1. The State of Uttarakhand has challenged the judgment dated 23.09.1993 passed by Additional Sessions Judge, Dehradun vide which appeal of accused Syeed Ahmad, filed against the judgment and order dated 13.01.1993 passed by Special Judicial Magistrate, CBI, Dehradun, has been accepted and accused Syeed Ahmad has been acquitted of the charges punishable under sections 472, 474, 120-B of the Indian Penal Code (hereafter referred to as IPC) Facts, in brief, are that Harish Chandra Joshi, Inspector CBI was the Investigating Officer in Case No. RC/85-CBI, New Delhi with regard to the case relating to preparation of forged passport and visa documents. During the investigation, he received information that Shamshad Ali and Mohd. Ali alias Bata along with some other persons were involved in preparing forged passports and visa documents. On this information, he arrested Shamshad Ali and conducted search of Mohd.
2. Ali's house but nothing objectionable was found. However, Shamshad Ali informed him that articles for preparing the forged passports were kept in the shop of Syeed Ahmad. Thus, at about 10.15 a.m. on 21.04.1986 Harish Chandra Joshi along with local police and two public witnesses namely PW2 Ved Pal Singh and PW10 Shiv Prasad, conducted the search of shop of Syeed Ahmad, in the name and style known as Prince Bearing Store, Saharanpur. During the search, five passports of five persons, two metal blocks of passport and one rubber stamp of Visa Officer of Pakistan Embassy were recovered. During investigation, it was revealed to the Investigating Officer that forged passports were printed in the printing press of accused Hari Chand Goyal. On this information, Investigating Officer along with local police and the above named two public witnesses conducted the search of printing press of Hari Chand Goyal known as "M/s Asha Printers, Saharanpur". During the search of the said printing press, one passport of Amir Ahmad, 601 stamp papers, 577 printed passport pages having Chakra, India & Bharat printed, were also recovered. Along with above- mentioned articles, 14 wooden seal and blocks were also recovered. The articles recovered from the shop of Syeed Ahmad and the printing press of Hari Chand Goyal were taken into possession vide memo exhibit Ka-1 and exhibit Ka-3. During the search 5 passports recovered from the shop included the passport of Syeed Ahmad himself and two passports in the name of his Kariman. The impression of two blocks and one rubber stamp of Pakistan Embassy were taken on one paper, which is exhibit Ka-2. The impression of blocks recovered from the printing press was taken on paper, which is exhibit Ka-4 and Ka-5. Both the accused were arrested and the case was registered against them. The investigation was thereafter handed over to Satbir Singh, Inspector CBI. Recovered stamps and blocks of passport were sent to Indian Security Press, Nasik for analysis and on analysis by the Indian Security Press, Nasik it was found that recovered stamp and blocks were forged and with the help of those forged stamps and blocks forged passport and visa could be prepared.
3. On completion of the investigation, challan was presented and respondent and Hari Chand Goyal were charge-sheeted for the offence punishable under sections 472, 474 and 120-B IPC to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined PW1 Harish Chandra Joshi, the Investigating Officer; PW2 Ved Pal Singh, public witness, joined during the search; PW3 Raj Bahadur, was the owner of the shop, which was rented out to Hari Chand Goyal where he was running printing press; PW4 Mohd. Islam was partner of Hari Chand Goyal in the printing press upto 07.07.1984, PW5 Muntzir Haider Kazmi was also partner in printing press of Hari Chand Goyal and their partner ended in the year 1984. PW6 Mohd. Tanveer was the owner of shop wherein Syeed Ahmad was running his shop in the name and style of "Prince Bearing Store" and Syeed Ahmad was the tenant. He proved the rent agreement exhibit Ka-10. PW7 Sriyans Kumar Jain was working as stamp vendor from whom accused Hari Chand Goyal had purchased stamp papers. PW8 Naresh Kumar was the owner of Vikas Chit Saving Fund. PW9 Zishan Ahmad was working in Asha Printing Press since April 1986 owned by Hari Chand Goyal. PW10 Shiv Prasad public witness, was joined during the search. PW11 Satbir Singh is also the Investigating Officer.
5. Accused when examined under section 313 Cr.P.C. pleaded false implication and denied the incriminating evidence put to them by the prosecution. According to respondent Syeed Ahmad, nothing was recovered from his shop and he was not present at the time of alleged search. He further stated that CBI got his signatures on the search memo in the police station. According to him, 'Prince Bearing Store' is in partnership with his father and is not in his exclusive possession. According to him, he has been falsely implicated by the CBI, as he refused to depose against Mohd. Ali alias Bata. Accused Hari Chand Goyal stated that neither any search was conducted in his printing press nor any article was recovered from his press. He was kept under custody for seven days and out of frustration and fed up with the atrocities committed by CBI officers he signed some papers. Hari Chand Goyal appeared as DW 1.
6. The trial court after taking into consideration the evidence and document on record convicted both the accused Hari Chand Goyal and Syeed Ahmad for the offences punishable under section 472, 474, 120-B IPC and sentenced them to undergo six-month rigorous imprisonment under section 120-B IPC. They have been ordered to undergo two years rigorous imprisonment and fine of Rs. 3000/- under section 472 IPC and in default of payment of fine, they have been order to undergo further six month rigorous imprisonment. Accused Hari Chand Goyal has been sentenced to undergo two years rigorous imprisonment and fine of Rs. 3000/- under section 474 IPC and in default of payment of fine, he has been order to undergo further six month rigorous imprisonment.
7. Since aggrieved both the accused challenged the order of the Special Judicial Magistrate before Sessions Judge, Dehradun, who accepted the appeal of respondent Syeed Ahmad and acquitted him of the charges for which he had been convicted and sentenced, however, dismissed the appeal filed by accused Hari Chand Goyal.
6. Since aggrieved by the judgment of Appellate Court, State has filed present appeal. I have heard Mr. Nandan Arya, learned AGA for the State / appellant and Mr. I.S. Mehra, learned counsel for the respondent.
7. Learned AGA submitted that it is not disputed that the search was conducted as per law and there is no violation of sections 100 (4) and 165 of Criminal Procedure Code, as two independent witnesses from the public were joined before conducting the search. Learned AGA submitted that recovery has been proved from the statement of Harish Chandra Joshi and independent public witness PW2 Ved Pal, PW 10 Shiv Prasad.
8. It was also pleaded before the Appellate Court that sanction has not been taken from the State Government before taking cognizance of the offence against the accused. In this regard Appellate Court held that no sanction as per provisions of sub clause (2) of section 196 of Criminal Procedure Code was required in the present case. The other argument raised by learned counsel for the accused was that there is no evidence that the articles which were recovered from the shop of the respondent were sent to Indian Security Press, Nasik. This argument was rejected by the Appellate Court holding that the articles, which were actually recovered from the shop of respondent and printing press of the accused, have been proved to be sent for analysis. Learned Appellate Court acquitted the respondent Syeed Ahmad mainly on the ground that articles which are alleged to have been recovered from the drawer in 'Prince Bearing Store' was lying open and was not locked. It has, thus, been held that those articles were not in exclusive possession of Syeed Ahmad, as his father was also partner in the business. Even besides Syeed Ahmad and his father, his brother- in-law along with and other workmen were also working in the shop. Respondent Syeed Ahmad used to be away from shop relating to business work and in his absence, his father and other people were working in the shop. At the time when search was conducted by the Investigating Officer, Syeed Ahmad was summoned from his house and thereafter, shop was opened. It was, therefore, held that recovered articles cannot be said to be in exclusive possession of Syeed Ahmad.
9. Learned AGA submitted that it is not disputed that shop was rented out in favour of Syeed Ahmad and this has been proved by PW6 Mohd. Tanveer. PW6 Mohd. Tanveer categorically stated that Syeed Ahmad is his tenant. He proved rent agreement Exhibit Ka-10, which bears the signature of his father and respondent Syeed Ahmad. He also proved receipt books bearing no. 1359 and 1360 which were taken in possession vide memo exhibit Ka-11. From his statement, possession of Syeed Ahmad over the shop is well proved. Though this witness stated that in the absence of Syeed Ahmad, his father and his brother-in- law and other workmen, also worked in the shop it does not show that the shop was not in exclusive possession of Syeed Ahmad. Rubber stamps and blocks for preparing the forged passport and visa were recovered from the drawer in the shop, which was rented out in favour of accused Syeed Ahmad. At the time, when search was conducted the shop was locked and it was opened by Syeed Ahmad himself. The mere fact that his father and brother-in-law were working in the same shop does not absolve the accused from his involvement, as the shop is in his possession and is rented out to him. It is well proved from the independent witnesses that five forged passports, blocks and other articles were recovered, which were used for preparing the forged passport from the shop run and owned by accused Syeed Ahmad. The observation of the learned Appellate Court that it is not proved by the prosecution that only Syeed Ahmad was having knowledge about the recovered articles, appears to be based on conjectures and surmises. Recovered articles have been proved to be used for preparing forged passports and visa documents and therefore, the findings of the Appellate Court are totally perverse and not based on any evidence on record. There is nothing to prove that articles recovered were in the knowledge any other person than respondent Syeed Ahmad. They were not lying in the open but were kept in a drawer in the shop. The Analyst of the Indian Security Press, Nasik has categorically opined that recovered rubber stamps and blocks were fake and that could be used for preparing the forged passport and visa documents. Syeed Ahmad was tenant in the shop and he carried out the business in the partnership. His father was partner only to the extent of 20% and he was partner to the extent of 80% share in the business. There is no doubt with regard to recovery of articles and as per expert report exhibit Ka-23 articles could be used for preparing forged passport and visa documents, thus, prosecution has been able to prove that Syeed Ahmad and the other co-accused were working together and involved in criminal conspiracy to prepare forged passports and visa documents. In view of the above discussion, the Government appeal is allowed. The findings of the Appellate Court recorded vide judgment dated 23.09.1993 are set aside qua respondent Syeed Ahmad. The judgment and order dated 13.01.1993 passed by the trial court is maintained. Accused Syeed Ahmad be taken into custody forthwith in order to serve the sentence as awarded by the trial court vide judgment and order dated 13.01.1993. The court below is directed to ensure the compliance of the order.
10. Let the lower court record be sent back.