Sri. Santhosh K @ Santhosh Shetty @ Rohith Vs. State Of Karnataka - Court Judgment

Excerpt:
1 r in the high court of karnataka at bengaluru dated this the20h day of february, 2020 before the hon’ble mr. justice k. somashekar criminal appeal no.880 of2010connected with criminal appeal no.869 of2010criminal appeal no.872 of2011crl.a. 880/2010: between1 mohammed shabeer aged about31years s/o late abdul khadar r/at house no.2/61 ‘bismilla manzil’ kotekar house thiruvalal grama vamanjoor, mangalore.2. mayaddi aged about32years s/o abubakkar r/at house no.2/60 ‘bismilla manzil’ kotekar house thiruvala grama vamanjoor, mangalore. ... appellants (by sri. hashmath pasha, senior counsel for m/s hashmath pasha & assts., ) 2 and state by sub-inspector of police kavoor police station kavoor. ... respondent (by sri. v s hegde – spp-2 a/w sri m. divakar maddur - hcgp) this crl.a. is filed under section3742) of the cr.p.c praying to, set aside the judgment and order of conviction dated2629.7.10 passed by the p.o., ftc, mangalore in s.c.no.63/08 – convicting the appellants/accused for the offence p/u/s489b, 489-c r/w sec. 34 of ipc and u/s120b r/w sec. 489-b and489c of ipc and etc., crl.a.869 /2010: between mohammed asif s/o late d.a. razak aged about28years r/o katekal house thiruvala grama vamanjoor mangalore. ... appellant (by smt. haleema ameen, advocate for sri s vishwajith shetty - advocate) 3 and state of karnataka represented by state public prosecutor high court buildings bangalore. ... respondent (by sri. v. s. hegde – spp–2 a/w sri m. divakar maddur - hcgp) this crl.a. is filed under section3742) of the cr.p.c praying to, set aside the judgment and order of conviction dated2629.7.10 passed by the p.o., ftc, mangalore in s.c.no.63/2008 – convicting the appellant/ accused for the offence p/u/s120b(1) r/w sec. 489-c of ipc and etc., crl.a.872 /2011: between sri santhosh .k @ santhosh shetty @ rohith @ cable santhu s/o gangadhara k aged about33years r/at d.no.1-292:25 ner galaxi hall harigudde, salmara karkala. ... appellant (by smt. haleema ameen, advocate for sri s vishwajith shetty - advocate) 4 and state of karnataka represented by state public prosecutor high court buildings bangalore. ... respondent (by sri. v. s. hegde – spp–2 a/w sri m. divakar maddur - hcgp) this crl.a. is filed under section3742) of the cr.p.c praying to, set aside the judgment and order of conviction dated0811.8.2011 passed by the p.o. ftc., mangalore in s.c.no.51/2010 – convicting the apellant / accused for the offence p/u/s489b and120b r/w sec.34 of ipc and etc., these criminal appeals coming on for further arguments, this day, the court delivered the following: order crl.a.no.880/2010 is preferred by accused no.2 / mohammed shabeer and accused no.3 / mayaddi challenging the judgment of conviction and order of sentence rendered by the presiding officer, fast track court, mangalore, d.k., in s.c.no.63/2008 dated 26.07.2010. both of them were convicted for the 5 offences under sections 489-b, 489-c read with section 34 ipc and under section 120-b read with section 489- b and 489-c of ipc but however they were acquitted of the offences punishable under sections 489-a and 419 read with section 34 of ipc. as regards sentence, accused nos.2 and 3 were sentenced to undergo rigorous imprisonment for 10 years each for the offence punishable under section 489-b read with section 34 ipc and to pay a fine of rs.10,000/- each; in default of the same, they were to suffer simple imprisonment for three months. further, accused nos.2 and 3 were sentenced to undergo rigorous imprisonment for five years for the offence punishable under section 489-c read with section 34 of ipc. further they were sentenced to undergo rigorous imprisonment for three years for the offence punishable under section 120-b(1) read with section 489(b) and 489(c) of ipc. all the sentences of accused nos.2 and 3 were to run 6 concurrently and they were entitled to claim set off for the period during which they had spent in judicial custody.2. crl.a.869/2010 is preferred by accused no.4 / mohammed asif challenging the judgment of conviction and order of sentence rendered by the trial court in s.c.no.63/2008 dated 26.07.2010. by the said judgment, accused no.4 was convicted for offences punishable under section 120-b read with section 489- c of the ipc but however was acquitted of the offences under sections 489-a, 489-b, 489-c and 419 read with section 34 of ipc.3. crl.a.872/2011 is preferred by one santhosh k @ santhosh shetty @ rohit @ cable santhu who was accused no.1 in s.c.no.63/2008. but since he was absconding, the case against him was split up and was registered as s.c.no.51/2010. the connected appeal crl.a.872/2011 has been preferred by the said accused 7 santhosh challenging the judgment of conviction and order of sentence rendered by the presiding officer, fast track court, mangalore, d.k., in s.c.no.51/2010 dated 8.8.2011. by the said judgment, the accused / santhosh was convicted for offences punishable under sections 489-b and 120-b read with section 34 ipc but however was acquitted of the offences punishable under sections 489-a, 489-c and 419 read with section 34 of ipc. as regards sentence, he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rs.10,000/- for the offence punishable under section 489-b read with section 34 ipc and in default of payment of fine to undergo simple imprisonment for three months. further, he was sentenced to undergo rigorous imprisonment for three years for the offence punishable under section 120-b(1) read with section 489-b of ipc. the said sentences were to run 8 concurrently and was entitled to claim set off for the period during which he had spent in judicial custody.4. the present appeals arise out of two judgments rendered by the trial court in s.c.no.63/2008 dated 26.07.2010 and in s.c.no.51/2010 dated 08.08.2011. while s.c.no.63/2010 pertains to the judgment of conviction and sentence in respect of accused nos.2 to 4 in cr.no.38/2008 registered before the kavoor police station, s.c.no.51/2010 pertains to the judgment of conviction and sentence in respect of one santhosh who was arraigned as accused no.1 in cr.no.38/2008 against whom the charges were split up. though these appeals arise out of two judgments, since all the appeals pertain to the same crime number and similar offences and further the charge-sheet laid by the investigating officer against the split up accused as well as accused nos.2 to 4 in s.c.no.63/2008 being one and the same, 9 they are taken up for hearing together and are disposed of by this common judgment.5. the factual matrix according to the case put forth by the prosecution is as under: it transpires that on 18.03.2008 the senior intelligence officer of the directorate of revenue intelligence, mangalore (hereinafter referred to as ‘dri’ for brevity), had received credible information with regard to smuggling activities, i.e., trafficking of counterfeit indian currency notes through xps courier parcel service office, mangalore. acting on the said information, shri madhusudhan bhat being a senior intelligence officer of the dri had formed a team along with other officers and two panch witnesses and had rushed to the aforesaid xps courier office, mangalore, at 4.00 p.m. he had enquired with the concerned staff of the courier office with regard to receipt of a parcel from uae and was waiting there along with panch 10 witnesses. at about 4.30 p.m., two persons, i.e., accused nos.2 and 3 had come to the xps courier service office and had enquired about the parcel received from uae, dubai. the second accused had introduced himself to the staff as hasanabba in whose name the parcel was sent. the courier personnel, delivered the parcel sent by shri moideen s.k., dubai to accused no.2, after verifying his identity and mobile number. after receiving the box, both accused nos.2 and 3 were ready to leave the xps courier office. in the meanwhile, the intelligence officers had enquired them about the contents in the said parcel. but however the accused had replied that they were ignorant of the contents in the said box. then, the said box was asked to be opened by the accused themselves in the presence of panch witnesses. on opening, they found that it contained cosmetics, sweets, clothes, shoes, chocolates and also a tea powder box. when the tea powder box 11 was opened, though it was filled with tea powder, also they found a bundle wrapped with a black cloth. on unwrapping the black cloth, they found a bundle covered with carbon paper and on further unwrapping it, they found fake indian currency notes. it contained 30 notes of one thousand rupees denomination and 340 notes of 500 rupees denomination. the officers, in the presence of the panch witnesses, prepared a detailed mahazar, seized the incriminating articles, i.e., the alleged counterfeit indian currency notes, totally worth rs.2,00,000/- along with other articles which were found in the box. the dri officers then had interrogated the said accused and recorded their voluntary statements as contemplated under section 108 of the customs act and registered the case in their office in o.r.no.3/2008 and arrested accused nos.2 and 3 and produced them before the cjm court, mangalore. thereafter, the dri officers 12 took the seized counterfeit notes to the rbi to confirm whether the same were genuine or counterfeit notes. the rbi officers tested the same and confirmed that the seized notes were counterfeit indian currency notes. further, the dri officers, on the information gathered from accused nos.2 and 3, apprehended accused no.4, recorded his voluntary statement as contemplated under section 108 of the customs act in view of the fact that he had received similar parcel from dubai sent by one santhosh / accused no.1 against whom the case was split up and subsequently committed. it was found that the fourth accused was in constant touch with santhosh. hence, the dri officers found that there was conspiracy among all the four accused pertaining to trafficking of counterfeit currency notes. thereafter the dri officers handed over the custody of accused no.4 as well to the sho of kavoor police station. 13 thereafter, on 16.04.2008 the senior intelligence officer of dri reported the said matter to the sho of kavoor police station in writing, who registered a case in crime no.38/2008 against the accused. thereafter the investigating officer during the course of investigation, took the said accused to police custody and conducted mahazar through panchas, took some photographs of the xps courier office, received the alleged counterfeit indian currency notes from the dri officers and sent the notes to forensic science laboratory and got it confirmed that the said notes were all counterfeit notes. the i.o. after completion of investigation, filed a charge- sheet against the accused for offences punishable under sections 489-a, 489-b, 489-c, 419, 120-b read with section 34 of ipc. the case was then committed to the court of sessions and was numbered as s.c.no.63/2008. since santhosh / accused no.1 could not be secured, the charge-sheet against him was split 14 up and was registered as a separate case. thus, the case in s.c.no.63/2008 proceeded against accused nos.2, 3 and 4. after the case was committed to the sessions court, the said court heard both sides with regard to framing of charges and proceeded to frame charges against the accused, wherein the accused nos.2 to 4 pleaded not guilty and claimed to be tried. in order to substantiate the charges leveled against the accused, the prosecution in all examined 23 witnesses as pw-1 to pw-23 and got marked documents at exhibits p1 to p- 60 and material objects mos.1 to 11 and closed the evidence. thereafter, the accused nos.2 to 4 were examined as required under section 313 of cr.p.c., wherein they denied all the incriminating circumstances appearing against them. but however, they did not produce any defence evidence but pleaded that they 15 were innocent of the alleged offences and that they were falsely implicated in the alleged offences. the sessions court after hearing the arguments advanced by both the prosecution and the accused, framed the points that arose for consideration and thereby by its order dated 26.07.2010 in s.c.no.63/2008 convicted accused nos.2 to 4 for the offences alleged and sentenced them as aforesaid. subsequent to committing the case in respect of accused nos.2 to 4 in s.c.no.63/2008, a split up charge sheet was filed against accused no.1 / santhosh in s.c.no.51/2010. charges were framed against accused santhosh in s.c.no.51/2010, wherein he did not plead guilty but claimed to be tried. subsequent to framing of charges, the prosecution in order to establish the guilt against him, examined in all 11 witnesses as pw-1 to pw-11 and got marked several documents as exhibits p1 to p48 apart from marking material objects 16 mo-1 to mo-11. also, portions of his statement were got marked as exhibit d1(a). thereafter, the accused santhosh was examined as required under section 313 of cr.p.c., wherein he denied all the incriminating circumstances appearing against him. but however, he did not come forward to adduce any defence evidence as contemplated under section 233 cr.p.c. the sessions court after hearing the arguments advanced by both the prosecution and the accused, framed the points that arose for consideration and thereby convicted accused no.1 as well by its order dated 8.8.2011 in s.c.no.51/2010 for the offences alleged and sentenced him as aforesaid.6. it is these two judgments of conviction and sentence in s.c.no.63/2008 (in respect of accused nos.2 to4) and s.c.no.51/2010 (in respect of accused santhosh against whom the charge-sheet was split up) 17 which are under challenge in these appeals by the appellants urging various grounds.7. heard the learned senior counsel shri hashmath pasha appearing for the appellants in crl.a.880./2010 (accused nos.2 and 3), the learned counsel smt. haleema ameen appearing for shri vishwajith shetty, learned counsel for the appellant in crl.a.869/2010 (accused no.4) and for the appellant in crl.a.872/2011 (accused no.1), the learned counsel shri v.s. hegde, state public prosecutor-2 and the learned hcgp shri m. divakar maddur for the state.8. learned senior counsel shri hashmath pasha appearing for the appellants / accused nos.2 and 3 in crl.a.no.880/2010 has taken me through the evidence of pw-1 / shri madhusudhan bhat who is a gazetted officer in the rank of senior intelligence officer of dri. he is the one who received credible information 18 regarding the receipt of parcel in xps courier office at mangalore. pw-1 had initially registered a case against accused nos.2 and 3 in o.r.no.3/2008, but however later, the case against them has been discharged. pw.1 madhusudhan bhat also drew the mahazar at exhibit p1 in the presence of panch witnesses for having seized certain articles mo-1 to mo-6 such as tea powder packet, carbon paper, black colour cloth pieces, white colour cloth pieces, mobile phone which were found in mo-1 cardboard box. mo-7 to mo-11 are the counterfeit currency notes, mo-7 bundle of 30 notes of one thousand rupees denomination; mo-8 bundle of 40 notes of five hundred rupees denomination; mo-9 bundle of 100 notes of five hundred rupees denomination; mo-10 bundle of 100 notes of five hundred rupees denomination and mo-11 bundle of 100 notes of five hundred rupees denomination. he drew the seizure mahazar in the presence of pw-2, pw- 19 3 and pw-8, who had subscribed their signatures and also obtained the signature of accused nos.2 and 3. pw-1 had also subscribed his signature to the said seizure mahazar. the learned senior counsel contends that though pw-1 had recorded the voluntary statements of accused nos.2 and 3 as contemplated by section 108 of the customs act, however, the said confession statement is hit by section 24 of the indian evidence act, 1872. in that, he contends that the confession statement recorded by pw-1 under section 108 of the customs act is irrelevant, having regard to the fact that the same has been obtained by the officer by use of threat and inducement and hence it is not reliable to the case of the prosecution. he contends that though initially pw-1 had registered a case against accused nos.2 and 3 in o.r.no.3/2008, but however the case against them has been discharged. in order to defeat the order made 20 in customs case, a separate report has been filed by him before the kavoor police station and the case was proceeded against the accused. the fir has been filed on 20.03.2008 based upon his complaint at exhibit p-11. the kavoor p.s. registered the said case in cr.no.38/2008 and the i.o. drew the mahazar as per exhibit p-12, similar to the seizure mahazar at exhibit p1 drawn by pw-1 madhusudhan bhat. but the procedure which was adopted by the i.o. in the kavoor p.s. in cr.no.38/2008 is contrary to the well- established principle that the accused persons cannot be tried twice for the same offences. he contends that exhibit p1 mahazar dated 18.03.2008 was prepared for the purpose of deciding charge against the accused under the customs act. in view of the same, the confession statement of the accused recorded as contemplated under section 108 of the customs act, 1968, is hit by section 24 of the indian evidence act, 21 1872. in that, the statements have been recorded by pw-1 under the relevant provisions of the customs act of 1962. in respect of the same, pw-1 ought to initiate proceedings against the accused if they have violated certain provisions and also if they had evaded tax in a consignment. almost all major investigation has been done by pw-1 by recording the voluntary statements of the accused which is treated as confessional statements in respect of exhibit p1 seizure mahazar. but the entire evidence has been recorded relating to the charges under the customs act, of 1962 in o.r.no.3/2008. therefore, he contends that it is irrelevant for the purpose of deciding the charges against the accused in s.c.no.63/2008 in respect of accused nos.2, 3 and 4 and so also in respect of accused santhosh shetty in s.c.no.51/2010. a similar contention has also been taken by smt. haleema ameen, learned counsel appearing for the 22 appellant in crl.a.869/2010 and crl.a.872/2011. therefore, it is contended that the confession statement recorded by the customs officer being the rank of a gazetted officer as contemplated under section 108 of the customs act, 1962, is contrary to the scope of section 24 of the indian evidence act, 1872. the statement given by the accused before the senior intelligence officer – pw-1 even though it is admissible, it is only to the extent of initiating proceedings under the provisions of the customs act alone and it cannot be used as a confession statement or to say that it is a voluntary statement of the accused. in view of the same, the charge-sheet laid against accused nos.2, 3 and 4 in s.c.no.63/2008 and against santhosh shetty in s.c.no.51/2010 is contrary to the fulcrum of exhibit p1 of the seizure mahazar conducted by pw-1 and so also the evidence of pw-22 / i.o. in s.c.no.63/2008 who conducted the mahazar as per exhibit p-12. 239. his further contention is that the trial court has failed to notice that there must be some evidence to show that the accused took part in the process of manufacturing the fake currency notes which are produced at mo-7 to mo-11, such a printing the same and circulating the same. even on analyzing the entire evidence on record, it is observed that none of the witnesses examined before the court have whispered anything about actual participation of the accused in counterfeiting the indian currency notes. further, the investigating officer has not made an endeavour to trace out where actually the process of counterfeiting currency notes took place. neither the directorate of revenue intelligence department officers nor the police officers have investigated or traced the entire network. if really the accused were responsible for transporting counterfeit indian currency notes, there must be a big network behind the same. but the learned senior 24 counsel contends that no efforts have been made to uproot the network. hence, it is seen that there is no evidence facilitated by the prosecution with regard to the appellants either printing or circulating the said fake currency notes.10. it is the further contention of the learned senior counsel that the charges were framed against the accused under sections 489b and 489c of the ipc. whereas the ingredients of the said charges i.e., any instance of the accused persons having used the counterfeit currency notes or forged notes either by selling or buying or by receiving the said counterfeit notes knowing fully well that the same were forged notes, has not at all been established by the prosecution. when such being the case, the guilt of the accused in respect of mensrea has not been established by the prosecution. the evidence on the part of the prosecution in this regard, is totally lacking. 25 despite of the same, the trial court has convicted the accused in s.c.no.63/2008 and s.c.no.51/2010 for offences punishable under sections 489b and 489c of ipc, which is erroneous in law. further, the prosecution has placed much reliance on the evidence of pw-1 merely because he is a gazetted officer, being a senior intelligence officer of dri. he is the one who had conducted the seizure mahazar and recorded the statements of the accused under section 108 of the customs act, 1962. therefore, pw-1 is aware that it comes under the provisions of section 108 of the customs act and initiation of proceedings is not even deemed to be a judicial proceeding within the meaning of section 193 or section 228 of the ipc as well. it is further contented that the offence neither attracts section 111 of the customs act relating to confiscation of improperly imported goods 26 nor section 135 of the customs act relating to evasion of duty or prohibitions. it is further contended that the witnesses pw-1, pw-6, pw-7, pw-8, pw-22 and pw-23 are highly interested witnesses to the case of the prosecution and the trial court should not have relied on their evidence to convict the accused. further, the evidence of pws 2 and 3 panch witnesses are nothing but bundle of falsity since they did not know the facts relating to the seizure mahazar at exhibit p1 or the spot mahazar at exhibit p12. further, pw-8 being a total stranger to the aforesaid mahazar at exhibit p1 and spot mahazar at exhibit p12, the evidence of the aforesaid witness is also filled with infirmities. hence, he contends that the trial court has failed to appreciate the evidence of the witnesses in a proper perspective, particularly the evidence of pw-1 and so also the evidence of pw-8 who knew only hindi language. but however, it is seen that 27 all the statements have been recorded in kannada language. the kannada statement of this witness pw-8 does not indicate that the contents were read over to him in hindi and were admitted by him to be correct.11. it is his further contention that there is absolutely no iota of evidence against the second appellant / accused no.3 so as to convict him for the offences alleged. even according to the case of the prosecution, he had only accompanied accused no.2 to the xps courier office and had no role to play in the commission of any offence alleged. hence, it is contended that since there is no corroboration among the witnesses in respect of material particulars and when several infirmities are found in the case of the prosecution, the benefit of doubt shall be extended to the accused alone. 2812. in support of his contentions, the learned senior counsel shri hashmath pasha has placed reliance on the following authorities:1. nirmal singh pehlwan alias nimma //vs// inspector, customs, customs house, punjab.-. ((2011)12 scc298 2. raj kumar karwal //vs// union of india and others.-. ((1990)2 scc409 3. noor aga //vs// state of punjab and another. – ((2008) 16 scc417 4. kanhaiyalal //vs// union of india. – ((2008) 4 scc668 5. mharaj prithvisinghji bhimsinghji //vs// state of bombay (now rajasthan). – (air1960scc483(v47c81) 6. m mammutti //vs// state of karnataka. – ((1979) 4 scc723 7. directorate of enforcement //vs// deepak mahajan and another. – ((1994) 3 scc440 29 in the case of nirmal singh pehlwan alias nimma vs. inspector, customs, customs house, punjab.-. ((2011)12 scc298, the hon’ble apex court has held as under: “the second argument is based on the judgment of this court in noor aga vs. state of punjab & anr. (2008 (16) scc417 in which this court had deviated from the earlier position in law that a customs officer was not a police officer and a confession made to him under section 108 of the customs act, was admissible in evidence. in this case it has been held that as a custom officer exercised police powers and a confession made by an accused could result in a conviction and sentence, such a confession was hit by the embargo placed by section 25 of the evidence act, 1872, and was, therefore, not admissible in evidence. on the other hand, mr. r.p. bhatt, the leaned senior counsel for the respondent - department, has pointed out that ext. p.a. the consent memo in fact conveyed information to the appellant that he had a right to be searched in the presence of a 30 magistrate or a gazetted officer and that this amounted to full compliance with section 50 of the act. he has also pointed out that although noor aga's case did say that a confession made to a custom officer was hit by section 25 of the evidence act and was therefore not admissible in the evidence, yet a judgment of a coordinate bench of this court in kanahiya lal vs. union of india case (2008 (4) scc668 had reiterated the earlier position in the law as given in raj kumar vs. union of india - 1990(2) scc409that officers of the revenue intelligence and ipso facto of the customs department could not be said to be police officers and a confession before them would not be hit by section 25 of the evidence act. we also see that the division bench in kanahiya lal's case had not examined the principles and the concepts underlying section 25 of the evidence act vis.-a- vis section 108 of the customs act the powers of custom officer who could investigate and bring for trial an accused in a narcotic matter. the said case relied exclusively on the judgment in raj kumar's case (supra). the latest judgment in point of time is noor aga's case which has dealt very elaborately with this matter. we thus feel it would be proper for us to follow the 31 ratio of the judgment in noor aga's case particularly as the provisions of section 50 of the act which are mandatory have also not been complied with. in the instant case, pw.1 – madhusudhan bhat who recorded the statement of the accused under section 108 of the customs act and also appraised the consequences of the statements said to have been given by them, had thereafter, recorded the statement such as voluntary statement of the accused said to be confessional statement made by accused nos.2, 3 and 4 and drew the mahazar as per ex.p1 in the presence of panch witnesses and so also seized the indian fake currency notes at mos.7 to 11 which depicted in detail in the said mahazar. but under section 108 of the customs act, the power is vested with the customs officer being the senior intelligence officer. the power is studded with him but the statement of the accused recorded in terms of the voluntary statement, should be 32 in conformity with sections 24 and 25 of the evidence act, if not the same has to be tested whether the accused has given a statement before pw.1 – madhusudhan bhat as even though he has power under section 108 of customs act wherein it is a statement by coercive, threat or undue influence in respect of mos.7 to 11 said to be fake currency notes. but the confessional statement it is made by the accused during the course of investigation/inquiry made by pw.1. there is no dispute that customs officer is not a police officer but he has to proceed under the provision of section 108 of the customs act for the purpose of making inquiry and initiating proceedings. to that extent only the power has been studded. but in the instant case, pw.1 investigated the case by drawing mahazar as per ex.p1 and also seized the fake currency notes and other materials. while he made enquiry to accused nos.2 and 3 on 18.03.2008 but they did not give satisfactory 33 information to him. thereafter, secured accused nos.2 and 3 to his office and recorded voluntary statement of the accused and confessional statement but the said statement has to be tested by section 24 and 25 of the indian evidence act. there is no information that accused nos.2 and 3 gave statement regarding the contents in the parcel. merely because the parcel is said to have been received in a sealed box – mo.1 and beneath that mos.7 to 11 fake currency notes were found. despite of that pw.1 proceeded with the case to make an enquiry and thereafter, filed a complaint as per ex.p11 before the psi of kavoor police station and in turn he registered the case in crime no.38/2008 for the aforesaid offences against the accused and drew the spot mahazar as per ex.p12 in their presence. but the major investigation is done by pw.1 by securing official witnesses and so also obtained report from the rbi and subjected to verification and examination of that fake 34 currency notes said to have been seized under ex.p1. but this glaring material contradiction has not been appreciated by the trial court but only believing the evidence of pw.1, convicted the accused persons for the aforesaid offences. the case of the prosecution has to be established by putting forth cogent, corroborative and acceptable evidence and moreover, the accused having the knowledge of fake currency notes which was obtained for the purpose of circulating. this evidence does not find place on the part of the prosecution to prove the guilt of the accused. mere because pw.1 recorded the statement of the accused under section 108 of the customs act, it cannot be said that he had followed the scope of section 24 and 25 of the evidence act. in the case of raj kumar karwal //vs// union of india and others.-. ((1990)2 scc409, the apex court has held thus:35. “narcotic drugs and psychotropic substances act, 1985 – sections 53, 36a, 52, 52-a, 41, 42, 43 and 44 – officers of department of revenue intelligence (dri) invested with powers of officer-in- charge of police station under section 53 – held, are not police officers within the meaning of section 25, evidence act, 1872 – consequently confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the act is admissible in evidence – officers appointed under section 53 not entitled to exercise all the powers under chapter xii of cr.pc, 1973 including power to submit report or charge-sheet under section 173, cr.pc – “police officer” – who is – test – evidence act, 1872, section 25 – criminal procedure code, 1973. section 25 of the evidence act reads as under:"no confession made to a police officer shall be proved as against a person accused of any offence." thus a confession made to a police officer cannot be used or tendered in evidence as against a person accused of any offence. section 36 26 next provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shah be proved as against such person. section 27, which is in the nature of an exception to sections 25 and 26, pro- vides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. the restriction on admissibility of a confession of an accused person imposed by sections 25 and 26 of the evidence act, when made to a police officer and not in the immediate presence of a magistrate, is as a matter of public policy designed to prevent the practice of securing confessional statements of persons in police custody by means of threats, inducements, torture, coercion, etc. what impelled the introduction of this provision was the overwhelming evidence which disclosed that the powers vested in the police under the code were 37 often misused and abused by police officers investigating crimes for extorting a confes- sional statement from the accused with a view to earning credit for the prompt solution of the crime and/or to secure himself against allegations of supineness or neglect of duty. it was also realised that once a police officer succeeds in extorting a confession from the person accused of the commission of the crime by threats, inducements, etc., the real offender becomes more or less immune from arrest. therefore, the purpose of the restriction under section 25 of the evidence act, is broadly speaking, two-fold, namely, (i) to protect the person accused of a crime from third degree treatment and, more importantly, (ii) to ensure a proper and scientific investigation of the crime with a view to bringing the real culprit to book. in the instant case, pw.1 – madhusudhan bhat who got credible information about the persons being arraigned as accused and he formed a team consisting 38 his staff members and rushed to xps courier office at mangalore where accused nos.2 and 3 were present in the said office and were about to leave by collecting the parcel. he made an enquiry with them and seized the aforesaid materials objects in the presence of the panch witnesses by drawing mahazar as per ex.p1. but major investigation has been done by him, even by securing report from the rbi officer regarding mos.7 to 11 said to be fake currency notes which were found in the card board box – mo1. thereafter, he filed complaint as per ex.p11 before the kavoor police station and in turn the kavoor police drew the spot mahazar as per ex.p12. but in the seizure mahazar, ex.p1, said madhusudhan bhat secured the signature of the accused persons and also secured signature on ex.p1 – seizure mahazar said to have been conducted by him in their presence. therefore, it is said that the above reliance is applicable to the present case as wherein pw.1 – madhusudhan 39 bhat being a senior intelligence officer being the rank of gazetted officer in dri office and there is no doubt about he drawing the seizure mahazar at ex.p1 and so also, recorded the voluntary/confession statement of the accused nos.2, 3 and 4. but the statement recorded by pw.1, it should be tested keeping in view the scope of section 24 and 25 of the evidence act, as the very statement can be used against them even during the course of trial or even in the proceedings initiated by pw.1. it is relevant to state section 2(h) of cr.p.c. which defines ‘investigation’ by an inclusive definition means all proceedings under the code for collection of evidence conducted by a police officer or by any person who is authorised by a magistrate in this behalf. under this section 4(2) of the code all offences under any other law have to be investigated inquired into, tried and otherwise dealt with according to the provisions 40 contained in the code. the power to investigate is to be found in chapter xii of the code which begins with section 154 and ends with section 176. the scheme of this chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by the officer-in-charge of a police station. once such information is received and registered, section 156 empowers any officer-in-charge of the police station to investigate the same without any magisterial order. the investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under section 173 of the code to the concerned magistrate in the prescribed form. in the instant case, pw.1 – madhusudhan bhat got credible information about a person being arraigned as accused in s.c.no.63/2008 and s.c.no.51/2010. he conducted seizure mahazar as per ex.p1 in the 41 presence of official witnesses and also in the presence of panch witnesses. the same was conducted by him by summoning the witnesses and made enquiry under the power vested with him under section 108 of the customs act. mo.1 which contained mos.2 to 6 and so also beneath that card board box mos.7 to 11 – indian fake currency notes said to be sent by uae, dubai in a parcel. the contents in the parcel was not known to accused nos.2 and 3. but on the basis of credible information that pw.1 – madhusudhan bhat who made an enquiry and drew the mahazar as per ex.p1. but section 108 of the customs act as there is power vested with him even if the person said to be summoned and also made an enquiry with regard to the information which he has got if the person is not expert with the course of enquiry but he had power to initiate the proceedings under section 193 and 228 of ipc which is a proviso under section 108 of the customs act. 42 pw.1 initially registered the proceedings in or no.3/2008 under the provisions of customs act but later on he filed complaint as per ex.p11 before the psi of kavoor police station and in turn, the psi recorded fir as per ex.p57 and he drew the spot mahazar as per ex.p12. the same was conducted by him in the presence of pw.1 – madhusudhan bhat. the psi of kavoor police station who issued notice to pw.1 with regard to the production of materials which he had seized and the same was marked as mos.7 to 11 in the presence of the accused persons said to have been seized by him at the time of drawing mahazar as per ex.p1 in the office of xps courier, mangalore. therefore, learned counsel for the appellant contends this reliance is squarely applicable to the present case.13. hence, on all these grounds, the learned senior counsel shri hashmath pash contends that the judgment of conviction and order of sentence rendered 43 by the trial court in s.c.no.63/2008 be set aside and the accused / appellants in crl.a.880/2010 be acquitted of the offences leveled against them.14. smt. haleema ameen, learned counsel for appellants in crl.a.no.869/2010 and crl.a. no.872/2011 has taken me through the evidence of pw.1 – madhusudhan bhat, senior intelligence officer of directorate of revenue intelligence, mangalore who drew the mahazar as per ex.p1 in the presence of the panch witnesses and also initially registered the case in or no.3/2008. the complaint was lodged on 20.03.2008 before the kavoor police and based upon his complaint as per ex.p11 the case in crime no.38/2008 came to be registered for the offences reflected in the fir said to be recorded by the police. during the course of enquiry held by pw.1 – madhusudhan bhat in the presence of the accused who were secured on 24.04.2008 and also 44 taken into custody for the purpose of investigation and after completion of investigation, he laid the charge sheet against the accused relating to crime no.38/2008 for the offences punishable under sections 120b, 419, 489(a), 489(b), 489(c) r/w 34 of ipc. the appellant in crl.a.no.872/2011 is said to be arraigned as accused no.4 in s.c.no.63/2008. he was not at all in picture as narrated in the complaint as per ex.p11 and so also, while drawing mahazar as per ex.p1 whereas the incident took place on 18.03.2008. but accused no.4 was secured by pw.1 without there being any evidence on record to connect this accused to the crime that took place on 18.03.2008 as narrated in the complaint and so also fulcrum of seizure mahazar at ex.p1 said to be conducted by pw.1 in the presence of panch witnesses and the fake currency notes which are marked at mos.7 to 11. the materials collected and recorded reveals that accused mohammed asif is an innocent person and he 45 was not at all present on 18.03.2008 along with accused nos.2 and 3. his presence was only secured 21.04.2008. there is no evidence on record to prove that this accused has received any counterfeit notes nor he was found in possession of any counterfeit notes or he has circulated such notes. it is contended that there is no evidence to establish that this accused was also present along accused no.2 and 3 as alleged in the complaint and while drawing the mahazar as per ex.p1. there is no evidence so as to establish that this accused had criminal conspiracy with the other accused to commit offence as narrated in complaint. but the trial court has misdirected as well as misinterpreted the entire evidence of pw.1 insofar as the role of this accused no.4 is concerned. under such circumstances, accused – mohammed asif has not at all committed any offence under section 489 – b and 489 – c of ipc as 46 there is no direct evidence to connect him with the above offence.15. it is further contended that the material on record clearly go to show that the accused – mohammed asif is innocent and there is no evidence even to establish that he had conspired with others to commit the offence that took place on 18.03.2008. under such circumstances, the trial court ought not to have held this appellant guilty of offence punishable under section 489-c of ipc. it is further the contention of appellant’s counsel that even if it is held that this accused had received one parcel of uae, dubai, but there is no evidence to show that it contained counterfeit notes or that he had knowledge of the contents in the parcel. but the trial court has erroneously come to the conclusion that the prosecution has proved the guilt of the accused that he also had participated with other accused by hatching a 47 criminal conspiracy and so also, he was in possession of fake currency notes as narrated and depicted in ex.p1, seizure mahazar said to be conducted by pw.1 being a responsible gazetted officer. this material evidence has not been considered by the trial court. pw.1 – madhusudhan bhat who recorded the confessional statement of this accused on 19.3.2008 and also obtained his signature and so also, secured signature of one b.krishna rao. but he was not examined on the part of prosecution. the confessional statement of accused no.3 has to be tested in connection with scope of section 24 of the evidence act. if the test has not been complied by pw.1 certainly that would switch over to scope of section 108 of the customs act. there is no dispute about the power vested with pw.1 – madhusudhan bhat. but the confessional statement of the accused recorded by the investigating officer who is pw.1 must be in conformity 48 with scope of section 24 of the evidence act, if not, it has to be tested in accordance with decisions rendered by the hon’ble supreme court relating to section 108 of the customs act and scope of sections 24 and 25 of the evidence act.16. pw.7 – syed mohammed was subjected to examination on the part of the prosecution wherein he was working in dri office at cochin since three years. but on 27.10.2009, the immigration officer in cochin, secured passport of santosh @ santosh shetty and the same was handed over to pw.7. it is marked as ex.p45. subsequently at the request of officers in dri, mangalore the immigration officer in cochin air port apprehended santhosh @ santhosh shetty and thereafter, the passport was handed over to him. thereafter, he gave information to the office of dri, mangalore telephonically. on the next date, the police officers in mangalore had rushed to the office of pw.7 49 and took the accused in their custody. ex.p44 passport of santosh @ santosh shetty reveals that he traveled from uae to cochin on 26.10.2009. the said accused had returned to uae from india on 14.10.2006 as per the contents revealed in ex.p44. in the cross- examination he has specifically stated that police officers in mangalore did not make any enquiry and did not record his statement. but he cannot say whether accused – santhosh @ santhosh shetty was staying in india or uae in the year 2005. he did not make any enquiry in relation to ex.p45 belonging to santosh @ santosh shetty, but the said passport has been given to him on 25.04.2006. therefore, he cannot say prior to the year 2006 in which country the accused was staying. subsequently, he has stated that he did not know prior to the year 2006, this accused did not proceed from india. he did not make any statement or any record relating to immigration officer at cochin had 50 handed over this to the police officer of mangalore on the next day and also production of ex.p45 – passport relating to this accused are the vital documents and also vital evidence in respect of this accused was also involved in a case registered in crime no.38/2008 and this accused having role in respect of forwarding the parcel containing mos.7 to 11, the indian fake currency notes amounting to rupees two lakhs and also the contents of m.o.2 to 6 in m.o.1 card board box which said to have been received by the xps courier, mangalore, wherein pw.1 – madhusudhan bhat on receipt of credible information about accused nos.1 and 2 and he formed a team consisting the official witnesses including the officer of dri and also panch witnesses and drew the mahazar at ex.p1 and seized mo.7 to 11 which are the fake currency notes found in a separate box which was found beneath the card board box. this vital evidence has not been considered by the trial 51 court, but erroneously has come to the conclusion by believing the evidence of pw.1 but simply because the mahazar was drawn and mos.7 to 11 fake currency notes were seized and so also subjected to test by the rbi officer, but ex.p11 complaint was filed by the pw.1 madhusudhan bhat before the kavoor police station on 20.03.2008, based upon his complaint the case in crime no.38/2008 came to be registered and thereafter, sri. anantha padmanabha, psi of kavoor police station was subjected to examination as pw.22 in s.c.no.63/2008 and pw.10 in sc no.51/2010 in respect of split up charge sheet filed against the accused namely santosh @ santosh shetty. the fake currency notes at mos.7 to 11 were produced by the said madhusudhan bhat in a sealed cover before the psi of kavoor police station after receipt of notice from him for production of said material documents and so also fake currency notes as per mos. 7 to 11. but the 52 same was seized in the presence of pw.1 – madhusudhan bhat alone and the sealed cover said to be containing mos.7 to 11 was seized by securing panch witnesses or even in the presence of accused nos.2, 3 and 4 and inclusive of accused – santosh @ santosh shetty in respect of case in s.c.no.63/2008 and s.c.no.51/2010 as wherein the split up charge sheet has been laid against the aforesaid accused by the psi of kavoor police station. but in respect of s.c.no.51/2010, ex.p12 – spot mahazar was conducted by the i.o is in the presence of pw.1 – madhusudhan bhat alone and he did not even secure the accused person in order to confirm the contents at ex.p12. but very cleverly said madhusudhan bhat had drawn the seizure mahazar at ex.p1 and secured the signatures of accused nos.2 and 3 on ex.p1. this material contradiction on the part of the prosecution has not been appreciated by the trial court. 5317. though it is contended by the prosecution that the said indian currency notes had been counterfeited in pakistan and then sent to u.a.e. to various persons and other neighbouring countries from u.a.e. dubai and that the accused santhosh k had sent the same to india to various persons, however there is no evidence forthcoming to connect the said accused in respect of the offence punishable under section 489-a ipc as regards counterfeiting currency notes by himself or his participation in the process of counterfeiting the currency notes. it is the further contention of the learned counsel that when the accused santhosh k landed at cochin airport from u.a.e., dubai, the immigration officers had detained him and handed him over to the police officers who took him to mangalore and produced him before pw-1 – i.o. but however, santhosh k. did not possess any indian counterfeit currency notes. hence, she contends that there is no 54 direct or any circumstantial evidence on record to show that either this accused was found in possession of indian counterfeit currency notes or he had made use of the same as genuine notes. though the voluntary statement of this accused as per the provisions of section 108 of the customs act was obtained by pw-1 as per exhibit p-35, there is no satisfactory evidence available on record to connect the said accused santhosh for the offence punishable under sections 489-a and section 489-c of the ipc. in s.c.no.63/2008 in respect of accused nos.2, 3 and 4 and even in s.c.no.51/2010 in respect of accused no.1 santhosh, the major investigation has been done by pw.1- madhusudhan bhat in both the cases by drawing the mahazar at ex.p1 in the presence of panch witnesses and in the presence of official witnesses 30 currency notes of 1000 rupees denomination and 340 notes of 500 rupees 55 denomination which were in five separate bundles 30 notes of 1000 rupee denomination, 40 notes of 500 rupee denomination, one hundred notes of 500 rupee denomination – 3 bundles were seized. even the mobile said to be held by accused no.2 bearing number 9741835671 was seized by pw.1 who conducted mahazar in the presence of panch witnesses – pws.2 and 3 and seized all the articles and also documents as per exs.p2 to p8 under the mahazar ex.p1. pw.1 – madhusudhan bhat is said to have complied the scope of section 108 of customs act by appraising the scope regarding to give their voluntary statement or otherwise, to say confessional statement. but, the same has been tested whether it is in conformity with section 24 and 25 of the evidence act. the very counsel contends that section 108 of the customs act reveals there is a proviso under section 193 and 228 of ipc. if there is impediment for proceeding further for investigation or 56 any false information has been given, the power is vested with the senior intelligence officer of dri. whereas, in the instant case, madhusudhan bhat, ought to have followed provision of section 108 of the customs act to initiate the proceedings against the person who has given false information or not cooperated with for providing information under section 193 and 228 of ipc. in the present case, o.r.no.3/2008 has been registered subsequent to the enquiry held on 18.03.2008. but thereafter pw-1 has filed a complaint before the kavoor police on 20.03.2008. but almost major investigation has been done by him by securing official witness of dri and also officials and supervisor of xps courier officer, mangalore on 18.03.2008 and also securing the signatures on ex.p1 of the seizure mahazar and thereafter, he had handed over the case by filing a complaint as per ex.p11 by narrating all the 57 ingredients and also the incident said to have been stated in the mahazar as per ex.p1. under section 108 of the customs act, there is no dispute about the power vested with him, but however, the voluntary statement of the accused or confession statement is to be recorded by him keeping in view section 164 (1) and (2) of cr.p.c. though pw-1 has the power under section 108 of the customs act, it must be tested with the scope of section 24 and 25 of the evidence act. if not followed the ingredients, otherwise to say scope of section 24 and 25, where the statement of the accused it can be extended to the co-accused. there is no dispute about the statement recorded by the senior intelligence officer, but the fact remains to be decided as upto what extent it would be applicable. pw.1 – madhusudhan bhat had got credible information about the persons being the accused committing the alleged offences and thereafter accused 58 nos.2 and 3 received a parcel mo.1 which contained mo.2 to 6. these are all the material which indicates in ex.p1 of seizure mahazar. but the vital objects mos.7 to 11 which are said to be fake currency notes which were sent in a parcel by the uae, dubai to india, is the credible information got by pw.1. subsequent to receipt of information he ought to have given information in writing or a complaint in writing before the psi of kavoor police station having jurisdiction, to proceed with the matter, in view of the fact that the offences were alleged under the indian penal code, 1860. but under section 4 of cr.p.c., it is the power vested with the concerned investigating agency to proceed for investigation and lay the charge sheet. section 4 of the cr.p.c. reads as under: “4 trial of offences under the indian penal code and other laws: (1) all offences under the indian penal code (45 of 1860) shall be investigated, inquired into, 59 and otherwise dealt with according to the provisions hereinafter contained.” as against the said procedure contemplated under the cr.p.c., almost all the investigation has been done by pw.1 and thereafter he had handed over mos.7 to 11 which are indian fake currency notes to the psi of kavoor police station, who in turn, has registered case in crime no.38/2008. pw-1 had also conducted spot mahazar as per ex.p12 and thereafter recorded the statement of witnesses and also secured the material documents and thereafter laid the charge sheet against the accused. the psi did not secure the accused persons even at the time of conducting the spot mahazar in the office of xps courier service. however, the trial court did not appreciate this evidence on record in a proper perspective manner. therefore, in this appeal it requires intervention of the impugned judgment rendered by the trial court. these are all the 60 contentions taken by the learned counsel smt. haleema ameen for the appellants seeking to allow the above appeals respectively.18. in support of her case, smt. haleema ameen has relied on the following citations:1. superintendent of customs //vs// haribhai vallabhbhai.-. (laws (bom) 1990 850) – high court of bombay) 2. n. s. r. krishna prasad //vs// directorate of enforcement loknayak bhawan khan market, new delhi.-. (laws (aph) 1991 451) – high court of andhra pradesh) 3. ramesh chandra mehta //vs// the state of w.b. – (air1970supreme court940) 4. umashanker //vs// state of chhattisgarh. – (2001 cri. l. j.4696 – supreme court – madhya pradesh) 5. basi reddy and others //vs// state. – (1972 cri. l. j.1141 – mysore high court) 61 in the case of n.s.r.krishna prasad vs. directorate of enforcement, loknayak bhawan khan market, new delhi (1992 crlj1888, the hon’ble apex court has held thus: “it is well settled that all confessions are statements, but all statements are not confessions. it may be recalled that the legislature advisedly used the expression "statement" while enacting s. 108 of the customs act authorizing the empowered authority to record what the person summoned, states. a plain reading of s. 108 of the customs act, makes it clear that it does not enable the empowered authority to record a confessional statement from a person summoned thereunder. in the absence of any such power conferred u/s. 108 of the customs act, the empowered authority can only fall back upon s. 164, cr.p.c. to record a statement of confessional nature from the person summoned. as already stated, s.164(2) cr.p.c. enacts that the magistrate while recording a confessional statement, must administer the warning or caution to the person making the confessional statement, that the same would be 62 used against him. the same caution or warning, it follows, must also be administered to the person summoned, u/s. 108 of the customs act by the empowering authority. non-compliance with the mandatory provisions contained in s. 164(2), cr.p.c. is not curable u/s. 463, cr.p.c.. and renders the statement to recorded, inadmissible in evidence.” in the instant case, pw.1 – madhusudhan bhat, was empowered to record the statement of the accused during the course of enquiry under section 108 of the customs act. accordingly, he recorded the confession statements of accused nos. 2 and 3 in s.c.no.63/2008 during the course of enquiry at xps courier office. but whether their statements are admissible or inadmissible has to be tested under sections 24 and 25 of the evidence act and also article 20(3) of the indian constitution where the statement given by the accused should not be used against them unless the said statements were obtained without coercion, threat or 63 undue influence. hence, appellant’s counsel contends that this reliance is squarely applicable to the case on hand. in the case of umashanker vs. state of chhattisgarh (2001 crl.l.j.4696), the hon’ble apex court has held in the headnote that, “section 489b, section 489c – evidence act (1 of 1872), section 4 – offences in respect of forged or counterfeit currency notes or bank notes – mens rea of offences under sections 489-b and 489-c is, “knowing or having reason to believe that currency-notes or bank- notes are forged or counterfeit” – buying or receiving from another person or otherwise trafficking in or using as genuine or also possessing or even intending to use any forged or counterfeit currency – notes or bank – notes is not sufficient to make out a case under section 489-c in the absence of the mens rea – accused 18 years old student – alleged to have paid fake currency 64 note of rs.100/- to shop-keeper – 13 more such fake currency notes were received from him – no material brought on record to show that accused had requisite mens rea – merely on basis of evidence of shop-keeper and other witnesses that they were able to make out that currency note alleged to have been given to shop- keeper was fake, mesn rea cannot be presumed – no specific question with regard to currency note being fake put to accused – accused entitled to acquittal.” in the instant case, accused nos. 2 and 3 in s.c.no.63/2008 went to xps courier office at mangalore to collect the parcel said to be received in the office. but pw.1 – madhusudhan bhat who had received credible information visited the office and made enquiry and thereafter conducted seizure mahazar as per ex.p1. mos.7 to 11 fake currency notes were seized and confessional statement was recorded. but accused no.4 was apprehended by the investigating authority on 65 21.04.2008 which was based upon the voluntary statement of accused no.2. section 489-b deals with possession of forged or counterfeit currency-notes or bank-notes.—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. but accused nos.2 and 3 during the course of the enquiry held by pw.1 in the presence of panch witnesses and official witnesses inclusive of supervisor of xps courier office where they have subscribed their signature on ex.p1 – seizure mahazar and also secured signature of b.krishna rao who drafted the seizure mahazar. but accused nos.2 and 3 during the course of enquiry made by pw.1 have stated that they did not know the contents of mo.1 – card board box and also have specifically stated that they did 66 not know the contents of mos.2 to 6 and that mos.7 to 11 were fake currency notes. but it is forwarded by santhosh @ santhosh shetty being arraigned as accused in s.c.no.51/2010. but this accused was apprehended by the immigration officer at cochin while alighting from the flight and taken into custody and information was given to the senior intelligence officer at mangalore. thereafter, further investigation was done and split up charge sheet was laid in s.c.51/2010. but the mens rea regarding selling and buying or receiving from any other persons and this evidence has not been verified on the part of the prosecution to prove the guilt of the accused in respect of offence under section 489-b and 489-c of ipc. merely because mos.7 to 11 said to be fake currency notes which were seized by pw.1 who was studded with the power under section 108 of customs act, but it is not enough to constitute offence under section 489-b of 67 ipc. but the trial court had held conviction against the accused for the offences in which the charges are framed against them. therefore, learned counsel for the appellant places reliance on the aforesaid judgment to contend that no material is brought on record by the prosecution to show that the accused persons had the requisite mens rea. in crl.a.no.184, 185 and 200 of 1970 in re basi reddy and others (1972 crl.l.j.1141), the apex court has held that: “section 120a – ‘criminal conspiracy’ – agreement to do or cause to be done an illegal act is the gist of the offence. in order to constitute a single general conspiracy there must be a common design and a common intention of all the work in furtherance of the common design. each conspirator plays this separate part in one integrated and united effort to achieve the common 68 purpose. each one is aware that he has a part to play in a general conspiracy though he may not now all his secrets or the means by which the common purpose is to be accomplished. the scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broke up : the conspiracy may develop on successive stages.19. learned counsel for the appellant contends that the aforesaid judgment is squarely applicable to the case on hand as the prosecution has failed to establish the charge of conspiracy against the accused person. on this ground, as well she seeks for acquittal of the accused persons of the charge of conspiracy under section 120-b of ipc. appellant’s counsel further contends that ex.p1- seizure mahazar drawn by pw.1 on 18.03.2008 to which he has subscribed his signature and also obtained signatures of hasanabba, the accused namely 69 mayaddi and pw.2 – gokuldas hegde. this mahazar is an important document said to be conducted by pw.1. pw.10 being the i.o conducted spot mahazar as per ex.p12 marked in s.c.51/2010 bears the signature of pw.1 alone. pw.22 being the i.o in s.c.no.63/2008 did not make any endeavour to secure accused nos.2 and 3 in connection with conducting the spot mahazar at xps courier office at mangaluru. this vital material evidence on the part of the prosecution has not been considered by the trial court while arriving at a conclusion that the prosecution has proved the guilt of the accused. it is relevant to refer to the confession statement in respect of santhosh @ santhosh shetty in s.c.no.51/2010 as ex.p.35. the same was recorded by pw.1. similarly, the statement of accused no.2 as per ex.p35 in s.c.no.63/2008 is impersonation of his name as hasanabba and he has given confession statement as 70 per ex.p37 during the course of enquiry made by pw.1 – madhusudhan bhat. but the said statements have to be tested under the scope and object of section 24 and 25 of the evidence act. similarly the confession statement of accused no.3 is marked as per ex.p9 and ex.p32 is the statement of accused no.4. these are all the confession statements of accused persons recorded by pw.1 – madhusudhan bhat during the course of enquiry by exercising his power under section 108 of the customs act. but the said statements should be tested in respect of sections 24 and 25 of the evidence act. but as per section 164(2) of cr.p.c. the magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the magistrate shall not record any such confession unless, upon questioning 71 the person making it, he has reason to believe that it is being made voluntarily. but pw.1 who is a responsible officer had carried out major investigation by recording confession statement of the accused and seized mos.7 to 11 under ex.p1 – seizure mahazar and thereafter the case was handed over to psi of kavoor ps by filing a written complaint as per ex.p11. but this vital evidence is required to be re-appreciated in this appeal, if not, it would lead to miscarriage of justice to the accused. in the cross-examination of pw.1 it is revealed that even prior to drawing of mahazar as per ex.p1 in the presence of accused nos.2 and 3 and also in the presence of pw.2 in the xps courier office on 18.03.2008, during the course of enquiry it came to be known that even prior to this incident on 9.2.2008 and 5.3.2008 there was a similar incident happened but no proceedings were initiated against the culprits/offenders 72 involved in the incident. on 16.04.2008, sealed cover said to be containing mos.7 to 11 had been produced before the psi of kavoor ps only after receipt of notice by pw.1. he has not made any efforts to produce the sealed cover even on the day of filing of complaint on 20.03.2008. this is the vital evidence on the part of the prosecution but the same has not been considered by the trial court. therefore, in this appeal the entire evidence has to be re-appreciated and rescanned, if not, it would lead to miscarriage of justice. in the case of ramesh chandra mehta vs. the state of w.b. (air1970sc940, the apex court has held thus: “27. in certain matters the customs act of 1962 differs from the sea customs act of 1878. for instance, under the sea customs act search of any place could not be made by a customs officer of his own accord: he had to apply for and obtain a search warrant from a magistrate, under section 105 of the customs act, 1962, it is open 73 to the assistant collector of customs himself to issue a search warrant. a proper officer is also entitled under that act to stop and search conveyances : he is entitled to release a person on bail, and for that purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is. but these additional powers with which the customs officer is invested under the act of 1962 do not, in our judgment, make him a police officer within the meaning of section 25 of the evidence act. he is, it is true, invested with the powers of an officer-in-charge of a police station for the purpose of releasing any person on bail or otherwise. the expression "or otherwise" does not confer upon him the power to lodge a report before a magistrate under section 178 of the code of criminal procedure. power to grant bail, power to collect evidence, and power to search premises or conveyances without recourse to a magistrate, do not make him an officer-in-charge of a police station. proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. his orders are appealable and are subject also to the revisional jurisdiction of the central board of revenue and may be 74 carried to the central government. powers are conferred upon him primarily for collection of duty and prevention of smuggling. he is for all purposes an officer of the revenue.” … 30. section 167 of the sea customs act, 1878, contained a large number of clauses which described different kinds of infractions and different penalties or punishments liable to be imposed in respect of those infractions. under the customs act, 1962 the customs officer is authorised to confiscate goods improperly imported into india and to impose penalties in cases contemplated by sections 112 and 113. but on that account the basic scheme of the sea customs act, 1878, is not altered. the customs officer even under the act of 1962 continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into india of dutiable goods without payment of duty and of goods of which the entry is prohibited. he does not on that account become either a police officer, nor does the information conveyed by him, when the person guilty of an infraction of the law 75 is arrested, amount to making of an accusation of an offence against the person so guilty of infraction. even under the act of 1962 a formal accusation can only be deemed to be made when a complaint is made before a magistrate competent to try the person guilty of the infraction under sections 182, 133, 184 and 185 of the act. any statement made under sections 107 and 108 of the customs act by a person against whom an enquiry is made by a customs officer is not a statement made by a person accused of an offence.” (emphasis supplied) hence, it is contended by the learned counsel that the power conferred on pw-1 in the present case on hand is primarily for collection of duty and prevention of smuggling and he is for all purposes, an officer of the revenue. hence, any statement made under section 107 and 108 of the customs act by a person against whom an enquiry is made by a customs officer, is not a statement made by the accused person. 76 further, as regards the contention that the statement of the accused recorded by customs authorities under section 108 cannot be the basis for launching prosecution, the learned counsel smt. haleema ameen has relied on the judgment in superintendent of customs vs. haribhai vallabhbhai (laws (bom) 1990 8 50), wherein the relevant portion reads thus: “6. …it is settled law and which has been exhaustively dealt with by dr. couto j.in the earlier criminal writ petition decided on 25th september 1987 that a statement of an accused recorded by the customs authorities under section 108 of the customs act, 1962 cannot be the basis for launching the prosecution, as section 30 of the evidence act provides that when more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession, as against such other persons as well as against the 77 persons who makes such confession. it is held that such a confession statement by one of the accused against co-accused who is tried jointly along with him alone cannot be the basis or the foundation to proceed against other co-accused. such confession can be used only in support of other evidence and cannot be made the foundation of a conviction. …20. these are all the contentions taken by learned counsel smt. haleema ameen for the appellants in above appeals seeking for setting-aside the impugned judgments rendered by the trial court and to consequently allow these appeals.21. per contra, sri v.s.hegde, learned spp-2 has countered the arguments advanced by the counsel for the appellants/accused nos.1 to 4. he mainly concentrated in respect of section 108 of customs act, 1962. pw.1 – madhusudhan bhat, senior intelligence officer, dri, mangalore who got credible information 78 with regard to trafficking of counterfeit indian currency notes through xps courier parcel service office, mangalore, he along with his other colleague officers and staff rushed to the said courier office and enquired with the concerned staff of the courier service office with regard to receipt of parcel from uae, dubai. he secured two panch witnesses and along with panchas and other officers were waiting for the persons who were coming to collect the parcel. two persons i.e., accused nos.2 and 3 had come to the office and enquired about the parcel sent from dubai, uae. among them accused no.2 introduced himself as hasanabba in whose name parcel was sent and to confirm his identity, gave his mobile number 9741835671. the said parcel was bearing the name of sender as moideen s.k., dubai. the accused no.2 gave all particulars to identify himself as the addressee of the parcel. after complying all formalities, the parcel was delivered to accused who was 79 accompanied by accused no.3. at the time of leaving the office premises, pw.1 made an enquiry about the parcel and they replied they were ignorant of the contents. in the presence of the panch witnesses the said box was opened and found the fake indian currency notes. during the enquiry, their voluntary statements as contemplated under section 108 of customs act were recorded after explaining the consequences of their voluntary statement and the case was registered in or no.3/2008. further, pw.1 had taken the seized counterfeit notes to the rbi for confirmation and the officers of rbi confirmed that they were counterfeit indian currency notes. thereafter, pw.1 on 16.04.2008 reported the matter to the psi of kavoor p.s. and crime no.38/2008 came to be registered. further, the io conducted the spot mahazar as per ex.p12. based on the statement of arrested accused, accused no.4 was apprehended and his 80 voluntary statement was also received. he said that similar parcel was sent from dubai by one santosh @ santosh shetty and split up charge sheet was laid against him in s.c.no.51/2010. the learned spp-2 contends that the prosecution has placed reliance on exhibits p23 to p28 to substantiate its case that earlier to the receipt of the parcel in question also, accused nos.2 and 3 had received some other parcels sent by some persons from dubai. he contends that exhibit p23 reflects that the parcel was sent from uae mentioning the name of the sender as rohit, uae and it was addressed to mohammed asif, darazak kethikkal house, thiruvail vamanjoor post, mangalore, karnataka with the xps docket no.637576332 and the mobile number of accused no.4 / asif was mentioned. further, exhibit p25 mentioned the full address of the sender as rohit, post box no.4544, uae. he contends that it has come 81 in the evidence of the revenue intelligence officers that the fourth accused had received the said parcel from xps couriers and had then handed it over to accused no.2 as per the instruction of the sender. further, exhibit p26, delivery challan produced by xps couriers reveals that one more similar parcel sent from uae, dubai was booked on 28.02.2008 and was delivered on 5.3.2008. the said parcel was sent by the first accused santhosh, uae. and was addressed to mohammed shabeer / accused no.2, bismilla mazil, kettickal house, vamanjoor, mangalore, karnataka. the mobile number mentioned in the said docket was 9844712090 which was registered in the name of one mustafa, which number was being used by accused no.2 who held several sim cards in various names. the learned spp-2 contends that through the said mobile number, accused no.2 had contacted accused no.1 santhosh several times. hence, he contends that all the accused were 82 well connected with each other and were hand-in-glove with one another in transporting the fake indian currency notes and there is every possibility of the appellants / accused committing similar offences in case they are acquitted. hence, in view of the seriousness of the crime and the evidence on record, he contends that these appeals ought to be dismissed. it is further contended by shri v.s. hegde, spp-2 for the state that the appellants in these appeals have urged that the confession statement recorded under section 108 of the customs act is not admissible as piece of substantive evidence and hence, the accused persons cannot be convicted on the basis of the said statement made by the accused. as regards the said contention, the learned spp-2 contends that though the statement made before a customs official is not a statement recorded under section 161 cr.p.c., however, it is a material piece of evidence collected by the 83 customs official under section 108 of the customs act, which material incriminates the appellants inculpating them for contravening the provisions of the customs act. hence, he contends that it can be used as substantive piece of evidence to connect the appellants / accused with the contravention. he places reliance on a judgment of the apex court in the case of naresh j.sukhawani vs. union of india (air1996sc522 in support of the above contention.22. further, as regards the contention of the appellants that the procedure contemplated under section 108 of the customs act has not been followed by pw-1 in order to record the statements of the accused and further, their statements are not in the nature of confession statements and therefore, hit by section 24 of the evidence act is concerned, the learned spp-2 relies on a decision of the apex court in the case of percy rustomji basta vs. the state of84maharashtra (air1971sc1087, the relevant portion of which reads as under: “21….section 108 of the act gives power to a customs officer of a gazetted rank to summon any person to give evidence in any inquiry in connection with the smuggling of any goods. the inquiry made under this section is by virtue of sub-section (4) deemed to be a judicial proceeding within the meaning of sections. 193 and 228 of the indian penal code. a person summoned under s. 108 of the act is bound to appear and state the truth when giving evidence. if he does not answer he would render himself liable to be prosecuted under s. 2281. p. c. if, on the other hand, he answers and gives false evidence, he would be liable to be prosecuted under s. 193 i. p. c. for giving false evidence in a judicial proceeding. in short a person summoned under s. 108 of the act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. but it must be noted that a compulsion to speak the truth, even though it may amount to a threat, emanates in this case not from the officer who recorded the statement, but from the provisions of 85 the statute itself. what is necessary to constitute a threat under s. 24 of the evidence act is that it must emanate from the person in authority. in the case before us there was no such threat emanating from p. w. 5, who recorded the statement of p. w. 19, who was guiding the proceedings. on the contrary the officers recording, the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. even if p. w. 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which s. 193 i. p. c. applies, the appellant was bound to speak the truth when summoned under s. 108 of the act with the added risk of being prosecuted, if he gave false evidence.22. further, it is to be seen that it is not every threat, inducement or promise even emanating from the person in authority that is hit by s. 24 of the evidence act. in order to attract the bar, it has to be such an inducement, threat or promise, which should lead the accused to suppose that "by making it he would gain any advantage or avoid any evil of temporal nature in 86 reference to the proceedings against him". in the case before us what is it that the appellant has been told ?. he has been told that the law requires him to tell the truth and if be does not tell the truth, lie may be prosecuted under s. 193 i. p. c. for giving false evidence. this. we have held, does not constitute a threat under s. 24 of the evidence act. the plea of the appellant was that he was compelled to make the statement under the threat that otherwise his mother and another brother will be prosecuted. he has further stated that he was induced to make the statement on the belief that it will be used only against the second accused and not against him. these pleas of the appellant have been disbelieved by both the trial court and the high court. , therefore, it follows that even assuming that there was an inducement or threat, the appellant had no basis for supposing that by making the statement he would gain any advantage or avoid any evil with reference to the proceedings in respect of which an inquiry was being conducted by the customs officers. therefore, even on this ground also section 24 of the, evidence act has no application.” (emphasis supplied) 87 referring to the above judgment in percy rustomji basta, he contends that in the case on hand as well, it is not the case of the appellants that pw-1 or the police or somebody had extended any threat to the appellants to give their statement under section 108 of the customs act in order to constitute a threat under section 24 of the evidence act and further the same is also not hit by article 20(3) of the constitution of india. therefore, he contends that the above ground urged by the appellants / accused is untenable.23. further, as regards the contention of the learned counsel for the appellants that the statement recorded under section 108 of the customs act cannot be used for an offence committed under the provisions of the ipc is concerned, the learned spp-2 relies on a judgment of the apex court in the case of k.i. pavunny vs. assistant collector (hq) central88excise collectorate, cochin ((1997) 3 scc721). in the said judgment in k.i. pavunny, the hon’ble apex court has held that “sections 108, 110 and 111 – person suspected by a customs officer of having committed an offence under the act – status of – held, he is not an accused at that stage – he becomes an accused only when summons are issued by a competent court/magistrate pursuant to a complaint lodged by the competent customs officer – hence, his statement recorded during an enquiry under section 108 or during confiscation proceedings is not that of an accused within the meaning of section 24 of the evidence act. customs act, 1962 – sections 108 and 135 – customs officer recording the statement of a person who is suspected of having committed an offence under the act – status of such officer and admissibility of such statement in evidence – held, such an officer, although 89 not a police officer, is an authority within the meaning of section 24 of evidence act – however, a confessional statement recorded by reason of statutory compulsion or given voluntarily by the accused pursuant to his appearing against summons or on surrender, held, cannot be said to have been obtained by threat, inducement of promise- hence, is admissible in evidence for prosecution under section 135 of customs act or other relevant statutes – such a confessional statement although subsequently retracted, if on facts found voluntary and truthful, can form the exclusive basis for conviction – not necessary that each detail in the retracted confession be corroborated by independent evidence – it is however a rule of prudence and practice that court seeks assurance from other facts and circumstances to corroborate the retracted confession – evidence act, 1872, sections 24 to 30. 90 evidence act, 1872 – sections 24, 30 and 101-106 – use of threat, inducement or promise alleged – held the burden of proof is on the accused, though it is not as high as on the prosecution – further, once the accused is able to prove the facts creating a reasonable doubt that the confession was not voluntary or was obtained by threat, coercion or inducement, the burden would be on the prosecution to prove that the confession was made voluntarily. in a trial and priprio vigore in a criminal trial, courts are required to marshal the evidence. it is the duty of the prosecution to prove the case beyond reasonable doubt. the evidence may consist of direct evidence, confession or circumstantial evidence. in a criminal trial punishable under the provisions of the ipc it is now a well-settled legal position that confession can form the sole basis for conviction. if it is retracted, it must first be tested whether the confession is voluntary and truthful inculpating the 91 accused in the commission of the crime. confession is one of the species of admission dealt with under sections 24 to 30 of the evidence act and section 164 of the code. it is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. if a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high decree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. burden is on the accused to prove that the statement was obtained by threat, duress or promise if it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. the burden of proof on the accused is not as high as on the prosecution. if the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or 92 inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily.” i) harbansingh sardar lenasingh and another vs. state of maharashtra 1972 crl.l.j.759. in this judgment, the hon’ble apex court has held that “confessional statements recorded by an officer of customs under the customs act are admissible in evidence and are not hit by section 25 of the evidence act or article 20(3) of the constitution.24. learned spp-2 has further placed reliance on a judgment in the case of harban singh sardar lenasingh and another vs. the state of maharashtra (1972) 3 scc775 in this judgment, the hon’ble apex court has held that “section 108 – statement made before senior superintendent of customs admissible – evidence act, 1872, section 25 – constitution of india – article 20(3)” 93 further, the learned spp-2 has placed reliance on a judgment rendered by this court in crl.a.no.884/2010 disposed of on 24.07.2018 wherein it is held that “the offence relating to counterfeit currency, possession, circumstances and related are nothing but acts of constructive terrorism against the fiscal structure and economy of the nation.25. placing reliance on all these decisions, learned spp-2 submits that all these decisions are squarely applicable to the case on hand where the accused persons were involved in similar offences. they were hatching criminal conspiracy with regard to circulation of counterfeit currency notes as per mos.7 to 11 which were said to have been seized by pw.1 – madhusudhan bhat who drew the mahazar as per ex.p1 in the presence of accused nos.2 and 3 in s.c.no.63/2008 and also in the presence of pw.2 – panch witnesses and 94 so also, recorded confession statement of the accused. thereafter, proceeded with the case for investigation and laid chargesheet for the aforesaid offences. learned spp-2 mainly emphasizing in respect of section 108 of the customs act, submits that the evidence of pw.2 and the evidence of pw.1 are found corroborated with each other in respect of fulcrum of ex.p1 – seizure mahazar and moreover, the voluntary statements of the accused said to have been recorded by him who is vested with powers under section 108 of the customs act, it is admissible in evidence. the prosecution has relied ex.p23 to 28 to substantiate even to the earlier parcel in custody. but accused 2 to 4 have received similar parcel sent by a person from dubai. but ex.p23 reflects that the parcel was sent from uae, dubai mentioning the name of rohith it was addressed to mohammed asif being arraigned as accused no.4 in s.c.no.63/2008. this 95 evidence also finds place on the part of the prosecution to prove that the sealed parcel said to have been received in xps courier office on 18.03.2008 in the presence of accused nos.2 and 3. pw.1 is the senior intelligence officer of dri, mangalore who has stated in his evidence with regard to the criminal conspiracy relating to trafficking of counterfeit notes said to have been sent by santosh @ santosh shetty who was facing of trial in s.c.no.51/2010. pw.9 who is a nodal officer of spice telecom has produced ex.p.33 which mentioned mobile number 9844742090 registered in the name of one musthafa. pw.11 has spoken in his evidence that he happens to be the brother of accused no.2. he had no knowledge of the parcel sent from uae. but fake currency notes as per mos.7 to 11 alleged to have been sent by santosh @ santosh shetty in a sealed parcel mentioning his name to accused no.2. accused no.2 96 himself had received same such a sealed parcel even earlier on 5.3.2008. the same sender had sent another parcel by another name as rohith addressed to mohd.asif – accused no.2. it was booked on 30.01.2008 and the same has been received by accused no.4 from xps courier itself and handed over the said parcel to accused no.2. but there was criminal conspiracy hatching among the accused persons relating to trafficking of counterfeit currency notes which is threat to indian economy also sabotage the economy. the conclusive evidence under section 108 of the customs act and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. the said evidence is admissible in evidence in respect of the complaint filed by the customs officer for prosecution under section 135 or any other relevant statute. therefore, learned spp-2 97 contends that the contention of the learned counsel for the appellants that the statement recorded under section 108 of the customs act cannot be used for an offence under the ipc, is highly untenable. the statement recorded under section 108 of customs act can form the sole basis for conviction, as the statements recorded were within the knowledge of the accused / appellants and the consequences of making such statements were made known to them and those statements are voluntary statements. it is the further contention of the learned spp-2 that while recording the statement under section 313 cr.p.c., the accused had not at all taken a stand that the statement recorded under section 108 of the customs act cannot be used against them as the same was hit by section 24 and 25 of the indian evidence act. he submits that under section 135(a) of the customs act, burden is on the accused to prove that 98 they had no knowledge as regards mos. 7 to 11 fake currency notes seized when they went to take delivery of the parcel from the xps courier office. in view of non- denial of the possession of fake currency notes by them and in view of non-denial of the statement recorded under section 108 of the customs act, it is not open for them to contend that they be acquitted of the offences alleged. it is his further contention that it is not a single fake currency note which was found along with regular currency notes. but however, in the instant case, a huge number of fake currency notes totaling to a sum of rs.2 lakhs of denomination of rs.1000/- and rs.500/- kept in a box as per mos. 7 to 11 were seized. the currency was neatly packed and protected and was transported from dubai to mangaluru via xps courier. hence, he contends that the said offence relating to possession of counterfeit currency notes are nothing but 99 constructive terrorism against fiscal structure and economy of the nation. he contends that the circumstances of transporting, carrying of currency and its quality, mannerism, gesture and answers given by the accused cogently established that they were in possession of the same and they had conspired to transport the same. hence, he contends that the prosecution has established beyond reasonable and without shadow of any doubt the commission of the offences charged against them.26. in view of the above reasons, the learned spp-2 prays that the appeals be dismissed by confirming the judgments of conviction and sentence rendered by the trial court in respect of the accused persons in s.c.no.63/2008 and s.c.no.51/2010. 10027. on a careful consideration of the contentions advanced by the learned senior counsel shri hashmath pasha for appellants in crl.a.880/2010, the learned counsel smt. haleema ameen appearing for appellants in crl.a.869/2010 and crl.a.872/2011 and the learned counsel shri v.s. hegde, learned spp-2 appearing for the state and on a perusal of the evidence as well as the material on record, it is gathered that on 18.03.2008 shri madhusudhan bhat, the senior intelligence officer of the directorate of revenue intelligence, mangalore on receiving credible information with regard to smuggling activities, i.e., trafficking of counterfeit indian currency notes through xps courier parcel service office, mangalore, had formed a team along with other officers and two panch witnesses and had rushed to the aforesaid xps courier office, mangalore, at 4.00 p.m. he had enquired with the concerned staff of the courier office with regard to receipt of a parcel from uae and 101 was waiting there along with panch witnesses. at about 4.30 p.m., two persons, i.e., accused nos.2 and 3 had come to the xps courier service office and had enquired about the parcel received from uae, dubai. the courier personnel, delivered the parcel to them after verifying the identity and mobile number. in the meanwhile, the intelligence officers had enquired accused nos.2 and 3 about the contents in the said parcel. but however the accused had replied that they were ignorant of the contents in the said box. then, the said box was asked to be opened by the accused themselves in the presence of panch witnesses. on opening, they found that it contained several items including a bundle covered with carbon paper and on unwrapping it, they found fake indian currency notes of one thousand rupees and five hundred rupees denomination, totally amounting to rs.2,00,000/-. the officers, in the presence of the panch witnesses, 102 prepared a detailed mahazar, seized the incriminating articles, i.e., the alleged counterfeit indian currency notes, totally worth rs.2,00,000/- along with other articles which were found in the box. the dri officers then had interrogated the said accused and recorded their voluntary statements as contemplated under section 108 of the customs act and registered the case in their office in o.r.no.3/2008 and arrested accused nos.2 and 3 and produced them before the cjm court, mangalore. thereafter, the seized notes were checked with the rbi and were confirmed to be counterfeit indian currency notes. further, the dri officers, on the information gathered from accused nos.2 and 3, apprehended accused no.4, recorded his voluntary statement as contemplated under section 108 of the customs act in view of the fact that he had received similar parcel from dubai sent by one santhosh / accused no.1 against whom the case was split up and 103 subsequently committed. it was found that the fourth accused was in constant touch with santhosh. hence, the dri officers found that there was conspiracy among all the four accused pertaining to trafficking of counterfeit currency notes. thereafter the dri officers handed over the custody of accused no.4 as well to the sho of kavoor police station. thereafter, on 16.04.2008 the senior intelligence officer of dri reported the said matter to the sho of kavoor police station in writing, who registered a case in crime no.38/2008 against the accused. the investigating officer during the course of investigation, took the said accused to police custody and conducted mahazar through panchas, took some photographs of the xps courier office, received the alleged counterfeit indian currency notes from the dri officers and sent the notes to forensic science laboratory and got it confirmed that the said notes were all counterfeit notes. the i.o. after 104 completion of investigation, filed a charge-sheet against the accused for offences punishable under sections 489-a, 489-b, 489-c, 419, 120-b read with section 34 of ipc. the case was then committed to the court of sessions and was numbered as s.c.no.63/2008. since santhosh / accused no.1 could not be secured, the charge-sheet against him was split up and was registered as a separate case. thus, the case in s.c.no.63/2008 proceeded against accused nos.2, 3 and 4. further, after accused santhosh was secured, the case was proceeded against him in s.c.no.51/2010. by the respective orders, all the four accused have been convicted by the trial court.28. on an examination of the material on record, it is seen that pw-1 senior intelligence officer on receiving credible investigation proceeded to the xps couriers and seized the fake indian currency notes from the possession of accused nos.2 and 3 and 105 proceeded to record their voluntary statements under section 108 of customs act. further, he had also recorded the voluntary statement of accused no.4 as well after interrogating accused nos.2 and 3. after accused no.1 santhosh was secured, the i.o. had also got recorded his voluntary statement as contemplated under section 108 of the customs act. though pw-1 had the authority to do the investigation, the confession statements obtained from the accused is inadmissible in evidence, since the same requires to be tested under section 24 and 25 of the indian evidence act. the evidence of the prosecution witnesses is required to be carefully analysed. but the trial court in these cases, missed the link in the chain of circumstances to connect the accused that they had criminal conspiracy with one another and also have failed to prove that the accused had trafficked fake currency notes mo-7 to mo-11 which were seized by 106 pw-1 under exhibit p1 seizure mahazar. in the doctrine of criminal jurisprudence system, the prosecution ought to put forth cogent, corroborative, acceptable and consistent evidence to prove the guilt of the accused beyond all reasonable doubt. if not, the benefit of doubt ought to be extended to the accused alone. if that benefit of doubt is not extended, certainly it would lead to a miscarriage of justice. the spp-2 for the state has taken me through the evidence of pw-1 who is a responsible senior intelligence officer who drew the mahazar at exhibit p1 and also recorded the voluntary statement / confessional statements. certainly it is true that inculpatory statement has been recorded. but, to what extent it is admissible in nature is in question. the statements recorded by the i.o. under section 108 has to be tested with regard to the scope of sections 24 and 25 of the indian evidence act, 1872 inclusive of burden 107 of proof on the prosecution under section 101 to 106. if not, there shall be misinterpretation of the evidence facilitated by the prosecution to convict the accused.29. merely because seizure mahazar has been drawn by pw-1, it cannot be said that it is gospel truth. but it is required to be tested under section 24 and 25 of the indian evidence act in conformity with section 108 of the customs act in order to prove the guilt of the accused in respect of the offences under sections 489a, 489b, 489c, 120b inclusive of section 419 ipc. further, though pw-1 had recorded the voluntary statements of accused nos.2 and 3 as contemplated by section 108 of the customs act, however, the said confession statement is hit by section 24 of the indian evidence act, 1872. in that, the confession statement recorded by pw-1 under section 108 of the customs act is irrelevant, having regard to the fact that the same has 108 been obtained by the officer by use of threat and inducement and hence it is not reliable to the case of the prosecution. though initially pw-1 had registered a case against accused nos.2 and 3 in o.r.no.3/2008, but however the case against them has been discharged. in order to defeat the order made in customs case, a separate report has been filed by him before the kavoor police station and the case was proceeded against the accused. the fir has been filed on 20.03.2008 based upon his complaint at exhibit p-11. the kavoor p.s. registered the said case in cr.no.38/2008 and the i.o. drew the mahazar as per exhibit p-12, similar to the seizure mahazar at exhibit p1 drawn by pw-1 madhusudhan bhat. but the procedure which was adopted by the i.o. in the kavoor p.s. in cr.no.38/2008 is contrary to the well- established principle that the accused persons cannot be tried twice for the same offences. further, exhibit p1 109 mahazar dated 18.03.2008 was prepared for the purpose of deciding charge against the accused under the customs act. in view of the same, the confession statement of the accused recorded as contemplated under section 108 of the customs act, 1968, is hit by section 24 of the indian evidence act, 1872. in that, the statements have been recorded by pw-1 under the relevant provisions of the customs act of 1962. in respect of the same, pw-1 ought to initiate proceedings against the accused if they have violated certain provisions and also if they had evaded tax in a consignment. almost all major investigation has been done by pw-1 by recording the voluntary statements of the accused which is treated as confession statements in respect of exhibit p1 seizure mahazar. but the entire evidence has been recorded relating to the charges under the customs act, of 1962 in o.r.no.3/2008. 110 therefore, i find that it is irrelevant for the purpose of deciding the charges against the accused.30. further, there is no evidence to show that the accused took part in the process of manufacturing the fake currency notes which are produced at mo-7 to mo-11, such as printing the same and circulating the same. even on analyzing the entire evidence on record, it is observed that none of the witnesses examined before the court have whispered anything about actual participation of the accused in counterfeiting the indian currency notes. further, the investigating officer has not made an endeavour to trace out where actually the process of counterfeiting currency notes took place. neither the directorate of revenue intelligence department officers nor the police officers have investigated or traced the entire network. but it is seen that no efforts have been make to uproot the network. hence, i find that there is no evidence 111 facilitated by the prosecution with regard to the appellants either printing or circulating the said fake currency notes. charges were framed against the accused under sections 489b and 489c of the ipc. whereas the ingredients of the said charges i.e., any instance of the accused persons having used the counterfeit currency notes or forged notes either by selling or buying or by receiving the said counterfeit notes knowing fully well that the same were forged notes, has not at all been established by the prosecution. when such being the case, the guilt of the accused in respect of mensrea has not been established by the prosecution. the materials collected and recorded reveals that accused no.4 / mohammed asif is an innocent person and he was not at all present on 18.03.2008 along with accused nos.2 and 3. his presence was only secured 21.04.2008. there is no evidence on record to prove 112 that accused no.4 received any counterfeit notes nor he was found in possession of any counterfeit notes or he has circulated such notes. there is also no evidence so as to establish that accused no.4 had criminal conspiracy with the other accused to commit offence as narrated in complaint. under such circumstances, the trial court ought not to have held accused no.4 guilty of offence punishable under section 489-b or 489-c of ipc. though accused no.4 had received one parcel of uae, dubai, but there is no evidence to show that it contained counterfeit notes or that he had knowledge of the contents in the parcel. hence, i am of the view that the trial court has misdirected as well as misinterpreted the entire evidence of pw.1 insofar as the role of accused no.4 is concerned. hence, i find no direct evidence to connect him with the above offence. 11331. as regards accused santhosh k is concerned, it is seen that he did not possess any indian counterfeit currency notes when he was apprehended. hence, there is no direct or any circumstantial evidence on record to show that either this accused was found in possession of indian counterfeit currency notes or he had made use of the same as genuine notes. though the voluntary statement of this accused as per the provisions of section 108 of the customs act was obtained by pw-1 as per exhibit p-35, there is no satisfactory evidence available on record to connect the said accused santhosh for the offence punishable under sections 489-a and section 489-c of the ipc. further, in respect of s.c.no.51/2010, ex.p12 – spot mahazar was conducted by the i.o in the presence of pw.1 – madhusudhan bhat alone and he did not even secure the accused person in order to confirm the contents at ex.p12. but very cleverly said 114 madhusudhan bhat had drawn the seizure mahazar at ex.p1 and secured the signatures of accused nos.2 and 3 on ex.p1. this material contradiction on the part of the prosecution has been ignored by the trial court. subsequent to receipt of information, pw-1 ought to have given information in writing or a complaint in writing before the psi of kavoor police station having jurisdiction, to proceed with the matter, in view of the fact that the offences against all the accused were alleged under the indian penal code, 1860. under section 4 of cr.p.c., it is the power vested with the concerned investigating agency to proceed for investigation and lay the charge sheet. but however, i find that the said procedure has not been followed. as against the said procedure contemplated under the cr.p.c., almost all the investigation has been done by pw.1 and thereafter he had handed over mos.7 to 11 which are indian fake currency notes to the psi of 115 kavoor police station, who in turn, has registered case in crime no.38/2008. pw-1 had also conducted spot mahazar as per ex.p12 and thereafter recorded the statement of witnesses and also secured the material documents and thereafter laid the charge sheet against the accused. the psi did not secure the accused persons even at the time of conducting the spot mahazar in the office of xps courier service. however, the trial court did not appreciate this evidence on record in a proper perspective manner. ex.p1-seizure mahazar was drawn by pw.1 on 18.03.2008 to which he has subscribed his signature and also obtained signatures of hasanabba, the accused namely mayaddi and pw.2 – gokuldas hegde. this mahazar is an important document said to be conducted by pw.1. pw.10 being the i.o conducted spot mahazar as per ex.p12 marked in s.c.51/2010 bears the signature of pw.1 alone. pw.22 being the i.o116in s.c.no.63/2008 did not make any endeavour to secure accused nos.2 and 3 in connection with conducting the spot mahazar at xps courier office at mangaluru. this vital material evidence on the part of the prosecution has not been considered by the trial court while arriving at a conclusion that the prosecution has proved the guilt of the accused. the supervisor of the xps courier office was also subjected to examination on the part of the prosecution. the doctrine of burden must apply equally on the part of the prosecution and so also on the part of the accused who has taken defence. ultimately, section 3 of the indian evidence act, 1872 which is the domain vested with the trial court to appreciate the evidence on record under section 134 of the indian evidence act, 1872 not to count the witnesses but only to count the evidence. that evidence should be produced by the prosecution beyond all reasonable doubt. if any doubt 117 arises, the benefit of doubt shall accrue only on the part of the accused and not on the part of the complainant said to have prosecuted the case against the accused.32. the major flaw in the case of the prosecution is that pw-1 / senior intelligence officer who conducted the investigation, did not inquire as to from where the fake currency notes originated and he did not unearth the entire network regarding the offenders / felonies who were the persons responsible for printing the said fake currency notes and circulating the same.33. therefore, in these appeals, keeping in view the contentions taken by the learned counsel for the appellant, the entire evidence of the prosecution requires to be re-scanned and re-appreciated and the judgment of conviction and order of sentence rendered by the trial court is found to suffer from infirmities and also there are glaring contradictions in the evidence of 118 pw-1, pw2, pw8 and pw22 / pw10 being the i.o. who laid the charge-sheet against the accused. further, a fundamental error has been committed by the trial court in placing explicit reliance upon section 108 of the customs act. it refers to leading of evidence, production of documents or any other thing in an enquiry in connection with smuggling of goods. every proceeding in terms of sub-section (4) of section 108 of the customs act would be a judicial proceeding within the meaning of sections 193 and 228 of the indian penal code. but however, the enquiry contemplated under section 108 is for the purpose of the customs act and not for the purpose of convicting an accused under any other statute. in view of all the above reasons, i proceed to pass the following:119. order crl.a.nos.880/2010, 869/2010 and 872/2011 are hereby allowed. the judgment of conviction and order of sentence rendered by the presiding officer, fast track court, mangalore in sessions case no.63/2008 by order dated 26.07.2010 and the judgment of conviction and order of sentence rendered by the presiding officer, fast track court, mangalore, in sessions case no.51/2010 are hereby set aside. consequently, the accused / appellants in crl.a.nos. 880/2010, 869/2010 and 872/2011 are acquitted of the alleged offences. the bail bond if any executed by the respective appellants in crl.a.nos.880/2010, 869/2010 and 872/2011 stands cancelled. if any fine amount has been deposited by the appellants, the same shall be 120 refunded to the respective appellants, on proper identification. it is submitted by learned counsel that the passports of the appellant in crl.a.872/2011 / santhosh and the first appellant in crl.a.880/2010 / mohammed shabeer have been seized by the investigating agency. she seeks for an order of release of their passports, in view of the above order of acquittal of the said accused from the alleged offences. if their passports have been seized, the respective appellants shall approach the competent authority for release of their passports under the passports act, in accordance with law. sd/- judge ks / dkb

Judgment:

1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF FEBRUARY, 2020 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR CRIMINAL APPEAL NO.880 OF2010CONNECTED WITH CRIMINAL APPEAL No.869 OF2010CRIMINAL APPEAL No.872 OF2011CRL.A. 880/2010: BETWEEN1 MOHAMMED SHABEER AGED ABOUT31YEARS S/O LATE ABDUL KHADAR R/AT HOUSE NO.2/61 ‘BISMILLA MANZIL’ KOTEKAR HOUSE THIRUVALAL GRAMA VAMANJOOR, MANGALORE.

2. MAYADDI AGED ABOUT32YEARS S/O ABUBAKKAR R/AT HOUSE NO.2/60 ‘BISMILLA MANZIL’ KOTEKAR HOUSE THIRUVALA GRAMA VAMANJOOR, MANGALORE. ... APPELLANTS (BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR M/S HASHMATH PASHA & ASSTS., ) 2 AND STATE BY SUB-INSPECTOR OF POLICE KAVOOR POLICE STATION KAVOOR. ... RESPONDENT (BY SRI. V S HEGDE – SPP-2 A/W SRI M. DIVAKAR MADDUR - HCGP) THIS CRL.A. IS FILED UNDER SECTION3742) OF THE CR.P.C PRAYING TO, SET ASIDE THE

JUDGMENT

AND

ORDER

OF CONVICTION DATED2629.7.10 PASSED BY THE P.O., FTC, MANGALORE IN S.C.NO.63/08 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S489B, 489-C R/W SEC. 34 OF IPC AND U/S120B R/W SEC. 489-B AND489C OF IPC AND ETC., CRL.A.869 /2010: BETWEEN MOHAMMED ASIF S/O LATE D.A. RAZAK AGED ABOUT28YEARS R/O KATEKAL HOUSE THIRUVALA GRAMA VAMANJOOR MANGALORE. ... APPELLANT (BY SMT. HALEEMA AMEEN, ADVOCATE FOR SRI S VISHWAJITH SHETTY - ADVOCATE) 3 AND STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE. ... RESPONDENT (BY SRI. V. S. HEGDE – SPP–2 A/W SRI M. DIVAKAR MADDUR - HCGP) THIS CRL.A. IS FILED UNDER SECTION3742) OF THE CR.P.C PRAYING TO, SET ASIDE THE

JUDGMENT

AND

ORDER

OF CONVICTION DATED2629.7.10 PASSED BY THE P.O., FTC, MANGALORE IN S.C.NO.63/2008 – CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S120B(1) R/W SEC. 489-C OF IPC AND ETC., CRL.A.872 /2011: BETWEEN SRI SANTHOSH .K @ SANTHOSH SHETTY @ ROHITH @ CABLE SANTHU S/O GANGADHARA K AGED ABOUT33YEARS R/AT D.NO.1-292:25 NER GALAXI HALL HARIGUDDE, SALMARA KARKALA. ... APPELLANT (BY SMT. HALEEMA AMEEN, ADVOCATE FOR SRI S VISHWAJITH SHETTY - ADVOCATE) 4 AND STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE. ... RESPONDENT (BY SRI. V. S. HEGDE – SPP–2 A/W SRI M. DIVAKAR MADDUR - HCGP) THIS CRL.A. IS FILED UNDER SECTION3742) OF THE CR.P.C PRAYING TO, SET ASIDE THE

JUDGMENT

AND

ORDER

OF CONVICTION DATED0811.8.2011 PASSED BY THE P.O. FTC., MANGALORE IN S.C.NO.51/2010 – CONVICTING THE APELLANT / ACCUSED FOR THE OFFENCE P/U/S489B AND120B R/W SEC.34 OF IPC AND ETC., THESE CRIMINAL APPEALS COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

ORDER

Crl.A.No.880/2010 is preferred by Accused No.2 / Mohammed Shabeer and Accused No.3 / Mayaddi challenging the judgment of conviction and order of sentence rendered by the Presiding Officer, Fast Track Court, Mangalore, D.K., in S.C.No.63/2008 dated 26.07.2010. Both of them were convicted for the 5 offences under Sections 489-B, 489-C read with Section 34 IPC and under Section 120-B read with Section 489- B and 489-C of IPC but however they were acquitted of the offences punishable under Sections 489-A and 419 read with Section 34 of IPC. As regards sentence, Accused Nos.2 and 3 were sentenced to undergo rigorous imprisonment for 10 years each for the offence punishable under Section 489-B read with Section 34 IPC and to pay a fine of Rs.10,000/- each; in default of the same, they were to suffer simple imprisonment for three months. Further, Accused Nos.2 and 3 were sentenced to undergo rigorous imprisonment for five years for the offence punishable under Section 489-C read with Section 34 of IPC. Further they were sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 120-B(1) read with Section 489(B) and 489(C) of IPC. All the sentences of accused nos.2 and 3 were to run 6 concurrently and they were entitled to claim set off for the period during which they had spent in judicial custody.

2. Crl.A.869/2010 is preferred by Accused No.4 / Mohammed Asif challenging the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.63/2008 dated 26.07.2010. By the said judgment, Accused No.4 was convicted for offences punishable under Section 120-B read with Section 489- C of the IPC but however was acquitted of the offences under Sections 489-A, 489-B, 489-C and 419 read with Section 34 of IPC.

3. Crl.A.872/2011 is preferred by one Santhosh K @ Santhosh Shetty @ Rohit @ Cable Santhu who was Accused No.1 in S.C.No.63/2008. But since he was absconding, the case against him was split up and was registered as S.C.No.51/2010. The connected appeal Crl.A.872/2011 has been preferred by the said accused 7 Santhosh challenging the judgment of conviction and order of sentence rendered by the Presiding Officer, Fast Track Court, Mangalore, D.K., in S.C.No.51/2010 dated 8.8.2011. By the said judgment, the accused / Santhosh was convicted for offences punishable under Sections 489-B and 120-B read with Section 34 IPC but however was acquitted of the offences punishable under Sections 489-A, 489-C and 419 read with Section 34 of IPC. As regards sentence, he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- for the offence punishable under Section 489-B read with Section 34 IPC and in default of payment of fine to undergo simple imprisonment for three months. Further, he was sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 120-B(1) read with Section 489-B of IPC. The said sentences were to run 8 concurrently and was entitled to claim set off for the period during which he had spent in judicial custody.

4. The present appeals arise out of two judgments rendered by the Trial Court in S.C.No.63/2008 dated 26.07.2010 and in S.C.No.51/2010 dated 08.08.2011. While S.C.No.63/2010 pertains to the judgment of conviction and sentence in respect of Accused Nos.2 to 4 in Cr.No.38/2008 registered before the Kavoor Police Station, S.C.No.51/2010 pertains to the judgment of conviction and sentence in respect of one Santhosh who was arraigned as Accused No.1 in Cr.No.38/2008 against whom the charges were split up. Though these appeals arise out of two judgments, since all the appeals pertain to the same crime number and similar offences and further the charge-sheet laid by the Investigating Officer against the split up accused as well as Accused Nos.2 to 4 in S.C.No.63/2008 being one and the same, 9 they are taken up for hearing together and are disposed of by this common judgment.

5. The factual matrix according to the case put forth by the prosecution is as under: It transpires that on 18.03.2008 the Senior Intelligence Officer of the Directorate of Revenue Intelligence, Mangalore (hereinafter referred to as ‘DRI’ for brevity), had received credible information with regard to smuggling activities, i.e., trafficking of counterfeit Indian currency notes through XPS Courier Parcel Service Office, Mangalore. Acting on the said information, Shri Madhusudhan Bhat being a Senior Intelligence Officer of the DRI had formed a team along with other officers and two panch witnesses and had rushed to the aforesaid XPS Courier Office, Mangalore, at 4.00 p.m. He had enquired with the concerned staff of the courier office with regard to receipt of a parcel from UAE and was waiting there along with panch 10 witnesses. At about 4.30 p.m., two persons, i.e., Accused Nos.2 and 3 had come to the XPS Courier Service Office and had enquired about the parcel received from UAE, Dubai. The second accused had introduced himself to the staff as Hasanabba in whose name the parcel was sent. The courier personnel, delivered the parcel sent by Shri Moideen S.K., Dubai to Accused No.2, after verifying his identity and mobile number. After receiving the box, both Accused Nos.2 and 3 were ready to leave the XPS Courier office. In the meanwhile, the Intelligence Officers had enquired them about the contents in the said parcel. But however the accused had replied that they were ignorant of the contents in the said box. Then, the said box was asked to be opened by the accused themselves in the presence of panch witnesses. On opening, they found that it contained cosmetics, sweets, clothes, shoes, chocolates and also a tea powder box. When the Tea Powder box 11 was opened, though it was filled with tea powder, also they found a bundle wrapped with a black cloth. On unwrapping the black cloth, they found a bundle covered with carbon paper and on further unwrapping it, they found fake Indian Currency Notes. It contained 30 notes of one thousand rupees denomination and 340 notes of 500 rupees denomination. The Officers, in the presence of the panch witnesses, prepared a detailed mahazar, seized the incriminating articles, i.e., the alleged counterfeit Indian Currency notes, totally worth Rs.2,00,000/- along with other articles which were found in the box. The DRI Officers then had interrogated the said accused and recorded their voluntary statements as contemplated under Section 108 of the Customs Act and registered the case in their office in O.R.No.3/2008 and arrested Accused Nos.2 and 3 and produced them before the CJM Court, Mangalore. Thereafter, the DRI Officers 12 took the seized counterfeit notes to the RBI to confirm whether the same were genuine or counterfeit notes. The RBI Officers tested the same and confirmed that the seized notes were counterfeit Indian Currency notes. Further, the DRI Officers, on the information gathered from Accused Nos.2 and 3, apprehended Accused No.4, recorded his voluntary statement as contemplated under Section 108 of the Customs Act in view of the fact that he had received similar parcel from Dubai sent by one Santhosh / Accused No.1 against whom the case was split up and subsequently committed. It was found that the fourth accused was in constant touch with Santhosh. Hence, the DRI Officers found that there was conspiracy among all the four accused pertaining to trafficking of counterfeit currency notes. Thereafter the DRI Officers handed over the custody of Accused No.4 as well to the SHO of Kavoor Police Station. 13 Thereafter, on 16.04.2008 the Senior Intelligence Officer of DRI reported the said matter to the SHO of Kavoor Police station in writing, who registered a case in Crime No.38/2008 against the accused. Thereafter the Investigating Officer during the course of investigation, took the said accused to police custody and conducted mahazar through panchas, took some photographs of the XPS Courier office, received the alleged counterfeit Indian currency notes from the DRI officers and sent the notes to Forensic Science Laboratory and got it confirmed that the said notes were all counterfeit notes. The I.O. after completion of investigation, filed a charge- sheet against the accused for offences punishable under Sections 489-A, 489-B, 489-C, 419, 120-B read with Section 34 of IPC. The case was then committed to the Court of Sessions and was numbered as S.C.No.63/2008. Since Santhosh / Accused No.1 could not be secured, the charge-sheet against him was split 14 up and was registered as a separate case. Thus, the case in S.C.No.63/2008 proceeded against Accused Nos.2, 3 and 4. After the case was committed to the Sessions Court, the said court heard both sides with regard to framing of charges and proceeded to frame charges against the accused, wherein the accused nos.2 to 4 pleaded not guilty and claimed to be tried. In order to substantiate the charges leveled against the accused, the prosecution in all examined 23 witnesses as PW-1 to PW-23 and got marked documents at Exhibits P1 to P- 60 and material objects MOs.1 to 11 and closed the evidence. Thereafter, the accused nos.2 to 4 were examined as required under Section 313 of Cr.P.C., wherein they denied all the incriminating circumstances appearing against them. But however, they did not produce any defence evidence but pleaded that they 15 were innocent of the alleged offences and that they were falsely implicated in the alleged offences. The Sessions Court after hearing the arguments advanced by both the prosecution and the accused, framed the points that arose for consideration and thereby by its order dated 26.07.2010 in S.C.No.63/2008 convicted Accused Nos.2 to 4 for the offences alleged and sentenced them as aforesaid. Subsequent to committing the case in respect of Accused Nos.2 to 4 in S.C.No.63/2008, a split up charge sheet was filed against Accused No.1 / Santhosh in S.C.No.51/2010. Charges were framed against accused Santhosh in S.C.No.51/2010, wherein he did not plead guilty but claimed to be tried. Subsequent to framing of charges, the prosecution in order to establish the guilt against him, examined in all 11 witnesses as PW-1 to PW-11 and got marked several documents as Exhibits P1 to P48 apart from marking material objects 16 MO-1 to MO-11. Also, portions of his statement were got marked as Exhibit D1(a). Thereafter, the accused Santhosh was examined as required under Section 313 of Cr.P.C., wherein he denied all the incriminating circumstances appearing against him. But however, he did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. The Sessions Court after hearing the arguments advanced by both the prosecution and the accused, framed the points that arose for consideration and thereby convicted Accused No.1 as well by its order dated 8.8.2011 in S.C.No.51/2010 for the offences alleged and sentenced him as aforesaid.

6. It is these two judgments of conviction and sentence in S.C.No.63/2008 (in respect of Accused Nos.2 to

4) and S.C.No.51/2010 (in respect of Accused Santhosh against whom the charge-sheet was split up) 17 which are under challenge in these appeals by the appellants urging various grounds.

7. Heard the learned Senior counsel Shri Hashmath Pasha appearing for the appellants in Crl.A.880./2010 (Accused Nos.2 and 3), the learned counsel Smt. Haleema Ameen appearing for Shri Vishwajith Shetty, learned counsel for the appellant in Crl.A.869/2010 (Accused No.4) and for the appellant in Crl.A.872/2011 (Accused No.1), the learned counsel Shri V.S. Hegde, State Public Prosecutor-2 and the learned HCGP Shri M. Divakar Maddur for the State.

8. Learned Senior Counsel Shri Hashmath Pasha appearing for the appellants / Accused Nos.2 and 3 in Crl.A.No.880/2010 has taken me through the evidence of PW-1 / Shri Madhusudhan Bhat who is a Gazetted Officer in the rank of Senior Intelligence Officer of DRI. He is the one who received credible information 18 regarding the receipt of parcel in XPS Courier office at Mangalore. PW-1 had initially registered a case against accused Nos.2 and 3 in O.R.No.3/2008, but however later, the case against them has been discharged. PW.1 Madhusudhan Bhat also drew the mahazar at Exhibit P1 in the presence of panch witnesses for having seized certain articles MO-1 to MO-6 such as Tea Powder packet, carbon paper, black colour cloth pieces, white colour cloth pieces, mobile phone which were found in MO-1 Cardboard box. MO-7 to MO-11 are the counterfeit currency notes, MO-7 bundle of 30 notes of one thousand rupees denomination; MO-8 bundle of 40 notes of five hundred rupees denomination; MO-9 bundle of 100 notes of five hundred rupees denomination; MO-10 bundle of 100 notes of five hundred rupees denomination and MO-11 bundle of 100 notes of five hundred rupees denomination. He drew the seizure mahazar in the presence of PW-2, PW- 19 3 and PW-8, who had subscribed their signatures and also obtained the signature of Accused Nos.2 and 3. PW-1 had also subscribed his signature to the said seizure mahazar. The learned Senior counsel contends that though PW-1 had recorded the voluntary statements of Accused Nos.2 and 3 as contemplated by Section 108 of the Customs Act, however, the said confession statement is hit by Section 24 of the Indian Evidence Act, 1872. In that, he contends that the confession statement recorded by PW-1 under Section 108 of the Customs Act is irrelevant, having regard to the fact that the same has been obtained by the Officer by use of threat and inducement and hence it is not reliable to the case of the prosecution. He contends that though initially PW-1 had registered a case against accused nos.2 and 3 in O.R.No.3/2008, but however the case against them has been discharged. In order to defeat the order made 20 in customs case, a separate report has been filed by him before the Kavoor Police Station and the case was proceeded against the accused. The FIR has been filed on 20.03.2008 based upon his complaint at Exhibit P-11. The Kavoor P.S. registered the said case in Cr.No.38/2008 and the I.O. drew the mahazar as per Exhibit P-12, similar to the seizure mahazar at Exhibit P1 drawn by PW-1 Madhusudhan Bhat. But the procedure which was adopted by the I.O. in the Kavoor P.S. in Cr.No.38/2008 is contrary to the well- established principle that the accused persons cannot be tried twice for the same offences. He contends that Exhibit P1 mahazar dated 18.03.2008 was prepared for the purpose of deciding charge against the accused under the Customs Act. In view of the same, the confession statement of the accused recorded as contemplated under Section 108 of the Customs Act, 1968, is hit by Section 24 of the Indian Evidence Act, 21 1872. In that, the statements have been recorded by PW-1 under the relevant provisions of the Customs Act of 1962. In respect of the same, PW-1 ought to initiate proceedings against the accused if they have violated certain provisions and also if they had evaded tax in a consignment. Almost all major investigation has been done by PW-1 by recording the voluntary statements of the accused which is treated as confessional statements in respect of Exhibit P1 seizure mahazar. But the entire evidence has been recorded relating to the charges under the Customs Act, of 1962 in O.R.No.3/2008. Therefore, he contends that it is irrelevant for the purpose of deciding the charges against the accused in S.C.No.63/2008 in respect of Accused Nos.2, 3 and 4 and so also in respect of accused Santhosh Shetty in S.C.No.51/2010. A similar contention has also been taken by Smt. Haleema Ameen, learned counsel appearing for the 22 appellant in Crl.A.869/2010 and Crl.A.872/2011. Therefore, it is contended that the confession statement recorded by the Customs Officer being the rank of a Gazetted Officer as contemplated under Section 108 of the Customs Act, 1962, is contrary to the scope of Section 24 of the Indian Evidence Act, 1872. The statement given by the accused before the Senior Intelligence Officer – PW-1 even though it is admissible, it is only to the extent of initiating proceedings under the provisions of the Customs Act alone and it cannot be used as a confession statement or to say that it is a voluntary statement of the accused. In view of the same, the charge-sheet laid against Accused Nos.2, 3 and 4 in S.C.No.63/2008 and against Santhosh Shetty in S.C.No.51/2010 is contrary to the fulcrum of Exhibit P1 of the seizure mahazar conducted by PW-1 and so also the evidence of PW-22 / I.O. in S.C.No.63/2008 who conducted the mahazar as per Exhibit P-12. 23

9. His further contention is that the Trial Court has failed to notice that there must be some evidence to show that the accused took part in the process of manufacturing the fake currency notes which are produced at MO-7 to MO-11, such a printing the same and circulating the same. Even on analyzing the entire evidence on record, it is observed that none of the witnesses examined before the Court have whispered anything about actual participation of the accused in counterfeiting the Indian currency notes. Further, the Investigating Officer has not made an endeavour to trace out where actually the process of counterfeiting currency notes took place. Neither the Directorate of Revenue Intelligence Department Officers nor the Police Officers have investigated or traced the entire network. If really the accused were responsible for transporting counterfeit Indian currency notes, there must be a big network behind the same. But the learned Senior 24 counsel contends that no efforts have been made to uproot the network. Hence, it is seen that there is no evidence facilitated by the prosecution with regard to the appellants either printing or circulating the said fake currency notes.

10. It is the further contention of the learned Senior Counsel that the charges were framed against the accused under Sections 489B and 489C of the IPC. Whereas the ingredients of the said charges i.e., any instance of the accused persons having used the counterfeit currency notes or forged notes either by selling or buying or by receiving the said counterfeit notes knowing fully well that the same were forged notes, has not at all been established by the prosecution. When such being the case, the guilt of the accused in respect of mensrea has not been established by the prosecution. The evidence on the part of the prosecution in this regard, is totally lacking. 25 Despite of the same, the Trial Court has convicted the accused in S.C.No.63/2008 and S.C.No.51/2010 for offences punishable under Sections 489B and 489C of IPC, which is erroneous in law. Further, the prosecution has placed much reliance on the evidence of PW-1 merely because he is a Gazetted Officer, being a Senior Intelligence Officer of DRI. He is the one who had conducted the seizure mahazar and recorded the statements of the accused under Section 108 of the Customs Act, 1962. Therefore, PW-1 is aware that it comes under the provisions of Section 108 of the Customs Act and initiation of proceedings is not even deemed to be a judicial proceeding within the meaning of Section 193 or Section 228 of the IPC as well. It is further contented that the offence neither attracts Section 111 of the Customs Act relating to confiscation of improperly imported goods 26 nor Section 135 of the Customs Act relating to evasion of duty or prohibitions. It is further contended that the witnesses PW-1, PW-6, PW-7, PW-8, PW-22 and PW-23 are highly interested witnesses to the case of the prosecution and the Trial Court should not have relied on their evidence to convict the accused. Further, the evidence of PWs 2 and 3 panch witnesses are nothing but bundle of falsity since they did not know the facts relating to the seizure mahazar at Exhibit P1 or the spot mahazar at Exhibit P12. Further, PW-8 being a total stranger to the aforesaid mahazar at Exhibit P1 and spot mahazar at Exhibit P12, the evidence of the aforesaid witness is also filled with infirmities. Hence, he contends that the Trial Court has failed to appreciate the evidence of the witnesses in a proper perspective, particularly the evidence of PW-1 and so also the evidence of PW-8 who knew only Hindi language. But however, it is seen that 27 all the statements have been recorded in Kannada language. The Kannada statement of this witness PW-8 does not indicate that the contents were read over to him in Hindi and were admitted by him to be correct.

11. It is his further contention that there is absolutely no iota of evidence against the second appellant / Accused No.3 so as to convict him for the offences alleged. Even according to the case of the prosecution, he had only accompanied Accused No.2 to the XPS courier office and had no role to play in the commission of any offence alleged. Hence, it is contended that since there is no corroboration among the witnesses in respect of material particulars and when several infirmities are found in the case of the prosecution, the benefit of doubt shall be extended to the accused alone. 28

12. In support of his contentions, the learned Senior counsel Shri Hashmath Pasha has placed reliance on the following authorities:

1. Nirmal Singh Pehlwan Alias Nimma //Vs// Inspector, Customs, Customs House, Punjab.-. ((2011)12 SCC298 2. Raj Kumar Karwal //Vs// Union of India and others.-. ((1990)2 SCC409 3. Noor Aga //Vs// State of Punjab and another. – ((2008) 16 SCC417 4. Kanhaiyalal //Vs// Union of India. – ((2008) 4 SCC668 5. Mharaj Prithvisinghji Bhimsinghji //Vs// State of Bombay (now Rajasthan). – (AIR1960SCC483(V47C81) 6. M Mammutti //Vs// State of Karnataka. – ((1979) 4 SCC723 7. Directorate of Enforcement //Vs// Deepak Mahajan and another. – ((1994) 3 SCC440 29 In the case of Nirmal Singh Pehlwan Alias Nimma Vs. Inspector, Customs, Customs House, Punjab.-. ((2011)12 SCC298, the Hon’ble Apex court has held as under: “The second argument is based on the judgment of this Court in Noor Aga vs. State of Punjab & Anr. (2008 (16) SCC417 in which this Court had deviated from the earlier position in law that a Customs Officer was not a police officer and a confession made to him under Section 108 of the Customs Act, was admissible in evidence. In this case it has been held that as a Custom Officer exercised police powers and a confession made by an accused could result in a conviction and sentence, such a confession was hit by the embargo placed by Section 25 of the Evidence Act, 1872, and was, therefore, not admissible in evidence. On the other hand, Mr. R.P. Bhatt, the leaned senior counsel for the respondent - Department, has pointed out that Ext. P.A. the consent memo in fact conveyed information to the appellant that he had a right to be searched in the presence of a 30 Magistrate or a Gazetted Officer and that this amounted to full compliance with Section 50 of the Act. He has also pointed out that although Noor Aga's case did say that a confession made to a Custom Officer was hit by Section 25 of the Evidence Act and was therefore not admissible in the evidence, yet a judgment of a coordinate Bench of this Court in Kanahiya Lal vs. Union of India case (2008 (4) SCC668 had reiterated the earlier position in the law as given in Raj Kumar vs. Union of India - 1990(2) SCC409that Officers of the Revenue Intelligence and ipso facto of the Customs Department could not be said to be police officers and a confession before them would not be hit by Section 25 of the Evidence Act. We also see that the Division Bench in Kanahiya Lal's case had not examined the principles and the concepts underlying Section 25 of the Evidence Act vis.-a- vis Section 108 of the Customs Act the powers of Custom Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar's case (Supra). The latest judgment in point of time is Noor Aga's case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the 31 ratio of the judgment in Noor Aga's case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with. In the instant case, PW.1 – Madhusudhan Bhat who recorded the statement of the accused under Section 108 of the Customs Act and also appraised the consequences of the statements said to have been given by them, had thereafter, recorded the statement such as voluntary statement of the accused said to be confessional statement made by accused Nos.2, 3 and 4 and drew the mahazar as per Ex.P1 in the presence of panch witnesses and so also seized the Indian fake currency notes at MOs.7 to 11 which depicted in detail in the said mahazar. But under Section 108 of the Customs Act, the power is vested with the Customs officer being the senior intelligence officer. The power is studded with him but the statement of the accused recorded in terms of the voluntary statement, should be 32 in conformity with Sections 24 and 25 of the Evidence Act, if not the same has to be tested whether the accused has given a statement before PW.1 – Madhusudhan Bhat as even though he has power under Section 108 of Customs act wherein it is a statement by coercive, threat or undue influence in respect of MOs.7 to 11 said to be fake currency notes. But the confessional statement it is made by the accused during the course of investigation/inquiry made by PW.1. There is no dispute that customs officer is not a police officer but he has to proceed under the provision of Section 108 of the Customs Act for the purpose of making inquiry and initiating proceedings. To that extent only the power has been studded. But in the instant case, PW.1 investigated the case by drawing mahazar as per Ex.P1 and also seized the fake currency notes and other materials. While he made enquiry to accused Nos.2 and 3 on 18.03.2008 but they did not give satisfactory 33 information to him. Thereafter, secured accused Nos.2 and 3 to his office and recorded voluntary statement of the accused and confessional statement but the said statement has to be tested by Section 24 and 25 of the Indian Evidence Act. There is no information that accused Nos.2 and 3 gave statement regarding the contents in the parcel. Merely because the parcel is said to have been received in a sealed box – MO.1 and beneath that MOs.7 to 11 fake currency notes were found. Despite of that PW.1 proceeded with the case to make an enquiry and thereafter, filed a complaint as per Ex.P11 before the PSI of Kavoor Police Station and in turn he registered the case in crime No.38/2008 for the aforesaid offences against the accused and drew the spot mahazar as per Ex.P12 in their presence. But the major investigation is done by PW.1 by securing official witnesses and so also obtained report from the RBI and subjected to verification and examination of that fake 34 currency notes said to have been seized under Ex.P1. But this glaring material contradiction has not been appreciated by the trial Court but only believing the evidence of PW.1, convicted the accused persons for the aforesaid offences. The case of the prosecution has to be established by putting forth cogent, corroborative and acceptable evidence and moreover, the accused having the knowledge of fake currency notes which was obtained for the purpose of circulating. This evidence does not find place on the part of the prosecution to prove the guilt of the accused. Mere because PW.1 recorded the statement of the accused under Section 108 of the Customs Act, it cannot be said that he had followed the scope of Section 24 and 25 of the Evidence Act. In the case of Raj Kumar Karwal //Vs// Union of India and others.-. ((1990)2 SCC409, the Apex Court has held thus:

35. “Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 53, 36A, 52, 52-A, 41, 42, 43 and 44 – Officers of Department of Revenue Intelligence (DRI) invested with powers of officer-in- charge of police station under Section 53 – Held, are not police officers within the meaning of Section 25, Evidence Act, 1872 – Consequently confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the act is admissible in evidence – Officers appointed under Section 53 not entitled to exercise all the powers under Chapter XII of Cr.PC, 1973 including power to submit report or charge-sheet under Section 173, Cr.PC – “police officer” – Who is – test – Evidence Act, 1872, Section 25 – Criminal Procedure Code, 1973. Section 25 of the Evidence Act reads as under:

"No confession made to a police officer shall be proved as against a person accused of any offence."

Thus a confession made to a police officer cannot be used or tendered in evidence as against a person accused of any offence. Section 36 26 next provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shah be proved as against such person. Section 27, which is in the nature of an exception to Sections 25 and 26, pro- vides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The restriction on admissibility of a confession of an accused person imposed by Sections 25 and 26 of the Evidence Act, when made to a police officer and not in the immediate presence of a Magistrate, is as a matter of public policy designed to prevent the practice of securing confessional statements of persons in police custody by means of threats, inducements, torture, coercion, etc. what impelled the introduction of this provision was the overwhelming evidence which disclosed that the powers vested in the police under the Code were 37 often misused and abused by police officers investigating crimes for extorting a confes- sional statement from the accused with a view to earning credit for the prompt solution of the crime and/or to secure himself against allegations of supineness or neglect of duty. It was also realised that once a police officer succeeds in extorting a confession from the person accused of the commission of the crime by threats, inducements, etc., the real offender becomes more or less immune from arrest. Therefore, the purpose of the restriction under Section 25 of the Evidence Act, is broadly speaking, two-fold, namely, (i) to protect the person accused of a crime from third degree treatment and, more importantly, (ii) to ensure a proper and scientific investigation of the crime with a view to bringing the real culprit to book. In the instant case, PW.1 – Madhusudhan Bhat who got credible information about the persons being arraigned as accused and he formed a team consisting 38 his staff members and rushed to XPS Courier office at Mangalore where Accused Nos.2 and 3 were present in the said office and were about to leave by collecting the parcel. He made an enquiry with them and seized the aforesaid materials objects in the presence of the panch witnesses by drawing mahazar as per Ex.P1. But major investigation has been done by him, even by securing report from the RBI officer regarding MOs.7 to 11 said to be fake currency notes which were found in the card board box – MO1. Thereafter, he filed complaint as per Ex.P11 before the Kavoor Police Station and in turn the Kavoor Police drew the spot mahazar as per Ex.P12. But in the seizure mahazar, Ex.P1, said Madhusudhan Bhat secured the signature of the accused persons and also secured signature on Ex.P1 – seizure mahazar said to have been conducted by him in their presence. Therefore, it is said that the above reliance is applicable to the present case as wherein PW.1 – Madhusudhan 39 Bhat being a Senior Intelligence Officer being the rank of Gazetted Officer in DRI office and there is no doubt about he drawing the seizure mahazar at Ex.P1 and so also, recorded the voluntary/confession statement of the accused Nos.2, 3 and 4. But the statement recorded by PW.1, it should be tested keeping in view the scope of Section 24 and 25 of the Evidence Act, as the very statement can be used against them even during the course of trial or even in the proceedings initiated by PW.1. It is relevant to state Section 2(h) of Cr.P.C. which defines ‘investigation’ by an inclusive definition means all proceedings under the Code for collection of evidence conducted by a police officer or by any person who is authorised by a Magistrate in this behalf. Under this Section 4(2) of the Code all offences under any other law have to be investigated inquired into, tried and otherwise dealt with according to the provisions 40 contained in the Code. The power to investigate is to be found in Chapter XII of the Code which begins with Section 154 and ends with Section 176. The scheme of this chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by the officer-in-charge of a police station. Once such information is received and registered, Section 156 empowers any officer-in-charge of the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form. In the instant case, PW.1 – Madhusudhan Bhat got credible information about a person being arraigned as accused in S.C.No.63/2008 and S.C.No.51/2010. He conducted seizure mahazar as per Ex.P1 in the 41 presence of official witnesses and also in the presence of panch witnesses. The same was conducted by him by summoning the witnesses and made enquiry under the power vested with him under Section 108 of the Customs Act. MO.1 which contained MOs.2 to 6 and so also beneath that card board box MOs.7 to 11 – Indian fake currency notes said to be sent by UAE, Dubai in a parcel. The contents in the parcel was not known to Accused Nos.2 and 3. But on the basis of credible information that PW.1 – Madhusudhan Bhat who made an enquiry and drew the mahazar as per Ex.P1. But Section 108 of the Customs Act as there is power vested with him even if the person said to be summoned and also made an enquiry with regard to the information which he has got if the person is not expert with the course of enquiry but he had power to initiate the proceedings under Section 193 and 228 of IPC which is a proviso under Section 108 of the Customs Act. 42 PW.1 initially registered the proceedings in OR No.3/2008 under the provisions of Customs Act but later on he filed complaint as per Ex.P11 before the PSI of Kavoor Police Station and in turn, the PSI recorded FIR as per Ex.P57 and he drew the spot mahazar as per Ex.P12. The same was conducted by him in the presence of PW.1 – Madhusudhan Bhat. The PSI of Kavoor Police Station who issued notice to PW.1 with regard to the production of materials which he had seized and the same was marked as MOs.7 to 11 in the presence of the accused persons said to have been seized by him at the time of drawing mahazar as per Ex.P1 in the office of XPS Courier, Mangalore. Therefore, learned counsel for the appellant contends this reliance is squarely applicable to the present case.

13. Hence, on all these grounds, the learned Senior counsel Shri Hashmath Pash contends that the judgment of conviction and order of sentence rendered 43 by the Trial Court in S.C.No.63/2008 be set aside and the accused / appellants in Crl.A.880/2010 be acquitted of the offences leveled against them.

14. Smt. Haleema Ameen, learned counsel for appellants in Crl.A.No.869/2010 and Crl.A. No.872/2011 has taken me through the evidence of PW.1 – Madhusudhan Bhat, Senior Intelligence Officer of Directorate of Revenue Intelligence, Mangalore who drew the mahazar as per Ex.P1 in the presence of the panch witnesses and also initially registered the case in OR No.3/2008. The complaint was lodged on 20.03.2008 before the Kavoor Police and based upon his complaint as per Ex.P11 the case in Crime No.38/2008 came to be registered for the offences reflected in the FIR said to be recorded by the police. During the course of enquiry held by PW.1 – Madhusudhan Bhat in the presence of the accused who were secured on 24.04.2008 and also 44 taken into custody for the purpose of investigation and after completion of investigation, he laid the charge sheet against the accused relating to Crime No.38/2008 for the offences punishable under Sections 120B, 419, 489(A), 489(B), 489(C) r/w 34 of IPC. The appellant in Crl.A.No.872/2011 is said to be arraigned as accused No.4 in S.C.No.63/2008. He was not at all in picture as narrated in the complaint as per Ex.P11 and so also, while drawing mahazar as per Ex.P1 whereas the incident took place on 18.03.2008. But Accused No.4 was secured by PW.1 without there being any evidence on record to connect this accused to the crime that took place on 18.03.2008 as narrated in the complaint and so also fulcrum of seizure mahazar at Ex.P1 said to be conducted by PW.1 in the presence of panch witnesses and the fake currency notes which are marked at MOs.7 to 11. The materials collected and recorded reveals that accused Mohammed Asif is an innocent person and he 45 was not at all present on 18.03.2008 along with accused Nos.2 and 3. His presence was only secured 21.04.2008. There is no evidence on record to prove that this accused has received any counterfeit notes nor he was found in possession of any counterfeit notes or he has circulated such notes. It is contended that there is no evidence to establish that this accused was also present along accused No.2 and 3 as alleged in the complaint and while drawing the mahazar as per Ex.P1. There is no evidence so as to establish that this accused had criminal conspiracy with the other accused to commit offence as narrated in complaint. But the trial Court has misdirected as well as misinterpreted the entire evidence of PW.1 insofar as the role of this accused No.4 is concerned. Under such circumstances, accused – Mohammed Asif has not at all committed any offence under Section 489 – B and 489 – C of IPC as 46 there is no direct evidence to connect him with the above offence.

15. It is further contended that the material on record clearly go to show that the accused – Mohammed Asif is innocent and there is no evidence even to establish that he had conspired with others to commit the offence that took place on 18.03.2008. Under such circumstances, the trial Court ought not to have held this appellant guilty of offence punishable under Section 489-C of IPC. It is further the contention of appellant’s counsel that even if it is held that this accused had received one parcel of UAE, Dubai, but there is no evidence to show that it contained counterfeit notes or that he had knowledge of the contents in the parcel. But the trial Court has erroneously come to the conclusion that the prosecution has proved the guilt of the accused that he also had participated with other accused by hatching a 47 criminal conspiracy and so also, he was in possession of fake currency notes as narrated and depicted in Ex.P1, seizure mahazar said to be conducted by PW.1 being a responsible gazetted officer. This material evidence has not been considered by the trial Court. PW.1 – Madhusudhan Bhat who recorded the confessional statement of this accused on 19.3.2008 and also obtained his signature and so also, secured signature of one B.Krishna Rao. But he was not examined on the part of prosecution. The confessional statement of Accused No.3 has to be tested in connection with scope of Section 24 of the Evidence Act. If the test has not been complied by PW.1 certainly that would switch over to scope of Section 108 of the Customs Act. There is no dispute about the power vested with PW.1 – Madhusudhan Bhat. But the confessional statement of the accused recorded by the investigating officer who is PW.1 must be in conformity 48 with scope of Section 24 of the Evidence Act, if not, it has to be tested in accordance with decisions rendered by the Hon’ble Supreme Court relating to Section 108 of the Customs Act and scope of Sections 24 and 25 of the Evidence Act.

16. PW.7 – Syed Mohammed was subjected to examination on the part of the prosecution wherein he was working in DRI Office at Cochin since three years. But on 27.10.2009, the Immigration Officer in Cochin, secured passport of Santosh @ Santosh Shetty and the same was handed over to PW.7. It is marked as Ex.P45. Subsequently at the request of officers in DRI, Mangalore the Immigration Officer in Cochin Air port apprehended Santhosh @ Santhosh Shetty and thereafter, the passport was handed over to him. Thereafter, he gave information to the office of DRI, Mangalore telephonically. On the next date, the police officers in Mangalore had rushed to the office of PW.7 49 and took the accused in their custody. Ex.P44 passport of Santosh @ Santosh Shetty reveals that he traveled from UAE to Cochin on 26.10.2009. The said accused had returned to UAE from India on 14.10.2006 as per the contents revealed in Ex.P44. In the cross- examination he has specifically stated that Police officers in Mangalore did not make any enquiry and did not record his statement. But he cannot say whether Accused – Santhosh @ Santhosh Shetty was staying in India or UAE in the year 2005. He did not make any enquiry in relation to Ex.P45 belonging to Santosh @ Santosh shetty, but the said passport has been given to him on 25.04.2006. Therefore, he cannot say prior to the year 2006 in which country the accused was staying. Subsequently, he has stated that he did not know prior to the year 2006, this accused did not proceed from India. He did not make any statement or any record relating to immigration officer at Cochin had 50 handed over this to the Police officer of Mangalore on the next day and also production of Ex.P45 – passport relating to this accused are the vital documents and also vital evidence in respect of this accused was also involved in a case registered in Crime No.38/2008 and this accused having role in respect of forwarding the parcel containing MOs.7 to 11, the Indian fake currency notes amounting to Rupees two lakhs and also the contents of M.O.2 to 6 in M.O.1 card board box which said to have been received by the XPS courier, Mangalore, wherein PW.1 – Madhusudhan Bhat on receipt of credible information about accused Nos.1 and 2 and he formed a team consisting the official witnesses including the officer of DRI and also panch witnesses and drew the mahazar at Ex.P1 and seized MO.7 to 11 which are the fake currency notes found in a separate box which was found beneath the card board box. This vital evidence has not been considered by the trial 51 Court, but erroneously has come to the conclusion by believing the evidence of PW.1 but simply because the mahazar was drawn and MOs.7 to 11 fake currency notes were seized and so also subjected to test by the RBI officer, but Ex.P11 complaint was filed by the PW.1 Madhusudhan Bhat before the Kavoor Police station on 20.03.2008, based upon his complaint the case in Crime No.38/2008 came to be registered and thereafter, Sri. Anantha Padmanabha, PSI of Kavoor Police Station was subjected to examination as PW.22 in S.C.No.63/2008 and PW.10 in SC No.51/2010 in respect of split up charge sheet filed against the accused namely Santosh @ Santosh Shetty. The fake currency notes at MOs.7 to 11 were produced by the said Madhusudhan Bhat in a sealed cover before the PSI of Kavoor Police Station after receipt of notice from him for production of said material documents and so also fake currency notes as per MOs. 7 to 11. But the 52 same was seized in the presence of PW.1 – Madhusudhan Bhat alone and the sealed cover said to be containing MOs.7 to 11 was seized by securing panch witnesses or even in the presence of accused Nos.2, 3 and 4 and inclusive of accused – Santosh @ Santosh Shetty in respect of case in S.C.No.63/2008 and S.C.No.51/2010 as wherein the split up charge sheet has been laid against the aforesaid accused by the PSI of Kavoor Police Station. But in respect of S.C.No.51/2010, Ex.P12 – spot mahazar was conducted by the I.O is in the presence of PW.1 – Madhusudhan Bhat alone and he did not even secure the accused person in order to confirm the contents at Ex.P12. But very cleverly said Madhusudhan Bhat had drawn the seizure mahazar at Ex.P1 and secured the signatures of accused Nos.2 and 3 on Ex.P1. This material contradiction on the part of the prosecution has not been appreciated by the trial court. 53

17. Though it is contended by the prosecution that the said Indian currency notes had been counterfeited in Pakistan and then sent to U.A.E. to various persons and other neighbouring countries from U.A.E. Dubai and that the accused Santhosh K had sent the same to India to various persons, however there is no evidence forthcoming to connect the said accused in respect of the offence punishable under Section 489-A IPC as regards counterfeiting currency notes by himself or his participation in the process of counterfeiting the currency notes. It is the further contention of the learned counsel that when the accused Santhosh K landed at Cochin Airport from U.A.E., Dubai, the Immigration Officers had detained him and handed him over to the police officers who took him to Mangalore and produced him before PW-1 – I.O. But however, Santhosh K. did not possess any Indian counterfeit currency notes. Hence, she contends that there is no 54 direct or any circumstantial evidence on record to show that either this accused was found in possession of Indian counterfeit currency notes or he had made use of the same as genuine notes. Though the voluntary statement of this accused as per the provisions of Section 108 of the Customs Act was obtained by PW-1 as per Exhibit P-35, there is no satisfactory evidence available on record to connect the said accused Santhosh for the offence punishable under Sections 489-A and Section 489-C of the IPC. In S.C.No.63/2008 in respect of accused Nos.2, 3 and 4 and even in S.C.No.51/2010 in respect of Accused No.1 Santhosh, the major investigation has been done by PW.1- Madhusudhan Bhat in both the cases by drawing the mahazar at Ex.P1 in the presence of panch witnesses and in the presence of official witnesses 30 currency notes of 1000 rupees denomination and 340 notes of 500 rupees 55 denomination which were in five separate bundles 30 notes of 1000 rupee denomination, 40 notes of 500 rupee denomination, one hundred notes of 500 rupee denomination – 3 bundles were seized. Even the mobile said to be held by accused No.2 bearing number 9741835671 was seized by PW.1 who conducted mahazar in the presence of panch witnesses – PWs.2 and 3 and seized all the articles and also documents as per Exs.P2 to P8 under the mahazar Ex.P1. PW.1 – Madhusudhan Bhat is said to have complied the scope of Section 108 of Customs Act by appraising the scope regarding to give their voluntary statement or otherwise, to say confessional statement. But, the same has been tested whether it is in conformity with Section 24 and 25 of the Evidence Act. The very counsel contends that Section 108 of the Customs Act reveals there is a proviso under Section 193 and 228 of IPC. If there is impediment for proceeding further for investigation or 56 any false information has been given, the power is vested with the Senior Intelligence Officer of DRI. Whereas, in the instant case, Madhusudhan Bhat, ought to have followed provision of Section 108 of the Customs Act to initiate the proceedings against the person who has given false information or not cooperated with for providing information under Section 193 and 228 of IPC. In the present case, O.R.No.3/2008 has been registered subsequent to the enquiry held on 18.03.2008. But thereafter PW-1 has filed a complaint before the Kavoor Police on 20.03.2008. But almost major investigation has been done by him by securing official witness of DRI and also officials and supervisor of XPS Courier officer, Mangalore on 18.03.2008 and also securing the signatures on Ex.P1 of the seizure mahazar and thereafter, he had handed over the case by filing a complaint as per Ex.P11 by narrating all the 57 ingredients and also the incident said to have been stated in the mahazar as per Ex.P1. Under Section 108 of the Customs Act, there is no dispute about the power vested with him, but however, the voluntary statement of the accused or confession statement is to be recorded by him keeping in view Section 164 (1) and (2) of Cr.P.C. Though PW-1 has the power under Section 108 of the Customs Act, it must be tested with the scope of Section 24 and 25 of the Evidence Act. If not followed the ingredients, otherwise to say scope of Section 24 and 25, where the statement of the accused it can be extended to the co-accused. There is no dispute about the statement recorded by the senior intelligence officer, but the fact remains to be decided as upto what extent it would be applicable. PW.1 – Madhusudhan Bhat had got credible information about the persons being the accused committing the alleged offences and thereafter accused 58 Nos.2 and 3 received a parcel MO.1 which contained MO.2 to 6. These are all the material which indicates in Ex.P1 of seizure mahazar. But the vital objects MOs.7 to 11 which are said to be fake currency notes which were sent in a parcel by the UAE, Dubai to India, is the credible information got by PW.1. Subsequent to receipt of information he ought to have given information in writing or a complaint in writing before the PSI of Kavoor Police Station having jurisdiction, to proceed with the matter, in view of the fact that the offences were alleged under the Indian Penal Code, 1860. But under Section 4 of Cr.P.C., it is the power vested with the concerned investigating agency to proceed for investigation and lay the charge sheet. Section 4 of the Cr.P.C. reads as under: “4 Trial of offences under the Indian Penal Code and other laws: (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, 59 and otherwise dealt with according to the provisions hereinafter contained.” As against the said procedure contemplated under the Cr.P.C., almost all the investigation has been done by PW.1 and thereafter he had handed over MOs.7 to 11 which are Indian fake currency notes to the PSI of Kavoor Police Station, who in turn, has registered case in Crime No.38/2008. PW-1 had also conducted spot mahazar as per Ex.P12 and thereafter recorded the statement of witnesses and also secured the material documents and thereafter laid the charge sheet against the accused. The PSI did not secure the accused persons even at the time of conducting the spot mahazar in the office of XPS Courier service. However, the trial Court did not appreciate this evidence on record in a proper perspective manner. Therefore, in this appeal it requires intervention of the impugned judgment rendered by the trial Court. These are all the 60 contentions taken by the learned counsel Smt. Haleema Ameen for the appellants seeking to allow the above appeals respectively.

18. In support of her case, Smt. Haleema Ameen has relied on the following citations:

1. Superintendent of Customs //Vs// Haribhai Vallabhbhai.-. (LAWS (BOM) 1990 8

50) – High Court of Bombay) 2. N. S. R. Krishna Prasad //Vs// Directorate of Enforcement Loknayak Bhawan Khan Market, New Delhi.-. (LAWS (APH) 1991 4

51) – High Court of Andhra Pradesh) 3. Ramesh Chandra Mehta //Vs// The State of W.B. – (AIR1970Supreme Court

940) 4. Umashanker //Vs// State of Chhattisgarh. – (2001 CRI. L. J.

4696 – Supreme Court – Madhya Pradesh) 5. Basi Reddy and others //Vs// State. – (1972 CRI. L. J.

1141 – Mysore High Court) 61 In the case of N.S.R.Krishna Prasad vs. Directorate of Enforcement, Loknayak Bhawan Khan Market, New Delhi (1992 CrLJ1888, the Hon’ble Apex Court has held thus: “It is well settled that all confessions are statements, but all statements are not confessions. It may be recalled that the Legislature advisedly used the expression "statement" while enacting S. 108 of the Customs Act authorizing the empowered authority to record what the person summoned, states. A plain reading of S. 108 of the Customs Act, makes it clear that it does not enable the empowered authority to record a confessional statement from a person summoned thereunder. In the absence of any such power conferred u/S. 108 of the Customs Act, the empowered authority can only fall back upon S. 164, Cr.P.C. to record a statement of confessional nature from the person summoned. As already stated, S.164(2) Cr.P.C. enacts that the Magistrate while recording a confessional statement, must administer the warning or caution to the person making the confessional statement, that the same would be 62 used against him. The same caution or warning, it follows, must also be administered to the person summoned, u/S. 108 of the Customs Act by the empowering authority. Non-compliance with the mandatory provisions contained in S. 164(2), Cr.P.C. is not curable u/S. 463, Cr.P.C.. and renders the statement to recorded, inadmissible in evidence.” In the instant case, PW.1 – Madhusudhan Bhat, was empowered to record the statement of the accused during the course of enquiry under Section 108 of the Customs Act. Accordingly, he recorded the confession statements of accused Nos. 2 and 3 in S.C.No.63/2008 during the course of enquiry at XPS Courier office. But whether their statements are admissible or inadmissible has to be tested under Sections 24 and 25 of the Evidence Act and also Article 20(3) of the Indian Constitution where the statement given by the accused should not be used against them unless the said statements were obtained without coercion, threat or 63 undue influence. Hence, appellant’s counsel contends that this reliance is squarely applicable to the case on hand. In the case of Umashanker vs. State of chhattisgarh (2001 Crl.L.J.4696), the Hon’ble Apex Court has held in the Headnote that, “Section 489B, Section 489C – Evidence Act (1 of 1872), Section 4 – Offences in respect of forged or counterfeit currency notes or Bank notes – Mens rea of offences under Sections 489-B and 489-C is, “knowing or having reason to believe that currency-notes or bank- notes are forged or counterfeit” – Buying or receiving from another person or otherwise trafficking in or using as genuine or also possessing or even intending to use any forged or counterfeit currency – notes or bank – notes is not sufficient to make out a case under Section 489-C in the absence of the Mens rea – Accused 18 years old student – Alleged to have paid fake currency 64 note of Rs.100/- to shop-keeper – 13 more such fake currency notes were received from him – No material brought on record to show that accused had requisite mens rea – Merely on basis of evidence of shop-keeper and other witnesses that they were able to make out that currency note alleged to have been given to shop- keeper was fake, mesn rea cannot be presumed – No specific question with regard to currency note being fake put to accused – Accused entitled to acquittal.” In the instant case, accused Nos. 2 and 3 in S.C.No.63/2008 went to XPS Courier office at Mangalore to collect the parcel said to be received in the office. But PW.1 – Madhusudhan Bhat who had received credible information visited the office and made enquiry and thereafter conducted seizure mahazar as per Ex.P1. MOs.7 to 11 fake currency notes were seized and confessional statement was recorded. But accused No.4 was apprehended by the investigating authority on 65 21.04.2008 which was based upon the voluntary statement of accused No.2. Section 489-B deals with Possession of forged or counterfeit currency-notes or bank-notes.—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. But accused Nos.2 and 3 during the course of the enquiry held by PW.1 in the presence of panch witnesses and official witnesses inclusive of Supervisor of XPS Courier office where they have subscribed their signature on Ex.P1 – seizure mahazar and also secured signature of B.Krishna Rao who drafted the seizure mahazar. But accused Nos.2 and 3 during the course of enquiry made by PW.1 have stated that they did not know the contents of MO.1 – card board box and also have specifically stated that they did 66 not know the contents of MOs.2 to 6 and that MOs.7 to 11 were fake currency notes. But it is forwarded by Santhosh @ Santhosh Shetty being arraigned as accused in S.C.No.51/2010. But this accused was apprehended by the Immigration Officer at Cochin while alighting from the flight and taken into custody and information was given to the Senior Intelligence Officer at Mangalore. Thereafter, further investigation was done and split up charge sheet was laid in S.C.51/2010. But the mens rea regarding selling and buying or receiving from any other persons and this evidence has not been verified on the part of the prosecution to prove the guilt of the accused in respect of offence under Section 489-B and 489-C of IPC. Merely because MOs.7 to 11 said to be fake currency notes which were seized by PW.1 who was studded with the power under Section 108 of Customs Act, but it is not enough to constitute offence under Section 489-B of 67 IPC. But the trial Court had held conviction against the accused for the offences in which the charges are framed against them. Therefore, learned counsel for the appellant places reliance on the aforesaid judgment to contend that no material is brought on record by the prosecution to show that the accused persons had the requisite mens rea. In Crl.A.No.184, 185 and 200 of 1970 In re Basi Reddy and others (1972 Crl.L.J.1141), the Apex Court has held that: “Section 120A – ‘Criminal Conspiracy’ – Agreement to do or cause to be done an illegal act is the gist of the offence. In order to constitute a single general conspiracy there must be a common design and a common intention of all the work in furtherance of the common design. Each conspirator plays this separate part in one integrated and united effort to achieve the common 68 purpose. Each one is aware that he has a part to play in a general conspiracy though he may not now all his secrets or the means by which the common purpose is to be accomplished. The scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broke up : The conspiracy may develop on successive stages.

19. Learned counsel for the appellant contends that the aforesaid judgment is squarely applicable to the case on hand as the prosecution has failed to establish the charge of conspiracy against the accused person. On this ground, as well she seeks for acquittal of the accused persons of the charge of conspiracy under Section 120-B of IPC. Appellant’s counsel further contends that Ex.P1- seizure mahazar drawn by PW.1 on 18.03.2008 to which he has subscribed his signature and also obtained signatures of Hasanabba, the accused namely 69 Mayaddi and PW.2 – Gokuldas Hegde. This mahazar is an important document said to be conducted by PW.1. PW.10 being the I.O conducted spot mahazar as per Ex.P12 marked in S.C.51/2010 bears the signature of PW.1 alone. PW.22 being the I.O in S.C.No.63/2008 did not make any endeavour to secure accused Nos.2 and 3 in connection with conducting the spot mahazar at XPS Courier office at Mangaluru. This vital material evidence on the part of the prosecution has not been considered by the trial Court while arriving at a conclusion that the prosecution has proved the guilt of the accused. It is relevant to refer to the confession statement in respect of Santhosh @ Santhosh Shetty in S.C.No.51/2010 as Ex.P.35. The same was recorded by PW.1. Similarly, the statement of accused No.2 as per Ex.P35 in S.C.No.63/2008 is impersonation of his name as Hasanabba and he has given confession statement as 70 per Ex.P37 during the course of enquiry made by PW.1 – Madhusudhan Bhat. But the said statements have to be tested under the scope and object of Section 24 and 25 of the Evidence Act. Similarly the confession statement of accused No.3 is marked as per Ex.P9 and Ex.P32 is the statement of accused No.4. These are all the confession statements of accused persons recorded by PW.1 – Madhusudhan Bhat during the course of enquiry by exercising his power under Section 108 of the Customs Act. But the said statements should be tested in respect of Sections 24 and 25 of the Evidence Act. But as per Section 164(2) of Cr.P.C. the Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning 71 the person making it, he has reason to believe that it is being made voluntarily. But PW.1 who is a responsible officer had carried out major investigation by recording confession statement of the accused and seized MOs.7 to 11 under Ex.P1 – seizure mahazar and thereafter the case was handed over to PSI of Kavoor PS by filing a written complaint as per Ex.P11. But this vital evidence is required to be re-appreciated in this appeal, if not, it would lead to miscarriage of justice to the accused. In the cross-examination of PW.1 it is revealed that even prior to drawing of mahazar as per Ex.P1 in the presence of accused Nos.2 and 3 and also in the presence of PW.2 in the XPS Courier office on 18.03.2008, during the course of enquiry it came to be known that even prior to this incident on 9.2.2008 and 5.3.2008 there was a similar incident happened but no proceedings were initiated against the culprits/offenders 72 involved in the incident. On 16.04.2008, sealed cover said to be containing MOs.7 to 11 had been produced before the PSI of Kavoor PS only after receipt of notice by PW.1. He has not made any efforts to produce the sealed cover even on the day of filing of complaint on 20.03.2008. This is the vital evidence on the part of the prosecution but the same has not been considered by the trial Court. Therefore, in this appeal the entire evidence has to be re-appreciated and rescanned, if not, it would lead to miscarriage of justice. In the case of Ramesh Chandra Mehta vs. The State of W.B. (AIR1970SC940, the Apex Court has held thus: “27. In certain matters the Customs Act of 1962 differs from the Sea Customs Act of 1878. For instance, under the Sea Customs Act search of any place could not be made by a Customs Officer of his own accord: he had to apply for and obtain a search warrant from a Magistrate, Under Section 105 of the Customs Act, 1962, it is open 73 to the Assistant Collector of Customs himself to issue a search warrant. A proper officer is also entitled under that Act to stop and search conveyances : he is entitled to release a person on bail, and for that purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is. But these additional powers with which the Customs Officer is invested under the Act of 1962 do not, in our judgment, make him a police officer within the meaning of Section 25 of the Evidence Act. He is, it is true, invested with the powers of an officer-in-charge of a police station for the purpose of releasing any person on bail or otherwise. The expression "or otherwise" does not confer upon him the power to lodge a report before a Magistrate under Section 178 of the Code of Criminal Procedure. Power to grant bail, power to collect evidence, and power to search premises or conveyances without recourse to a Magistrate, do not make him an officer-in-charge of a police station. Proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. His orders are appealable and are subject also to the revisional jurisdiction of the Central Board of Revenue and may be 74 carried to the Central Government. Powers are conferred upon him primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue.” … 30. Section 167 of the Sea Customs Act, 1878, contained a large number of clauses which described different kinds of infractions and different penalties or punishments liable to be imposed in respect of those infractions. Under the Customs Act, 1962 the Customs Officer is authorised to confiscate goods improperly imported into India and to impose penalties in cases contemplated by Sections 112 and 113. But on that account the basic scheme of the Sea Customs Act, 1878, is not altered. The Customs Officer even under the Act of 1962 continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and of goods of which the entry is prohibited. He does not on that account become either a police officer, nor does the information conveyed by him, when the person guilty of an infraction of the law 75 is arrested, amount to making of an accusation of an offence against the person so guilty of infraction. Even under the Act of 1962 a formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person guilty of the infraction under Sections 182, 133, 184 and 185 of the Act. Any statement made under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence.” (emphasis supplied) Hence, it is contended by the learned counsel that the power conferred on PW-1 in the present case on hand is primarily for collection of duty and prevention of smuggling and he is for all purposes, an officer of the revenue. Hence, any statement made under Section 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer, is not a statement made by the accused person. 76 Further, as regards the contention that the statement of the accused recorded by Customs authorities under Section 108 cannot be the basis for launching prosecution, the learned counsel Smt. Haleema Ameen has relied on the judgment in SUPERINTENDENT OF CUSTOMS vs. HARIBHAI VALLABHBHAI (LAWS (BOM) 1990 8 50), wherein the relevant portion reads thus: “6. …It is settled law and which has been exhaustively dealt with by Dr. Couto J.

in the earlier criminal writ petition decided on 25th September 1987 that a statement of an accused recorded by the Customs Authorities under Section 108 of the Customs Act, 1962 cannot be the basis for launching the prosecution, as Section 30 of the Evidence Act provides that when more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession, as against such other persons as well as against the 77 persons who makes such confession. It is held that such a confession statement by one of the Accused against co-accused who is tried jointly along with him alone cannot be the basis or the foundation to proceed against other co-accused. Such confession can be used only in support of other evidence and cannot be made the foundation of a conviction. …

20. These are all the contentions taken by learned counsel Smt. Haleema Ameen for the appellants in above appeals seeking for setting-aside the impugned judgments rendered by the trial Court and to consequently allow these appeals.

21. Per contra, Sri V.S.Hegde, learned SPP-2 has countered the arguments advanced by the counsel for the appellants/accused Nos.1 to 4. He mainly concentrated in respect of Section 108 of Customs Act, 1962. PW.1 – Madhusudhan Bhat, Senior Intelligence Officer, DRI, Mangalore who got credible information 78 with regard to trafficking of counterfeit Indian currency notes through XPS Courier Parcel service Office, Mangalore, he along with his other colleague officers and staff rushed to the said Courier Office and enquired with the concerned staff of the courier service office with regard to receipt of parcel from UAE, Dubai. He secured two panch witnesses and along with panchas and other officers were waiting for the persons who were coming to collect the parcel. Two persons i.e., Accused Nos.2 and 3 had come to the office and enquired about the parcel sent from Dubai, UAE. Among them accused No.2 introduced himself as Hasanabba in whose name parcel was sent and to confirm his identity, gave his mobile number 9741835671. The said parcel was bearing the name of sender as Moideen S.K., Dubai. The accused No.2 gave all particulars to identify himself as the addressee of the parcel. After complying all formalities, the parcel was delivered to accused who was 79 accompanied by accused No.3. At the time of leaving the office premises, PW.1 made an enquiry about the parcel and they replied they were ignorant of the contents. In the presence of the panch witnesses the said box was opened and found the fake Indian currency notes. During the enquiry, their voluntary statements as contemplated under Section 108 of Customs Act were recorded after explaining the consequences of their voluntary statement and the case was registered in OR No.3/2008. Further, PW.1 had taken the seized counterfeit notes to the RBI for confirmation and the officers of RBI confirmed that they were counterfeit Indian currency notes. Thereafter, PW.1 on 16.04.2008 reported the matter to the PSI of Kavoor P.S. and crime No.38/2008 came to be registered. Further, the IO conducted the spot mahazar as per Ex.P12. Based on the statement of arrested accused, accused No.4 was apprehended and his 80 voluntary statement was also received. He said that similar parcel was sent from Dubai by one Santosh @ Santosh Shetty and split up charge sheet was laid against him in S.C.No.51/2010. The learned SPP-2 contends that the prosecution has placed reliance on Exhibits P23 to P28 to substantiate its case that earlier to the receipt of the parcel in question also, Accused Nos.2 and 3 had received some other parcels sent by some persons from Dubai. He contends that Exhibit P23 reflects that the parcel was sent from UAE mentioning the name of the sender as Rohit, UAE and it was addressed to Mohammed Asif, Darazak Kethikkal House, Thiruvail Vamanjoor Post, Mangalore, Karnataka with the XPS Docket No.637576332 and the mobile number of Accused No.4 / Asif was mentioned. Further, Exhibit P25 mentioned the full address of the sender as Rohit, Post Box No.4544, UAE. He contends that it has come 81 in the evidence of the Revenue Intelligence Officers that the fourth accused had received the said parcel from XPS Couriers and had then handed it over to accused no.2 as per the instruction of the sender. Further, Exhibit P26, delivery challan produced by XPS Couriers reveals that one more similar parcel sent from UAE, Dubai was booked on 28.02.2008 and was delivered on 5.3.2008. The said parcel was sent by the first accused Santhosh, UAE. And was addressed to Mohammed Shabeer / Accused No.2, Bismilla Mazil, Kettickal House, Vamanjoor, Mangalore, Karnataka. The mobile number mentioned in the said docket was 9844712090 which was registered in the name of one Mustafa, which number was being used by Accused No.2 who held several sim cards in various names. The learned SPP-2 contends that through the said mobile number, Accused No.2 had contacted Accused No.1 Santhosh several times. Hence, he contends that all the accused were 82 well connected with each other and were hand-in-glove with one another in transporting the fake Indian currency notes and there is every possibility of the appellants / accused committing similar offences in case they are acquitted. Hence, in view of the seriousness of the crime and the evidence on record, he contends that these appeals ought to be dismissed. It is further contended by Shri V.S. Hegde, SPP-2 for the State that the appellants in these appeals have urged that the confession statement recorded under Section 108 of the Customs Act is not admissible as piece of substantive evidence and hence, the accused persons cannot be convicted on the basis of the said statement made by the accused. As regards the said contention, the learned SPP-2 contends that though the statement made before a Customs Official is not a statement recorded under Section 161 Cr.P.C., however, it is a material piece of evidence collected by the 83 Customs official under Section 108 of the Customs Act, which material incriminates the appellants inculpating them for contravening the provisions of the Customs Act. Hence, he contends that it can be used as substantive piece of evidence to connect the appellants / accused with the contravention. He places reliance on a judgment of the Apex Court in the case of NARESH J.

SUKHAWANI vs. UNION OF INDIA (AIR1996SC522 in support of the above contention.

22. Further, as regards the contention of the appellants that the procedure contemplated under Section 108 of the Customs Act has not been followed by PW-1 in order to record the statements of the accused and further, their statements are not in the nature of confession statements and therefore, hit by Section 24 of the Evidence Act is concerned, the learned SPP-2 relies on a decision of the Apex Court in the case of PERCY RUSTOMJI BASTA vs. THE STATE OF84MAHARASHTRA (AIR1971SC1087, the relevant portion of which reads as under: “21….Section 108 of the Act gives power to a Customs Officer of a gazetted rank to summon any person to give evidence in any inquiry in connection with the smuggling of any goods. The inquiry made under this section is by virtue of sub-section (4) deemed to be a judicial proceeding within the meaning of sections. 193 and 228 of the Indian Penal Code. A person summoned under S. 108 of the Act is bound to appear and state the truth when giving evidence. If he does not answer he would render himself liable to be prosecuted under S. 228

1. P. C. If, on the other hand, he answers and gives false evidence, he would be liable to be prosecuted under S. 193 I. P. C. for giving false evidence in a judicial proceeding. In short a person summoned under S. 108 of the Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must be noted that a compulsion to speak the truth, even though it may amount to a threat, emanates in this case not from the officer who recorded the statement, but from the provisions of 85 the statute itself. What is necessary to constitute a threat under S. 24 of the Evidence Act is that it must emanate from the person in authority. In the case before us there was no such threat emanating from P. W. 5, who recorded the statement of P. W. 19, who was guiding the proceedings. On the contrary the officers recording, the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. Even if P. W. 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which S. 193 I. P. C. applies, the appellant was bound to speak the truth when summoned under S. 108 of the Act with the added risk of being prosecuted, if he gave false evidence.

22. Further, it is to be seen that it is not every threat, inducement or promise even emanating from the person in authority that is hit by S. 24 of the Evidence Act. In order to attract the bar, it has to be such an inducement, threat or promise, which should lead the accused to suppose that "by making it he would gain any advantage or avoid any evil of temporal nature in 86 reference to the proceedings against him". In the case before us what is it that the appellant has been told ?. He has been told that the law requires him to tell the truth and if be does not tell the truth, lie may be prosecuted under S. 193 I. P. C. for giving false evidence. This. we have held, does not constitute a threat under S. 24 of the Evidence Act. The plea of the appellant was that he was compelled to make the statement under the threat that otherwise his mother and another brother will be prosecuted. He has further stated that he was induced to make the statement on the belief that it will be used only against the second accused and not against him. These pleas of the appellant have been disbelieved by both the trial court and the High Court. , Therefore, it follows that even assuming that there was an inducement or threat, the appellant had no basis for supposing that by making the statement he would gain any advantage or avoid any evil with reference to the proceedings in respect of which an inquiry was being conducted by the Customs Officers. Therefore, even on this ground also section 24 of the, Evidence Act has no application.” (emphasis supplied) 87 Referring to the above judgment in Percy Rustomji Basta, he contends that in the case on hand as well, it is not the case of the appellants that PW-1 or the police or somebody had extended any threat to the appellants to give their statement under Section 108 of the Customs Act in order to constitute a threat under Section 24 of the Evidence Act and further the same is also not hit by Article 20(3) of the Constitution of India. Therefore, he contends that the above ground urged by the appellants / accused is untenable.

23. Further, as regards the contention of the learned counsel for the appellants that the statement recorded under Section 108 of the Customs Act cannot be used for an offence committed under the provisions of the IPC is concerned, the learned SPP-2 relies on a judgment of the Apex Court in the case of K.I. PAVUNNY vs. ASSISTANT COLLECTOR (HQ) CENTRAL88EXCISE COLLECTORATE, COCHIN ((1997) 3 SCC721). In the said judgment in K.I. Pavunny, the Hon’ble Apex Court has held that “Sections 108, 110 and 111 – Person suspected by a Customs officer of having committed an offence under the Act – Status of – Held, he is not an accused at that stage – he becomes an accused only when summons are issued by a competent Court/Magistrate pursuant to a complaint lodged by the competent Customs Officer – Hence, his statement recorded during an enquiry under Section 108 or during confiscation proceedings is not that of an accused within the meaning of Section 24 of the Evidence act. Customs Act, 1962 – Sections 108 and 135 – Customs Officer recording the statement of a person who is suspected of having committed an offence under the Act – Status of such officer and admissibility of such statement in evidence – Held, such an officer, although 89 not a police officer, is an authority within the meaning of section 24 of Evidence Act – However, a confessional statement recorded by reason of statutory compulsion or given voluntarily by the accused pursuant to his appearing against summons or on surrender, held, cannot be said to have been obtained by threat, inducement of promise- Hence, is admissible in evidence for prosecution under Section 135 of customs Act or other relevant statutes – such a confessional statement although subsequently retracted, if on facts found voluntary and truthful, can form the exclusive basis for conviction – not necessary that each detail in the retracted confession be corroborated by independent evidence – It is however a rule of prudence and practice that court seeks assurance from other facts and circumstances to corroborate the retracted confession – Evidence Act, 1872, sections 24 to 30. 90 Evidence Act, 1872 – Sections 24, 30 and 101-106 – Use of threat, inducement or promise alleged – Held the burden of proof is on the accused, though it is not as high as on the prosecution – Further, once the accused is able to prove the facts creating a reasonable doubt that the confession was not voluntary or was obtained by threat, coercion or inducement, the burden would be on the prosecution to prove that the confession was made voluntarily. In a trial and priprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now a well-settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether the confession is voluntary and truthful inculpating the 91 accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high decree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise if it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or 92 inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily.” i) Harbansingh Sardar Lenasingh and another Vs. State of Maharashtra 1972 Crl.L.J.

759. In this judgment, the Hon’ble Apex Court has held that “Confessional statements recorded by an officer of customs under the Customs Act are admissible in evidence and are not hit by Section 25 of the Evidence Act or Article 20(3) of the Constitution.

24. Learned SPP-2 has further placed reliance on a judgment in the case of HARBAN SINGH SARDAR LENASINGH AND ANOTHER VS. THE STATE OF MAHARASHTRA (1972) 3 SCC775 In this judgment, the Hon’ble Apex Court has held that “Section 108 – Statement made before Senior Superintendent of customs admissible – Evidence Act, 1872, Section 25 – Constitution of India – Article 20(3)” 93 Further, the learned SPP-2 has placed reliance on a judgment rendered by this Court in Crl.A.No.884/2010 disposed of on 24.07.2018 wherein it is held that “the offence relating to counterfeit currency, possession, circumstances and related are nothing but acts of constructive terrorism against the fiscal structure and economy of the Nation.

25. Placing reliance on all these decisions, learned SPP-2 submits that all these decisions are squarely applicable to the case on hand where the accused persons were involved in similar offences. They were hatching criminal conspiracy with regard to circulation of counterfeit currency notes as per MOs.7 to 11 which were said to have been seized by PW.1 – Madhusudhan Bhat who drew the mahazar as per Ex.P1 in the presence of accused Nos.2 and 3 in S.C.NO.63/2008 and also in the presence of PW.2 – panch witnesses and 94 so also, recorded confession statement of the accused. Thereafter, proceeded with the case for investigation and laid chargesheet for the aforesaid offences. Learned SPP-2 mainly emphasizing in respect of Section 108 of the Customs Act, submits that the evidence of PW.2 and the evidence of PW.1 are found corroborated with each other in respect of fulcrum of Ex.P1 – seizure mahazar and moreover, the voluntary statements of the accused said to have been recorded by him who is vested with powers under Section 108 of the Customs Act, it is admissible in evidence. The prosecution has relied Ex.P23 to 28 to substantiate even to the earlier parcel in custody. But accused 2 to 4 have received similar parcel sent by a person from Dubai. But Ex.P23 reflects that the parcel was sent from UAE, Dubai mentioning the name of Rohith it was addressed to Mohammed Asif being arraigned as Accused No.4 in S.C.No.63/2008. This 95 evidence also finds place on the part of the prosecution to prove that the sealed parcel said to have been received in XPS Courier Office on 18.03.2008 in the presence of accused Nos.2 and 3. PW.1 is the Senior Intelligence Officer of DRI, Mangalore who has stated in his evidence with regard to the criminal conspiracy relating to trafficking of counterfeit notes said to have been sent by Santosh @ Santosh Shetty who was facing of trial in S.C.No.51/2010. PW.9 who is a Nodal Officer of Spice Telecom has produced Ex.P.33 which mentioned mobile number 9844742090 registered in the name of one Musthafa. PW.11 has spoken in his evidence that he happens to be the brother of accused No.2. He had no knowledge of the parcel sent from UAE. But fake currency notes as per MOs.7 to 11 alleged to have been sent by Santosh @ Santosh Shetty in a sealed parcel mentioning his name to accused No.2. Accused No.2 96 himself had received same such a sealed parcel even earlier on 5.3.2008. The same sender had sent another parcel by another name as Rohith addressed to Mohd.Asif – accused No.2. It was booked on 30.01.2008 and the same has been received by accused No.4 from XPS Courier itself and handed over the said parcel to accused No.2. But there was criminal conspiracy hatching among the accused persons relating to trafficking of counterfeit currency notes which is threat to Indian economy also sabotage the economy. The conclusive evidence under Section 108 of the Customs Act and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation of contraband and imposition of penalty. The said evidence is admissible in evidence in respect of the complaint filed by the Customs Officer for prosecution under Section 135 or any other relevant statute. Therefore, learned SPP-2 97 contends that the contention of the learned counsel for the appellants that the statement recorded under Section 108 of the Customs Act cannot be used for an offence under the IPC, is highly untenable. The statement recorded under Section 108 of Customs Act can form the sole basis for conviction, as the statements recorded were within the knowledge of the accused / appellants and the consequences of making such statements were made known to them and those statements are voluntary statements. It is the further contention of the learned SPP-2 that while recording the statement under Section 313 Cr.P.C., the accused had not at all taken a stand that the statement recorded under Section 108 of the Customs Act cannot be used against them as the same was hit by Section 24 and 25 of the Indian Evidence Act. He submits that under Section 135(A) of the Customs Act, burden is on the accused to prove that 98 they had no knowledge as regards MOs. 7 to 11 fake currency notes seized when they went to take delivery of the parcel from the XPS courier office. In view of non- denial of the possession of fake currency notes by them and in view of non-denial of the statement recorded under Section 108 of the Customs Act, it is not open for them to contend that they be acquitted of the offences alleged. It is his further contention that it is not a single fake currency note which was found along with regular currency notes. But however, in the instant case, a huge number of fake currency notes totaling to a sum of Rs.2 lakhs of denomination of Rs.1000/- and Rs.500/- kept in a box as per MOs. 7 to 11 were seized. The currency was neatly packed and protected and was transported from Dubai to Mangaluru via XPS Courier. Hence, he contends that the said offence relating to possession of counterfeit currency notes are nothing but 99 constructive terrorism against fiscal structure and economy of the nation. He contends that the circumstances of transporting, carrying of currency and its quality, mannerism, gesture and answers given by the accused cogently established that they were in possession of the same and they had conspired to transport the same. Hence, he contends that the prosecution has established beyond reasonable and without shadow of any doubt the commission of the offences charged against them.

26. In view of the above reasons, the learned SPP-2 prays that the appeals be dismissed by confirming the judgments of conviction and sentence rendered by the Trial Court in respect of the accused persons in S.C.No.63/2008 and S.C.No.51/2010. 100

27. On a careful consideration of the contentions advanced by the learned Senior counsel Shri Hashmath Pasha for appellants in Crl.A.880/2010, the learned counsel Smt. Haleema Ameen appearing for appellants in Crl.A.869/2010 and Crl.A.872/2011 and the learned counsel Shri V.S. Hegde, learned SPP-2 appearing for the State and on a perusal of the evidence as well as the material on record, it is gathered that on 18.03.2008 Shri Madhusudhan Bhat, the Senior Intelligence Officer of the Directorate of Revenue Intelligence, Mangalore on receiving credible information with regard to smuggling activities, i.e., trafficking of counterfeit Indian currency notes through XPS Courier Parcel Service Office, Mangalore, had formed a team along with other officers and two panch witnesses and had rushed to the aforesaid XPS Courier Office, Mangalore, at 4.00 p.m. He had enquired with the concerned staff of the courier office with regard to receipt of a parcel from UAE and 101 was waiting there along with panch witnesses. At about 4.30 p.m., two persons, i.e., Accused Nos.2 and 3 had come to the XPS Courier Service Office and had enquired about the parcel received from UAE, Dubai. The courier personnel, delivered the parcel to them after verifying the identity and mobile number. In the meanwhile, the Intelligence Officers had enquired Accused Nos.2 and 3 about the contents in the said parcel. But however the accused had replied that they were ignorant of the contents in the said box. Then, the said box was asked to be opened by the accused themselves in the presence of panch witnesses. On opening, they found that it contained several items including a bundle covered with carbon paper and on unwrapping it, they found fake Indian Currency Notes of one thousand rupees and five hundred rupees denomination, totally amounting to Rs.2,00,000/-. The Officers, in the presence of the panch witnesses, 102 prepared a detailed mahazar, seized the incriminating articles, i.e., the alleged counterfeit Indian Currency notes, totally worth Rs.2,00,000/- along with other articles which were found in the box. The DRI Officers then had interrogated the said accused and recorded their voluntary statements as contemplated under Section 108 of the Customs Act and registered the case in their office in O.R.No.3/2008 and arrested Accused Nos.2 and 3 and produced them before the CJM Court, Mangalore. Thereafter, the seized notes were checked with the RBI and were confirmed to be counterfeit Indian Currency notes. Further, the DRI Officers, on the information gathered from Accused Nos.2 and 3, apprehended Accused No.4, recorded his voluntary statement as contemplated under Section 108 of the Customs Act in view of the fact that he had received similar parcel from Dubai sent by one Santhosh / Accused No.1 against whom the case was split up and 103 subsequently committed. It was found that the fourth accused was in constant touch with Santhosh. Hence, the DRI Officers found that there was conspiracy among all the four accused pertaining to trafficking of counterfeit currency notes. Thereafter the DRI Officers handed over the custody of Accused No.4 as well to the SHO of Kavoor Police Station. Thereafter, on 16.04.2008 the Senior Intelligence Officer of DRI reported the said matter to the SHO of Kavoor Police station in writing, who registered a case in Crime No.38/2008 against the accused. The Investigating Officer during the course of investigation, took the said accused to police custody and conducted mahazar through panchas, took some photographs of the XPS Courier office, received the alleged counterfeit Indian currency notes from the DRI officers and sent the notes to Forensic Science Laboratory and got it confirmed that the said notes were all counterfeit notes. The I.O. after 104 completion of investigation, filed a charge-sheet against the accused for offences punishable under Sections 489-A, 489-B, 489-C, 419, 120-B read with Section 34 of IPC. The case was then committed to the Court of Sessions and was numbered as S.C.No.63/2008. Since Santhosh / Accused No.1 could not be secured, the charge-sheet against him was split up and was registered as a separate case. Thus, the case in S.C.No.63/2008 proceeded against Accused Nos.2, 3 and 4. Further, after accused Santhosh was secured, the case was proceeded against him in S.C.No.51/2010. By the respective orders, all the four accused have been convicted by the Trial Court.

28. On an examination of the material on record, it is seen that PW-1 Senior Intelligence Officer on receiving credible investigation proceeded to the XPS Couriers and seized the fake Indian Currency notes from the possession of Accused Nos.2 and 3 and 105 proceeded to record their voluntary statements under Section 108 of Customs Act. Further, he had also recorded the voluntary statement of Accused No.4 as well after interrogating Accused Nos.2 and 3. After Accused No.1 Santhosh was secured, the I.O. had also got recorded his voluntary statement as contemplated under Section 108 of the Customs Act. Though PW-1 had the authority to do the investigation, the confession statements obtained from the accused is inadmissible in evidence, since the same requires to be tested under Section 24 and 25 of the Indian Evidence Act. The evidence of the prosecution witnesses is required to be carefully analysed. But the Trial Court in these cases, missed the link in the chain of circumstances to connect the accused that they had criminal conspiracy with one another and also have failed to prove that the accused had trafficked fake currency notes MO-7 to MO-11 which were seized by 106 PW-1 under Exhibit P1 seizure mahazar. In the Doctrine of Criminal jurisprudence system, the prosecution ought to put forth cogent, corroborative, acceptable and consistent evidence to prove the guilt of the accused beyond all reasonable doubt. If not, the benefit of doubt ought to be extended to the accused alone. If that benefit of doubt is not extended, certainly it would lead to a miscarriage of justice. The SPP-2 for the State has taken me through the evidence of PW-1 who is a responsible Senior Intelligence Officer who drew the mahazar at Exhibit P1 and also recorded the voluntary statement / confessional statements. Certainly it is true that inculpatory statement has been recorded. But, to what extent it is admissible in nature is in question. The statements recorded by the I.O. under Section 108 has to be tested with regard to the scope of Sections 24 and 25 of the Indian Evidence Act, 1872 inclusive of burden 107 of proof on the prosecution under Section 101 to 106. If not, there shall be misinterpretation of the evidence facilitated by the prosecution to convict the accused.

29. Merely because seizure mahazar has been drawn by PW-1, it cannot be said that it is gospel truth. But it is required to be tested under Section 24 and 25 of the Indian Evidence Act in conformity with Section 108 of the Customs Act in order to prove the guilt of the accused in respect of the offences under Sections 489A, 489B, 489C, 120B inclusive of Section 419 IPC. Further, though PW-1 had recorded the voluntary statements of Accused Nos.2 and 3 as contemplated by Section 108 of the Customs Act, however, the said confession statement is hit by Section 24 of the Indian Evidence Act, 1872. In that, the confession statement recorded by PW-1 under Section 108 of the Customs Act is irrelevant, having regard to the fact that the same has 108 been obtained by the Officer by use of threat and inducement and hence it is not reliable to the case of the prosecution. Though initially PW-1 had registered a case against accused nos.2 and 3 in O.R.No.3/2008, but however the case against them has been discharged. In order to defeat the order made in customs case, a separate report has been filed by him before the Kavoor Police Station and the case was proceeded against the accused. The FIR has been filed on 20.03.2008 based upon his complaint at Exhibit P-11. The Kavoor P.S. registered the said case in Cr.No.38/2008 and the I.O. drew the mahazar as per Exhibit P-12, similar to the seizure mahazar at Exhibit P1 drawn by PW-1 Madhusudhan Bhat. But the procedure which was adopted by the I.O. in the Kavoor P.S. in Cr.No.38/2008 is contrary to the well- established principle that the accused persons cannot be tried twice for the same offences. Further, Exhibit P1 109 mahazar dated 18.03.2008 was prepared for the purpose of deciding charge against the accused under the Customs Act. In view of the same, the confession statement of the accused recorded as contemplated under Section 108 of the Customs Act, 1968, is hit by Section 24 of the Indian Evidence Act, 1872. In that, the statements have been recorded by PW-1 under the relevant provisions of the Customs Act of 1962. In respect of the same, PW-1 ought to initiate proceedings against the accused if they have violated certain provisions and also if they had evaded tax in a consignment. Almost all major investigation has been done by PW-1 by recording the voluntary statements of the accused which is treated as confession statements in respect of Exhibit P1 seizure mahazar. But the entire evidence has been recorded relating to the charges under the Customs Act, of 1962 in O.R.No.3/2008. 110 Therefore, I find that it is irrelevant for the purpose of deciding the charges against the accused.

30. Further, there is no evidence to show that the accused took part in the process of manufacturing the fake currency notes which are produced at MO-7 to MO-11, such as printing the same and circulating the same. Even on analyzing the entire evidence on record, it is observed that none of the witnesses examined before the Court have whispered anything about actual participation of the accused in counterfeiting the Indian currency notes. Further, the Investigating Officer has not made an endeavour to trace out where actually the process of counterfeiting currency notes took place. Neither the Directorate of Revenue Intelligence Department Officers nor the Police Officers have investigated or traced the entire network. But it is seen that no efforts have been make to uproot the network. Hence, I find that there is no evidence 111 facilitated by the prosecution with regard to the appellants either printing or circulating the said fake currency notes. Charges were framed against the accused under Sections 489B and 489C of the IPC. Whereas the ingredients of the said charges i.e., any instance of the accused persons having used the counterfeit currency notes or forged notes either by selling or buying or by receiving the said counterfeit notes knowing fully well that the same were forged notes, has not at all been established by the prosecution. When such being the case, the guilt of the accused in respect of mensrea has not been established by the prosecution. The materials collected and recorded reveals that accused No.4 / Mohammed Asif is an innocent person and he was not at all present on 18.03.2008 along with accused Nos.2 and 3. His presence was only secured 21.04.2008. There is no evidence on record to prove 112 that accused no.4 received any counterfeit notes nor he was found in possession of any counterfeit notes or he has circulated such notes. There is also no evidence so as to establish that accused no.4 had criminal conspiracy with the other accused to commit offence as narrated in complaint. Under such circumstances, the trial Court ought not to have held Accused No.4 guilty of offence punishable under Section 489-B or 489-C of IPC. Though accused no.4 had received one parcel of UAE, Dubai, but there is no evidence to show that it contained counterfeit notes or that he had knowledge of the contents in the parcel. Hence, I am of the view that the Trial Court has misdirected as well as misinterpreted the entire evidence of PW.1 insofar as the role of accused No.4 is concerned. Hence, I find no direct evidence to connect him with the above offence. 113

31. As regards accused Santhosh K is concerned, it is seen that he did not possess any Indian counterfeit currency notes when he was apprehended. Hence, there is no direct or any circumstantial evidence on record to show that either this accused was found in possession of Indian counterfeit currency notes or he had made use of the same as genuine notes. Though the voluntary statement of this accused as per the provisions of Section 108 of the Customs Act was obtained by PW-1 as per Exhibit P-35, there is no satisfactory evidence available on record to connect the said accused Santhosh for the offence punishable under Sections 489-A and Section 489-C of the IPC. Further, in respect of S.C.No.51/2010, Ex.P12 – spot mahazar was conducted by the I.O in the presence of PW.1 – Madhusudhan Bhat alone and he did not even secure the accused person in order to confirm the contents at Ex.P12. But very cleverly said 114 Madhusudhan Bhat had drawn the seizure mahazar at Ex.P1 and secured the signatures of accused Nos.2 and 3 on Ex.P1. This material contradiction on the part of the prosecution has been ignored by the trial court. Subsequent to receipt of information, PW-1 ought to have given information in writing or a complaint in writing before the PSI of Kavoor Police Station having jurisdiction, to proceed with the matter, in view of the fact that the offences against all the accused were alleged under the Indian Penal Code, 1860. Under Section 4 of Cr.P.C., it is the power vested with the concerned investigating agency to proceed for investigation and lay the charge sheet. But however, I find that the said procedure has not been followed. As against the said procedure contemplated under the Cr.P.C., almost all the investigation has been done by PW.1 and thereafter he had handed over MOs.7 to 11 which are Indian fake currency notes to the PSI of 115 Kavoor Police Station, who in turn, has registered case in Crime No.38/2008. PW-1 had also conducted spot mahazar as per Ex.P12 and thereafter recorded the statement of witnesses and also secured the material documents and thereafter laid the charge sheet against the accused. The PSI did not secure the accused persons even at the time of conducting the spot mahazar in the office of XPS Courier service. However, the trial Court did not appreciate this evidence on record in a proper perspective manner. Ex.P1-seizure mahazar was drawn by PW.1 on 18.03.2008 to which he has subscribed his signature and also obtained signatures of Hasanabba, the accused namely Mayaddi and PW.2 – Gokuldas Hegde. This mahazar is an important document said to be conducted by PW.1. PW.10 being the I.O conducted spot mahazar as per Ex.P12 marked in S.C.51/2010 bears the signature of PW.1 alone. PW.22 being the I.O116in S.C.No.63/2008 did not make any endeavour to secure accused Nos.2 and 3 in connection with conducting the spot mahazar at XPS Courier office at Mangaluru. This vital material evidence on the part of the prosecution has not been considered by the trial Court while arriving at a conclusion that the prosecution has proved the guilt of the accused. The supervisor of the XPS Courier office was also subjected to examination on the part of the prosecution. The doctrine of burden must apply equally on the part of the prosecution and so also on the part of the accused who has taken defence. Ultimately, Section 3 of the Indian Evidence Act, 1872 which is the domain vested with the Trial Court to appreciate the evidence on record under Section 134 of the Indian Evidence Act, 1872 not to count the witnesses but only to count the evidence. That evidence should be produced by the prosecution beyond all reasonable doubt. If any doubt 117 arises, the benefit of doubt shall accrue only on the part of the accused and not on the part of the complainant said to have prosecuted the case against the accused.

32. The major flaw in the case of the prosecution is that PW-1 / Senior Intelligence Officer who conducted the investigation, did not inquire as to from where the fake currency notes originated and he did not unearth the entire network regarding the offenders / felonies who were the persons responsible for printing the said fake currency notes and circulating the same.

33. Therefore, in these appeals, keeping in view the contentions taken by the learned counsel for the appellant, the entire evidence of the prosecution requires to be re-scanned and re-appreciated and the judgment of conviction and order of sentence rendered by the Trial Court is found to suffer from infirmities and also there are glaring contradictions in the evidence of 118 PW-1, PW2, PW8 and PW22 / PW10 being the I.O. who laid the charge-sheet against the accused. Further, a fundamental error has been committed by the Trial Court in placing explicit reliance upon Section 108 of the Customs Act. It refers to leading of evidence, production of documents or any other thing in an enquiry in connection with smuggling of goods. Every proceeding in terms of sub-section (4) of Section 108 of the Customs Act would be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. But however, the enquiry contemplated under Section 108 is for the purpose of the Customs Act and not for the purpose of convicting an accused under any other statute. In view of all the above reasons, I proceed to pass the following:

119.

ORDER

Crl.A.Nos.880/2010, 869/2010 and 872/2011 are hereby allowed. The judgment of conviction and order of sentence rendered by the Presiding Officer, Fast Track Court, Mangalore in Sessions Case No.63/2008 by order dated 26.07.2010 and the judgment of conviction and order of sentence rendered by the Presiding Officer, Fast Track Court, Mangalore, in Sessions Case No.51/2010 are hereby set aside. Consequently, the accused / appellants in Crl.A.Nos. 880/2010, 869/2010 and 872/2011 are acquitted of the alleged offences. The bail bond if any executed by the respective appellants in Crl.A.Nos.880/2010, 869/2010 and 872/2011 stands cancelled. If any fine amount has been deposited by the appellants, the same shall be 120 refunded to the respective appellants, on proper identification. It is submitted by learned counsel that the Passports of the appellant in Crl.A.872/2011 / Santhosh and the first appellant in Crl.A.880/2010 / Mohammed Shabeer have been seized by the Investigating Agency. She seeks for an order of release of their Passports, in view of the above order of acquittal of the said accused from the alleged offences. If their passports have been seized, the respective appellants shall approach the competent authority for release of their Passports under the Passports Act, in accordance with law. Sd/- JUDGE KS / DKB