Reserved

Court No. - 32

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9794 of 2011

Petitioner :- Sanjeev Awasthi and another

Respondent :- State Of U.P.

Petitioner Counsel :- Sikandar B. Kochar

Respondent Counsel :- Govt. Advocate

Connected with

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9793 of 2011

Petitioner :- Sanjeev Awasthi

Respondent :- State Of U.P.

Petitioner Counsel :- Sikandar B. Kochar

Respondent Counsel :- Govt. Advocate

Hon'ble Shashi Kant Gupta,J.

1. Since both these bail applications are inter connected with the same crime ,
they 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 Chaturvedi,
Senior Advocate assisted by Mr. Mewa Lal Shukla, learned Government
Advocate and perused the record.

4. As per the prosecution version, co accused Shahzade was picked up by a

patrolling police party on 2.2.2011 at about 4.30 P.M. in Kanpur Nagar with
20 fake Indian currency notes of denomination of Rs. 1,000/-, and an F.I.R. to
that effect was lodged by the police at Police Station Collectorganj, Kanpur
Nagar as case Crime No. 35 of 2011 under sections 489A and 489B I.P.C.
wherein he told the police that the alleged fake currency notes were given by
the applicant no. 1 Sanjeev Awasthi (hereinafter referred to as ' applicant no.
1' only ) under whom he was employed as a Driver for the last 25 days and
further informed that the applicant no. 1, Sanjeev Awasthi was coming to
Kanpur in a Silver Colour Swift Car to deliver a large consignment of fake
currency notes to some person. On the basis of the alleged tip off , the
S.H.O. , Incharge Collectorganj police station namely Mr. Dinesh Tripathi
along with other police personnel arrested the applicants at Kanpur at about
11.30 P.M. on 2.2.2011 with the alleged fake currency notes of about Rs.
8,01,000/-, out of which recovery of Rs. 7,45000/- had been shown from the
applicant no. 1 and the recovery of remaining Rs. 56, 000/- was shown from
the applicant no. 2., Shambhu ( hereinafter referred to as 'applicant no. 2' ) and
an F.I.R. to that effect was lodged by the police at Police Station
Collectorganj, Kanpur Nagar as case Crime No. 36 of 2011 under sections
489A and 489B I.P.C.

5. It was submitted by the learned counsel for the applicants that the applicant
no. 1 is a public spirited social activist and has been raising his voice time and
again against the illegal and Corrupt practices of the Government headed by
the present Chief Minister, and has been actively prosecuting PILs relating to
the Taj Corridor Scam case and Mining Lease. It was further submitted that
the applicant had visited his Lawyer's Office at Delhi on 02.02.2011 in the
morning requesting him to draw out an application in this behalf and also
filing of a Special Leave Petition before the Hon'ble Supreme Court against
one 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 2.2.2011

after boarding the Go Air Flight (G8-353) departing at 07.10 P.M. from New
Delhi to Lucknow and asked his driver Shambhu to come to the Airport to
pick him up. When the applicant came out of the Airport at about 8.30 P.M.,
and drove out of the Airport for a distance of only about 20 mtrs., one Dinesh
Tripathi introducing himself to be an Inspector in the U.P. Police, along with
few others intercepted the Car. Thereafter, Mr. Dinesh Tripathi forcibly got
into the Car in which the applicant no. 1 was travelling, and asked his driver
Shambhu ( applicant no. 2) to take the Car to Sarojini Nagar Police Station
Lucknow. The mobile phone of the applicants and his driver along with his
Passport, Luggage and Cash worth Rs. 8,01,000/- were confiscated by the
policemen. The applicant no. 1 was also compelled to sign on a blank paper,
which 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 that
thereafter the applicant no. 1 along with his driver ( applicant no. 2), in a
preplanned manner, was forcibly taken to Kanpur and was falsely implicated
and charged under Sections 489A and 489B I.P.C for allegedly carrying fake
currency notes which was planted after replacing half of his genuine currency
notes.
8. It was further submitted by the learned counsel for the applicants that from
a perusal of the recovery memo of crime no. 35 of 2011, which pertains to the
recovery of Rs. 20,000/- from co accused Shahjade, it transpires that each
fake currency note bears its number whereas from a perusal of the recovery
memo of crime no. 36 of 2011, it can be very clearly seen that the same does
not have the number of even a single note alleged to have been recovered
from the possession of the applicant Sanjeev awasthi and co accused Sambhu.
He further submits that from the perusal of the said recovery memo it is
further revealed that the said memo consists of three pages, out of which on
the second page the S.H.O. , Mr. Dinesh Tripathi and the so called witnesses
have put their signatures, while on the third page only the applicant Sanjeev
Awasthi and co accused Shambhu and the S.H.O. have put their signatures.
This itself clearly goes to show the false implication of the applicants in the
present case.

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

10. It was further submitted that the investigation of case crime nos. 35 and 36
of 2011 under sections 498A and 498B I.P.C. was transferred to the Economic
Offences Wing (EOW) on 3.2.2011 and a team of investigators was duly
appointed in which Chaudhary Ramesh Singh was the Investigating Officer. It
was further submitted that the investigation is going on under the pressure of
politicians and bureaucrats and the same is not being allowed to be conducted
in a fair manner and this fact stands amply proved by the fact that Chaudhary
Ramesh Singh, one of the member of the Economic Offences Wing ( EOW),
who was entrusted with the job of investigation, had sent two letters dated
17.3.2011 and 18.4. 2011 to the Superintendent of Police , E.O.W. , Kanpur
stating therein that he was being pressurised by the complainant of both the
cases i.e. S. O. Mr. Dinesh Tripathi to investigate the matter in conformity
with the F.I.R. , and accordingly he requested that he be relieved from the
investigation and this fact had been widely reported in the news papers and a
copy of the letter, which was written by the said I.O. , has been filed as SA-1
to the supplementary affidavit filed in support of the bail application , and on
account of the aforesaid facts the Government suspended the said I.O.
Chaudhary Ramesh Singh which led to the filing of the writ petition no. 2580
( S/S) of 2011 before the Lucknow Bench of this court wherein this Court has
issued notice to the State Government. It was further submitted that despite
knowing well that making such serious allegations would be detrimental to his
interest , the said I.O, Chaudhary Ramesh Singh mustered courage to do so
and this fact itself indicates as to how the investigation is actually proceeding
and the matter is being directly pursued by the Chief Minister of the State.
11. It was further submitted that seeing the undue interference of the
Government in the investigation , the applicant no. 1 filed a writ petition ,
being writ petition no. 9423/11 before the Apex Court seeking transfer of the
investigation of case crime nos. 35 an 36 of 2011 ( registered at Police Station
Collectorganj, District Kanpur Nagar) to an independent agency like C.B.I. to
ensure fair and impartial investigation and the Apex Court vide order dated
3.5.2011, 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 the
Criminal Procedure Code in the Trial court subject to the rights that the
petitioners' claim in the present proceedings and that the filing of the
charge sheet would not foreclose any option to them in this matter. It is also
clarified that notwithstanding the filing of the charge sheet the Trial Court
will not take cognizance thereof till further orders."

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

13. It was further submitted that despite the police coming to know during the
course of investigation from the co accused Shahjade that the applicant no. 1
is arriving at Lucknow Airport with the alleged currency notes, the police
allegedly waited for his arrival at Kanpur and did not go to Lucknow to
apprehend the applicant no. 1. It was further submitted that the entire story of
the prosecution is false and frivolous. The co accused Shahjade being the
henchman of the Inspector of Police station Collectorganj, Kanpur Nagar ,
was falsely introduced in the picture to make out the case against the
applicants. It was further submitted that it is beyond any stretch of
imagination that a responsible police officer, who gets a tip off at about 3.30
P.M. that a kingpin of fake currency notes has been identified and would
come to Kanpur but still neither any information to any responsible agency;
i.e. the CBI, Enforcement Directorate was given nor the Lucknow police was
alerted. It baffles one, beyond comprehension that a kingpin dealing in a fake
currency would not come to know of the arrest of one of his men at Kanpur
and would come straight into the hands of the Collectoganj police station,
carrying fake currency notes.

14. It was further submitted that the arrest of the applicants was part of a
'State managed vendetta' and the present prosecution has been launched
against the applicants by hatching a conspiracy with the co accused Shahjade ,
who himself is a history sheeter and a henchman of the police. In support of
his contention , the learned counsel for the applicants relied upon a decision
of Hon'ble Apex Court in the case of Joginder Kumar vs. State of U.P. and
others : (1994)4 SCC 260 wherein in para 20 thereof the Hon'ble Supreme
Court has observed as follows:
"In India, Third Report of the National Police Commission at p. 32 also
suggested:

"An arrest during the investigation of acognizable case may be considered

justified inone or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape
etc., and it is necessary to arrest the accused and bring his movements
under 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 commit

further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is

likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a

police officer making an arrest should also record in the case diary the
reasons for making thearrest, thereby clarifying his conformity to

the specified guidelines......"

The above guidelines are merely the incidents of personal liberty

guaranteed under the Constitution of India. No arrest can be made because
it is lawful for the police officer to do so. The existence of the power to
arrest is one thing. The justification for the exercise of it is quite another.
The police officer must be able to justify the arrest apart from his power to
do so. Arrest and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of a person. No arrest
can be made in a routine manner on a mere allegation of commission of an
offence made against a person. It would be prudent for a police officer in
the interest of protection of the constitutional rights of a citizen and
perhaps in his own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation as to the
genuineness and bonafides of a complaint and a reasonable belief both as
to the person's complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. The recommendations of
the Police Commission merely reflect the constitutional concomitants of the
fundamental right to personal liberty and freedom. A person is not liable to
arrest merely on the suspicion of complicity in an offence. There must be
some reasonable justification in the opinion of the officer effecting the
arrest that such arrest is necessary and justified. Exception heinous
offences, an arrest must be avoided if a police officer issues notice to person
to attend the Station House and not to leave the Station without permission
would do."
15. Learned counsel for the applicants also relied upon a decision in case of
M. Mammutti vs. State of Karnataka : 1980 SCC (Cri) 170 wherein it has
been held by the Apex Court that where it is not shown that the accused had
knowledge or reason to believe that the notes were counterfeit , the conviction
was not proper and presumption of knowledge from mere possession can only
be drawn if the notes were of such a nature that mere look at them would
convince any body that it was counterfeit.

16. It was further submitted that there is no independent witness of the alleged
recovery. It was further submitted that, in fact, no fake currency notes were
recovered from the possession of the applicants and the recovery of the
alleged fake currency notes was planted with a view to harass, victimise and
intimidate them merely because the applicant no. 1 was pursuing the cases
against the Chief Minister and her colleagues. He further submits that the
applicants have got no criminal history to their credits and there are no
chances of their fleeing away from the judicial process or tampering with the
prosecution evidence, and are in jail since 3.2.2011.

17. Per contra, Mr. Gopal Swaroop Chaturvedi, Senior Advocate assisted by
Mr. Mewa Lal Shukla, learned Government Advocate has opposed the bail
application and stated that huge amount of fake currency notes have been
recovered from the possession of the applicants . While referring to Section
114 of the Indian Evidence Act , it was submitted that the Court may presume
the existence of any fact which it thinks likely to have happened, regard being
had to the common course of natural events, human conduct, public and
private business, in their relation to the facts of the particular case. It was
further submitted that since recovery of a huge quantity of fake currency notes
was made from the possession of the applicants the court can presume that the
applicants must be having knowledge that those notes were counterfeit and
have been possessed for the purpose of trafficking. It was further submitted
that the recovered currency notes were large in number, as such their numbers
were not noted down at the time of recovery but were properly sealed in
accordance with law.

18. It was further submitted that so far as the signature on Recovery Memo is
concerned, it was prepared in continuation upto the end of second page and
after the signatures of Inspector Incharge of police station Collectorganj,
District Kanpur Nagar and the witnesses of recovery, the second page ended
and there was no space on the second page for signatures of the accused
applicants, as such, it finds place on the third page.

19. He further submitted that the fake currency notes were sent to the
Currency Note Press Nasik for examination of the suspected notes by the
order of court below in a sealed cover and as per the report of the said
counterfeit Press dated 11.4.2011, out of Rs.8,01,000/-, currency notes of Rs.
4, 05,000/- were found to be genuine currency notes and currency notes of Rs.
3,96,000/- were found to be counterfeit.

20. Keeping in view the nature of the offence, evidence, complicity of the
accused, severity of punishment and submissions of the learned counsel for
the parties, without expressing any opinion on the merits of the case, I am of
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 of
2011 and 36 of 2011 under Sections 489A and 489B I.P.C., P.S. Collectorganj
, District Kanpur Nagar and Shambhu involved in Case Crime Nos. 36 of
2011 under Sections 489A and 489B I.P.C., P.S. Collectorganj , District
Kanpur Nagar be released on bail on their furnishing a personal bond and two
heavy sureties each in the like amount to the satisfaction of the court
concerned 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 at
liberty to cancel the bail.

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

Order Date :- 19.5.2011

MLK