Calcutta High Court (Appellete Side)
Kalu Sk vs State Of West Bengal on 24 January, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Ravi Krishan Kapur C.R.A. 27 of 2015 Kalu Sk.
-Vs-
State of West Bengal
For the Appellant : Mr. Tapan Dutta Gupta .. Advocate
Mr. Parvez Anam .. Advocate
For the State : Mr. Arun Kumar Maity .. Ld. Addl. Public Prosecutor
Ms. Amita Gaur .. Advocate
Heard on : 24.01.2019
Judgment on : 24.01.2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 19th November/20th November, 2014 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Jangipur, Murshidabad in Sessions Serial Case No. 56 of 2014 [Sessions Trial Case No. 11 of February 2014] convicting the appellant for commission of offence punishable under Sections 489B/489C of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for six months more for the offence punishable under Section 489B of the Indian Penal Code and to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default, to suffer simple imprisonment for three months more for the offence punishable under Section 489C of the Indian Penal Code; both the sentences to run concurrently.
The prosecution case as alleged against the appellant is to the effect that on 23rd September, 2013 at about 13:35 hrs. Amit Bhakat, SI of police (PW1) attached to Samserganj Police Station received secret information from a source that a person after collecting fake Indian currency notes (in short FICN) from Baishnabnagar will reach Digri within 14:25 hrs. to deliver the same to another person as genuine currency notes. The information was diarised as Samserganj P.S. G.D. Entry No. 1360 dated 23rd September, 2013 and upon the direction of the Officer-in-charge of the said police station, P.W. 1 constituted a team comprising of himself, Constables namely, Sk. Yeasin Ali (PW6), Biswajit Purti (PW8) and Home-guard, Tapas Kumar Das (PW4) and left the police station to work out the secret information in a police vehicle bearing No. WB-58U-2314. At about 14:30 hrs. they arrived at the Digri more and kept the police vehicle beyond the view of the general public. Source indicated the suspect who was standing suspiciously in front of the Digri High School with a nylon bag in his hand. Seeing the police personnel, he tried to flee away. However, he was intercepted and in the presence of local people he was searched and four bundles containing 100 pieces of currency notes of denomination of Rs.500/- and one bundle containing 60 pieces of currency notes of denomination of Rs.500/- i.e. Rs.2,30,000/- in all suspected to be fake were recovered from him. The fake currency notes were kept in five yellow envelopes and the accused i.e. the appellant herein was arrested. On the written complaint of PW1, Samserganj Police Station Case No. 322 of 2013 dated 23rd September, 2013 under Sections 489B/489C of the Indian Penal Code was registered for investigation. The seized notes were sent for examination by the expert and on receipt of report that the said notes were fake, charge-sheet was filed against the appellant. The case being a sessions triable one was committed to the Court of Sessions and transferred to the court of the Additional Sessions Judge, 2nd Fast Track Court, Jangipur, Murshidabad for trial and disposal. Charges were framed against the appellant under Sections 489B/489C of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 9 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was his specific defence that while he was returning from his father-in-law's house he was apprehended by the police and falsely implicated in the instant case. The appellant however, did not probabilise such defence by leading defence evidence. In conclusion of trial, the trial Judge by the impugned judgment and order dated 19th November/20th November, 2014 convicted and sentenced the appellant, as aforesaid.
Mr. Tapan Dutta Gupta, learned advocate appearing for the appellant argued that the search and seizure in the instant case was not conducted in accordance with law. There are interpolations in the seizure list and the case number was subsequently incorporated. It is argued that the place of occurrence as reflected in the sketch map prepared by PW9 was a tea stall and not in front of Digri High School as deposed by the prosecution witnesses. It is also submitted that there is delay in lodging the FIR and no evidence is forthcoming where the seized currency notes were kept prior to their desptach for examination by the expert. It is also argued that the defence plea raised by the appellant in the course of his examination under Section 313 of the Code of Criminal Procedure was not considered by the trial court. It is further submitted that the nylon bag containing the fake currency notes has not been produced and there is no material to show that the ingredients of the offence under Section 489B of the Indian Penal Code are disclosed. Hence, the appeal is liable to be allowed. In support of his contention he relied on Reena Hazarika vs. State of Assam, 2019 (1) AICLR 192 (SC).
On the other hand, Mr. Arun Kumar Maity, learned Additional Public Prosecutor along with Ms. Amita Gaur, learned advocate, appearing for the State submitted that the evidence of the official witnesses are corroborated by the independent witnesses namely, PW2 & 3. Seizure list was prepared at the spot with reference to the general diary recorded by PW1 prior to leaving the police station to conduct search and seizure. Hence, there is no illegality and/or irregularity in the search and recovery of currency notes from the possession of the appellant. Numbers of the currency notes noted in the seizure list match with those which were examined by the expert and produced in Court, clearly ruling out any possibility of substitution. It is also argued apart from the ipse dixit of the appellant no evidence was adduced by him to probabilise his defence of false implication while he was returning from his in-laws' house. Hence, the appeal is liable to be dismissed.
P.W. 1, Amit Bhakat, was the informant in the instant case. He deposed on 23.09.2013 he was posted as SI of police at Samserganj Police Station. On that date he received secret information from a source that a person from Baishnab Nagar was coming to Digri with a huge quantity of fake notes. He informed the same to the officer-in-charge and as per the direction of the latter he along with others left in a police vehicle to work out the said information. They reached in front of Digri High School and source indicated a person. Seeing them the said person tried to flee away but was apprehended. The suspect disclosed his identity as Kalu Sk. of Kaliachawk. P.W. 1 and others offered themselves to be searched by the appellant but he declined to do so. In the presence of the witnesses the appellant was searched and five bundles of FICNs of denomination of Rs.500/- each kept in a nylon carry bag were seized. Total value of the FICNs was Rs.2,30,000/-. He was unable to give satisfactory explanation relating to his possession of the said notes. He disclosed he was engaged in the business of fake currency notes. FICNs were seized under a seizure list which was signed by him and other witnesses. He put signature on the seizure list. He arrested the appellant and returned to the police station along with the appellant and seized articles. He lodged written complaint. He proved the written complaint (Exbt.-1). He proved the seizure list (Exbt.-2). Four bundles contained 100 notes each while the fifth bundle contained 60 notes of Rs.500/- in denomination. He identified the seized FICNs in Court. He also identified the envelops in which the seized notes have been kept as well as the labels thereon. He proved his signatures on the labels. In cross- examination, he stated that he did not contact any teacher of the school or Municipal Councillor. He completed seizure at 17.05 hours and lodged a written complaint at 18.05 hours. Seized nylon bag was not produced in Court. He submitted the alamat to the officer-in-charge of the police station.
P.W 4, Tapas Kumar Das, home guard, P.W. 6, Sk. Yiasin Ali, and P.W. 8, Biswajit Purti, constables, were the members of the raiding party. They substantially corroborated the evidence of P.W. 1. P.Ws 6 and 8 have proved their signatures on the seizure list as well as on the labels. P.W. 2 and 3 are the independent witnesses who were present at the time of search and recovery of the seized currency notes from the appellant.
P.W 2, Jekat Ali, stated that the incident occurred five to six months ago between 2.30 to 3.00p.m in front of Digri High School. At that time he was sitting in the tea stall. Police apprehended a person who disclosed his name as Kalu Sk. Police recovered money from a bag which was in possession of the accused. He put his LTI on the seized notes as well as seizure list.
P.W. 3, Bablu Sk., also deposed in similar lines. He has proved his LTI on the seizure list. P.W. 5, Abhiram Mondal, was an A.S.I. of police attached at Samserganj Police Station. He received the written complaint from P.W. 1 and registered the instant case. He proved his signature and endorsement on the written complaint. He proved the formal complaint (Exbt.-9).
P.W. 7, Krishna Mukherjee, was a constable attached to the same police station as per instruction of investigating officer (P.W. 9). He took the seized FICNs to Salboni Bharatia Reserved Bank Note Mudran Pvt. Ltd. for examination. He collected the report after examination of the expert and submitted it to the investigating officer. He proved his authorisation letter (Exbt.-10/1).
P.W. 9, Debkumar Chakroborti, was the investigating officer in the instant case. He deposed that he examined the complainant, visited the place of occurrence, prepared rough sketch map with index. He examined witnesses. He sent the seized notes to Bharatia Reserved Bank Note Mudran Pvt. Ltd., Salboni for examination by expert, collected report from Salboni and submitted charge-sheet. He prepared rough sketch map with index in two separate sheets prepared by him. He proved the report collected from Bharatia Reserved Bank Note Mudran Pvt. Ltd., Salboni (Exbt.-12). In cross-examination, he contended that he did not examine any teacher or staff of the Digri High School. He stated that he had investigated the instant case arising out of GDE No. 1369 dated 23.09.2013. He sent the articles for examination by expert on 18.10.2013. There is no note in the case diary about the seized notes which were kept till the same was sent to the expert for examination.
From the evidence on record particularly that of P.Ws 1, 4, 6 and 8 i.e. the members of the raiding party it appears that after diarising prior information relating to trafficking in FICNs in Samserganj Police Station being GDE No. 1360 dated 23.09.2013 the said witnesses proceeded to the spot in a police vehicle to work out the information. P.W. 1 deposed they had gone out after obtaining instruction from officer-in- charge of the said police station. At the spot the source identified the appellant moving suspiciously in front of Digri High School. On seeing the police party the said person tried to run away. He was apprehended and upon search a large volume of FICNs kept in five packets in a nylon bag carried by the appellant was seized. Such seizure had been effected in the presence of independent witnesses (P.W.s 2 and 3) who have supported the prosecution case as well as put their LTI on the seizure list. After returning to the police station, P.W. 1 lodged another General Diary being GDE No. 1369 dated 23.09.2013 and the F.I.R. was registered with reference to the said General Diary. It has been argued that there is no reflection of the earlier General Diary i.e. GDE No. 1360 dated 23.09.2013 in the F.I.R. and hence the seizure does not relate to the present case. I am unable to accept such contention. Prior information with regard to transportation of FICN was received by P.W. 1 and diarised as GDE No. 1360 dated 23.09.2013. Thereafter P.W. 1 and other police officers left the police station to work out the information and the seizure was effected with reference to the said General Diary. Another General Diary was lodged in ordinary course of business after returning from the raid and the F.I.R. has been registered in reference to the said General Diary. There is no irregularity in the matter of search and seizure in the instant case which is supported by independent witnesses and I am of the opinion that the seizure reflected in the seizure list (Exbt.-3) relates to the present case itself. It has been argued that there has been a shift in the place of occurrence. While the prosecution witnesses deposed in Court that the seizure had been effected in front of Digri High School, place of occurrence noted in the sketch map (Exbt.-11) prepared by P.W. 9 refers to a tea stall. The argument in this regard is wholly misconceived. If the rough sketch map is seen as a whole it would appear that the tea stall is situated in front of Digri High School which is marked with alphabet "B" in the said sketch map. Two places are intervened by a road. Presence of a tea stall at the place of occurrence in front of Digri High School is corroborated by the evidence of P.W 2 who claimed that he was having tea in tea stall where the police apprehended the appellant and recovered currency notes from his possession. Hence, I am of the opinion that there is no dichotomy with regard to the place of occurrence as deposed by the prosecution witnesses and that noted in the sketch map prepared by the investigating officer. It has been argued that chain of custody of the seized notes has not been proved as no malkhana register was produced and P.W. 9 deposed that there is no note in the case diary where the seized notes were kept till the same were despatched for examination on 18.10.2013. I would have otherwise given credence to such argument but for the fact the numbers of the currency notes have been clearly reflected in the seizure list which match with the numbers of the currency notes examined by the expert and produced in Court during trial. Hence, I am of the opinion that the chain of custody with regard to the currency notes seized at the place of occurrence and those examined by the expert and produced in Court have been fully established in the facts of the case. In view of the fact that the currency notes were produced and identified in Court, non- production of the nylon bag in my estimation does not erode the credibility of the prosecution case. Finally, it has been argued that the defence plea raised by the appellant during his examination under Section 313 Cr.P.C. was not dealt with by the trial judge. I have examined the defence plea raised by the appellant during such examination. The appellant claimed that he was returning from his in-law's house at Shibpur along with a goat after the birth of his child. At that time, the police apprehended him and took away the goat and falsely implicated him in the instant case. Such defence plea of the appellant was not probabilised by leading any defence witness with regard to his visit of his matrimonial home on the birth of his son and his false implication in the instant case. Mere ipse dixit of the appellant and that too for the first time during his examination under Section 313 Cr.P.C. with regard to his false implication, in my considered opinion, cannot overthrow a prosecution case which is well-founded on the deposition of official witnesses corroborated by independent witnesses. Authority relied upon on the appellant is clearly distinguishable in the facts of the present case. The Apex Court while emphasizing the importance of considering the defence explanation offered by an accused under Section 313 Cr.P.C. had observed whether such defence is acceptable or not is entirely a different matter. Undoubtedly, defence plea is to be decided in the facts of each case in the light of the cogent evidence on record. Absence of any independent evidence probabilising the defence plea, in my considered opinion, renders a belated defence plea like the present one unbelievable and the same is liable to be rejected outright. I also note that the large volume of currency notes which was found on the appellant while he was moving suspiciously on a public highway clearly establishing his dishonest intention to transport and/or deal with the said currency notes in an illegal manner. These facts establish the ingredients of the offence under Section 489B of the IPC in addition to the offence of possession punishable under Section 489C of the IPC.
Conviction of the appellant, accordingly, is upheld.
Coming to the issue of sentence imposed upon the appellant, I find that the appellant does not have any criminal antecedent.
Accordingly, I modify the sentence imposed upon the appellant for the offence under section 489B of the IPC and I direct that the appellant shall suffer rigorous imprisonment for eight (8) years and to pay a fine of Rs. 10,000/- (Rupees ten thousand) only in default to suffer simple imprisonment for six months for the said offence. Sentence of the appellant for the offence under Section 489C of the Indian Penal Code shall remain unaltered and both the sentences shall run concurrently.
The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.
With the aforesaid modification as to sentence, the appeal stands disposed of. Let a copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.) kd/ s.das/ rkd & PA