In Re: Abdul Rahiman

Sundara Aiyar, J.—The appellant, a young man of 19, has been convicted of an offence u/s 489(d), Indian Penal Code, that is, having in his

possession instruments and materials for the purpose of being used, or knowing or having reason to believe that they were intended to be used, for

forging or counterfeiting currency notes. This section has been introduced into the Penal Code by Act XII of 1899 and was drafted apparently on

the lines of Section 235, Indian Penal Code (which relates to coins) though the draftsman has made certain variations in the language--I mean,

using the words ''for the purpose of being used'' in the place of ''for the purpose of using the same'' - which cannot be said to be an improvement.

But so far as the questions which we have to decide in this case are concerned, there seems to be no substantial difference between the two

enactments.

That the accused, when arrested in the train on a charge of embezzlement which had been laid against him by his employer, was found in

possession of the articles exhibited as material objects, I find no sufficient reason for disbelieving.

The question then arises whether the possession of these articles coupled with the suspicious conduct of the accused when seized, namely, an

attempt on his part to snatch the articles from the constable, makes him guilty of an offence u/s 489(d) of the Penal Code. No evidence was

adduced before the Sessions Judge to prove that the things found or any of them are capable of being used or would be used for forging or

counterfeiting a currency note or bank Hate, and although we adjourned the hearing of the appeal for the purpose, of such evidence being adduced

before us, no such evidence has been given.

In order to establish a charge under this section, what the prosecution has to prove in the first place is that the machinery, instrument or material

found in the possession of the accused person is such as would be used in the production of a counterfeit note, and if that is proved, the next

element which is to be proved is that the accused knew or intended that such article would be used for the purpose of counterfeiting currency

notes. It may be that in some cases a mere inspection of the articles would satisfy the court that they are capable of being used in the making of

counterfeit notes. But where that is not the case, it is the duty of the Crown to adduce evidence of a competent and qualified witness who would

be able to explain to the court the process by which the instruments or materials in question could be used in making a counterfeit note. I have

examined the exhibits in this case carefully and I find myself totally unable to say that any of these can be successfully used in counterfeiting a note,

understanding the word ''counterfeit'' in the sense that the resemblance must be such as may in circulation ordinarily impose upon the world (see

RUSSELL on Crimes, Vol. I. page 211). It was suggested by the Public Prosecutor that there are many hill tribes in this Presidency who could be

easily imposed upon. But the standard of resemblance must not be judged in the light of the intelligence of the most primitive people who may be

found in the country. If that were so, any piece of paper with any scrawl on it could, I imagine, be passed among such people as a Government

currency note. No doubt the resemblance need not be perfect, but it must be sufficient to deceive people of ordinary intelligence who are familiar

with currency notes.

Now as regards the articles found, all that I should be prepared to say without the help of any expert''s evidence is that some of the articles may

be used in reproducing portions of the designs or writings of a five rupee note on ordinary paper or similar substance either with pencil or ink, and

there can be little doubt also that the accused was trying to find out how to make a currency note. But without further evidence I am unable to say

that any of these articles are actually of any use in producing a counterfeit note. Instruments and materials which may be useful in making correct

drawings of the outlines of the designs and figures of a currency note may be of no use whatever in manufacturing counterfeit notes. On looking into

ARCHBOLD''S Criminal Pleadings, pages 764 to 766, where the English statutes dealing with similar offences are recited, it would appear that

the paper is the most important material in the manufacturing of a counterfeit note, and all the papers that were found with the accused in the

present case are files of ordinary foolscap or canara white note paper. It may be that the articles found form the stock-in-trade of a counterfeiter of

currency notes as the learned Sessions Judge puts it, but such a finding must be based on evidence and not on conjectures. How necessary it is

that a matter like this should be, as it is generally required by the court to be, proved by the evidence of experts will be apparent from a reference

to some of the English cases, for instance Rex v. Moore (1826) 1 M&R 1778 P.C. 171. I certainly do think that the Crown Prosecutor should

have been able in this case to adduce proper evidence to prove that the materials found were capable of being used in making a counterfeit note,

and his failure to do so necessarily raises a presumption against the case of the Crown.

I would, therefore, set aside the conviction and sentence and order that the prisoner be released from custody.

Ayling J.

Appellant has been convicted of committing an offence u/s 489(d), I.P.C., by possessing instruments and materials for the purpose of

counterfeiting five-rupee currency notes.

From the evidence of prosecution 1st and 2nd witnesses it appears that on the evening of the 28th May, 1910, appellant was arrested in the

train between Mettupalaiyam and Coimbatore by prosecution witness No. 2, an Ooty constable, on a charge of embezzlement. On being

searched, a number of articles, marked as material objects in the case, were found in his pocket, which are said to be instruments and materials

used for counterfeiting Rs. 5 currency notes.

Four other witnesses were examined who speak to having previously seen appellant at Ooty under circumstances tending to suggest that he was

actually engaged in the work of counterfeiting or preparation therefor. This evidence is in itself inconclusive on the present charge; it merely tends to

strengthen the inference of guilty intention which may be drawn from possession of the articles found, as proved by prosecution witnesses Nos. 1

and 2.

I see no reason to doubt the substantial truth of the evidence of the last mentioned witnesses, as establishing the discovery of the incriminating

articles on appellant''s person. The rebutting evidence of the two defence witnesses was, in my opinion, rightly discredited by the Sessions Judge.

It is, however, urged by the learned vakil for the appellant that even accepting this evidence, the conviction is not warranted. He argues that the

articles found are not sufficient in themselves without the addition of other materials for the preparation of the counterfeit note : and, further, that it

has not been proved that, even with such addition, it would be possible to manufacture a note capable of being passed. He relies in support of his

contention on the case of R. v. Tirumal Reddy (1899) Cr. Ap. No. 153 of 1899 reported in Weir''s Criminal Rulings, Vol. I., 219. There is

absolutely nothing in Section 489(d), I.P.C., to indicate that the possession of a complete outfit for the manufacture of counterfeit notes is

necessary to constitute an offence thereunder. As I read the section, the possession of even a single implement would be sufficient, provided it

were shown that such implement was intended to be utilised in the work of counterfeiting. This intention must, in almost every case, be a matter of

inference dependent on the facts, particularly on the nature and the number of the articles found - their suitability for counterfeiting work and for

innocent purposes. It is always open to the accused person to show (as he has not attempted to do in this case) that he possessed them for

innocent purposes; and even if he does not, where the nature of the articles is consistent with innocent as well as guilty purposes, no court would

draw an inference adverse to the accused. Where, on the other hand, the nature of the articles is such as to render them peculiarly and specially

suitable for counterfeiting work, and useless for any other that can be suggested, the intention to use them for counterfeiting may be fairly inferred,

subject to rebutment by the accused.

There may, of course, be cases where, though the ultimate object of the possessor may clearly be counterfeiting, the particular articles found

are of such rude or imperfect nature as to indicate unmistakeably that the work was only in an experimental stage and that they could not be

intended for utilisation in the preparation of the finished counterfeit. The case quoted above was such a case; it was held that no offence was

disclosed by the possession of rudimentary dies indicative only of experimental work and incapable of being used to produce a passable

counterfeit. The only other proposition laid down therein is that the possession of implements which, though fit for counterfeiting, have been broken

or otherwise rendered incapable of further use, does not constitute an offence. Neither of these propositions is, however, of much use to the

accused in the present case, or to put it differently, among the numerous articles exhibited, there are some to which neither of them can possibly be

applied. Fret saws, and files (material objects 5 and 7) are no doubt susceptible of innocent use; but when, as in the present case, they are found

together with articles unmistakeably connected with counterfeiting work, it may be fairly inferred that they are intended to be used in conjunction

with the latter. Here we have two admirable tracings on tissue paper of five-rupee notes (material objects 2a and 2b), together with an abundant

supply of spare tissue paper. We also have a sheet of paper (material object No. 12) of a quality closely resembling that on which currency notes

are printed with the description ""carrara white A.P. and S."" noted on it in ink. We have also numerous flat pieces of slate and zinc (material objects

Nos. 5 and 8) suitable for use in producing the various impressions on a currency note, on many of which the said impressions have been

reproduced. Some of these (material objects No. 8) may represent merely practice work; but among material objects No. 5 are several pieces in

various stages of preparation, in which the shaping and filing have been so excellently done, that there is absolutely no reason why they should not

be used in preparing a counterfeit note fully capable of deceiving the ordinary public. There is one small zinc figure 5 which could hardly be

improved upon. There are other pieces on which detailed work has not yet been commenced.

A consideration of the collection as a whole leaves no doubt in my mind that most, if not all, of the articles contained in it were intended to be

used in one way or another in the process of counterfeiting a five rupee note, while several of them are of such a degree of excellence as to show

that the work had passed the experimental stage. These as well as the unworked materials are capable of being used in conjunction with other

tools and materials in the actual preparation of a counterfeit note; and Ii see no reason to doubt that it was appellant''s intention that they should be

so used.

The conviction in my opinion is justified and should be upheld. I see no sufficient reason for reducing the sentence.

Abdur Rahim, J.

As my learned brother holds Ja different view, the case must be placed before a third Judge for disposal.

This case coming on for hearing again, the Court delivered the following

JUDGMENT

In this case the accused Abdul Rahiman, a young man of about 19 years of age, was convicted by the Sessions Judge of Coimbatore of the

offence of being in possession of instruments and materials for counterfeiting five-rupee Government currency notes u/s 489(d) of the Indian Penal

Code. He appealed to this Court and the appeal was heard by Justices Abdur Rahim and Ay ling. The former was opinion that the offence

charged against the accused had not been established by the evidence tendered by the prosecution, while the latter held that the conviction should

be sustained. In consequence of the difference of opinion between the two learned Judges, the case was placed before me for disposal.

The accused was, according to the evidence for the Crown, arrested in the train between Mettupalayam and Coimbatore and on being searched

a number of articles, produced before the court, is alleged to have been found in his pockets. It is these articles which are said to be the

instruments and materials for Counterfeiting five-rupee currency notes. Both the learned judges were of opinion that the accused was arrested with

this articles in his possession in the train, as alleged by the prosecution. Mr. Ramachandra Aiyar, who has argued the case I before me for the

appellant, has drawn my attention to some suspicious circumstances relating to the arrest and search, but after full consideration I agree in the view

taken by the lower court that the accused was, as a matter of fact, arrested in the train and that the material objects produced were found on him

at the search.

The question for decision is whether it has been proved that the accused was in possession of any instrument or materials ""for the purpose of

being used, or knowing or having reason to believe that it was intended to be used, for forging or counterfeiting any currency note."" It is not alleged

for the prosecution that the accused was in possession of the objects found on him in the circumstances mentioned in the latter clause, ""knowing or

having reason to believe that they were intended to be used"" by any person other than himself for counterfeiting currency notes. The question is

whether he was in possession of any such articles for counterfeiting currency notes. Before the court could come to the conclusion that the accused

had the objects in question for the purpose of counterfeiting, the Crown should establish that he had formed in his mind the purpose or intention of

counterfeiting currency notes. The onus of doing so is on the Crown according to the language of the section - unlike the English I saw where in the

case of a similar offence with respect to the counterfeiting of Bank of England notes the onus is laid on the accused of proving a lawful excuse ""for

knowingly having in his custody or possession any plate, stone or other material or any instrument or device for engraving a bank note."" (See

ROSCOE''S Criminal Evidence, p. 472). I may at once state that no evidence whatever has been adduced in this case, either that the material

objects in evidence are actually of any use in producing a counterfeit note or that the accused had them in his possession for the purpose of

counterfeiting notes. The prosecution chose to leave it to the court to come to a judgment on the former question by means of the knowledge

possessed by the presiding judge, and, I take it, it expected the court also to presume the purpose and intention of the accused from the nature of

the instruments in his possession. I can find no justification for pursuing such a course in this case. The result was that while Ayling J. was able, of

his own knowledge, to come to the conclusion that ""most if not all of the articles contained in it (in the accused''s pockets) were intended to be

used in one way or another in the process of counterfeiting a five-rupee note while several of them are of such a degree of excellence as to show

that the work had passed the experimental stage"" and that ""these as well as the un worked materials are capable of being used in conjunction with

other tools and materials in the actual preparation of a counterfeit note,"" Abdur Rahim J. observed ""I am unable to say that any of these articles are

actually of any use in producing a counterfeit note. Instruments and materials which may be useful in making correct drawings of the outlines of the

designs and figures of a currency note may be of no use whatever in manufacturing counterfeit notes"" and ""I have examined the Exhibits in this case

carefully and I find myself totally unable to say that any of these can be successfully used in counterfeiting a note."" An opportunity was given to the

prosecution, on appeal, by the learned judges who heard the case to produce evidence to prove that the articles were such as could be

successfully used for counterfeiting a note. But for some reason, which does not appear, the Crown did not avail itself of the opportunity. I entirely

agree in the opinion of Abdur Rahim J. that this is not a case in which a mere inspection of the articles would satisfy the court that they are capable

of being used in the making of counterfeit notes.

I shall deal only very briefly with the materials found on the accused. A very small sheet ot paper of the description ""carrara white A.P. and S

was one of these. This I find is a kind of paper in common use and most easily had in the market. It may bear resemblance in colour and quality to

that on which currency notes are printed, but no significance can be attached to this fact as the paper is commonly used for other purposes also.

We have then some flat pieces of slate and zinc which, according to the prosecution, are suitable for use in producing various impressions on a

currency note and on some of them the said impressions have been produced. There is no evidence to show that the impressions to be, found on

some of these pieces are really similar to those on a five rupee currency note. There is a small zinc figure ''5'' which, it is said, could hardly be

improved upon. But on inspection Dr. Swaminadhan who appeared before me for the Public Prosecutor, had to admit that, although the zinc figure

itself is well done, it does not bear any special similarity in its lower part to the figure as we find it in an ordinary five-rupee note. Then it is said that

there are two very good tracings on tissue paper of five-rupee notes. The Sessions Judge also refers specially to two pieces of slate on which are

cut the wavy design which appears on the notes. This observation appears to be well founded but after all, the materials discovered do not include

those required for a good portion of a five-rupee note. The only portion which strikes me as being at all well done is the wavy design referred to by

the Sessions Judge. On the whole, the material objects have produced on me the impression that the accused certainly wanted to be able to

counterfeit five-rupee currency notes and was probably studying to fit himself for the work. But the question I have to decide is whether he had the

objects for the purpose of counterfeiting. Before I could say that he so had them, I must be able to come to the conclusion that the accused had

satisfied himself that the materials were fit for that purpose. For, if he had not done so, it is not reasonable to suppose that he intended to use them

for counterfeiting, and I have no evidence before me, apart from the nature of the objects themselves, to enable me to arrive at his purpose. In the

first place, I find that there is nothing to show that the accused had furnished himself with any means for making up a good portion of a five-rupee

note. Secondly, I am unable to say that the impressions in the zinc and the slate plates are similar to those on a currency note. Thirdly, I can attach

no importance to the nature of the paper described as ""carrara white A.P. and S."" Would it be reasonable then on my part to conclude that the

accused had the material objects for the purpose of counterfeiting a note when the objects do not show either by their nature or by their

completeness that he would have considered them good enough to be actually used for counterfeiting a note? It may be he was studying to acquire

the art of counterfeiting and to equip himself with objects suitable for the purpose, but that is a very different thing from making up his mind that the

identical objects he had were fit for the purpose or his being in possession of them for the purpose. I quite agree with the opinion of Ayling J., that

if the purpose and intention of the accused be proved, it is not necessary that all the articles required for counterfeiting should be found on him to

hold him guilty of an offence under the section. (See Ridgeley''s case (1778) 1 East''s 171. A man may not be able to command all the articles

required for the purpose but he may be actually proved to be in possession of only some. This would not deter the court from convicting him of an

offence under the statute. But here we have no evidence that the accused had counterfeited any notes before or that he had companions who had

''other objects required for counterfeiting. His purpose and the'' state of his mind have to be judged solely from the articles produced before the

court. The utmost that could be said to be proved against the accused is that he disked to be able to counterfeit notes, was acquiring knowledge

for the purpose and trying to equip himself with the required materials. But I can neither find that he regarded himself and the materials found on

him as fit to carry out his desire or that, having come to that conclusion, he kept the articles in his possession for the purpose of counterfeiting. The

failure of the Crown to produce evidence regarding the nature of the articles, though given an opportunity to do so, throws, in my opinion, much

suspicion on the case. In Criminal Appeal No. 153 of 1899, Subrahmania Aiyar, Officiating Chief Justice, and O''Farrell J. pointed out that it was

the duty of the prosecution to produce such evidence, and Section 489(d) throws on it also the burden of proving that the accused had formed the

purpose of using the articles for counterfeiting. The accused is not called upon, as under the English Law, to show that he had the articles for an

innocent purpose.

I reverse the judgment of the Sessions Judge convicting the accused, Abdul Rahiman. I acquit him and direct that he be discharged from

custody.