Tripura High Court
Shri Bishu Ranjan Das vs The State Of Tripura on 24 April, 2019
Equivalent citations: AIRONLINE 2019 TRI 122, 2020 CRI LJ 247
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.07 of 2016
Shri Bishu Ranjan Das,
son of Shri Ketaki Ranjan Das,
resident of Durgapur, P.S. Kailashahar,
District : Unakoti, Tripura
---- Appellant(s)
Versus
The State of Tripura,
---- Respondent(s)
For Appellant(s) : Mr. H.K. Bhowmik, Adv.
For Respondent(s) : Mr. A. Acharjee, Special P.P.
Whether fit for
reporting : NO
HON'BLE MR. JUSTICE S. TALAPATRA
Order
24.04.2019
Heard Mr. H.K. Bhowmik, learned counsel appearing for the appellant as well as Mr. A. Acharjee, learned special P.P. appearing for the state.
2. This is an appeal under Section 374(2) of the Cr.P.C. from the judgment dated 03.03.2016 delivered in Sessions Trial 27(NT/K) of 2014 by the Sessions Judge, Unakoti Judicial District, Kailashahar. By the said judgment, the appellant has been convicted under Section 489(C) of the IPC having found that counterfeit currency notes were in his possession on knowing or having reason to believe the same were to be counterfeited and intending to use the same as genuine or it might be used as genuine. Pursuant to the said conviction, the appellant has been Page 2 of 11 sentenced to suffer rigorous imprisonment for 5(five) years for commission of offence punishable under Section 489C of the IPC.
3. The prosecution against the appellant commenced when a secret source informed PW-11 [Bibhas Ranjan Das] who was the officer-in-Charge of Irani out post that one young boy who acts as the carrier of the counterfeit currencies would carry and pass through Nayapattan to Laxmipur through the field and on the basis of that tip, the police with and without uniform placed an active surveillance over that area. When the appellant was coming through the field and reached the place nearby Laxmipur tri-junction one Fakrul Islam, the police constable caught him red- handed and detained. PW-11 has stated in his complaint, made to the officer-in-Charge Kailashahar P.S., that in presence of the local witnesses, he searched the person of the appellant and found 27(twenty seven) fake counterfeit Indian currency notes with denomination of Rs.500/- kept concealed inside the socks of the right leg of the appellant. He seized those currency notes and detained the accused person. In the said complaint, it has been stated that the appellant had confessed to PW-11 that one Abdul Razzak and Abdul Sahid circulated those fake currency through the appellant. In terms of the said written complaint dated 15.11.2013, along with the seizure list and the arrest memo, Kailashahar P.S. Case No.16/13 under Section 489B/489C/34 of the IPC was registered and taken up for investigation. It appears from the records that on investigation, no material was found against Abdul Razzak or Abdul Sahid and hence, the final police report only incriminated the appellant herein. After providing the police papers to the appellant, the case was committed to the Page 3 of 11 court of the Sessions Judge, North Tripura Judicial District, Kailashahar as the said offence is exclusively triable by the Court of Sessions. The Sessions Judge, having taken the cognizance framed the charge against the appellant under Section 489C of the IPC for possessing the counterfeit currencies to the value of Rs.13,500/- and to use the same as genuine and hence, the appellant was asked whether he would admit that charge or not. The appellant denied the charge, pleaded innocence and claimed for trial.
4. In order to substantiate the charge, the prosecution has introduced as many as 12(twelve) witnesses, however, PW-11 and PW-12 is the same person. It is no doubt innovative, to cite the same person as two witnesses. But that approach is highly unacceptable. That apart, the prosecution has admitted in the evidence two seizure lists [Exbts.1 and 2], hand sketch map [Exbt.5], report of the Tripura State Forensic Science Laboratory [SFSL] with its forwarding note [Exbts.6 and 7] and the extract copy of the GD entry No.312 dated 15.01.2013 containing the secret information [Exbt.8]. No other materials including the counterfeit currencies were proved on the evidence. After the evidence by the prosecution was recorded, the appellant was examined under Section 281 read with Section 313 of the Cr.P.C. on the incriminating materials those surfaced in the evidence. The appellant repeated his plea of innocence and claimed that he has been framed falsely in the case. Having appreciated the materials placed on the evidence, the Sessions Judge passed the said judgment of conviction and the order of sentence. In this appeal, the finding of conviction is seriously challenged. Page 4 of 11
5. Mr. H.K. Bhowmik, learned counsel appearing for the appellant has stated that the seizure has not been proved and the procedure of seizing the purported counterfeit currencies is visited by serious defects and incongruities and hence, this court may not place any reliance on the incident of seizure of counterfeit currency notes as stated to have been recovered from the person of the appellant. That apart, Mr. Bhowmik, learned counsel has submitted that since the counterfeit currencies were not produced in the trial, it is hardly conceivable how the court has related the report of the State Forensic Science Laboratory or for that matter how the court has held that the appellant and the appellant alone was carrying those fake counterfeit currencies from one place to another.
6. Mr. Bhowmik, learned counsel has further stated that there is no evidence in respect of mens rea to prove is knowing or having reason to believe the currency notes or the bank notes to be forged or counterfeit, the appellant carried or possessed those counterfeit currency. Without mens rea, selling, buying or receiving counterfeit currency from another persons or otherwise trafficking in or using as genuine forged or counterfeit currency- notes or bank-notes cannot be considered to constitute offence under Section 489B of the IPC, so also possessing the counterfeit currency-notes or bank-notes is not sufficient to make out a case under Section 489C of the IPC in absence of the mens rea. In this regard, Mr. Bhowmik, learned counsel appearing for the appellant has referred the celebrated decision of the apex court in Umashanker vs State Of Chhattisgarh reported in (2001) 9 SCC 642.
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7. From the other side, Mr. A. Acharjee, learned special PP appearing for the state, in order to repeal the submission of Mr. Bhowmik, learned counsel has quite strenuously submitted that the independent witnesses viz. PWs 5 and 6 were present at the time of search and seizure and as such, it cannot even be doubted that the counterfeit currencies were recovered from the person of the appellant. On discovery of minor discrepancy, considering the nature of human conduct, no weightage should not be given.
8. Mr. Acharjee, learned counsel has submitted that 27(twenty seven) counterfeit currencies as seized were of denomination of Rs.500/- and recovered from the person of the appellant in presence of the independent witnesses. Such seizure is duly recorded in the list of seizure. Thereafter, those counterfeit currencies were re-seized by the investigating officer namely Nikhil S. Debbarma, PW-9, after preparing the second seizure list, and thereafter, those counterfeit currency notes were sent to the State Forensic Science Laboratory [SFSL] for examination and the scientific expert namely Shri Amal Chandra Kalita, PW-10 has prepared the report holding that all those 27(twenty seven) currencies were counterfeited. The said expert came to the court and identified his report [Exbts.6 and 7] and stated that notes were identified by him on the basis of the mark on the individual notes.
9. Mr. Acharjee, learned counsel has further submitted that there is no challenge that not alone the information but the secret source accompanied PW-11 at the time of operation and apprehending the appellant. As the appellant was unknown to the Page 6 of 11 police and known to the secret source, on his identification PW-11 detained him and searched his person. Mr. Acharjee, learned counsel has shown the extract of GD entry Nos.311 and 312. GD entry No.311[Exbt.9] records the receipt of the secret information that counterfeit currency notes are being carried for purpose of circulation in a place in between Tillabazar and Laxmipur area. On the basis of the said tip and on the exit in the GD, PW-11 along with the police constable, and officers in GD No.312 [Exbt.8] the contingent went out of the police station and seized those counterfeit currencies in the successful operation.
10. Mr. Bhowmik, learned counsel appearing for the appellant has submitted that the currencies were counterfeit and that has been established by the report from the Tripura State Forensic Science Laboratory.
11. Having appreciated the submissions made by the learned counsel for the parties, this court is of the view that a short survey of the evidence is required to be taken.
12. PW-1, Sri Rabindra Kumar Malakar was a head constable in Irani outpost on 15.01.2013 and he was part of the contingent led by PW-11 as stated. He has stated that in his presence on 15.01.2013 at about 1.45 p.m. the appellant was searched. Inside the sock of his left leg a bundle of 27(twenty seven) currency notes of denomination of Rs.500/- were concealed. Those were seized. The appellant disclosed his identity. By preparing the seizure list [Exbt.1] 27(twenty seven) fake currency notes were taken in the custody. Those currency notes were identified by him as Exbt.M1 series. He denied the Page 7 of 11 suggestion that no fake currency notes were recovered from the appellant.
13. PW-2, Birendra Debbarma was a constable in the Irani outpost on the same day and he has corroborated the narrative as provided by PW-1. The same suit has been followed by PW-3, Sri Tapan Kr. Ghosh. PWs-1, 2 and 3 have given description how they had apprehended the appellant. Initially, the appellant was over- powered by Fakrul Islam, the constable who was part of the contingent but was not examined in the trial.
14. PW-4, Swapan Malakar did not state anything of worth as he had heard from the police officer that some counterfeit Indian currency notes were seized. Even, he went on to state to the extent that he did not see the currency notes but he was witness to the seizure, as thus is recorded in the seizure list. [Exbt.1]. As witness he had signed on the seizure list.
15. PW-5, Sri Masu Miah has stated that in his presence, the police officer seized 27(twenty seven) Indian currency notes and those were fake currency notes. He signed on the seizure list and identified his signature thereon. But he had nowhere stated that those currency notes were seized from the person of the appellant.
16. PW-6, Jamed Ali has stated in the trial that in his presence, the police officer searched the person of the appellant and recovered 26 fake Indian currency notes of the denomination of Rs.500/- hidden inside his sock and one from his money bag. He could identify the currency as counterfeit as he had claimed he was a businessman and he knew the art how to identify the counterfeit currencies.
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17. PW-7, Jayanta Das was the sub-inspector of police who accompanied PW-11 in the said operation and has stated that when the appellant was coming through the field of Nayapattan to Kailashahar, he was intercepted and detained. His body was searched and 26(twenty six) fake Indian currency notes of denomination of Rs.500/- was recovered from inside the sock of his left leg and those notes were wrapped by a piece of paper and one currency note was recovered from his money bag. In total 27(twenty seven)currency notes were seized by PW-11 by mentioning those counterfeit currencies.
18. PW-8, Sri Arjun Malakar did not state anything in the trial.
19. PW-9, Shri Nikhil S. Debbarma was a sub-inspector of police in Kailashahar police station, who was entrusted and given the responsibility of investigating of the case. He has stated that after having been endorsed with the investigation, he had examined the witnesses and re-seized the counterfeit currency notes. In presence of the witnesses, he has identified those currencies as Exbt.MO-1 series. He has stated that the appellant had divulged the names of Abdul Rajjak and Abdul Sahid during investigation. But he did not complete the entire investigation as it was decided in the highest level to hand over the investigation to the Criminal Investigation Department (CID).
20. PW-10, Sri Amal Chandra Kalita who is an expert from the State Forensic Science Laboratory has stated in the trial that he examined the counterfeit currencies [Exbts.A1 to Exbts.A27]. On examination, he found that Exbt.MO-1 series-currencies were not genuine currencies. He identified his report [Exbt.7]. Page 9 of 11
21. PW-11, Bibhas Ranjan Das who filed the report has stated how he had seized 27 counterfeit currency notes from the persons of the appellant. He had seized those currencies by preparing a list mentioning the currency note's number. However, he has stated that those currency notes were re-seized by PW-9 from him in Kailashahar police station.
22. PW-11 had reappeared in the trial as PW-12. He has stated in the trial that he was the investigator for the Crime Investigation Department (CID) also. He identified his hand writing and signatures on the GD entries as referred, and also the report dated 17.05.2013 as received from the State Forensic Science Laboratory.
23. It is apparent from the evidence that after seizure of the counterfeit currencies those currencies were never sealed to maintain the integrity, even no evidence has been produced to prove the chain of custody. In how and what manner the State Forensic Science Laboratory had received the counterfeit currencies are not reflected in their report or forwarding note [Exbts.6 and 7]. Even there is no material to show that the appellant had any mens rea atleast that is not available from the evidence. The SFSL expert has indisputably stated that the currencies are counterfeit bank notes. Following two questions appears being pertinent in this case viz.-
(i) whether there is adequate evidence to establish mens rea of the appellant and (ii) whether there is any proof of integrity of the seized materials and chain of custody. Let us first address the second question. For this purpose, the report of the SFSL dated 30.04.2014 [Exbt.C] may be revisited. How those purported Page 10 of 11 counterfeit currencies were received by the SFSL, is not at all noted in the said report. However, it has been noted as follows :
"Examination of the bank notes under aforesaid equipments reveals that the bank notes stamped and marked A1 to A27 are counterfeit bank notes."
From a bare reading it cannot be held who had marked the bank notes as A1 to A27. If we go through the statement of the seizing officer or for that matter, the investigating officer it cannot be gathered who had marked the currency notes. According to PW-11 and PW-9, the currency notes were identified by their number [see the seizure list dated 13.01.2013]. Even, the seizure list dated 15.01.2013 only carries the counterfeit currency note numbers but the State Forensic Science Laboratory report does not say who marked as A1 to A27 and when, even not the officers who were in custody.
24. It is apparent from the evidence that the seized counterfeit currencies were not sealed within a packet in presence of witnesses and till this packet was broken by the State Forensic Science Laboratory [SFSL], nobody had access to those notes. The integrity of the seized sample in such cases is highly important as the prosecution has to prove the chain of custody to establish that the integrity of the sample was never compromised. But here, there is no evidence in relation to the chain of custody or the sampling in order to preserve the integrity of the seized materials. There is no evidence except the possession of the so called 'counterfeit currencies'. Even there is no evidence of mens rea. In absence the evidence of mere possession, cannot prove that offence punishable under Section 489C of the IPC has been committed.
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25. Having observed thus, this court is of the further view that the benefit in this context must be given to the accused. The impugned judgment of conviction is therefore set aside on benefit of doubt.
In the result, the appeal stands allowed. The impugned judgment and order of conviction and sentence are set aside.
Since, Mr. H.K. Bhowmik, learned counsel appearing for the appellant has stated that the appellant is on bail, surities are discharge from the respective obligations. Send down the LCRs forthwith.
JUDGE Sabyasachi B