Calcutta High Court (Appellete Side)
Md. Ayub Nuruddin Sk vs The State Of West Bengal on 30 July, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 17 of 2015
Md. Ayub Nuruddin Sk.
-vs-
The State of West Bengal
For the appellant : Mr. Tapan Duttagupta, Adv.
Mr. S. Ghosh, Adv.
For the State : Mr. Ranadeb Sengupta, Adv.
Heard on : 30.07.2018
Judgment on : 30.07.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 8/9.09.2014 passed by the learned Additional Sessions Judge Fast Track 3rd Court, Malda in Sessions case no. 94 of 2013 (Sessions Trial No. 7 of 2013) convicting the appellant for commission of offence punishable under Section 489B and 489C of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.10,000/, in default to suffer rigorous imprisonment for 4 (four) months for the offence punishable under section 489B IPC and to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for 4 (four) months for the offence punishable under section 489C IPC. Both the sentences shall run concurrently.
Prosecution case, as alleged, against the appellant is to the effect that on 28.11.2012 at 10.15 hours one Inspector G. Ashish Kumar of D.C. (G) Team attached to Narayanpur, Malda came to Baishnabnagar Police Station and reported that illegal procurement and transportation of a large amount of Fake Indian Currency Notes "FICN" for short shall take place through PTS more. The aforesaid information was noted in a general diary and as per order of IC, Baishnabnagar Police Station, S. I. Bitul Pal (P.W.3) along with force went to the place of occurrence to work out the said information. When they reached the place of occurrence, source pointed out a person who was loitering near Bhangatola more in a suspicious manner. They apprehended the said person and upon interrogation he disclosed his identity. In the presence of witnesses the appellant was searched and 100 pieces of FICNs having denomination of Rs.1,000/- each in one bundle and 195 pieces of FICNs having denomination of Rs.500/- each in two bundles wrapped in black coloured plastic carry bag were recovered from the shoulder bag of the appellant along with other articles. The said articles were seized under a seizure list and the appellant along with the seized articles was brought to the police station. P.W.3 lodged written complaint resulting in registration of Baishnabnagar Police Station Case No.298 of 2012 dated 28.11.2012 under Sections 489B/489C/120B of the Indian Penal Code.
In the course of investigation, the seized currency note were sent for examination at Salboni and on receipt of report showing that they were fake, charge sheet was filed against the appellant. The case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Fast Track, 3rd Court at Malda. Charges were framed under Section 489B/489C of the Indian Penal Code against the appellant. The appellant pleaded not guilty and claimed to be tried.
In the course of trial prosecution examined 10 witnesses and exhibited a number of documents including the report of the expert showing that the seized currency notes were fake (Ext. 4).
In conclusion of trial, the Trial Judge by the impugned judgment and order dated 8th September, 2014 convicted and sentenced the appellant, as aforesaid.
Mr. Duttagupta, learned counsel appearing for the appellant submitted that the prosecution evidence does not establish the ingredients of the alleged offences. There is no evidence that the appellant had used the forged currency notes and hence, the appellant ought not to have been convicted under Section 489B of the Indian Penal Code. He also drew my attention to the contradictions in the evidence of the prosecution witnesses, particularly that of P.Ws.1 and 2 with regard to the facts and circumstances in which the alleged seizure had been effected. He also submitted that the general diary relating to the deposit of the fake notes at the police station had not been produced and hence, the chain between the seized articles and those sent for forensic examination had snapped. It is also argued that the independent witnesses did not support the prosecution case and, therefore, his client is liable to be acquitted.
On the other hand, Mr. Sengupta, learned counsel appearing for the State submitted that the evidence of the prosecution witnesses clearly establishes that a large volume of FICNs was being transported by the appellant and, therefore, the ingredients of the alleged offences had been duly proved. Minor contradictions in the evidence of the official witnesses do not militate against the gist of the prosecution case that 1195 pieces of FICNs had been seized from the possession of the appellant. Appellant was a person who ordinarily resided at Maharastra and was found with a large quantity of FICNs in West Bengal clearly establishing the fact that he was indulging in trafficking of FICNs. Independent witnesses who turned hostile were cross-examined with regard to their previous statements made before the police clearly showing that they had been won over. Hence, the appeal is liable to be dismissed.
P.W. 3, S.I., Bitul Pal is the leader of the raiding party and the informant in the instant case. He deposed that on 28.11.2012 at around 10.15 hours Inspector Ashish Kumar of BSF, G Branch came to the Police Station and informed that trafficking in FICNs would take place at PTS more. The said fact was diarized as G. D. No.943 and upon direction of I.C. he along with others and BSF personnel went to PTS more to work out the information. They started from Police Station at 10.35 hours and reached the PTS more at 10.45 hours. They found a person moving suspiciously at PTS more. As per instruction of the Inspector they intercepted the person and detained him. The man disclosed his identity in presence of public witness. They recovered three bundles of notes suspected to be fake currency notes wrapped in a black coloured plastic bag carried by the appellant. Upon search one ATM card of Bank of India, one PAN Card, one railway ticket and one mobile phone were recovered from his possession. In all 100 pieces of currency notes suspected to be fake of denomination of Rs.1,000/-each and 195 pieces of currency notes of denomination of Rs.500/-each i.e. Rs.1,97,500/- in value were recovered. The seized notes along with other articles were seized under a seizure list and labelled. Accused put his signature on the seizure list and label and the members of the raiding party as well as public witness put their signatures thereon. Some genuine Indian currency notes valued at Rs.2,988/- were also recovered from his possession. The appellant was arrested and brought to police station. He handed over the currency notes suspected to be fake to the Malkhana and the genuine Indian currency notes to the Cashier of the police station. He lodged written complaint. He proved the written complaint. He identified the seized FICNs in court (Mat. Ext. I and II). He identified the mobile phone (Mat. Ext. III). He also identified the railway ticket, PAN Card, ATM Card in court.
Evidence of P.W.3 has been substantially corroborated by P.W.5 (Sukumar Mondal), who was a member of the raiding party. P.W.5 proved his signature on the seizure list and labels attached to the seized articles. He identified the FICNs and other articles produced in court.
Similarly, P.W. 6 (Sunil Lala), another member of the raiding party has corroborated the evidence of P.Ws. 3 and 5. He also proved his signature on the seizure list as well as on the labels of the seized articles. He has identified the seized articles in court.
P.W. 7, Constable Swapan Tarafder was the driver of the vehicle in which the raiding party went to the place of occurrence. He deposed that they left police station at about 10.25 to 10.30 a.m. Bitul Babu disclosed that he had some source information about transaction of fake currency notes at PTS more. Bitul Babu asked him to stop the vehicle at a distance from PTS more. Then he proceeded towards the spot. After 3 / 4 minutes Bitul Babu called him. He came to the spot and found that a person had been apprehended. Bitul Babu searched the contents of the bag of the person and recovered 100 pieces of notes of denomination of Rs.1,000/-each and 195 pieces of noted of denomination of Rs.500/-each i.e. Rs.1,97,500/- in all. Some genuine currency notes valued at Rs.2,998/- were also recovered. He proved his signature on the seizure list.
P.W. 1, ASI Anil Kumar and P.W. 2, Ram Singh, were also members of the raiding party. Although they have corroborated the evidence of the other members of the raiding party including P.W. 3, they, however, stated that the appellant had been apprehended while he was travelling in a bus. They, however, proved their signatures on the seizure list and labels and identified the seized FICNs in court.
P.W. 4, Asish Kumar, deposed that he had received secret information that trafficking in FICNs would take place at P.T.S More. Thereafter, he accompanied the raiding party. One person was apprehended and FICNs valued at Rs.1,97,500/- were seized along with genuine Indian currency notes of Rs.2988/-, one ATM card, one PAN card, one mobile phone etc. He signed on the seizure list as well as labels. He identified the seized FICNs and other articles in Court.
P.W. 8, Palash Halder and P.W. 9, Chhedon Mondal were independent witnesses who while admitting their signatures on the seizure list and labels did not support the prosecution case. They, however, were confronted with their previous statements made to the police during cross-examination.
P.W. 10, Shyamal Majumder is the investigating officer in the instant case. He deposed that he collected arrest memo of the appellant, seizure list, label etc. He examined the accused person. He went to the place of occurrence and prepared a rough sketch map with index. He forwarded the seized currency notes to Salboni and collected report. He submitted charge sheet.
Evidence on record, particularly that of P.W. 3 show that on receipt of secret information from P.W. 4 that a person would be trafficking FICNs at PTS More which was diarised as GD Entry No.943, he along with others being accompanied by P.W. 4 came to the spot to work out the information. At the spot the appellant was apprehended and from his possession 100 pieces of currency notes of Rs.1000/- denomination in one bundle and 195 pieces of currency notes of Rs.500/- denomination in two bundles, all suspected to be fake, were found wrapped in a black coloured plastic carry bag and recovered from the shoulder bag of the appellant. Genuine Indian currency notes valued at Rs.2988/- along with one ATM card, one PAN card, one mobile phone were also recovered from the appellant. These articles were seized under a seizure list and labelled by P.W. 3. All the official witnesses, that is, P.Ws. 1, 2, 4, 5, 6 and 7, including the hostile witnesses P.Ws. 8 and 9 proved their signatures on the seizure list and labels on the seized articles. It has been argued that P.Ws. 1 and 2 claimed that the appellant was apprehended while he was travelling in a bus. I have noted the aforesaid discrepancy in the evidence of the prosecution witnesses. However, P.Ws.1 and 2 have corroborated the evidence of other prosecution witnesses with regard to the seizure of the aforesaid 100 pieces of currency notes of Rs.1000/- denomination and 195 pieces of currency notes of Rs.500/- denomination from the appellant. In view of the consistent corroboration of the prosecution case with regard to the aforesaid recovery, variations in their narration to the effect that the appellant was travelling in a bus and not on foot in my considered opinion does not strike at the root of the prosecution case so as to render it wholly improbable. It has also been argued that the independent witnesses have not supported the case. Independent witnesses being P.Ws. 8 and 9 have admitted their presence at the place of occurrence as well as their signatures on the seizure list and labels. Evidence of hostile witnesses are to be read as a whole and upon doing so I have no doubt in my mind that they had resiled from their earlier statements recorded by the investigating officer as they had been won over during trial. Hence, I do not feel that the evidence of official witnesses ought to be disbelieved by relying upon such untruthful witnesses. Finally, it has been argued that the general diary under which the seized currency notes were kept in the malkhana has not been exhibited and hence the prosecution case ought not to be believed. Seizure list as well as the labels on the seized FICNs bore the signature of the appellant as well as the witnesses and have been duly proved in Court. Hence, I am of the opinion that the live link between the currency notes seized at the place of occurrence and those which were sent for examination at Salboni has been duly established and the report (Ext. 4) showing that the said notes are fake can safely be relied upon in the instant case. Evidence on record shows that the appellant who hails from Maharashtra was apprehended carrying on a large volume of FICNs at PTS more within Baishnabnagar Police Station, West Bengal. The aforesaid fact leaves no doubt in one's mind that the appellant was trafficking FICNs for wrongful gain. Hence, ingredients of the offences under sections 489B/489C of the Indian Penal Code are wholly established in the instant case. Conviction of the appellant is, accordingly, upheld.
Coming to the point of sentence I find that a large volume of FICNs were recovered from the possession of the appellant. However, the appellant does not have any other criminal antecedent. Balancing the incriminating and the extenuating circumstances in the instant case, I consider it prudent to modify the sentence imposed on the appellant and direct that the appellant shall suffer rigorous imprisonment for 8 years and to pay a fine of Rs.10,000/-, in default to suffer further rigorous imprisonment for 4 months for the offence punishable under Section 489B of the Indian Penal Code. Sentence imposed upon the appellant for the offence punishable under Section 489C of the Indian Penal Code shall remain unaltered and both the sentences shall run concurrently.
With the aforesaid modification as to sentence, the appeal is disposed of. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure.
Copy of the judgment be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)