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2021 DIGILAW 377 (GAU)

T. Thianlala Teikhang v. State of Mizoram

2021-04-27

NELSON SAILO

body2021
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. Zoramchhana, learned counsel for the appellant and Mr. C. Zoramchhana, learned Public Prosecutor, Mizoram for the State/respondents. 2. This appeal filed by the appellant is directed against the Judgment and Order dated 09.08.2019, passed by the Court of Additional Session Judge-III, Aizawl in S.C. No. 157/2017, arising out of Criminal Trial No. 1279/2017, whereby the appellant was convicted under Section 489 ‘C’ of the Indian Penal Code (IPC). On his conviction, he was sentenced to undergo 2 years Simple Imprisonment with fine of Rs. 10,000/- and in default thereof, a further Simple Imprisonment for 1 month vide Order dated 16.08.2019. In respect of the co-accused Smt. Lalbiakthangi Varte, who was also charged with the same section of law, she was acquitted of the charge vide the impugned Judgment & Order dated 09.08.2019. 3. The case of the prosecution in brief is that on receiving certain information, the team of CID (SB) on 31.03.2017 at 4:30 p.m. apprehended the appellant at the roadside of Zonuam, Aizawl (beneath the graveyard) as he was found carrying suspected Fake Indian Currency Notes (FICN) inside a black rack sack. A total 305 numbers of Rs. 2000/- denomination suspected to be FICN amounting to Rs. 6,10,000/- were found inside the bag and seized in the presence of two civilian witnesses. As per the statement of the appellant, the FICN was given to him by Smt. Lalbiakthangi Varte @ Seni of Chanmari, Aizawl for reselling in order to earn handsome profit. Accordingly, Vaivakawn P.S. Case No. 40/2017 dated 31.03.2017 under Section 489 ‘C’ IPC was registered and investigation conducted. During the course of investigation, Smt. Lalbiakthangi Varte was also arrested and the statements of those arrested and that of the witnesses were recorded by the case Investigating Officer (case IO). Upon completion of the investigation, the case I.O. submitted Charge Sheet No. 86/2017 dated 24.07.2017 before the Court of Chief Judicial Magistrate, Aizawl. Consequently, charge was framed by the Additional Session Judge under Section 489 ‘C’ IPC against the appellant on 12.04.2018 and to which, he pleaded not guilty and claimed for trial. As such, trial commenced and in the process, the prosecution examined as many as 5 (five) prosecution witnesses, while the appellant did not examine any witness in his defence. Consequently, charge was framed by the Additional Session Judge under Section 489 ‘C’ IPC against the appellant on 12.04.2018 and to which, he pleaded not guilty and claimed for trial. As such, trial commenced and in the process, the prosecution examined as many as 5 (five) prosecution witnesses, while the appellant did not examine any witness in his defence. Upon completion of the prosecution’s evidence, the appellant was examined under Section 313 of the Cr.P.C. and thereafter, upon hearing the parties, the learned Trial Court passed the impugned Judgment and Order, convicting the appellant and sentencing him to imprisonment as already stated hereinabove. 4. Mr. Zoramchhana, learned counsel submits that the evidence led by the prosecution witnesses suffers from inconsistencies and contradictions. He submits that although PW-1 (informant) in his cross examination stated that Mr. Mawia, who was the owner of the Maruti Car bearing Registration No. MZ-01B-7379 in which the bag containing FICN was being carried was involved in the alleged crime but the evidence of the case I.O. who was examined as PW-5 did not support the same. It therefore only appears that the prosecution have manufactured the case so as to prosecute the appellant illegally and detain him in prison. 5. The learned counsel submits that the basic ingredient to establish a case under Section 489 ‘C’ IPC against an accused person is that the prosecution must prove that the accused has the knowledge that the currency is counterfeit and that he has intention to use it as genuine. In other words, he submits that besides recovery of the FICN from the accused person, the prosecution has to establish that there is mens rea to utilize the FICN for gain or for other ulterior motive. The prosecution in the present case has failed to establish the same and as such, the impugned Judgment and Order convicting and sentencing the appellant cannot be sustained. In this connection, the learned counsel relies upon the decision of the Apex Court in the case of Umashanker vs. State of Chhattisgarh, (2001) 9 SCC 642 . 6. The learned counsel further submits that PW-1 besides being the informant carried out the investigation to some extent by recording the statements of the seizure witnesses, which otherwise is not permissible in law. He submits that if an informant undertakes the investigation, there is every livelihood that the investigation will not be fair and impartial. 6. The learned counsel further submits that PW-1 besides being the informant carried out the investigation to some extent by recording the statements of the seizure witnesses, which otherwise is not permissible in law. He submits that if an informant undertakes the investigation, there is every livelihood that the investigation will not be fair and impartial. Therefore, even on this ground the proceeding against the appellant is vitiated. In support of his submission, he relies upon the case of State vs. Rajangam, (2010) 15 SCC 369 . 7. Referring to the deposition of PW-2 and PW-3, the learned counsel submits that the two witnesses were cited as seizure witnesses but the surprising feature is that PW-3 did not even know who the informant was. By referring to the impugned Judgment and Order, the learned counsel also submits that the learned Trial Court has committed error by putting the burden upon the appellant to prove his innocence whereas, it is for the prosecution to prove and establish their case against the accused person. Therefore, the findings and conclusions arrived at by the learned Trial Court is only misconceived and as such, the impugned Judgment & Order is liable to be set aside. In support of his submission, the learned counsel relies upon the case of Anand Ramachandra Chougule vs. Sidarai Laxman Chougala and Others, (2019) 8 SCC 50 . 8. Mr. C. Zoramchhana, learned Public Prosecutor, on the other hand submits that from a plain reading of the reply given by the appellant in his examination under Section 313 of the Cr.P.C. would go to show that the appellant was aware of the fact that the currency notes that was seized from him were FICN. He also stated that he was asked to collect the FICN from Smt. Lalbiakthangi Varte by one Mr. Mawia from the shop of the former at Chandmari, Aizawl. It is therefore clear that the appellant knew that the currency notes were fake. He also submits that from the evidence led by the prosecution witnesses, particularly the evidence of PW-1, it is clear that the intention of the appellant was to resell the FICN and that the same has neither been shaken nor falsified. As such, the prosecution was able to establish that there was mens rea on the part of the appellant. 9. As such, the prosecution was able to establish that there was mens rea on the part of the appellant. 9. The learned Public Prosecutor also submits that the complainant may have recorded some statements at the very initial stage but it was the case I.O. i.e. PW-5 who carried out the investigation and who finally submitted the charge sheet. He submits that there is no hard and fast rule that in all cases where the informant is the investigator, the entire case of the prosecution would fall or be vitiated. He submits that the correct position in law is that each case will have to be judged by the facts and circumstances involved. In support of his submission, he relies upon the Full Bench decision of the Apex Court rendered in Mukesh Singh vs. State (NCT of Delhi), (2020) 10 SCC 120 . 10. The learned Public Prosecutor further submits that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search an irrelevant evidence nor the discovery of the fact inadmissible at the trial. The weight to be attached to such evidence depends on the facts and circumstances involved in each case. The court is required to scan the evidence with care and to act upon it when it is proved and the court would hold that the evidence would be relied upon. In support of his submission, the learned Public Prosecutor relies upon the case of State of Himachal Pradesh vs. Pirthi Chand and Another, (1996) 2 SCC 37 . 11. The learned Public Prosecutor lastly submits that for failure to comply with procedural direction, substantive matter should not be dismissed. In other words, substantive justice must always prevail over procedural or technical justice. In this connection, he relies upon the case of State vs. M. Subrahmanyam, (2019) 6 SCC 357 . 12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, including the authorities relied upon by the parties. 13. In this connection, he relies upon the case of State vs. M. Subrahmanyam, (2019) 6 SCC 357 . 12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, including the authorities relied upon by the parties. 13. From the projection made by the appellant, the issue to be decided is as to whether mens rea which is an essential ingredient to secure a conviction under Section 489 ‘C’ IPC is missing and that the participation of the informant in an investigation process has vitiated in the case of the prosecution. 14. It will be gainful to abstract Section 489 ‘C’ IPC for ready perusal as below:- “489-C. Possession of forged or counterfeit currency-notes or banknotes - Whoever has in 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.” 15. From the above abstract, what may be seen is that in order to attract prosecution under the aforesaid section of law, the basic ingredient is that the person who is in possession of the forged or counterfeit currency notes or bank note should have the knowledge or should have the reason to believe that the same is a forged or counterfeit currency note. Further, the concerned person should have the intention to use the same as genuine or that it may be used as genuine. In the present case, from the evidence of the prosecution witnesses, more particularly PW-1, it may be seen that in his examination-in-chief, PW-1 deposed that the appellant stated that the FICN were given to him by Smt. Lalbiakthangi Varte @ Seni of Chanmari in order to resell them. Thereafter, he and his party proceeded to the shop of Smt. Lalbiakthangi Varte and upon questioning her, she admitted that she had given the FICN to the accused on the morning of 31.03.2017, but she refused to state from where and from whom she had received the same. Thereafter, he and his party proceeded to the shop of Smt. Lalbiakthangi Varte and upon questioning her, she admitted that she had given the FICN to the accused on the morning of 31.03.2017, but she refused to state from where and from whom she had received the same. Again PW-5, who was the case I.O. in his examination-in-chief deposed that after arresting the appellant and the co-accused Smt. Lalbiakthangi Varte, he thoroughly interrogated them and recorded their statements. The appellant admitted his guilt and stated that he had procured the suspected FICN from Smt. Lalbiakthangi Varte @ Seni of Chanmari, Aizawl knowingly with a view to gain some money from sale. As for the co-accused, Smt. Lalbiakthangi Varte, she stated that she received the suspected FICN from Lala of Bagha. The evidence of the two prosecution witnesses during their cross examination were neither falsified, shakened nor demolished. PW-4, in her examination-in-chief deposed that on 06.04.2017, Forensic Science Laboratory, Mizoram received 305 numbers of suspected FICN of Rs. 2000/- denomination which was then examined by her with one Mr. R. Vanlalkima, Assistant Director, Forensic Science Laboratory through various scientific methods and instruments available and it was found that the currency notes were not genuine and were counterfeit notes. The deposition of the said witness was again neither falsified nor effectively rebutted during her cross examination. 16. During his examination under Section 313 of the Cr.P.C. the appellant admitted that the FICN were seized from him on 31.03.2017 at 4:30 PM by the CID (SB) at the roadside of Zonuam but stated that he did not know that it was FICN. However, when he was confronted with the question that the FICN were given to him by Smt. Lalbiakthangi Varte for resale in the morning of 31.03.2017, he stated that one Mr. Mawia asked him to collect the seized Fake Currency from Smt. Lalbiakthangi Varte from her shop at Chandmari, Aizawl. It is a settled position in law that statements given in an examination under Section 313 of the Cr.P.C. cannot be the basis for conviction or acquittal of an accused person. The same is only a means to enable the accused person explain the circumstances and evidence which appears against him or her. Therefore, the statements of the appellant cannot have any probative value particularly having regard to the evidence of PW-1, 4 and 5. 17. The same is only a means to enable the accused person explain the circumstances and evidence which appears against him or her. Therefore, the statements of the appellant cannot have any probative value particularly having regard to the evidence of PW-1, 4 and 5. 17. The next contention raised by the learned counsel for the appellant is that in view of the informant having recorded the statements of the witnesses, the case of the prosecution stands vitiated. It is however noticed that the informant recorded the statements of the seizure witnesses on the date of the occurrence itself i.e. 31.03.2017. The materials available on record go to show that PW-5 was the case I.O. and during the investigation, the complainant appeared at the Police Station and was examined. His statements were recorded and the same corroborated with the FIR. The appellant and the co-accused were arrested and their statements recorded. Neither the final report/charge sheet nor the evidence of the prosecution witnesses reveals that the investigation in the matter concluded on the basis of the investigation conducted by the informant. 18. A reference was made to a Full Bench of the Apex Court in the case of Mukesh Singh (Supra) on the issue as to whether trial would be vitiated and the accused would be entitled for acquittal when the case is investigated into by the Police Officer who himself is the complainant. In examining the matter, a Full Bench of the Apex Court examined various cases decided by a Smaller Benches including the case of Bhagwan Singh vs. State of Rajasthan, AIR 1976 (SC) 985 , Megha Singh vs. State of Haryana, (1996) 11 SCC 709 and State vs. Rajangam (Supra). 19. Answering the reference made to it, the Full Bench at Paragraph Nos. 13, 13.1(I), 13.2(II) and 14 of the said judgment answered the reference as follows:- “13. From the above discussion and for the reasons stated above, we conclude and answer the reference as under: 13.1 (I) That the observations of this Court in Bhagwan Singh vs. State of Rajasthan, Megha Singh vs. State of Haryana and State vs. Rajangam and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal. 13.2 (II) In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in Mohan Lal vs. State of Punjab and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled. 14. The Reference is answered accordingly.” 20. Coming back to the present case and on a careful analysis of the materials available on record, it is nowhere seen or indicated that prejudice has been caused to the appellant in any manner because of the part played by the informant. Therefore, having regard to the law laid down by the Full Bench of the Apex Court as abstracted above and upon due consideration of the facts and circumstances involved, I am of the considered view that the prosecution has been able to establish their case with proof beyond reasonable doubt. Having concluded as such, I do not find the necessity to dwell upon the authorities relied upon by the counsel for the appellant as on facts, they are found to be inapplicable. Thus, the appeal has no merit and the same is dismissed.