Order Bail s k Gupta Sanjeev

8/6/2019 Order Bail s k Gupta Sanjeev

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Reserved

Court No. - 3

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9794 of 201

Petitioner :- Sanjeev Awasthi and anothRespondent :- State Of U.

Petitioner Counsel :- Sikandar B. Koch

Respondent Counsel :- Govt. Advocate

Connected wi

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9793 of 201

Petitioner :- Sanjeev AwastRespondent :- State Of U.

Petitioner Counsel :- Sikandar B. KochRespondent Counsel :- Govt. Advocate

Hon'ble Shashi Kant Gupta,J.

1. Since both these bail applications are inter connected with the same crimethey are being disposed of by a common order.

2. Counter and rejoinder affidavits have been exchanged between the parties

3. Heard Mr. Shanti Bhusan, Senior Advocate assisted by Mr. Sikandar B

Kochar appearing on behalf of the applicants, Mr. Gopal Swaroop ChaturvedSenior Advocate assisted by Mr. Mewa Lal Shukla, learned GovernmeAdvocate and perused the record.

4. As per the prosecution version, co accused Shahzade was picked up bypatrolling police party on 2.2.2011 at about 4.30 P.M. in Kanpur Nagar wi20 fake Indian currency notes of denomination of Rs. 1,000/-, and an F.I.R. that effect was lodged by the police at Police Station Collectorganj, KanpNagar as case Crime No. 35 of 2011 under sections 489A and 489B I.P.C


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wherein he told the police that the alleged fake currency notes were given bthe applicant no. 1 Sanjeev Awasthi (hereinafter referred to as ' applicant n1' only ) under whom he was employed as a Driver for the last 25 days anfurther informed that the applicant no. 1, Sanjeev Awasthi was coming Kanpur in a Silver Colour Swift Car to deliver a large consignment of fakcurrency notes to some person. On the basis of the alleged tip off , thS.H.O. , Incharge Collectorganj police station namely Mr. Dinesh Tripatalong with other police personnel arrested the applicants at Kanpur at abo11.30 P.M. on 2.2.2011 with the alleged fake currency notes of about R8,01,000/-, out of which recovery of Rs. 7,45000/- had been shown from thapplicant no. 1 and the recovery of remaining Rs. 56, 000/- was shown frothe applicant no. 2., Shambhu ( hereinafter referred to as 'applicant no. 2' ) anan F.I.R. to that effect was lodged by the police at Police StatioCollectorganj, Kanpur Nagar as case Crime No. 36 of 2011 under section489A and 489B I.P.C.

5. It was submitted by the learned counsel for the applicants that the applicano. 1 is a public spirited social activist and has been raising his voice time anagain against the illegal and Corrupt practices of the Government headed bthe present Chief Minister, and has been actively prosecuting PILs relating the Taj Corridor Scam case and Mining Lease. It was further submitted ththe applicant had visited his Lawyer's Office at Delhi on 02.02.2011 in thmorning requesting him to draw out an application in this behalf and alsfiling of a Special Leave Petition before the Hon'ble Supreme Court againone of the orders passed by the High Court in the Taj Corridor matter.

6. It was further submitted that the applicant returned to Lucknow on 2.2.201after boarding the Go Air Flight (G8-353) departing at 07.10 P.M. from NeDelhi to Lucknow and asked his driver Shambhu to come to the Airport pick him up. When the applicant came out of the Airport at about 8.30 P.Mand drove out of the Airport for a distance of only about 20 mtrs., one DineTripathi introducing himself to be an Inspector in the U.P. Police, along wifew others intercepted the Car. Thereafter, Mr. Dinesh Tripathi forcibly ginto the Car in which the applicant no. 1 was travelling, and asked his driveShambhu ( applicant no. 2) to take the Car to Sarojini Nagar Police StatioLucknow. The mobile phone of the applicants and his driver along with hPassport, Luggage and Cash worth Rs. 8,01,000/- were confiscated by thpolicemen. The applicant no. 1 was also compelled to sign on a blank papewhich was later found to have been used as a 3rd page to the seizure memo.

7. It was further submitted by the learned counsel for the applicants ththereafter the applicant no. 1 along with his driver ( applicant no. 2), inpreplanned manner, was forcibly taken to Kanpur and was falsely implicateand charged under Sections 489A and 489B I.P.C for allegedly carrying fakcurrency notes which was planted after replacing half of his genuine currennotes.


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8. It was further submitted by the learned counsel for the applicants that froa perusal of the recovery memo of crime no. 35 of 2011, which pertains to threcovery of Rs. 20,000/- from co accused Shahjade, it transpires that eacfake currency note bears its number whereas from a perusal of the recovememo of crime no. 36 of 2011, it can be very clearly seen that the same doenot have the number of even a single note alleged to have been recoverefrom the possession of the applicant Sanjeev awasthi and co accused SambhHe further submits that from the perusal of the said recovery memo it further revealed that the said memo consists of three pages, out of which othe second page the S.H.O. , Mr. Dinesh Tripathi and the so called witnesshave put their signatures, while on the third page only the applicant SanjeeAwasthi and co accused Shambhu and the S.H.O. have put their signatureThis itself clearly goes to show the false implication of the applicants in thpresent case.

9. It was further submitted that , for the sake of arguments, even assuminthough not admitting, the allegations of recovery of fake currency notes frothe application are taken to be true , the offence will not travel beyond Sectio489-C I.P.C. which is a bailable offence but the prosecution has deliberateinvoked sections 489A and 489B I.P.C. just to keep the applicant no. 1 behinthe bar for a long period at the behest of some interested politicians of thruling party including the Chief Minister Ms. Mayawati only because he pursuing a number of cases including Taj Corridor Scam matter against thChief Minister, Senior Ministers and Bureaucrats.

10. It was further submitted that the investigation of case crime nos. 35 and 3of 2011 under sections 498A and 498B I.P.C. was transferred to the EconomOffences Wing (EOW) on 3.2.2011 and a team of investigators was duappointed in which Chaudhary Ramesh Singh was the Investigating Officer.was further submitted that the investigation is going on under the pressure opoliticians and bureaucrats and the same is not being allowed to be conductin a fair manner and this fact stands amply proved by the fact that ChaudharRamesh Singh, one of the member of the Economic Offences Wing ( EOWwho was entrusted with the job of investigation, had sent two letters date17.3.2011 and 18.4. 2011 to the Superintendent of Police , E.O.W. , Kanpstating therein that he was being pressurised by the complainant of both thcases i.e. S. O. Mr. Dinesh Tripathi to investigate the matter in conformiwith the F.I.R. , and accordingly he requested that he be relieved from thinvestigation and this fact had been widely reported in the news papers andcopy of the letter, which was written by the said I.O. , has been filed as SAto the supplementary affidavit filed in support of the bail application , and oaccount of the aforesaid facts the Government suspended the said I.Chaudhary Ramesh Singh which led to the filing of the writ petition no. 258( S/S) of 2011 before the Lucknow Bench of this court wherein this Court hissued notice to the State Government. It was further submitted that despiknowing well that making such serious allegations would be detrimental to hinterest , the said I.O, Chaudhary Ramesh Singh mustered courage to do sand this fact itself indicates as to how the investigation is actually proceedinand the matter is being directly pursued by the Chief Minister of the State.


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11. It was further submitted that seeing the undue interference of thGovernment in the investigation , the applicant no. 1 filed a writ petitionbeing writ petition no. 9423/11 before the Apex Court seeking transfer of thinvestigation of case crime nos. 35 an 36 of 2011 ( registered at Police StatioCollectorganj, District Kanpur Nagar) to an independent agency like C.B.I. ensure fair and impartial investigation and the Apex Court vide order date3.5.2011, interalia, passed the following order:

" We have heard the learned cousnel for the parties.

We permit the respondents to file the report under section 173 of thCriminal Procedure Code in the Trial court subject to the rights that th petitioners' claim in the present proceedings and that the filing of thcharge sheet would not foreclose any option to them in this matter. It is alsclarified that notwithstanding the filing of the charge sheet the Trial Couwill not take cognizance thereof till further orders."

12. It was further submitted that the applicant no. 1 is a farmer havinconsiderable holdings in Banda District and also carries on the business mining. He also contested the election of the Legislative Assembly as candidate of the Congress Party from District Banda.

13. It was further submitted that despite the police coming to know during thcourse of investigation from the co accused Shahjade that the applicant no.is arriving at Lucknow Airport with the alleged currency notes, the poliallegedly waited for his arrival at Kanpur and did not go to Lucknow tapprehend the applicant no. 1. It was further submitted that the entire story the prosecution is false and frivolous. The co accused Shahjade being thhenchman of the Inspector of Police station Collectorganj, Kanpur Nagarwas falsely introduced in the picture to make out the case against thapplicants. It was further submitted that it is beyond any stretch imagination that a responsible police officer, who gets a tip off at about 3.3P.M. that a kingpin of fake currency notes has been identified and woucome to Kanpur but still neither any information to any responsible agenci.e. the CBI, Enforcement Directorate was given nor the Lucknow police walerted. It baffles one, beyond comprehension that a kingpin dealing in a fakcurrency would not come to know of the arrest of one of his men at Kanpuand would come straight into the hands of the Collectoganj police statiocarrying fake currency notes.

14. It was further submitted that the arrest of the applicants was part of'State managed vendetta' and the present prosecution has been launchagainst the applicants by hatching a conspiracy with the co accused Shahjadewho himself is a history sheeter and a henchman of the police. In support his contention , the learned counsel for the applicants relied upon a decisioof Hon'ble Apex Court in the case of Joginder Kumar vs. State of U.P. anothers : (1994)4 SCC 260 wherein in para 20 thereof the Hon'ble SupremCourt has observed as follows:


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"In India, Third Report of the National Police Commission at p. 32 alssuggested:

"An arrest during the investigation of acognizable case may be considerejustified inone or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rapetc., and it is necessary to arrest the accused and bring his movemenunder restraint to infuse confidence among the terrorstricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commfurther offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he likely to commit similar offences again.

It would be desirable to insist through departmental instructions thatpolice officer making an arrest should also record in the case diary threasons for making thearrest, thereby clarifying his conformity to

the specified guidelines......"

The above guidelines are merely the incidents of personal liberguaranteed under the Constitution of India. No arrest can be made becausit is lawful for the police officer to do so. The existence of the power tarrest is one thing. The justification for the exercise of it is quite anotheThe police officer must be able to justify the arrest apart from his power tdo so. Arrest and detention in police lock-up of a person can cauincalculable harm to the reputation and self-esteem of a person. No arrecan be made in a routine manner on a mere allegation of commission of aoffence made against a person. It would be prudent for a police officer ithe interest of protection of the constitutional rights of a citizen an perhaps in his own interest that no arrest should be made without

reasonable satisfaction reached after some investigation as to thgenuineness and bonafides of a complaint and a reasonable belief both ato the person's complicity and even so as to the need to effect arresDenying a person of his liberty is a serious matter. The recommendations othe Police Commission merely reflect the constitutional concomitants of thfundamental right to personal liberty and freedom. A person is not liable arrest merely on the suspicion of complicity in an offence. There must bsome reasonable justification in the opinion of the officer effecting tharrest that such arrest is necessary and justified. Exception heinouoffences, an arrest must be avoided if a police officer issues notice to persoto attend the Station House and not to leave the Station without permissiowould do."


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15. Learned counsel for the applicants also relied upon a decision in case oM. Mammutti vs. State of Karnataka : 1980 SCC (Cri) 170 wherein it hbeen held by the Apex Court that where it is not shown that the accused haknowledge or reason to believe that the notes were counterfeit , the convictio

was not proper and presumption of knowledge from mere possession can onbe drawn if the notes were of such a nature that mere look at them wouconvince any body that it was counterfeit.

16. It was further submitted that there is no independent witness of the allegerecovery. It was further submitted that, in fact, no fake currency notes werecovered from the possession of the applicants and the recovery of thalleged fake currency notes was planted with a view to harass, victimise anintimidate them merely because the applicant no. 1 was pursuing the cas

against the Chief Minister and her colleagues. He further submits that thapplicants have got no criminal history to their credits and there are nchances of their fleeing away from the judicial process or tampering with thprosecution evidence, and are in jail since 3.2.2011.

17. Per contra, Mr. Gopal Swaroop Chaturvedi, Senior Advocate assisted bMr. Mewa Lal Shukla, learned Government Advocate has opposed the ba

application and stated that huge amount of fake currency notes have beerecovered from the possession of the applicants . While referring to Sectio114 of the Indian Evidence Act , it was submitted that the Court may presumthe existence of any fact which it thinks likely to have happened, regard beinhad to the common course of natural events, human conduct, public anprivate business, in their relation to the facts of the particular case. It wafurther submitted that since recovery of a huge quantity of fake currency notwas made from the possession of the applicants the court can presume that thapplicants must be having knowledge that those notes were counterfeit anhave been possessed for the purpose of trafficking. It was further submittethat the recovered currency notes were large in number, as such their numbewere not noted down at the time of recovery but were properly sealed accordance with law.

18. It was further submitted that so far as the signature on Recovery Memo concerned, it was prepared in continuation upto the end of second page anafter the signatures of Inspector Incharge of police station CollectorganDistrict Kanpur Nagar and the witnesses of recovery, the second page endeand there was no space on the second page for signatures of the accuse


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applicants, as such, it finds place on the third page.

19. He further submitted that the fake currency notes were sent to thCurrency Note Press Nasik for examination of the suspected notes by th

order of court below in a sealed cover and as per the report of the sacounterfeit Press dated 11.4.2011, out of Rs.8,01,000/-, currency notes of R4, 05,000/- were found to be genuine currency notes and currency notes of R3,96,000/- were found to be counterfeit.

20. Keeping in view the nature of the offence, evidence, complicity of thaccused, severity of punishment and submissions of the learned counsel fthe parties, without expressing any opinion on the merits of the case, I am the view that that, at this stage, the applicant deserves to be bailed out.

21. Let the applicants Sanjeev Awasthi involved in Case Crime Nos. 35 2011 and 36 of 2011 under Sections 489A and 489B I.P.C., P.S. Collectorga, District Kanpur Nagar and Shambhu involved in Case Crime Nos. 36 2011 under Sections 489A and 489B I.P.C., P.S. Collectorganj , DistriKanpur Nagar be released on bail on their furnishing a personal bond and twheavy sureties each in the like amount to the satisfaction of the couconcerned with the following conditions:-

(i)The applicants will not tamper with the evidence during the trial(ii) The applicants will not pressurise/ intimidate the prosecution witnesses(iii)The applicants will appear before the trial court on the date fixed

In case of breach of any of the above conditions , the court below shall be liberty to cancel the bail.

22. Let a copy of this order be placed on the record of the connected CriminMisc. Bail Application No. 9793 of 2011, Sanjeev Awasthi Vs. State of U.P.

Order Date :- 19.5.2011MLK

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Order Bail s k Gupta Sanjeev