retracted statement is admissible in
evidence and the court can safely rely on such
retracted statement if the same is worthy of reliance.
(See 2001(6) SCC 550 - State of T.N. v. Kutty (See (See 2001(6) SCC 550 - State of T.N. v. Kutty and 2001(6) SCC 550 - State of T.N. v. Kutty
2005 (11) SCC 600 State (NCT of Delhi) v. Navjot 2005 2005 (11) SCC 600 State (NCT of Delhi) v. Navjot (11) SCC 600 State (NCT of Delhi) v. Navjot
Sandhu). Sandhu Sandhu
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40
17. Interestingly, the disclosures made by accused
No.5 in the confessional statement Exh. 70A are
clinching ones. He has spoken about the modus
operandi of the continuing unlawful activities as well
as the persons who are associated with the said
activities. He has mentioned that the accused No.2,
accused No.3 and accused No.4 and accused No.7 are his
good friends and accused No.2 was his best friend. He
has disclosed as to how he came in contact with
accused No.2 and others. He has disclosed that
alongwith accused No.2 Kishore he came in contact with
accused No.3 Salim Yakub Kara, accused No.4 Ashok
Awasthi, Accused No.6 Gullu, accused No.9 Raju,
accused No.8 Asgar Ali and others. He has also stated
that he came in contact with accuse No.1 Mohd. Parvez
of Pakistan. He was asked as to what was the occasion
for him to interact with these persons. In response,
he has stated that alongwith Kishore accused No.2 all
these persons were in the business of counterfeit
currency notes and he used to accompany accused No.2
Kishore at the time of deal. Then he got involved in
this business of counterfeit currency notes. He has
then disclosed that he was aware for last two years
accused No.2 Kishore was in this business and he
himself got engaged in counterfeit currency notes
transaction for about one year back. He has also
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41
explained how he alongwith other accused undertook
journey to Nepal, Kathmandu and other places in
connection with this business. When he was asked
where from he used to get the counterfeit currency
notes, he replied that on two occasions he and accused
No.2 Kishore went to Kathmandu and thrice in Mumbai.
The transaction was struck with unknown persons. He
has stated that the counterfeit currency notes comes
from Pakistan sent by Tariq @ Baba(A12) who is the
agent of Dawood Ibrahim(A11), which information was
disclosed to him by accused No.2 Kishore. He has
denied having ever met either of the two. When he was
asked whether accused No.2 Kishore has met Dawood
Ibrahim or Tariq, he replied that accused No.2 Kishor
used to talk to Tariq and Dawood Ibrahim in his
presence on mobile phone on many occasions. He has
heard him talking to them. He has then disclosed the
mobile phone numbers of accused No.2 Kishore. He has
then disclosed that the counterfeit currency notes are
sold by them to Salim (A3), Vishal (A10), Tejas (A7),
Gullu (A6), Asgar Ali (A8), Ashok Awasthi (A4), Nand
(A13) and Raju (A9) on commission between 10 to 15 %.
He has then stated the purpose for which the
counterfeit currency notes are circulated in the
market. He first mentioned that he earns commission
by selling counterfeit currency notes. He then stated
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42
that accused No.2 Kishore told him that Tariq and
Dawood wanted counterfeit currency notes to be
circulated in India to create financial destability in
the nation, which is the conspiracy. Besides, he and
other associated in the trade have been assured that
they will be extended complete support if they come in
difficulty. He has then stated that he used to give
genuine Indian currency notes to accused No 2 Kishore.
Tariq used to inform Kishore on mobile phone as to
whom,the amount should be delivered. Whereafter
genuine currency was handed over to such unknown
person. He has stated that the currency was exchanged
with unknown person on tallying the number of ten
rupees note possessed by such person. All information
regarding the unknown person about his structure,
colour, height, clothes worn by him etc. was made
known in advance on telephone. He has then stated
that he and Salim Kara (accused No.3) were about to
leave the complex by car when they were accosted by
police. He has stated that they had gathered in flat
No.4 Twilight building, Raheja Complex alongwith
accused No.2 Kishore accused No.3 Salim Kara, accused
No.4 Ashok Awasthi, accused No.1 Mohd.Parvez to
transact in counterfeit currency notes.
18. Insofar as accused No.5 is concerned, the
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43
confessional statement being voluntary and spells out
incriminating material, could be used against the said
accused. That can be the primary basis to record
finding against accused No.5 of his complicity in the
commission of the alleged offence. In other words,
the confessional statement can be used as substantive
evidence against the accused No.5. Insofar as
co-accused Nos. 1 to 4 are concerned, this confession
can also be used against them as a corroborative piece
of evidence alongwith other material [See Kashmira See Kashmira See Kashmira
Singh v. State of M.P. - AIR 1952 SC 159 Singh Singh v. State of M.P. - AIR 1952 SC 159. Also see v. State of M.P. - AIR 1952 SC 159 see see
Navjot Sandhu (supra) Navjot Navjot Sandhu (supra)]. There is already substantive Sandhu (supra)
evidence against accused No.1 to 4 to indicate their
complicity in the commission of unlawful activities.
They have been arrested on the spot and huge quantity
of counterfeit currency notes have been seized from
their custody. This evidence would be sufficient to
bring home the guilt even against them.
19. To get over this position it is argued that,
it is not the prosecution’s case that any of the
accused Nos. 1 to 5 are already involved in any
activity prohibited by law for the time being in force
which is cognizable offence punishable with
imprisonment of three years or more in respect of
which charge-sheet has been filed and competent Court
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44
has taken cognizance within the preceding period of 10
years. On this premiss, it is argued that the
provisions of MCOCA cannot be invoked against accused
Nos.1 to 5 at all. This argument clearly overlooks
that the accused Nos. 1 to 5 have been arraigned as
accused for MCOCA offence alongwith other absconding
accused Nos. 10 to 14. The prosecution case is that,
the absconding accused, in particular, Dawood Ibrahim
Kaskar (A11) and Tariq @ Baba (A12), are the kingpin
or mastermind of the organised crime syndicate and
were engaged in the commission of organised crime. As
is rightly held by the Trial Court, as there were
already more than one similar criminal case pending
against the said accused Nos.11 and 12 in the same
Court, the provisions of MCOCA was justly invoked by
the prosecution against them as well as the present
accused Nos.1 to 5.
20. The prosecution case as established against
the accused Nos. 1 to 5 is that they were party to
the conspiracy and of abetment and knowingly
facilitating commission of organised crime or act
preparatory to organised crime. That case has been
clearly established against accused Nos.1 to 5, even
though there is no legal evidence to hold that they
(A1 to 5) were members of the organised crime
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45
syndicate as such. It is well established position
that a person need not necessarily be a member of the
organised crime syndicate/gang; and yet be liable to
be proceeded for offence of being party to a
conspiracy by virtue of Section 120B of I.P.C. read
with Section 3(2) read with Section 2(1)(a) of the
MCOCA. The fact that at the relevant time, there was
no other criminal case or trial pending against him in
respect of a specified cognizable offence and Court
not having taken cognizance thereof, will not absolve
such person from the alleged offence of MCOCA by
virtue of Section 120B of I.P.C. read with Section
3(2) and Section 2(1)(a) of MCOCA.
21. It is well established that there can be no
direct evidence of conspiracy. Ordinarily, conspiracy
is to be inferred from different set of established
circumstances. Besides, a person can be party to the
conspiracy at any stage of the conception, planning,
preparation or execution of the crime. [See [See [See
K.R.Purshottaman v. State - 2005(12) SCC 631. Also K.R.Purshottaman K.R.Purshottaman v. State - 2005(12) SCC 631. Also v. State - 2005(12) SCC 631. Also
see Navjot Sandhu (supra)] see see Navjot Sandhu (supra)]. In the present case, Navjot Sandhu (supra)]
there is clinching evidence that accused Nos. 1 to 5
had come together to consciously transact in the sale
and purchase of counterfeit notes. The quantity of
counterfeit notes seized from custody of each of these
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46
accused on the spot is very huge. All the accused
Nos.1 to 5 have been arrested on the spot with the
incriminating evidence, FLAGRANTE DELICTO. FLAGRANTE DELICTO. These FLAGRANTE DELICTO.
accused have not been able to explain the
circumstances, in which they came in possession of
such huge quantity of counterfeit notes as well as
genuine Indian currency notes recovered from Flat No.4
in Twilight Building in Raheja complex in the sum of
Rs.2,70,000/-. In the Statement under section 313 of
the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘Cr.P.C.’), accused No.4 did make an
attempt to explain the circumstances in which the said
genuine Indian currency notes were recovered at his
behest. He has positively stated that he was arrest
much earlier to the date of incident when he was
carrying the genuine currency notes in the sum of
Rs.30,000/- with him. He was accompanied by his
friend. The police on duty suspected his movements.
For that reason, he (A4) and his friend was taken to
the local police station and thereafter further sum of
Rs.2,40,000/- was recovered from the residence of his
sister in Mumbai. That amount, kept at the residence
was sale proceeds received by him. However, except
these bare words no attempt has been made by the
accused no.4 to substantiate his defence, even on the
principle of preponderance of probabilities. If so,
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47
by virtue of section 17(2) and 22(1) of the MCOCA, the
Court is duty bound to draw presumption against the
said accused persons (A 1 to 5) that the counterfeit
currency notes as well as genuine currency notes so
recovered from them were used in the commission of
offence under section 3 of the Act.
22. Having realised this difficulty, it was
vehemently argued on behalf of the accused that the
evidence regarding search and seizure be discarded as
there was no independent witness examined by the
prosecution. Even this submission does not commend to
me. The prosecution has examined P.W.2 as panch
witness, who has fully supported the prosecution case.
He has deposed as to how he came on the scene on 2nd
July, 1999. He had received telephone call from Mr.
Padwal- P.W.21 to reach at Raheja complex which is in
the area of Sakinaka police station. He has deposed
about the procedure of search and seizure and recovery
of counterfeit currency notes from the possession of
accused Nos. 3 and 5 respectively, whose car was
intercepted at the gate. He has also deposed about
the search and seizure procedure at flat No.4 in
Twilight building where recovery of huge quantity of
counterfeit currency notes as well as genuine currency
notes from accused Nos.1, 2 and 4 was made. He has
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48
spoken about the panchanama prepared on the spot. He
has also spoken about the airline tickets of Pakistan
airlines found with the accused No.1 and all other
articles recovered. Panchanama regarding seizure at
the gate is Exh.36 and the panchanama regarding
seizure in flat No.4 in Twilight building is Exh. 37.
He has proved these panchanamas. He has also spoken
about the recovery of mobile phones from accused No.2
Kishore Lala. He has identified counterfeit currency
notes and genuine currency notes and mobile phones
seized at the relevant time. He has also deposed
about the sample notes taken out from the bundle to be
sent for experts opinion. This witness has been
cross-examined at length, but he has stood the
cross-examination on all material aspects and
supported the version of P.W.1, P.W.20 and P.W.21.
According to the accused however, the P.W.2 was not an
independent panch witness and was amenable to the
police officials of Sakinaka Police Station. Learned
Public Prosecutor has rightly refuted this submission
by relying on the decision reported in 1980 Cri.L.J. 1980 Cri.L.J. 1980 Cri.L.J.
1181 - Deepak G.Naik v. State (Para 7), 1181 1181 - Deepak G.Naik v. State (Para 7), which takes a - Deepak G.Naik v. State (Para 7),
view that engaging persons who have already acted as
panch in the past cannot be the only basis to discard
the evidence of panch witness. The offence in which
the accused persons were engaged was not an ordinary
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49
offence. In such matters, local inhabitants do not
come forward to act as panch witness. In any case,
the incident in question took place at dead of night
at 1.30 a.m. The secret information was received in
the police station and immediately police party
proceeded and waited near the gate of Raheja Complex
at around 1 a.m. After waiting for some time, the
vehicle in which the accused No.3 and 5 were
travelling arrived on the scene which was intercepted
at around 1.30 a.m. There is some discrepancy between
the number of watchmen at the gate and also about
movements of persons in the locality. Such
discrepancies cannot be the sole basis to discard the
version of P.W.2. P.W.2 was preferred as panch
witness as he was a known social worker and associated
in peace keeping activity in the locality. Merely
because this witness is not highly educated also
cannot be the basis to discard his version. Presence
of this witness at the relevant time cannot be
disputed, rather has gone unchallenged. He has
witnessed the events as unfolded and recovery of
counterfeit currency notes as well as genuine currency
notes from accused Nos.1 to 5. The Public Prosecutor
has rightly relied on the decision reported in 1961 1961 1961
Cri.L.J. 70 Kochan v. State, 1987 Cri.L.J.284 State Cri.L.J. Cri.L.J. 70 Kochan v. State, 1987 Cri.L.J.284 State 70 Kochan v. State, 1987 Cri.L.J.284 State
v. Dolagobinda (Paras 9 to 11) and 1976 Cri.L.J. 465 v. v. Dolagobinda (Paras 9 to 11) and 1976 Cri.L.J. 465 Dolagobinda (Paras 9 to 11) and 1976 Cri.L.J. 465
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50
Khalil v. State Khalil Khalil v. State to persuade the Court to uphold the v. State
evidence of PW 2 as also to contend that the legality
of search would remain unaffected. On the other hand,
Counsel for the accused would rely on the decision
reported in 2003 Cri.L.J. 2302 = 2003 All.M.R.(Cri.) 2003 Cri.L.J. 2302 = 2003 All.M.R.(Cri.) 2003 Cri.L.J. 2302 = 2003 All.M.R.(Cri.)
1167 Salim v. State (Paras 8, 11 & 12) 1167 1167 Salim v. State (Paras 8, 11 & 12). In the first Salim v. State (Paras 8, 11 & 12)
place, this decision deals with recovery under Section
27 of Evidence Act. Whereas, PW 2 is examined to
support the prosecution case of search and seizure on
the spot. Besides, the view taken therein is on facts
of that case. Same is the position in respect of
another decision pressed into service, reported in
2002 All.M.R. (Cri.) 305 in Haribhau v. State (Para 2002 2002 All.M.R. (Cri.) 305 in Haribhau v. State (Para All.M.R. (Cri.) 305 in Haribhau v. State (Para
11). Assuming that the evidence of this panch witness
11) 11)
was to be discarded even then, it will not be fatal to
the prosecution case. Prosecution has examined P.W.1,
P.W.14, P.W.20 and P.W.21. No doubt these witnesses
are police officials. That cannot be the sole basis
to discard their evidence. There is nothing to show
that these witnesses had any axe to grind against the
accused persons or were out to falsely implicate the
accused in the alleged offence. Their version, by
itself, is sufficient. Panch witness is examined only
to reassure the Court or lend credibility to the
prosecution case. In the present case, we
additionally have the confessional statement of
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51
accused No.5, which is admissible.
23. Counsel for the accused, however, relied on
the decisions reported in 1989 Cri.L.J. 1412 - State 1989 Cri.L.J. 1412 - State 1989 Cri.L.J. 1412 - State
v. Sudarshan Kumar; 1987 Cri.L.J.1539 Prem Lata v. v. v. Sudarshan Kumar; 1987 Cri.L.J.1539 Prem Lata v. Sudarshan Kumar; 1987 Cri.L.J.1539 Prem Lata v.
State; AIR 1995 SC 1930 Pradeep Madgaonkar v. State; State; State; AIR 1995 SC 1930 Pradeep Madgaonkar v. State; AIR 1995 SC 1930 Pradeep Madgaonkar v. State;
and 2004 All.M.R. (Cri.) 1308 Pradeep Rajgure v. and and 2004 All.M.R. (Cri.) 1308 Pradeep Rajgure v. 2004 All.M.R. (Cri.) 1308 Pradeep Rajgure v.
State to question the procedure of search and seizure State State
followed in the present case. However, as observed by
the Apex Court in State of State of Rajasthan v. Teja State of Rajasthan v. Teja State of Rajasthan v. Teja
Ram AIR 1999 SC 1776 (Paras 28 to 30), Ram Ram AIR 1999 SC 1776 (Paras 28 to 30), the AIR 1999 SC 1776 (Paras 28 to 30),
Investigating Officer is not obliged to obtain the
signature of an accused in any statement attributed to
him while preparing seizure memo. Moreover, as
observed by the Apex Court in AIR 1956 SC 411 AIR 1956 SC 411 at 412 AIR 1956 SC 411
in the case of Sunder Singh v. State of U.P. Sunder Singh v. State of U.P., which Sunder Singh v. State of U.P.
has been followed in Khalil v. State (supra) Khalil v. State (supra), the Khalil v. State (supra)
irregularity in the search procedure would only affect
the weight of the evidence in support of the search
and recovery, but would not invalidate the search. It
was also argued that the evidence on record would not
reassure the Court that the seized currency notes kept
in packets were preserved properly. It is argued that
there was every possibility of tampering or planting
of packets. Even this submission deserves to be
rejected. For, the concerned prosecution witnesses
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52
have spoken about the details of the currency notes
seized and kept in sealed packets. Their version is
corroborated by the contents of the panchanama.
Whenever the packets were unsealed and resealed,
separate panchanama was drawn. The Police Officials
who were required to do that exercise have done that
with great sense of responsibility. There is nothing
in the evidence to suggest that they had any reason to
tamper the packets or change the contents so as to
falsely implicate the accused. The fact that same
panchas were employed for that process will not permit
the Court to draw an adverse inference, as is
suggested. This argument is devoid of merits.
Indeed, the Counsel for accused No.1 has emphasised
other irregularities in the preparation of panchanama;
however, taking overall view of the oral evidence and
as the witnesses are found to be trustworthy and
reliable and their version on material points is
broadly corroborated by contemporaneous record, the
conclusion reached by the Trial court to record
finding of guilt will be inevitable.
24. In my opinion, on analysing the entire
evidence on record, there can be no doubt about the
complicity of the accused Nos. 1 to 5 in the
commission of offence punishable under section 120B of
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53
I.P.C. read with section 3(2) r/w section 2(1)(a) of
the MCOCA. There is clear evidence to establish the
ingredients of actus reus actus reus and mens rea. actus reus mens rea. It is mens rea.
established that the said Accused persons were found
in possession of huge quantity of counterfeit currency
notes on the spot having come together to transact
therein; there is good reason to draw the legal
presumption under section 17(2) and 22(1) of the
MCOCA. That no prudent person would come together at
one place at such odd hours with huge quantity of
currency notes muchless counterfeit or forged currency
notes, but for using the same in the commission of
alleged offence. Admittedly, the accused Nos.1 to 5
have not adduced any evidence in rebuttal of the legal
presumption. A priori, it will have to be presumed
that they were in possession of such large quantity of
counterfeit currency notes for being used in the
commission of offence. The fact that accused nos. 1
to 5 are found in possession of such large quantity of
counterfeit currency notes at such odd hours in a flat
which was a tenanted flat taken in the name of accused
No.2, is a strong circumstance. It will have to be
inferred that each of them had knowledge or reason to
believe that the said counterfeit currency notes were
intended to be used as genuine notes. Interestingly,
the case of the accused is one of total denial. In
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54
view of the overwhelming prosecution evidence, it is
not possible to accept the defence plea of mere
denial. No evidence of rebuttal of legal presumption
has been adduced, though required by virtue of section
17 and 22 of the Act. Accused Nos. 1 to 5 have been
rightly found guilty by the trial Court not only for
offence under section 120B of I.P.C. read with
section 3(2) and 2(1)(a) of the MCOCA but also section
489B and 489C of the I.P.C. I shall elaborate on the
finding of guilt in respect of the latter offence a
little later.
25. Even if the trial Court has held in favour of
the accused Nos. 1 to 5 that they are not members of
organised crime syndicate, as already observed
earlier, that will make no difference to the charge of
conspiracy and abetment and of knowingly facilitating
commission of organised crime. It is not necessary
that every named accused for offence of conspiracy
should have a direct link with the main kingpin or
mastermind of the conspiracy. It is well established
that conspiracy can be at different levels, though
part of one whole scheme of conspiracy. Persons
associated at any level of such conspiracy are liable
to be proceeded with, [See K.R.Purshottaman (supra) [See K.R.Purshottaman (supra) [See K.R.Purshottaman (supra)
and Navjot Sandhu (supra)] Navjot Sandhu (supra)]. Nevertheless, in view of Navjot Sandhu (supra)]
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55
the finding of the trial Court that accused Nos. 1 to
5 were not members of the organised crime syndicate,
and the said finding having remained unchallenged, the
finding of no guilt of the trial court in relation to
the offence under section 3(4) of the MCOCA is
unexceptionable. This is so because, to attract
offence under section 3(4) of the Act, the accused
should be a person who is a "member" of the organised
crime syndicate. As the quintessence of the said
offence is lacking, the charge under section 3(4) has
been rightly negatived.
26. The next question is about the appropriateness
of the finding and conclusion reached by the trial
Court against the accused Nos. 1 to 5 in relation to
the offence punishable under section 3(5) read with
section 4 of the MCOCA and further read with section
120B of I.P.C. To consider this submission, it is
apposite to advert to section 3(5) and section 4 of
the MCOCA.
. Section 3(5) of the Act reads thus:
"3. "3. "3. Punishment for organised crime.... Punishment Punishment for organised crime.... for organised crime....
(5) Whoever holds any property derived or
obtained from commission of an organised crime
or which has been acquired through the
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56
organised crime syndicate funds shall be
punishable with a term which shall not be less
than three years but which may extend to
imprisonment for life and shall also be liable
to fine, subject to a minimum fine of rupees
two lacs." (emphasis supplied)
. Section 4 of the Act reads thus:
"4. "4. "4. Punishment Punishment Punishment for for for possessing possessing possessing
unaccountable wealth on behalf of member of unaccountable unaccountable wealth on behalf of member of wealth on behalf of member of
organised crime syndicate... organised organised crime syndicate.... If any person crime syndicate...
on behalf of a member of an organised crime
syndicate is, or, at any time has been, in
possession of movable or immovable property
which he cannot satisfactorily account for, he
shall be punishable with imprisonment for a
term which shall not be less than three years
which may extend to ten years and shall also
be liable to fine, subject to a minimum fine
of rupees one lac and such property shall also
be liable for attachment and forfeiture, as
provided by section 20."
. In addition, it will be apposite to advert to
the other two provisions of the Act of 1999 which are
of relevance to this case. Sections 17 and 22 of
MCOCA read thus :
"17.Special Rules of evidence.--- "17.Special "17.Special Rules of evidence.---(1) Rules of evidence.---
Notwithstanding anything to the contrary
contained in the Code, or the Indian Evidence
Act, 1872(I of 1872), for the purposes of
trial and punishment for offences under this
Act or connected offences, the Court may take
into consideration as having probative value,
the fact that the accused was,---
(a) on any previous occasion bound under
section 107 or section 110 of the Code;
(b) detained under any law relating to
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57
preventive detention; or
(c) on any previous occasion was prosecuted in
the Special court under this Act.
(2) Where it is proved that any person
involved in an organised crime or any person
on his behalf is or has at any time been in
possession of movable or immovable property
which he cannot satisfactorily account for,
the Special Court shall, unless contrary is
proved, presume that such property or
pecuniary resources have been acquired or
derived by his illegal activities.
(3) Where it is proved that the accused has
kidnapped or abducted any person, the Special
Court shall presume that it was for ransom."
"22.Presumption as to offences under section "22.Presumption "22.Presumption as to offences under section as to offences under section
3.---(1) In a prosecution for an offence of 3.--- 3.---
organised crime punishable under section 3, if
it is proved---
(a) that unlawful arms and other material
including documents or papers were recovered
from the possession of the accused and there
is reason to believe that such unlawful arms
and other material including documents or
papers were used in the commission of such
offence; or
(b) that by the evidence of an expert, the
finger prints of the accused were found at the
site of the offence or on anything including
unlawful arms and other material including
documents or papers and vehicle used in
connection with the commission of such
offence,
the Special Court shall presume, unless the
contrary is proved, that the accused had
committed such offence.
(2) In a prosecution for an offence of
organised crime punishable under sub-section
(2) of section 3, if it is proved that the
accused rendered any financial assistance to a
person accused of, or reasonably suspected of,
an offence of organised crime, the Special
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58
Court shall presume, unless the contrary is
proved, that such person has committed the
offence under the said sub-section (2)."
(emphasis supplied) (emphasis (emphasis supplied) supplied)
27. On the plain language of the abovesaid
provisions, it is obvious that abovenoted two offences
are independent and distinct and cannot be rolled into
one offence. Notably, section 3(5) of the Act opens
with the word "whoever", unlike section 3(4) refers to
"any person who is a member of an organised crime
syndicate". A priori, section 3(5) will be attracted
if the accused were to hold any property derived or
obtained from commission of an organised crime or
which has been acquired through the organised crime
syndicate funds. In the first place, the concerned
accused need not be a "member" of the organised crime
syndicate as such. However, even if the stated
accused is party to conspiracy and has been arraigned
as accused by virtue of section 120B of I.P.C. r/w
section 3(2) of the MCOCA, he can be additionally
proceeded against for offence under section 3(5) of
the Act, if the facts of the case so demand. In fact,
the language of Section 3(5) is so expansive that "any
person" ("whoever" - is neither member of the
organised crime syndicate/gang nor a party to
conspiracy or abetment of commission of the organised
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59
crime) can be proceeded for this offence if the facts
of the case so demand. In other words, the
quintessence to attract offence under Section 3(5) is
that the person should hold property derived or
obtained from commission of an organised crime or have
been acquired through the funds of the organised crime
syndicate/gang. Any person, therefore, can be charged
simplicitor for this offence in a given case. Be that
as it may, in the present case, prosecution evidence
proves beyond doubt that accused Nos. 1 to 5
possessed large number of counterfeit currency notes
which were for selling, buying or otherwise
trafficking in, knowing or having reason to believe
that the same were forged or counterfeit. It is
doubtful whether possession of such counterfeit
currency notes will be of any consequence so as to
attract section 3(5) of MCOCA. For, counterfeit
currency notes only have paper value and cannot be
treated as "property". The expression "property" will
have to be given its natural meaning. In criminal
law, "property" as defined in Black’s Law Dictionary,
means anything of value, including real estate,
tangible and intangible personal property, contract
rights, choses-in-action and other interests in or
claims to wealth, admissions or transportation
tickets, captured or domestic animals, food and drink,
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60
electric or other power.
28. However, in the present case, the accused, in
particular accused No.4, were found in possession of
genuine currency notes in the sum of Rs.2,70,000/-
which was in a plastic bag in Flat No.4 of Twilight
Building situated in Raheja Complex. Assuming that
section 3(5) or for that matter, section 4 of the Act
will be attracted only in relation to the genuine
currency notes, there is clinching evidence that huge
quantity of genuine Indian currency notes were found
in possession of these accused on the spot, in
particular, accused No.4 and also independently from
accused No.3. The genuine Indian currency so
recovered, will have to be treated as "property". The
question is, whether the same is derived from
commission of an organised crime or through the
organised crime syndicate funds. In the present case,
there is no legal evidence to show that the genuine
Indian currency was acquired through the organised
crime syndicate funds. However, there is enough
evidence to hold that the genuine Indian currency
notes found in possession of accused or held by them
were derived or obtained from commission of an
organised crime, keeping in mind the overwhelming
evidence on record already referred to earlier as also
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61
the legal presumption under Section 17(2) and 22(1) of
the Act.
29. Accused No.4 has made an attempt to offer
explanation about the presence of such large amount of
Rs.2,70,000/- of genuine currency notes. However, as
is observed earlier, except his bald plea in the
statement under section 313 of Cr.P.C., no attempt has
been made to rebut the legal presumption.
30. The next question is, whether the recovery of
these notes valued at Rs.2,70,000/- from accused No.4
can be the basis to proceed against other accused Nos.
1,2,3 and 5. As the amount was recovered from the
flat No.4 in Twilight building where all the five
accused, including accused Nos. 1, 2, 3 and 5 were
present and as there is evidence that they had decided
to come together in that flat to transact in
counterfeit currency notes; and having been charged
with section 120B of I.P.C., all of them are liable.
None of the accused Nos. 1, 2, 3 and 5 have offered
any explanation except denial of recovery of the said
amount. Thus understood, the trial Court has rightly
convicted each of the accused Nos. 1 to 5 for offence
under section 3(5) of MCOCA r/w 120B of I.P.C.
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62
31. Assuming for the sake of argument that charge
under section 3(5) cannot be proceeded against the
accused Nos. 1,2,3 and 5 for the recovery of
Rs.2,70,000/- from the possession of accused No.4, in
that case, the finding of guilt recorded against the
accused No.4 by the trial Court for offence under
section 3(5) will have to be upheld. Besides the
accused No.4, on the same analogy, even the finding of
guilt for offence punishable under section 3(5) will
have to be upheld as against accused No.3. In as much
as, recovery of genuine Indian currency notes at the
behest of accused No.3 from place shown by him has
been made which is in the sum of Rs.5,90,000/-. The
said amount has been recovered from a plastic bag
which was kept in a concealed manner in the house
shown by the accused No.3. The accused No.3 except
denial has not offered any other explanation.
Interestingly, no other accused has put forth his
claim for the genuine Indian currency in the sum of
Rs.5,90,000/- so recovered. Suffice it to observe
that even the accused No.3 has been rightly found
guilty for offence under section 3(5) of the Act.
32. There is one more aspect in the context of the
provisions of MCOCA. The trial Court has found
accused Nos. 1 to 5 guilty of offence punishable
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63
under section 3(5) r/w section 4 of MCOCA read further
with section 120B of I.P.C. I have already considered
in the earlier part of this Judgment about the
efficacy of section 3(5) of the Act read with section
120B of I.P.C. I have also already reproduced section
4 of the Act. On plain reading of section 4 of the
Act, the essential ingredient is that the possession
of unaccounted movable or immovable property by the
accused should be on behalf of member of an organised
crime syndicate. There is marked difference between
the sweep of section 3(5) and section 4 of the Act.
Section 4 of the Act deals with the situation where
the accused is in possession of unaccounted movable or
immovable property, which is held by him on behalf of
a member of an organised crime syndicate. In other
words, the stated accused necessarily should claim to
be in possession of unaccounted movable or immovable
property on behalf of a member of an organised crime
syndicate. In relation to offence under Section 4 of
the Act, the accused has no ownership in the
unaccounted movable or immovable property recovered
from him, but is only holding the same as a trustee
and is in control thereof on behalf of a member of the
organised crime syndicate. Even on close scrutiny of
the entire evidence on record of the present case it
is not possible to infer such a case having been made
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64
out by the prosecution against the accused Nos. 1 to
5. On the other hand, the case of the prosecution is
that, the concerned accused were in possession of the
property derived or obtained by them from commission
of an organised crime. There is perceptible
difference in both these situations/allegations
ascribable to Section 3(5) and Section 4. The trial
Court has found that none of the accused Nos. 1 to 9
committed offence as members of organised crime
syndicate as such. Viewed thus, no finding of guilt
can be recorded against accused Nos. 1 to 5 for
offence under section 4 of the Act. The trial Court,
perhaps, has loosely invoked that provision against
the accused Nos. 1 to 5. Presumably, for that
reason, no separate sentence has been awarded by the
trial Court for offence under section 4 of the Act.
In other words, even if the accused Nos.1 to 5 would
succeed to the extent that section 4 of the MCOCA was
inapplicable to the fact situation of the present
case, that will make no difference to them insofar as
the period of sentence or punishment awarded by the
trial Court.
33. That takes us to the finding and conclusion of
the trial Court against the accused nos. 1 to 5 for
offence punishable under section 489B and 489C read
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65
with 120B of I.P.C. Section 489B and 489C of I.P.C.
reads thus:
"489B. Using as genuine, forged or "489B. "489B. Using as genuine, forged or Using as genuine, forged or
counterfeit currency-notes or bank-notes.-- counterfeit counterfeit currency-notes or bank-notes.-- 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
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 489C. 489C. Possession of forged or counterfeit Possession of forged or counterfeit
currency-notes or bank-notes.-- currency-notes currency-notes or bank-notes.-- Whoever has in or bank-notes.--
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."
34. The sweep of the two provisions is plainly
clear from the language of the sections. Indeed, in a
given case the accused can be proceeded in respect of
one of the charge under section 489 B or 489 C. But,
if there is legal evidence to proceed against the
accused for both the charges, then the Court can
proceed accordingly. In the present case, the accused
Nos.1 to 5 are found guilty under sections 489 B and
489 C r/w 120 B of I.P.C. For, there is clear
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66
evidence that the accused Nos. 1 to 5 were engaged in
selling, buying, receiving from other person or
otherwise trafficking in the counterfeit currency
notes to be used as genuine, knowing or having reason
to believe the same to be forged or counterfeit
currency notes. There is also evidence that each of
the accused Nos. 1 to 5 were found in possession of
huge quantity of counterfeit currency notes intending
to use the same as genuine, knowing or having reason
to believe the same to be forged or counterfeit. The
volume of those notes recovered and seized on the
spot, coupled with the confessional statement of
accused No.5, leaves no manner of doubt that the
accused knew or had reason to believe that the said
currency notes are forged or counterfeit or intended
to pass off as genuine in the open market for profit.
The plea of each of the accused is of total denial of
possession of any counterfeit currency notes. If that
plea is to be rejected, which I am inclined to do,
having regard to the overwhelming evidence on record;
it necessarily follows, as it can be inferred that,
each of the accused had knowledge or had reason to
believe that the currency notes in their possession
were counterfeit currency notes and that the same were
intended to be used as genuine. The Public Prosecutor
has rightly relied on the exposition in Ponnusamy v. Ponnusamy v. Ponnusamy v.
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67
State reported in 1997 SCC (Cri.) 217 State State reported in 1997 SCC (Cri.) 217 that the onus reported in 1997 SCC (Cri.) 217
was on accused to offer explanation as to the source
from where he had obtained the forged currency notes.
Counsel for the accused made attempt to persuade the
Court to discard the evidence regarding search and
seizure. However, I am inclined to consider the
totality of evidence on record. In the present case,
therefore, both these offences (Section 489B and 489C)
are established from the evidence on record.
Moreover, by virtue of provisions of MCOCA, legal
presumption will have to be drawn that the forged or
counterfeit currency notes were used in the commission
of the offence. None of the accused, except denial,
have produced any evidence in rebuttal. It will have
to be borne in mind that so far as accused Nos. 1 to
5 are concerned, they are not tried for offence
simplicitor under section 489B or 489C of the I.P.C.,
but for being party to conspiracy of continuing
unlawful activities. Viewed thus, finding of guilt
recorded by the trial Court against the accused Nos.
1 to 5 under section 489B and 489C read with 120B of
I.P.C. will have to be upheld.
35. That takes me to the second set of prosecution
case which is against accused Nos. 6 to 9. We have
already noticed that so far as these accused are
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68
concerned, the trial Court has found them guilty for
offence simplicitor under section 489B and 489C of
I.P.C. No case is made out against them for offence
under provisions of MCOCA. Incidentally, the number
of counterfeit currency notes recovered at the behest
of each of these accused Nos. 6 to 9 are very paltry.
For, three counterfeit currency notes have been
recovered from each of the accused Nos. 6, 7 and 8
and two counterfeit currency notes from accused No.9
respectively. No other recovery is attributed to any
of these accused. Moreover, the prosecution has
relied on independent set of witnesses to establish
the case against each of these accused.
36. It is necessary to note that the prosecution
proceeded against the accused Nos. 6 to 9 essentially
on the basis of disclosure made by accused No.5 about
their involvement, presumably, in his confessional
statement. Besides that evidence, there is no other
evidence to connect these accused Nos. 6 to 9 with
the charge of conspiracy. The trial Court has thus
positively recorded finding in favour of the accused
Nos. 6 to 9 in this behalf; for which reason
proceeded to eventually convict them only for offence
simplicitor under section 489B and 489C of I.P.C.
Assuming that the investigating officer proceeded
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69
against the accused Nos. 6 to 9 on some other
material than the confessional statement of accused
No.5, however, during the evidence the only other
material that is pressed against each of these accused
is the evidence of police officials that the concerned
accused during interrogation showed willingness to
disclose the place where the counterfeit currency
notes were concealed by them. Separate panchanamas
have been drawn about the said disclosure. Separate
discovery of counterfeit notes was made in the
presence of respective panchas. Concerned panch
witness has also been examined to support this
position. This evidence, however, cannot be said to
be substantive evidence to proceed against the accused
Nos. 6 to 9. It is well established position that
evidence regarding discovery under Section 27 of the
Evidence Act can be used only as a corroborative piece
of evidence. In other words, there is no substantive
evidence to indicate complicity of accused Nos. 6 to
9 either having sold or purchased or received or
otherwise trafficked in or used as genuine any forged
or counterfeit currency notes knowing or having reason
to believe the same as forged or counterfeit.
Assuming that the prosecution were to rely on the
confessional statement of accused No.5, which points
finger towards the involvement of these accused (Nos.6
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70
to 9), it is well established that the confessional
statement of co-accused cannot be used against the
accused as substantive piece of evidence. It can be
used only as a corroborative piece of evidence to
support the other materials. Assuming that there is
legal evidence about the discovery of counterfeit
notes from the places shown by the concerned accused,
however, in absence of substantive evidence indicating
involvement of the accused in selling or buying or
receiving from other persons or otherwise trafficking
in or using as genuine any forged or counterfeit notes
knowing or having reason to believe the same to be
forged or counterfeit; Much less of intending to use
the same as genuine. In such a case, the question of
recording finding of guilt under section 489B and/or
489C of I.P.C. against these accused does not arise.
This legal aspect has clearly been glossed over by the
trial Court while considering the case of accused Nos.
6 to 9.
37. In so far as accused No.6 is concerned, as
mentioned earlier, the prosecution has relied on the
evidence of police official(P.W.15) and panch witness
P.W.5. The same pattern of evidence is in relation to
the accused No.7. Police official P.W.14 has spoken
about the willingness shown by the accused No.7 to
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71
show place where the counterfeit notes were concealed.
The panch, who attended discovery procedure, P.W.6,
has supported that case. In addition, prosecution has
examined P.W.11 who has spoken only about the
acquaintance of accused No.7, but this witness does
not throw any light on any other material fact. In
relation to the accused No.8 prosecution has examined
P.W.16 Police official who is the author of the
panchanama as well as both the panch witnesses P.W.7
and P.W.8. Second panch witness P.W.8 was examined,
as P.W.7 turned hostile. In so far as accused No.9 is
concerned, prosecution relies on evidence of police
witness Pradeep Khanvilkar (PW 19), and panch witness
P.W.10. In absence of substantive evidence to
establish the ingredients of offence under section
489B and/or 489C, it is unfathomable that finding of
guilt recorded by the Trial Court can be sustained.
Indeed, the prosecution would rely on the evidence of
experts PW 17 and PW 18 who have spoken about the fact
that the recovered currency notes were counterfeit.
However, that does not take the matter any further.
The evidence of the expert P.W.18 who has established
that the currency notes were forged or counterfeit,
will be of no avail.
38. In so far as accused No.6 is concerned, it is
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72
argued that the evidence does not show that there was
any nexus of this accused with the place from where
the counterfeit notes were recovered. Some lady was
present in that house when the discovery panchanama
was prepared. But that lady has not been examined.
Three counterfeit currency notes are stated to have
been recovered from a book, which has not been seized.
No other article has been seized from the said house.
Counsel for these accused would, therefore, contend
that it was a case of planting of evidence. In any
case, it is argued that, the crucial fact as to
whether this accused had knowledge or had reason to
believe that the three currency notes were forged or
counterfeit, no finding of guilt can be recorded. To
buttress this argument, reliance is placed on the
decision of the Supreme Court reported in 2001 2001 2001
All.M.R. (Cri.) 2398 - Umashankar v. State (Paras 7 All.M.R. All.M.R. (Cri.) 2398 - Umashankar v. State (Paras 7 (Cri.) 2398 - Umashankar v. State (Paras 7
and 8) and 8). It is then argued that the basis on which
and 8)
investigating officer P.W.21 issued instructions to
arrest accused Nos.6 to 9 on 9th July, 1999, that
material is not forthcoming. It is also argued that
the panch witnesses are not independent witnesses.
Panch witnesses were amenable to police officers in
Sakinaka Police Station. There were criminal cases
pending against panchas. Besides, no signature of
panch was obtained on the document, namely, offending
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73
currency notes. No proper procedure was followed for
recording of panchanama. To persuade the Court to
discard this evidence, reliance is placed on AIR 1951 AIR 1951 AIR 1951
Bom.468 - Simon Fernandez v. State, 2003 Cri.L.J. Bom.468 Bom.468 - Simon Fernandez v. State, 2003 Cri.L.J. - Simon Fernandez v. State, 2003 Cri.L.J.
2302 - Salim v. State (Para 8); 2003 Cri.L.J. 894 - 2302 2302 - Salim v. State (Para 8); 2003 Cri.L.J. 894 - - Salim v. State (Para 8); 2003 Cri.L.J. 894 -
State v. Arun Kumar (Para 17), 2005(1) Acquittal 262 State State v. Arun Kumar (Para 17), 2005(1) Acquittal 262 v. Arun Kumar (Para 17), 2005(1) Acquittal 262
- Ravinder v. State (Para 16); 1991 Cri.L.J. 232 - Ravinder v. State (Para 16); 1991 Cri.L.J. 232 - Ravinder v. State (Para 16); 1991 Cri.L.J. 232 -
Usman Haiderkhan Shaikh v. State (Para 7); 1972 Usman Usman Haiderkhan Shaikh v. State (Para 7); 1972 Haiderkhan Shaikh v. State (Para 7); 1972
Cri.L.J.292 - Karim Kunja v. State (Paras 8 to 12); Cri.L.J.292 Cri.L.J.292 - Karim Kunja v. State (Paras 8 to 12); - Karim Kunja v. State (Paras 8 to 12);
2005(2) Bom.C.R. (Cri.) 929 - Rajesh J.Avasthi v. 2005(2) 2005(2) Bom.C.R. (Cri.) 929 - Rajesh J.Avasthi v. Bom.C.R. (Cri.) 929 - Rajesh J.Avasthi v.
State (Para 16); 1994 Cri.L.J. 1020 - Mohd.Hussein State State (Para 16); 1994 Cri.L.J. 1020 - Mohd.Hussein (Para 16); 1994 Cri.L.J. 1020 - Mohd.Hussein
Babamiyan Ramzan v. State (Para 8); and 2006 Babamiyan Babamiyan Ramzan v. State (Para 8); and 2006 Ramzan v. State (Para 8); and 2006
All.M.R. (Cri.) 2089 Aspaq N.Ahmed v. State All.M.R. All.M.R. (Cri.) 2089 Aspaq N.Ahmed v. State. It is (Cri.) 2089 Aspaq N.Ahmed v. State
then contended that none of the circumstances
regarding arrest of accused Nos. 1 to 5 were put to
accused Nos. 6 to 9, during the recording of
statement of these accused under section 313 of
Cr.P.C., resulting in serious prejudice to these
accused; as they did not get opportunity to explain
the nexus with the accused Nos. 1 to 5. Reliance is
placed on 2001 Cri.L.J. 4748 - State v. Dharampal 2001 Cri.L.J. 4748 - State v. Dharampal. 2001 Cri.L.J. 4748 - State v. Dharampal
It is argued that, as there is evidence of experts
(P.W.17 and 18), about the similarity in the forged or
counterfeit currency notes recovered from them with
genuine currency notes, it was essential for the
prosecution to prove factum of knowledge or of accused
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74
having reason to believe that the said currency notes
were forged or counterfeit and they possessed the same
with intent to use the same as genuine. Reliance is
placed on 1979 Cri.L.J. 1383 - M.Mammutti v. State; 1979 Cri.L.J. 1383 - M.Mammutti v. State; 1979 Cri.L.J. 1383 - M.Mammutti v. State;
1990 Cri.L.J. 215 Madan Lal v. State (Paras 5 & 17); 1990 1990 Cri.L.J. 215 Madan Lal v. State (Paras 5 & 17); Cri.L.J. 215 Madan Lal v. State (Paras 5 & 17);
2005(1) Bom.C.R. (Cri.) 401 - Ashok Shinde v. State 2005(1) 2005(1) Bom.C.R. (Cri.) 401 - Ashok Shinde v. State Bom.C.R. (Cri.) 401 - Ashok Shinde v. State
(Paras 6 to 8) (Paras (Paras 6 to 8). Reliance was also placed on the 6 to 8)
provisions of Police Manual, in particular Rule 177,
to contend that the panchas examined in the present
case did not conform to the requirements provided
under that provision. On the above basis it was
contended that even the prosecution evidence regarding
discovery at the instance of accused is of no avail.
39. To get over this position Public Prosecutor
would contend that such infirmities cannot be the
basis to doubt the prosecution case. According to the
public prosecutor, merely because criminal cases are
pending against the panch, that cannot be the basis to
discard his evidence. To buttress this position,
reliance is placed on the decision in State of State of State of
Rajasthan v. Teja Ram & Ors. (supra) and Khalil v. Rajasthan Rajasthan v. Teja Ram & Ors. (supra) and Khalil v. v. Teja Ram & Ors. (supra) and Khalil v.
State (supra). State State (supra). (supra).
40. Having given thoughtful consideration, in my
opinion, in absence of substantive evidence against
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75
the accused No.6 to 9 regarding commission of offence
either under section 489B and/or 489C of the Act, the
other evidence which is pressed into service by the
prosecution cannot be the basis to record finding of
guilt. That evidence can be used only by way of
corroborative piece of evidence. Identical situation
obtains in respect of all the accused Nos.6 to 9. In
so far as accused No.9 is concerned, the learned
advocate for that accused has additionally contended
that there is material discrepancy in the prosecution
version. In the first place, the author of the
panchanama is not examined and no explanation for that
is forthcoming. Besides, one witness says that two
offending notes were recovered from the office of that
accused, whereas panchanama records that the recovery
was from his residence. The panch supports the place
mentioned in the panchanama. Certainly, the lapses
pointed out by the accused No.9 are fatal.
41. As mentioned earlier, in absence of
substantive evidence against the accused Nos.6 to 9 to
establish the ingredients of section 489B and/or 489C,
it is not possible to sustain the finding of guilt
recorded by the trial Court against them. Instead,
the said accused will have to be given benefit of
doubt. Accordingly, appeals preferred by those
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76
accused Nos. 6 to 9 will have to succeed by giving
benefit of doubt.
42. In the circumstances, following operative
order is passed.
(i) Appeal preferred by Accused No.3 is
dismissed. However, direction is given to the
State Government to take appropriate steps to
forthwith secure custody of the said accused
to undergo period of sentence awarded against
him by the trial Court; and if required, take
recourse to Section 82 and/or 83 of the Code
of Criminal Procedure, 1973, if already not
done. Compliance in this behalf be reported
to this Court within 8 (eight) weeks.
(ii) The appeals filed by accused Nos. 6
to 9 are allowed. The Judgment and order
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77
passed by the trial Court recording finding of
guilt against them for offence punishable
under section 489B and 489C of I.P.C. is set
aside. Instead, they are acquitted of the
said charges by giving benefit of doubt. The
bail bonds of the accused Nos. 6 to 9 to
stand cancelled. Muddemal concerning the
accused Nos. 6 to 9 be disposed of in
accordance with the law.
(iii) In the appeals preferred by Accused
Nos. 1, 4 and 5, the finding of guilt
recorded by the trial Court for the offence
punishable under section 120B of I.P.C. and
Section 3(2) r/w Section 2(1)(a) of MCOCA and
section 489B, 489C r/w 120B of I.P.C. and
Section 3(5) of MCOCA read further with
Section 120B of I.P.C. is upheld. However,
on the point of sentence, as counsel appearing
for the parties intend to make submissions and
in particular the Public Prosecutor desires to
take instructions from the Jail authority
about the report in so far as accused Nos. 1,
4 and 5 are concerned, hearing of these
appeals on the point of sentence is deferred
till 22nd December, 2006.
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78
Dt.22/12/2006. Dt.22/12/2006. Dt.22/12/2006.
43. In terms of order dated December 20, 2006,
appeals preferred by accused Nos.1,4 and 5 were placed
for hearing on the point of sentence. Counsel
appearing for each of these appellants would contend
that the appellants have undergone substantial period
of sentence. It is submitted that taking into account
the remission earned by the respective appellants it
would be seen that the appellants have already
undergone the sentence of around 9 years. It is
submitted that the sentence provided by law in
relation to the offence punishable under section 120B
of I.P.C. r/w sections 3(2), 2(1)(a) of MCOCA is
imprisonment for life. Nevertheless, the minimum
sentence provided for the said offence is not less
than five years. None of the appellants have argued
that the quantum of fine imposed by the Court below
for the offences for which they have been held guilty
should be reduced in any manner. This submission was
advisedly not made as there is no provision in the
MCOCA permitting the Court to reduce the quantum of
fine than the minimum fine amount provided under
section 3 being sum of Rs.5 lakhs. The Court below
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79
has also provided the sentence that in default to pay
fine amount each of the said accused will have to
suffer further rigorous imprisonment for one year. It
is therefore, submitted on behalf of the appellants
that in so far as the sentence of rigorous
imprisonment for 10 years imposed by the trial Court,
the same be reduced to the period already undergone by
the appellants/accused Nos. 1, 4 and 5 respectively.
44. In so far as accused No.1 is concerned, it is
submitted that admittedly he is a Pakistani national
and on being released will be deported forthwith out
of India. It is submitted that he has aged and ailing
mother to be looked after who is alone in Pakistan.
There is no other family member who can serve his aged
mother.
45. In so far as accused No.4 is concerned, it is
submitted that his mother is presently about 70 years
of age and is suffering from old age problems.
Besides, his daughter has grown-up and is likely to
get married in May, 2007. Even this appellant,
contends the learned Counsel, having undergone
substantial period of sentence, i.e actual
imprisonment of over 7 years and also taking into
account remission earned of about 605 days the accused
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80
has suffered sentence of nine years for the offence in
question.
46. In so far as accused No.5 is concerned, even
he has to look after his aged mother who is presently
having heart problem, as also his young children.
47. The learned APP appearing for the State fairly
accepts that the report received from the jail
authority indicates that each of the accused namely
accused Nos. 1,4 and 5 have conducted fairly well
while in jail. They have earned remission period of
over 600 days. Accused No.1 has earned remission of
612 days, whereas accused Nos. 4 and 5 have earned
remission of 605 days. He further submits that having
regard to the seriousness of the offence and recovery
of huge quantity of counterfeit and genuine Indian
currency from the accused, no fault can be found with
the opinion recorded by the trial Court of imposing
sentence of 10 years. He submits that no sympathy
should be shown to such accused.
48. Having regard to the fact that each of the
accused Nos. 1, 4 and 5 have already undergone over
seven years of actual imprisonment and also earned
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remission of more than 600 days as of now for their
good behaviour while in jail, coupled with the fact
that none of these accused are pleading for reducing
the quantum of fine nor it is open to do so, I am
inclined to accept the prayer of accused Nos. 1, 4
and 5 to reduce the quantum of sentence to the period
already undergone by them, in so far as the sentence
to suffer rigorous imprisonment imposed by the trial
Court is concerned. This is so because, the minimum
sentence provided by sections 3(2) of MCOCA is five
years. Similarly, the punishment for offence under
section 489-B and 489-C of I.P.C. provided is
punishment with imprisonment for life or with
imprisonment of either description for term which may
extend to 10 years and shall also be liable to fine.
In the case of each of these accused, the Court below
has already ordered to pay fine in addition to the
period of rigorous imprisonment ordered for the
offence in question. As is mentioned earlier, the
accused Nos.1, 4 and 5 are already in jail for seven
years and taking into account the remission period
earned by them while in jail, they have already
undergone the sentence of over nine years
respectively. Even if the order passed by the trial
Court was to be confirmed the said accused will have
to undergo further imprisonment of only about two
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months as they would be entitled for further remission
while in jail. As is mentioned earlier as the accused
Nos. 1, 4 and 5 have conducted themselves well while
in jail as is reported by the jail authority, it is
obvious that these accused have shown inclination to
reform themselves. In any case as the substantive
period of imprisonment has already been completed by
each of these accused, ends of justice would be met if
the period of sentence imposed by the trial Court for
10 years is reduced to the sentence already undergone
by accused Nos. 1, 4 and 5.
49. At the same time it is made clear that the
accused Nos. 1, 4 and 5 are not absolved of their
liability to pay the amount of fine imposed by the
trial Court. In the event they fail to pay the said
amount, they will have to undergo commensurate period
of imprisonment awarded by the lower Court i.e.
rigorous imprisonment for one year on each count. At
the hearing it was submitted that it is a matter of
record that genuine currency of
Rs.8,60,000/-(i.e.Rs.2,70,000/- and Rs.5,90,000/-) was
recovered from the accused, the said amount instead of
being forfeited be adjusted towards fine amount. It
is not possible to accept this submission. The Trial
Court has rightly not acceded to such request and
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passed order to recover fine amount from the accused,
consistent with the mandate of Section 20 of the Act.
Accordingly, the accused will have to comply with the
order of the trial Court to pay specified amount of
fine for M.C.O.C.A offences as well as I.P.C.
offences, failing which they will have to undergo
commensurate imprisonment as awarded by the trial
Court for default in paying the fine amount. In other
words, the accused Nos.1,4 and 5 would succeed only to
the limited extent of sentence period of 10 years
would stand reduced to the period already undergone by
them for the MCOCA offences as well as I.P.C. offence
which sentence was to run concurrently as was ordered
by the trial Court.
50. Before parting, this Court would like to place
on record a word of gratitude to Mr.Siddiqui for
having accepted the request to appear in the appeal
preferred by the Accused No.3 to espouse the cause of
the said accused as amicus curiae at short notice and
for having given able assistance.
51. In the circumstances, following operative
order is passed.
. Accordingly, appeals preferred by the
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accused Nos. 1, 4 and 5 would succeed in
part. In that, finding of guilt recorded by
the trial Court against each of these accused
for offences punishable under Sections 120B of
I.P.C. r/w 3(2) r/w 2(1)(a) of MCOCA is
upheld. Similarly, finding of guilt in
respect of offences punishable under sections
489B and 489C r/w 120B of I.P.C. is also
upheld. However, in so far as order of
sentence imposed by the trial Court for the
said offences, the same would stand altered in
the following terms.
(i) In relation to the offences
punishable under section 120B of
I.P.C. r/w section 3(2), r/w 2(1)(a)
of MCOCA, each of the accused Nos.1, 4
and 5 are sentenced to suffer rigorous
imprisonment for the period already
undergone by them and pay fine in the
sum of Rs. 5 Lakhs payable by each of
them, in default to suffer further
rigorous imprisonment for one year.
(ii) In so far as offences
punishable under sections 489B and
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489(C) r/w 120B of I.P.C., each of the
accused Nos. 1, 4 and 5 are sentenced
to suffer rigorous imprisonment for
five years, which period is already
undergone by them. They are further
ordered to pay fine of Rs.5,000/-
payable by each of them, in default to
suffer rigorous imprisonment for six
months, if already not undergone.
(iii) The substantive sentences of
imprisonment to run concurrently with
each other, except the sentence
imposed in default of payment of fine.
(iv) Accused Nos. 1, 4 and 5 be
released subject to above and if not
required in any other offence.
(v) Muddemal in relation to the
accused Nos.1,4 and 5 be disposed of
in terms of the directions given by
the trial Court.
A.M. KHANWILKAR, J.
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