# Ashfaque v. State of U.P

- **Citation:** (2016) 1 ILRA 144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-23
- **Case number:** Criminal Appeal No. 261 of 2014
- **Bench:** Surendra Vikram Singh Rathore, Pratyush Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashfaque-v-state-of-u-p-43398
- **Pages:** 10

## Headnote

offence under Section 489-B IPC life
imprisonment-with fine Rs. 25000/- and
489-C IPC, 7 years Respondent -1 with
fine Rs. 7000/-on ground for same offence
twice
punishment
not
permissibleargument
that
mere
possession
of
counterfeit currency-can not be termed as
accused-held-since denial the charges-no
explanation about possession of such
currency given-appellant failed discharge
their burden of proof-as per Section 106 of
evidence act inference drawn by Trail
Court-proper-findings
warrant
no
interference-but when major punishment
of
life
imprisonment's
there-minor
punishment u/s 489-uncalled for -set-aside.
Held: Para-26
Since the appellants had preferred to
plead total denial,they had not cared to
explain as to why such currency notes
were
in
their
possession
though
according to provisions contained in
Section 106 of the Evidence Act the
burden was on them to explain it. Their
failure to do so raises an adverse
inference against them and for such
1 All. Ashfaque Vs. State of U.P.
145
inference
we
conclude
that
their
possession was not mere conscious
possession, they meant either to use the
counterfeit currency notes or transport
them.
(B)Criminal Appeal-offence under Section
489-B conviction of life imprisonment with
fine of Rs. 25000/- considering young age
of appellant-having no previous criminal
history-punishment of life imprisonment
held-too much harsh-reduced to 10 yearsreasons discussed.
Held: Para-30
The appellants were connected with
international criminals or with terrorist
organizations. To this extent we find the
reasoning of the learned trial Judge is
erroneous. Appellant Ashfaque was aged
about 25 years and appellant Jaikam was
aged about 28 years, keeping in view
their age we think that in the present
matter imprisonment for life is very
harsh sentence because it means the
appellants will remain confined in jail till
the end of their natural lives that too on
the basis of conjectures and surmises. It
is their first conviction, their age also
persuades us to reduce their sentence.
Case Law discussed:
[1995 Supreme Court Cases (Crl) 222]; [1995
CRI.L.J. 2659 (Supreme Court), 2659]; [2005
(1) Supreme Court Cases 237]; [2001 (9)
Supreme
Court
Cases
642];
[1979
(4)
Supreme Court Cases 723]; AIR 2000 SC
1691; 1999 Cri.L.J. 942; 1962 (2) Cri. L.J. 765.

## Text

144
 INDIAN LAW REPORTS ALLAHABAD SERIES
respect to their claims, with liberty to the
Insurance Company to recover the amounts
paid by it over and above the compensation
amounts payable in respect of the persons
covered by the Insurance Policy from the
owner of the vehicle, as was directed in
Baljit Kaur's case.
27. In other words, the Appellant
Insurance Company shall deposit with the
Tribunal the total amount of the amounts
awarded in favour of the awardees within
two months from the date of this order and
the same is to be utilized to satisfy the claims
of those claimants not covered by the
Insurance Policy along with the persons so
covered. The Insurance Company will be
entitled to recover the amounts paid by it, in
excess of its liability, from the owner of the
vehicle, by putting the decree into execution.
For the aforesaid purpose, the total amount
of the six Awards which are the highest shall
be construed as the liability of the Insurance
Company. After deducting the said amount
from the total amount of all the Awards
deposited in terms of this order, the
Insurance Company will be entitled to
recover the balance amount from the owner
of the vehicle as if it is an amount decreed by
the Tribunal in favour of the Insurance
Company. The Insurance Company will not
be required to file a separate suit in this
regard in order to recover the amounts paid
in excess of its liability from the owner of the
vehicle.
10. In view of the above discussions,
I do not find any merit in this appeal.
Consequently, the appeal fails and is
hereby dismissed.
11. The amount deposited before
this Court shall be remitted to the
Tribunal concerned for adjustment.
-------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2016
BEFORE
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.
THE HON'BLE PRATYUSH KUMAR, J.
Criminal Appeal No. 261 of 2014
and Criminal Appeal No. 262 of 2014
Ashfaque
 ...Appellant
Versus
State of U.P.
...Respondents
Counsel for the Appellant:
Rajbaksh Singh
Counsel for the Respondents:
Govt. Advocate
(A)Criminal
Appeal-against
conviction
offence under Section 489-B IPC life
imprisonment-with fine Rs. 25000/- and
489-C IPC, 7 years Respondent -1 with
fine Rs. 7000/-on ground for same offence
twice
punishment
not
permissibleargument
that
mere
possession
of
counterfeit currency-can not be termed as
accused-held-since denial the charges-no
explanation about possession of such
currency given-appellant failed discharge
their burden of proof-as per Section 106 of
evidence act inference drawn by Trail
Court-proper-findings
warrant
no
interference-but when major punishment
of
life
imprisonment's
there-minor
punishment u/s 489-uncalled for -set-aside.
Held: Para-26
Since the appellants had preferred to
plead total denial,they had not cared to
explain as to why such currency notes
were
in
their
possession
though
according to provisions contained in
Section 106 of the Evidence Act the
burden was on them to explain it. Their
failure to do so raises an adverse
inference against them and for such
1 All. Ashfaque Vs. State of U.P.
145
inference
we
conclude
that
their
possession was not mere conscious
possession, they meant either to use the
counterfeit currency notes or transport
them.
(B)Criminal Appeal-offence under Section
489-B conviction of life imprisonment with
fine of Rs. 25000/- considering young age
of appellant-having no previous criminal
history-punishment of life imprisonment
held-too much harsh-reduced to 10 yearsreasons discussed.
Held: Para-30
The appellants were connected with
international criminals or with terrorist
organizations. To this extent we find the
reasoning of the learned trial Judge is
erroneous. Appellant Ashfaque was aged
about 25 years and appellant Jaikam was
aged about 28 years, keeping in view
their age we think that in the present
matter imprisonment for life is very
harsh sentence because it means the
appellants will remain confined in jail till
the end of their natural lives that too on
the basis of conjectures and surmises. It
is their first conviction, their age also
persuades us to reduce their sentence.
Case Law discussed:
[1995 Supreme Court Cases (Crl) 222]; [1995
CRI.L.J. 2659 (Supreme Court), 2659]; [2005
(1) Supreme Court Cases 237]; [2001 (9)
Supreme
Court
Cases
642];
[1979
(4)
Supreme Court Cases 723]; AIR 2000 SC
1691; 1999 Cri.L.J. 942; 1962 (2) Cri. L.J. 765.
(Delivered by Hon'ble Pratyush Kumar, J.)
1. Both the appeals arise out of the
same
judgment
and
order
dated
10.02.2014 passed in Sessions Trial No.
16 of 2013 [State Vs. Ashfaque and
another], they have been heard together
and are disposed of by a common order.
2. In the aforesaid appeals the
appellants Ashfaque and Jaikam have
been convicted and sentenced as under:
U/s 489-B IPC : Life Imprisonment
with fine of Rs.25,000/- each
 : In default of
payment of fine two years RI.
U/s 489-C IPC : Five years RI with
fine of Rs.7,000/- each
 : In default of
payment of fine six months' RI.
3. In the present case facts of the
prosecution case may be summarized as
under:
That on 26.09.2012 at 8.25 PM at
GRP Faizabad on the basis of recovery
memo, chick FIR was scribed, case crime
no. 63 of 2012, under Sections 489-B &
489-C IPC was registered and requisite
entry was made in the report of the
general diary. According to the recovery
memo, SI Brijesh Kumar Singh, the then
Station Officer, was on patrol duty at
Railway Station, Faizabad along with a
police party to prevent the commission of
any crime, make search for criminals and
unwanted
elements
and
objectional
articles. Thus received the information
from the informer that two persons
carrying counterfeit currency notes had
come to the station and they were trying
to pass off the counterfeit currency notes.
When the police party lead by him
reached near second class waiting room,
in the passenger hall near ticket booking
window, they saw two persons sitting on a
cement slab and on the pointing out of the
informer when those persons were spoken
to, they ran towards west side, at about
5.05 PM they were arrested and disclosed
their names as Ashfaque and Jaikam.
Both resident of District Bharatpur
(Rajsthan). They confessed that they had
counterfeit currency notes which they
were
bringing
from
Farrkka
(West
Bengal)
to
Gurgaon
(Haryana)
by
146
 INDIAN LAW REPORTS ALLAHABAD SERIES
Farrakka Express. When they came to
know that ahead checking was made, they
deboarded there and were trying to pass
off fake currency notes. When asked, no
passenger consented to be a witness, they
with due formality searched the accused
persons, during search they recovered
seven bundles of fake currency notes
amounting to Rs.3,50,000/- wrapped in a
cloth sheet from a plastic bag held by
Ashfaque. Thereafter details of those
notes were noted down. From the search
of co-accused Jaikam from his right hand
one cloth bag was taken and searched and
from there fake currency notes of
Rs.3,00,000/- were found wrapped in a
Lungi. Details of these notes were also
noted
down.
Recovery
memo
was
prepared. Arrested persons along with
seized property were deposited in the
police station and the said case crime
number was registered.
4. During the investigation the
seized currency notes were sent for
examination to Currency Printing Press,
Nasik (Maharashtra), where the notes
were
found
counterfeit.
After
investigation charge-sheet was submitted.
5. The appellants were charged by
the Court of Session, under Sections 489
(Kha) and 389 (Ga) IPC. The appellants
denied the charges and claimed to be
tried.
6.
In order to prove the charges on
behalf of the prosecution in documentary
evidence, besides other papers Recovery
Memo Ext. Ka-1, Memo Ext. Ka-2, Ka-3,
FIR Ext. Ka-4, Copy of Report Ext. Ka-5,
Report Ext Ka-6 and Site Plan & Currency
Note Press Report Ext. Ka-8, Ka-9 & Ka-10
were filed. In the oral evidence five witnesses
were examined. Thereafter statements of the
appellants were recorded under Section 313
CrPC wherein they denied the facts stated by
the prosecution witnesses. According to them,
they were falsely implicated due to enmity.
According
to
appellant-Ashfaque
on
26.09.2012 by Marudhar Express he was
going to Varanasi, at Railway Station,
Faizabad GRP personnel de-boarded him,
they took his ticket and Rs.30,000/- cash and
locked him in the lockup. After many requests
he was released but when he demanded
money back the Station Officer got annoyed
and framed him in the present matter.
According to appellant Jaikam, he was also
going in the same manner and he was falsely
implicated in the present case. The only
variation in his statement is that from him
Rs.25,000/- were taken.
7. After hearing the arguments the
learned
trial
Judge
convicted
the
appellants and sentenced them as above.
8. We have heard Sri Raj Baksh
Singh, learned counsel for the appellants
and Ms. Ruhi Siddiqui, learned A.G.A.
for the State and perused the record.
9. On behalf of the appellants it has
been submitted that learned trial Judge
has wrongly believed the prosecution
case, no recovery was made from the
possession
of
the
appellants.
No
independent witness has been examined
on behalf of the prosecution. He further
submits that according to the prosecution
version only fake currency notes were
recovered from the possession of the
appellants, their use has not been even
alleged
by
the
prosecution.
The
conviction of the appellants under Section
489-B IPC is itself bad in law.
10. On behalf of the State these
arguments have been repelled.
1 All. Ashfaque Vs. State of U.P.
147
11. Before entering into the merits
of the appeal, we would like to recall the
observation made by the Apex Court in
the case of Ishvarbhai Fuljibhai Patni Vs.
State of Gujarat [1995 Supreme Court
Cases (Crl) 222] whereby duties of the
appellate court have been outlined. Para-4
of the judgment reads as under:
"4. Since, the High Court was dealing
with the appeal in exercise of its appellate
jurisdiction, against conviction and sentence
of life imprisonment, it was required to
consider and discuss the evidence and deal
with the arguments raised at the bar. Let
alone, any discussion of the evidence, we do
not find that the High Court even cared to
notice the evidence led in the case. None of
the arguments of the learned counsel for the
appellant have been noticed, much less
considered and discussed. The judgment is
cryptic and we are at loss to understand as
to what prevailed with the High Court to
uphold the conviction and sentence of the
appellant. On a plain requirement of justice,
the High Court while dealing with a first
appeal against conviction and sentence is
expected to, howsoever briefly depending
upon the facts of the case, consider and
discuss the evidence and deal with the
submissions raised at the bar. If it fails to do
so, it apparently fails in the discharge of one
of its essential jurisdiction under its
appellate powers. In view of the infirmities
pointed out by us, the judgment under
appeal cannot be sustained."
12. In the case of Lal Mandi,
Appellant v. State of West Bengal,
Respondent
[1995
CRI.L.J.2659
(Supreme Court), 2659], the Apex Court
in para-5 of the report has given the
caution to the High Court reminding its
duty in the matter of hearing of appeal
against conviction. It would be gainful to
reproduce the observation made in para-5
of the report, extracted below:
"5. To say the least, the approach of
the High Court is totally fallacious. In an
appeal against conviction, the Appellate
Court has the duty to itself appreciate the
evidence on the record and if two views
are possible on the appraisal of the
evidence, the benefit of reasonable doubt
has to be given to an accused. It is not
correct to suggest that the "Appellate
Court cannot legally interfere with" the
order of conviction where the trial court
has found the evidence as reliable and that
it cannot substitute the findings of the
Sessions Judge by its own, if it arrives at a
different conclusion on reassessment of
the evidence. The observation made in
Tota Singh's case, which was an appeal
against
acquittal,
have
been
misunderstood and mechanically applied.
Though, the powers of an appellate court,
while dealing with an appeal against
acquittal and an appeal against conviction
are equally wide but the considerations
which weigh with it while dealing with an
appeal against an order of acquittal and in
an appeal against conviction are distinct
and
separate.
The
presumption
of
innocence
of
accused
which
gets
strengthened on his acquittal is not
available on his conviction. An appellate
court may give every reasonable weight to
the conclusions arrived at by the trial
court but it must be remembered that an
appellate court is duty bound, in the same
way as the trial court, to test the evidence
extrinsically as well as intrinsically and to
consider as thoroughly as the trial court,
all the circumstances available on the
record so as to arrive at an independent
finding regarding guilt or innocence of the
convict. An Appellate Court fails in the
discharge of one of its essential duties, if
148
 INDIAN LAW REPORTS ALLAHABAD SERIES
it fails to itself appreciate the evidence on
the record and arrive at an independent
finding based on the appraisal of such
evidence."
13. Recovery Officer Brijesh Kumar
Singh
P.W.1
has
supported
the
prosecution version and proved the
recovery memo Ext. Ka-1. He has
identified the case property including
plastic bag, cloth bag, cloth sheet and
Lungi, material Exts. 1 to 5 (four articles
wrongly exhibited as five). He has also
identified bundles of fake currency notes
recovered by him.
14. Sub Inspector Rajendra Prasad
Misra, P.W.2 was a member of the force
lead by Sri Brijesh Kumar Singh P.W.1 at
the relevant date and time. He also
supported the prosecution version.
15. Head Constable Ram Bujhawan
Chaudhary P.W.3 is the scribe of chick
FIR. He has proved chick FIR Ext. Ka-4
and other police papers.
16. Sub-Inspector Sudhakar Pandey
P.W.4 is the IInd Investigating Officer,
who gave details of the steps taken by him
in the course of investigation. He has
proved the charge-sheet Ext. Ka-7.
17. Sub Inspector Hari Shankar
Prajapati P.W.5 is the Ist Investigating
Officer, who gave details of steps taken
by him during the course of investigation
and proved the site plan Ext. Ka-8.
18. In the statement of Brijesh
Kumar Singh P.W.1 and Sub Inspector
Rajendra Prasad Misra P.W.2, certain
discrepancies have been pointed out on
behalf of the appellants. It is admitted fact
that no two police personnel can perceive,
retain in memory and describe the same
actually in the same language whatever
they had perceived together. Considering
this human factor we think the indicated
discrepancies cannot be made basis to
reject the prosecution evidence.
19. Both these witnesses have signed
the recovery memo, their departure for
patrolling stood corroborated by the report
of the general diary, their presence at the
relevant place, time and date cannot be
doubted upon. During cross-examination no
major contradiction had occurred. Merely
on the basis of non examination of
independent witness we cannot reject the
testimonies of these two witnesses. More
so, when reason for not taking independent
witness have been mentioned in the
recovery memo, we find that learned trial
Judge has rightly believed them.
20. From the report of the Currency
Printing Press, Nasik (Maharashtra) Ext.
Ka-5, it also stands proved that the
recovered
currency
notes
were
counterfeit. From the evidence of these
two witnesses recovery of these fake
notes
from
the
possession
of
the
appellants also stands proved, thus, we
notice that conviction of the appellants
under Section 489-C IPC has been rightly
made by the learned trial Judge.
21. On behalf of the appellants their
conviction and sentence under Section
489-B IPC has been challenged on the
basis that mere possession would not be
enough to convict them under Section
489-B IPC. On behalf of the appellants in
support of this argument following cases
have been referred.
1. K. Hasim Vs. State of Tamil Nadu
[2005(1) Supreme Court Cases 237]. In
1 All. Ashfaque Vs. State of U.P.
149
paras 48 and 49 of the report difference
between
the
ingredients
constituting
offence punishable under Sections 489-B
& 489-C IPC have been enumerated. We
can refer these two paras gainfully for our
consideration, they read as under:
"48.Similarly Section 489 B relates to
using as genuine forged or counterfeited
currency notes or bank notes. The object of
Legislature in enacting this section is to stop
the circulation of forged notes by punishing
all persons who knowing or having reason
to believe the same to be forged do any act
which could lead to their circulation.
49.Section
489C
deals
with
possession of forged or counterfeit
currency notes or bank notes. It makes
possession of forged and counterfeited
currency notes or bank notes punishable."
2.
Umashanker
Vs.
State
of
Chhattisgarh [2001 (9) Supreme Court
Cases 642]. In support of his argument
learned counsel for the appellants has
placed reliance on para 7 of the report,
which reads as under:
"7. Sections 489-A to 489-E deal
with various economic offences in respect
of forged or counterfeit currency-note or
bank-notes. The object of Legislature in
enacting these provisions is not only to
protect the economy of the country but
also to provide adequate protection to
currency-notes
and
bank-notes.
The
currency-notes are, in spite of growing
accustomedness to the credit cards
system,
still
the
backbone
of
the
commercial transactions by multitudes in
our country. But these provisions are not
meant to punish unwary possessors or
users."
3. M. Mammutti Vs. State of
Karnataka [1979 (4) Supreme Court
Cases 723]. This case has been referred in
support
of
the
argument
that
the
appellants were not specifically asked
about their knowledge whether recovered
currency notes were fake or not.
22.

The
learned
Additional
Government Advocate has submitted
that possession of fake currency notes of
Rs.3,50,000/- by appellant Ashfaque and
Rs.3,00,000/- by appellant Jaikam is in
itself an evidence that they were carrying
the fake notes to use them as genuine. He
has further submitted that failure of the
appellants to explain such huge recovery
from their possession is also an evidence
that the appellants had mens rea to use fake
currency notes as genuine.
23. In support of his argument,
learned Additional Government Advocate
has referred the provisions contained in
Sections 106 and 114(h) of the Evidence
Act. Before proceeding further we would
like to reproduce the provisions contained
in Sections 106 and 114(h) of the
Evidence Act, they read as under:
Section 106 - When any fact is
especially within the knowledge of any
person, the burden of proving that fact is
upon him.
Section 114. The Court may presume
the existence of any fact which it thinks
likely to have happened, regard being had
to the common course of natural events,
human conduct and public and private
business, in their relation to the facts of
the particular case.
The court may presume-----
114(h)-that if a man refuses to
answer a question: which he is not
compelled to answer by law, the answer,
if given, would be unfavourable to him."
150
 INDIAN LAW REPORTS ALLAHABAD SERIES
24. To elaborate the thrust of the
argument
advanced
by
the
learned
Additional Government Advocate is that
it was for the appellants to explain how
they come in possession of counterfeit
currency
notes
and
they
had
no
knowledge that those are counterfeit
notes.
25. The case law referred by the
learned counsel for the appellants is of no
help to the appellants because here the
question is whether conviction of the
appellants in addition to Section 489-C
IPC in Section 489-B IPC is legal or not ?
None of the cases referred by him throws
any light on this point as against that we
find that the evidence of recovery of
counterfeit currency notes from the
appellants is relevant and admissible in
this reference also. Simple discovery of
counterfeit notes from the appellants does
not stand proved from the evidence of
recovery but also their knowledge and
their state of mind that is knowledge
about fake currency is also established
from that evidence. On this point our view
stand fortified by the explanation given by
the Apex Court in the case of State of
Maharashtra Vs. Damu Gopi Nath Shinde
and others [AIR 2000 SC 1691] wherein
Apex Court has observed as under:
"36. The basic idea embedded in
Section 27 of the Evidence Act is the
doctrine of confirmation by subsequent
events. The doctrine is founded on the
principle that if any fact is discovered in a
search made on the strength of any
information obtained from a prisoner,
such a discovery is a guarantee that the
information supplied by the prisoner is
true.
The
information
might
be
confessional or non-inculpatory in nature,
but if it results in discovery of a fact it
becomes a reliable information. Hence the
legislature permitted such information to
be used as evidence by restricting the
admissible portion to the minimum. It is
now well settled that recovery of an
object is not discovery of a fact as
envisaged in the section. The decision of
the Privy Council in Pulukuri Kottaya v.
Emperor AIR 1947 PC 67 is the most
quoted authority for supporting the
interpretation that the "fact discovered"
envisaged in the section embraces the
place
from
which
the
object
was
produced, the knowledge of the accused
as to it, but the information given must
relate distinctly to that effect.
37. No doubt, the information
permitted to be admitted in evidence is
confined to that portion of the information
which "distinctly relates to the fact
thereby discovered". But the information
to get admissibility need not be so
truncated as to make it insensible or
incomprehensible.
The
extent
of
information admitted should be consistent
with understandability. In this case, the
fact discovered by PW 44 is that A-3
Mukinda Thorat had carried the dead
body of Dipak to the spot on the
motorcycle.
38.
How
did
the
particular
information led to the discovery of the
fact? No doubt, recovery of dead body of
Dipak
from
the
same
canal
was
antecedent to the information which PW
44 obtained. If nothing more was
recovered pursuant to and subsequent to
obtaining the information from the
accused, there would not have been any
discovery of any fact at all. But when the
broken glass piece was recovered from
that spot and that piece was found to be
part of the tail lamp of the motorcycle of
A-2 Guruji, it can safely be held that the
Investigating Officer discovered the fact
1 All. Ashfaque Vs. State of U.P.
151
that A-2 Guruji had carried the dead body
on that particular motorcycle up to the
spot.
39.In view of the said discovery of
the fact, we are inclined to hold that the
information supplied by A-2 Guruji that
the dead body of Dipak was carried on the
motorcycle up to the particular spot is
admissible in evidence. That information,
therefore, proves the prosecution case to
the abovementioned extent."
26. After dealing with this whether the
appellants had possessed the necessary mens
rea, the second aspect is whether recovery of
large number of counterfeit currency notes
are
sufficient
to
establish
that
their
possession amounts to an offence punishable
under Section 489-B IPC. This section
prohibits use of or trafficking with the
counterfeit
currency
notes.
Since
the
appellants had preferred to plead total
denial,they had not cared to explain as to
why such currency notes were in their
possession though according to provisions
contained in Section 106 of the Evidence Act
the burden was on them to explain it. Their
failure to do so raises an adverse inference
against them and for such inference we
conclude that their possession was not mere
conscious possession, they meant either to
use the counterfeit currency notes or
transport them. In the case of Rayab Jusab
Sama Vs. State of Gujarat [1999 Cri. L. J.
942] the Division Bench of Gujarat High
Court has held the possession of large
number of fake currency notes to be a case of
active transportation of such notes. The
observation made by the Division Bench in
that case also substantiates the view formed
by us. Para-10 of the report reads as under:
10.The learned counsel for the
appellant contended that the prosecution
had failed to prove the offence under S.
489-B of the Indian Penal Code even if it
is held that the offence of possession the
fake currency notes under S.489-C is
proved.
This
submission
is
wholly
erroneous because the evidence clearly
establishes that the appellant was found
carrying 250 fake currency notes on a
public road in the city of Bhuj concealed
in a Thela beneath cloth pieces as alleged
in the charge.
He
was, therefore,
transporting the said currency notes at the
time when he was apprehended with
them. Therefore, this is not a case of mere
dormant possession, but, it is a case of
active transportation of the currency
notes, which would fall within the
expression 'traffics in such currency
notes.' Section 489-B of the Indian Penal
Code clearly contemplates the cases
where the counterfeit currency notes are
received from any other person as also the
cases where a person traffics in such
currency notes knowing or having reason
to believe the same to be forged or
counterfeit.
In
our
opinion,
these
ingredients of the offence under S.489-B
are
clearly
established
against
the
appellant. He was not only carrying 250
counterfeit currency notes on 9.4.1996 but
he had concealed 101 other such
counterfeit currency notes which he later
discovered
before
the
Panchas
on
12.4.1996.
It
is,
therefore,
clearly
established
that
the
appellant
was
trafficking in these counterfeit currency
notes which he had received from some
source. The appellant is, therefore, rightly
held guilty of the offences under Ss. 489B and 489-C of the Indian Penal Code by
the trial Court and we are in complete
agreement with the reasoning adopted by
the trial Court for reaching its conclusions
on this count. We are not concerned in
this appeal, as noted above, with the
offences under the Passport Act for which
the accused was acquitted."
152
 INDIAN LAW REPORTS ALLAHABAD SERIES
27. In view of above we come to the
conclusion
that
the
arguments
to
challenge the conviction of the appellants
under Section 489-B IPC also fail and
charge against the appellants under
Section 489-B IPC stands proved beyond
reasonable doubt.
28. Here we would like to see and
explain that though we are in agreement
with the findings recorded by the learned
trial Judge that the possession and
trafficking of the counterfeit currency
notes against the present appellants are
established beyond doubt and they have
been rightly convicted under Sections
489-B & 489-C IPC but from this
juncture we disagree with the learned trial
Judge that both the appellants should have
been punished on both counts. The
offence punishable under Section 489-B
IPC is a major offence and offence
punishable under Section 489-C IPC is a
minor offence. When a person is
convicted and sentenced under Section
489-B IPC his conviction under Section
489-C IPC has been held to be not
warranted in law. A person cannot be
punished twice for the same offence.
After convicting the appellants the
learned trial Judge should have punished
the appellants only for one offence i.e.
major offence. In a similar case Justice
K.S. Hegde (as His Lordship then was)
speaking for the Division Bench of
Mysore High Court, has observed in para
33 of the report that if a person has been
convicted under Section 489-B IPC, his
conviction under Section 489-C IPC
becomes redundant vide V. Govindrajalu
and others Vs. State of Mysore 1962 (2)
Cri. L. J. 765].
29. In view of above we come to the
conclusion that we would like to affirm
the conviction of the appellants under
Section 489-B and 489-C IPC but we
would like to set aside the sentence
awarded to the appellants under Section
489-C IPC.
30. The appellants have been
awarded imprisonment for life under
Section 489-B IPC. It is true that the
offence punishable under Section 489-B
IPC is punishable with imprisonment for
life or with imprisonment for a term
which may extend to ten years. In this
way, imprisonment for life is the
maximum sentence which could be
awarded under Section 489-B IPC. Now
we have to see whether learned trial Judge
has rightly exercised his discretion while
sentencing the appellants, we have
perused the reasons recorded by him to
award maximum sentence. The learned
trial Judge has noticed that trafficking in
counterfeit currency notes jeopardize the
economic condition of the country, it
indicates
that
the
appellants
had
connection with international criminals
and terrorist organizations. When we have
perused the whole of the record but we
could not find any material which shows
that the appellants were connected with
international criminals or with terrorist
organizations. To this extent we find the
reasoning of the learned trial Judge is
erroneous. Appellant Ashfaque was aged
about 25 years and appellant Jaikam was
aged about 28 years, keeping in view their
age we think that in the present matter
imprisonment for life is very harsh
sentence because it means the appellants
will remain confined in jail till the end of
their natural lives that too on the basis of
conjectures and surmises. It is their first
conviction, their age also persuades us to
reduce their sentence, the Hon'ble Apex
Court in the case of Samir Mustafabhai
1 All. Santosh Kumar Upadhyay Vs. State of U.P. & Ors.
153
Bajariya vs. State of Gujarat decided on
26.04.2013 has reduced the rigorous
punishment awarded under Section 489-B
IPC from 8 years to almost 4 years but in
the present case a large number of fake
currency notes have been recovered, in
such situation, we think instead of
imprisonment for life, imprisonment of
ten years RI would serve the ends of
justice. To this extent appeals deserve to
be allowed.
31. Accordingly, both the appeals are
partly allowed. The conviction of the
appellants under Sections 489-B & 489-C
IPC is affirmed and their sentences awarded
under Section 489-C are set aside. Sentence
of imprisonment for life awarded under
Section 489-B IPC are altered to undergo
rigorous imprisonment of ten years.
32. To the aforesaid extent the
impugned judgment and orders of the trial
court dated dated 10.02.2014 passed in
Sessions Trial No. 16 of 2013 [State Vs.
Ashfaque and another] are modified.
33. Office is directed to certify this
order to the court concerned forthwith for
compliance and to send back the lower
court record.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.01.2016
BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Writ-A No. 370 of 2016
Santosh Kumar Upadhyay ...Petitioner
Versus
State of U.P. & Ors.
.
..Respondents
Counsel for the Petitioner:
Rakesh Kumar Tiwari
Counsel for the Respondents:
C.S.C., Nisheeth Yadav
The
Uttar
Pradesh
Public
Services
(Reservation for physically handicapped,
dependent of freedom fighters & Exservicemen)(Amendment
Act
2015
Section-2)-enforced
w.e.f.
07.04.2015keeping
in
view
of
judgment
dated
26.08.2014 by Hon'ble High Court-petitioner
appeared as General candidate-declared
successful in preliminary examination as well
as in written examination in pursuance of
advertisement
dated
28.01.2015-U.P.
Combined
State/Upper
Subordinate
Examination
(General/Special
recruitment) 2015-dependent of freedom
fighters certificate issued on 21.04.2015during process of examination claimed 2
% reservation under freedom of fighter's
quota-held-"yes"-deny the benefit of being
descendant of freedom fighter having
lineage through married daughter-can not
be
approved-necessary
direction
for
treating dependent of freedom fighterissued.
Held: Para-18
Consequently, in the present case also,
keeping in view the peculiar facts of case
as is clearly reflected here
that a
declaration has been made by this Court
on 26.8.2014 and by ignoring the same
advertisement in question has been
issued and, thereafter, amendment in
question has been made that has been
held to be clarificatory in nature, then
even if that at the point of time when
preliminary examination has been held,
petitioner has proceeded to fill up the
form as general category candidate as at
the said point of time even though
judgment in the case of Isha Tyagi
(supra)
has
been
there,
respective
certificates were not being issued to the
incumbents by the authorities concerned
and certificates in question have been
issued only after amending act has been
introduced, in view of this, to deny the
benefit of being Descendant of Freedom