Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 1533 (BOM)

Sheikh Asif v. State of Maharashtra

2019-07-03

ROHIT B.DEO

body2019
JUDGMENT : Rohit B. Deo, J. 1. Criminal Appeal 43 of 2017 is preferred by accused A-1 - Sheikh Asif Sheikh Usmal and Criminal Appeal 2 of 2017 is preferred by accused A-2 - Abdul Khalik Sheikh Abaid Ali, who are convicted for offence punishable under section 489-B read with section 34 of the Indian Penal Code ("IPC") and are sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs. 10,000/- and in default to suffer simple imprisonment for six months, and are further convicted for the offence punishable under section 489-C of the IPC and are sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs. 10,000/- each and in default to suffer imprisonment for six months, vide judgment dated 16.5.2016 rendered by the Additional Sessions Judge, Wardha in Sessions Case 12 of 2015. Accused A-3 Mohammd Iqbal who also faced trial for the said offences, is acquitted. 2. I have heard the learned counsel Ms. Sweety Bhatia for the accused in Criminal Appeal 43 of 2017 and the learned counsel Shri Rajneesh Vyas for the accused in Criminal Appeal 2 of 2017 and the learned Additional Public Prosecutor Shri N.B. Jawade for the respondent/State. 3. The case of the prosecution, as is unfolded during the course of trial is that PW-1 - API - Nishikant Ramteke received secret information on 24.7.2015 that one slim person is coming towards Wardha railway station with one bag containing fake currency notes. PW-1 Nishikant informed his superior officer, recorded the information in the station diary, summoned two panchas and proceeded towards the Wardha railway Station in a private vehicle. In the interregnum, PW-1 also summoned a photographer and video recorder. PW-1 reached the Wardha railway station between 10.30 to 10.45 a.m. One person, who was identified as the suspect, came from the railway station and went towards Satkar Bhojnalaya. PW-1 and others entered Satkar Bhojnalaya and found the suspect sitting at one table. PW-1 approached the suspect with the panchas and introduced himself. The bag which was in possession of the suspect was searched and a bundle of currency notes of Rs. 500/- denomination was found wrapped in polythene bag. The bundle contained 385 currency notes. The suspect disclosed his name as Sheikh Asif Sheikh Usman R/o Pusad, District Yavatmal (A-1). PW-1 approached the suspect with the panchas and introduced himself. The bag which was in possession of the suspect was searched and a bundle of currency notes of Rs. 500/- denomination was found wrapped in polythene bag. The bundle contained 385 currency notes. The suspect disclosed his name as Sheikh Asif Sheikh Usman R/o Pusad, District Yavatmal (A-1). He further disclosed that he procured the currency notes from West Bengal. PW-1 suspected that the notes are counterfeit currency and sealed them in the presence of panchas. Personal search of A-1 was taken and one mobile phone of Karbonn company, election card, railway ticket and clothes were seized. The sealed currency notes were seized and seizure panchanama was recorded. 4. PW-1 Nishikant then approached State Bank of India, Branch Wardha, and asked the manager to verify the genuineness or otherwise of the currency notes. The manager orally opined that the currency notes are counterfeit currency. The manager however expressed inability to opine in writing. The currency notes were again sealed. PW-1 returned to the Police Station and lodged report on the basis of which Crime 342 of 2014 was registered. 5. In view of the disclosure made by A-1 during interrogation, the police arrested accused Mohasin Khan from Pusad and accused Mohd. Iqbal - A3 from Amravati. While in custody, on 1.8.2014, accused 1 revealed the role of A-2 - Abdul Khalik. The Investigating Officer asked A1 to telephonically call A-2. Accordingly, A-1 called A-2 and during the conversation the mobile phone was on speaker and recording mode. The panchas were present. A-2 Abdul Khalik asked A1 - Sheikh Asif to deposit Rs. 40,000/- in his bank account and asked A-1 to meet him at hotel Banjara in Howrah-West Bengal. The memory chip was seized as evidence of the recorded conversation. 6. The Investigating Officer and his staff accompanied A 1 to Howrah. The Investigating Officer requested the jurisdictional police station for assistance, which was provided. The Investigating Officer and the panchas then went to Banjara hotel and learnt that A-2 is staying in room - 29 on the 2nd floor. The manager of Banjara hotel and employee consented to act as panchas. The police squad knocked the door of room 29, one woman opened the door and one other person was present in the room who was identified by A1 as A2 Abdul Khalik. The manager of Banjara hotel and employee consented to act as panchas. The police squad knocked the door of room 29, one woman opened the door and one other person was present in the room who was identified by A1 as A2 Abdul Khalik. The investigating Officer introduced himself and searched the room. One bag was found containing bundles of currency notes of 500 denomination wrapped in polythene. Personal search of A2 was taken. Two mobile phones, ATM card, 2 election cards, PAN card and railway ticket were seized. A-2 was arrested and panchanama recorded. Investigating Officer seized the photocopy of the hotel register, apprised the jurisdictional police station of the action and returned to Wardha with A-2. 7. While A-2 was in police custody, his voice sample was recorded. The seized currency notes were forwarded to General Manager, Currency Note Press, Nasik in sealed condition. The conversation recorded in mobile phone and the specimen voice sample of A1 and A3 were sent for spectrography analysis report. The culmination of investigation led to submission of chargesheet in the Court of jurisdictional Magistrate who committed the proceedings to the Sessions Court. 8. The learned Sessions Judge framed charge Exh.37 for the offense punishable under section 489-C, 489(B) read with section 511 of IPC. The accused pleaded not guilty and claimed to be tried in accordance with law. The defence of the accused is of false implication. The accused have neither stepped into the witness box nor have examined any witness in defence. 9. The prosecution examined PW-1 Nishikant Ramteke who is the complainant and the Investigating Officer, PW-2 Ranjit Patankar, the panch to the seizure and PW-3 Pramod Jambulkar who was a member of the trap party. 10. Ms. Sweety Bhatia, the learned counsel for A-1 submits that the prosecution failed to prove the seizure of the currency notes allegedly found in the bag in possession of A-1. Similar submission is canvased by Shri Rajneesh Vyas, the learned counsel for A-1 who submits that the alleged seizure at the Banjara hotel in Howrah - West Bengal is not proved. Both the learned counsel would therefore submit that since the prosecution failed to establish that the accused were found in possession of counterfeit currency notes, the judgment of conviction is erroneous. Both the learned counsel would therefore submit that since the prosecution failed to establish that the accused were found in possession of counterfeit currency notes, the judgment of conviction is erroneous. The learned counsel are justified in submitting that if the seizure of the alleged counterfeit currency notes is not proved, then the charge necessarily fails. The evidence shall be analyzed in the light of the said submission at a later stage in the judgment. Ms. Bhatia then submits that admittedly the Investigating Officer de-sealed the bundle containing the currency notes at the State Bank of India however, there is no contemporaneous evidence of sealing the bundle again nor is there evidence on record to show that the bundle was seized and was forwarded to the Currency Note Press in sealed condition. Ms. Bhatia would submit that the prosecution has not established that the possibility of tampering is excluded. Both the learned counsel then submit in unison that the report of the Assistant Works Manager, Currency Note Press, Nasik (Exh.81) is not admissible under section 292 of the Criminal Procedure Code, 1973 ("Code") in the absence of evidence on record to show that the said officer is duly authorized by notification issued by the Central Government. 11. Before the evidence is analyzed, I must record that the practice of the complainant - police officer investigating the crime must be shunned. The fairness and objectivity of the investigation is the ultimate casualty if the complainant himself investigates the crime. PW-1 Nishikant Ramteke is both the complainant and the Investigating Officer. No attempt is made by the prosecution to bring on record any compelling necessity for PW-1 API Nishikant Ramteke to act in the dual capacity. 12. The submission of Ms. Bhatia that the seizure of the alleged counterfeit currency notes at the Satkar Bhojnalaya in front of Wardha railway station is not proved, may now be considered. PW-1 Ramteke has deposed that the panchanama recording the proceedings was prepared at the spot. However, if the evidence of PW-2 Ranjit Patankar, who is examined as panch witness, is seen, he admits that the panchanama Exh.52 was prepared at the police station. The witness could have been declared hostile even at the stage of cross-examination, which the prosecution did not do nor did the prosecution seek permission to reexamine the said witness. The other witness to the panchanama is not examined. The witness could have been declared hostile even at the stage of cross-examination, which the prosecution did not do nor did the prosecution seek permission to reexamine the said witness. The other witness to the panchanama is not examined. It is true, as is submitted by the learned Additional Public Prosecutor Shri C.A. Lokhande that even if the panch witnesses do not support the prosecution, the evidence of the Investigating Officer can be accepted if implicitly reliable. I am not inclined to do so for two reasons. The first reason is that the complainant investigated the crime although, it has come on record that there were other officers available at the police station who could have been entrusted with the investigation. The other reason is that the panch who has deposed that the panchanama was recorded in the police station, was not declared hostile and ordinarily his evidence binds the prosecution. The failure to examine the other panch witness assumes significance. The submission of Ms. Bhatia that the seizure of the alleged counterfeit currency notes at the Satkar Bhojnalaya is doubtful, is not without substance. 13. It has come in evidence, and indeed it is the case of the prosecution that PW-1 took the said bundle to the Wardha branch of State Bank of India. The said bundle was opened and the opinion of the bank manager as regards the genuineness or otherwise of the currency notes was obtained. PW-1 asserts that he sealed the bundle again at the Wardha branch of State Bank of India. According to the Investigating Officer the 385 currency notes were divided into four separate bundles which were sealed in presence of panchas. However, irrefutably, no panchanama of the sealing at the State Bank of India is recorded. No evidence is adduced, other than the bare words of PW-1 that the bundles were sealed at State Bank of India, Wardha, deposited in the police station in sealed condition and then forwarded to the Currency Note Press, Nasik in sealed condition. The person who deposited the sealed bundles in the police station is not examined nor is the contemporaneous record is produced nor is the person who carried the bundles from the police station to the Currency Note Press examined. This is a serious infirmity in the prosecution case, and I am impelled to observe that the investigation is casual and shoddy, to say the least. This is a serious infirmity in the prosecution case, and I am impelled to observe that the investigation is casual and shoddy, to say the least. 14. As regards the incriminating material against A-2, the recorded conversation between A1 and A2 is not proved. The prosecution did not prove the record of the bank account of A2 which would have substantiated the case of the prosecution that A1 deposited Rs. 40,000/- in the bank account of A2 since he was promised currency notes worth Rs. 2 lacs. PW-1 Nishikant Ramteke has deposed that one of the panchas knocked the door of room 29 of Banjara hotel at Howrah. The person who opened the door was identified as A2 by A1, is the deposition. PW-1 then states that he seized 400 currency notes of 500/- denomination which was wrapped in polythene and kept in a bag. No panch witness is examined. PW-3 Pramod Jambhulkar who was a member of a police squad which apprehended A2 at hotel Banjara has deposed that the manager of the hotel took the police to room 29 and gave a call, in response to which, one lady opened the door. PW-3 states that there was one other person present inside the room and A1 identified the same person as A2. The versions of PW-1 Nishikant Ramteke and PW-3 Pramod Jambhulkar are at variance. Notably, PW-1 Nishikant Ramteke makes no reference whatsoever to the presence of a lady in the room. On the contrary, PW-1 states that the door was opened by A2 which is at variance with the version of PW-3 that the door was opened by a lady and the other person in the room, was identified as A2. Considering the state of evidence it was all the more necessary for the prosecution to examine the panch witness to conclusively establish what transpired at hotel Banjara. The prosecution failed to do this for reasons inexplicable. In the light of the evidence on record, the submission of the learned counsel Shri Rajneesh Vyas that the prosecution failed to establish that the alleged counterfeit currency notes were found in a bag in possession of A2 at hotel Banjara, is well merited. 15. The prosecution failed to do this for reasons inexplicable. In the light of the evidence on record, the submission of the learned counsel Shri Rajneesh Vyas that the prosecution failed to establish that the alleged counterfeit currency notes were found in a bag in possession of A2 at hotel Banjara, is well merited. 15. The submission of the learned counsel that the report issued at Exh.81 is not admissible under section 292 of the Code is on the premise that no material is placed on record to show that the Assistant Works Manager who issued report was authorized to do so by notification issued by the Central Government. It is true that the notification is not produced on record nor does the report Exh.81 makes a reference to the notification which makes the report/opinion of the Assistant Works Manager admissible under section 292 of the Code. However, the learned Additional Public Prosecutor Shri N.B. Jawade has made available the gazette notification dated 4.7.1981 which states that the entry "Assistant Works Manager" shall be added against serial 2 in column 2 in the notification dated 6.9.1976. The notification dated 6.9.1976 is also produced. The notifications are collectively marked Exh. A for identification. 16. Judicial note shall have to be taken of this notifications, under section 57 of the Indian Evidence Act, which I do. 17. In the light of the discussion supra, I am impelled to hold that the prosecution has not proved the offence beyond reasonable doubt. I have already observed that the investigation is casual and shoddy. Material witnesses have not been examined. Material evidence is not produced. The complainant PW-1 Nishikant who has acted as the Investigating Officer has done immense dis-service to the prosecution and to the justice dispensation system. It would be appropriate if the Director General of Police appoints a responsible officer to conduct in-depth inquiry so that the accountability for the lapses in investigation can be fixed, the guilty officer punished and remedial measures taken. The learned Additional Public Prosecutor Shri N.B. Jawade is requested to bring this judgment to the notice of the Director General of Police, State of Maharashtra within two weeks and the inquiry shall be completed and compliance report submitted to the Registry of this Court within four weeks thereafter. 18. The learned Additional Public Prosecutor Shri N.B. Jawade is requested to bring this judgment to the notice of the Director General of Police, State of Maharashtra within two weeks and the inquiry shall be completed and compliance report submitted to the Registry of this Court within four weeks thereafter. 18. The judgment dated 16.12.2016 rendered by District Judge-1 and Additional Sessions Judge, Wardha in Sessions Trial 12 of 2015 is set aside and the accused are acquitted of offence punishable under section 489-B, 489-C of the Indian Penal Code. 19. A-1 is in jail. He be released forthwith unless his custody is required in connection with any other crime. 20. A - 2 is on bail. His bail bond shall stand discharged. Fine paid by the accused, if any, shall be refunded. 21. The appeals are allowed in the aforestated terms. 22. Fees of appointed counsel Ms. Sweety Bhatia are quantified at Rs. 5,000/-.