Calcutta High Court (Appellete Side)
Mehedi Hasan & Anr vs The State Of West Bengal on 22 January, 2019
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 22 of 2017
Mehedi Hasan & Anr.
Versus
The State of West Bengal
For the Appellant : Mr. Swapan Kumar Mallick
Mr. Kazi M. Rahaman
Ms. Sudeshna Das
For the State : Ms. Faria Hossain
Ms. Baisali Basu
Heard on : 13th November, 2018, 19th November, 2018 &
26th November, 2018
Judgement on : 22nd January, 2019
Rajarshi Bharadwaj, J.:
This appeal has been preferred by the appellants assailing the judgement and order dated 11th August, 2016 and 12th August, 2016 passed by the learned Additional Sessions Judge, Jangipur, Murshidabad in Sessions Serial case no. 222 of 2015 (Sessions Trial Case No. 01(08)/2015), whereby the learned Judge convicted the appellants for the commission of offence punishable under Sections 489B/489C of the Indian Penal Code and sentenced them to suffer 2 rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/-; in default to suffer simple imprisonment for 3 months for the offence under Section 489B of the Indian Penal Code and further sentenced the appellants to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 3000/-, in default to suffer simple imprisonment for 2 months for the offence under Section 489C of the Indian Penal Code and the sentences were directed to run concurrently.
The fact of the case in short is that on 17th February, 2015 one Sub-Inspector of Police, Sougata Ghosh lodged a complaint to the effect that on 16th February, 2015 at about 17.15 hours he received a source information that at any time in the afternoon one F.I.C.N. (Fake Indian Currency Note) dealer would come to any place of Farakka N.T.P.C. more area to circulate F.I.C.N. After receiving the said information Sougata Ghosh brought it to the knowledge of his superior and as per his direction Saugata Ghosh along with police force after diarising the information vide Farakka P.S. G.D.E. no. 965 dated 17th February, 2015 at 15.05 hours, started to work out the information. The Police Force reached Farakka Station more of NH 34 and placed them properly. At about 15.55 hours one person with an ash colour jacket came to the spot and had a talk with another person who came just after few second wearing a brown jacket. The police surrounded the said two persons. The de facto complainant disclosed his identity and identity of police team. The local people came to the spot and the police informed them about their purpose. But in spite of numerous request none of the local people agreed to come forward to remain present as witness. The place became empty 3 within 2/3 minutes. The de facto complainant issued notice to the accused persons disclosing his willingness to conduct search the detained persons in respect of recovery of F.I.C.N. and told them that they (the apprehended persons) could search the police persons by themselves or by local persons as per their choice. But the said two persons declined to conduct search of police team. The two persons disclosed their identity as namely Sk.Morsalim and Mehedi Hasan. Thereafter, the de facto complainant searched the two apprehended persons in presence of available witnesses and recovered the following:-
a) One bundle of F.I.C.N. containing 100 pieces notes having denomination of Rs. 500/- each amounting to Rs. 50,000/-
seized from the possession of accused Sk. Morsalim (currency nos. 2BB 878301 to 878400) wrapped in a plastic bag.
b) One bundle of F.I.C.N. containing 100 pieces notes having denomination of Rs. 500/- each amounting to Rs. 50,000/- seized from the possession of Sk. Morsalim (currency nos. 6DC 878401 to 6DC 878500) wrapped in a plastic bag.
c) One bundle of F.I.C.N. containing 100 pieces notes having denomination of Rs. 500/- each amounting to Rs. 50,000/- seized from the possession of Sk. Morsalim (currency nos. 6DC 887601 to 887700) wrapped in a plastic bag.
d) One bundle of F.I.C.N. containing 100 pieces notes having denomination of Rs. 500/- each amounting to Rs. 50,000/-
4seized from the possession of Sk. Morsalim wrapped in a plastic bag.
e) One bundle of F.I.C.N. containing 100 pieces notes having denomination of Rs. 500/- each amounting to Rs. 50,000/- seized from the possession of accused Mehedi Hasan wrapped in a plastic bag.
f) One bundle of F.I.C.N. containing 100 pieces notes having denomination of Rs. 500/- each amounting to Rs. 50,000/- seized from the possession of accused Mehedi Hasan wrapped in a plastic bag.
g) One bundle of F.I.C.N. containing 100 pieces notes having denomination of Rs. 1000/- each seized from the possession of accused Mehedi Hasan wrapped in a plastic bag.
After recovery on verification the notes were found not genuine Indian Currency Notes in respect of quality. On interrogation Sk. Morsalim stated that he collected the same from his Bangladeshi agent via one Ekramul of Siddik Master and he tried to push the said F.I.C.N. with the help of Mehedi Hasan to circulate the same to Indian market. Sk. Morsalim also admitted that those F.I.C.N. were pumped into India through Bangladesh Border by many people and circulate the same to the local market.
Thereafter, the de facto complainant seized the said articles under proper seizure list in presence of available witnesses and the articles were sealed and labelled and apprehended both the accused persons and returned to the Police Station and lodged the complaint 5 before Farakka P.S. after producing the said two persons and the seized articles and other documents.
On the basis of the written complaint lodged by Sougata Ghosh, a criminal case, being Farakka Police Station Case no. 34 of 2015 dated 17th February, 2015 was registered for investigation of the appellants. The investigation was started and after completion of the investigation, the Investigating Officer submitted charge sheet, where charges were framed under Sections 489B and 489C of the Indian Penal Code against which the appellants pleaded not guilty and claimed to be tried.
Learned advocate for the appellants submitted that the learned Judge failed to consider the evidence of P.W.1 Sougata Ghosh, who stated in cross-examination that he had not made any request to Farakka Barriage Officer, teachers of the local school or to any other local respectable persons at that point of time. Therefore, the piece of evidence proved that the search and seizure was not done as per law and as such the impugned order is liable to be set aside. He further submitted that P.W.6 deposed that he had not handed over the said log-book to the Investigating Officer. Therefore, without log-book it was not possible to ascertain as to whether the said vehicle travelled with the officer. He also submitted that the learned Trial Judge held that the appellants were found possessing false Indian Currency Note of Rs. 4,00,00/- and thereby committed the offence under Section 489B of the Indian penal Code. The learned Trial Judge also held that the appellants were in possession of Rs. 4,00,000/- and were trying to use the same as genuine knowing fully well that the said 6 currency were F.I.C.N. and thereby committed the offence punishable under Section 489C of the Indian Penal Code. Therefore, the learned Trial Judge found the appellants as guilty of the same offence under Section 489B/489C of the Indian Penal Code. He also submitted that when charges were framed, time, place and person must be mentioned in the contents of the charge and also in which manner offence has been committed. In the present case either in the head of charges or during examination under Section 313 of the Code of Criminal procedure, there was nothing on record that how, when and which manner the appellants committed the offence. The finding of the learned Judge was based on erroneous conclusion, as there was no proof of selling, buying or receiving the F.I.C.N. Therefore, in absence of any evidence by any witnesses, the prosecution failed to prove the case beyond any reasonable doubt, even assuming but not admitting that the possession has been proved and in that case only conviction could be given under Section 489C of the Indian Penal Code in which Section the appellants had been convicted for five years. He lastly submitted that a person could not be convicted merely on the basis of presumption and therefore, the learned Judge has miserably failed to prove the guilt of the appellants beyond all reasonable doubt. Thus, the learned advocate prayed that the appeal may be allowed by setting aside the order of conviction.
Per contra, learned advocate for the State submitted that the Investigating Officer described the prosecution case in details and proved the fact of recovery of F.I.C.N. amounting to Rs. 400000/- from the possession of the appellants for the purpose of trafficking 7 the same and to use the same as genuine. The Investigating Officer proved the seizure list and seized articles. He further submitted that the house of the accused persons is situated within Baishbnagar, Malda, but there was no explanation as to why the accused persons came to P.S. Farakka within the district of Murshidbad with the said F.I.C.N. The prosecution has proved that the seized articles recovered from the possession of the appellants were F.I.C.N. Therefore, the prosecution proved the charge against the accused/appellants for the offences under Sections 489B and 489C of the Indian Penal Code. Learned advocate for the State has prayed that the order of conviction and sentence may be upheld and the appeal may be dismissed.
Heard learned advocates for the parties and perused the impugned judgement.
The prosecution has examined as many as eight witnesses and several documents to prove the case.
P.W.1, Sougata Ghosh, Sub-Inspector of Farakka Police Station as well as the de facto complainant of this case stated before the Court that on 16th February, 2015 and 17th February, 2015 he was attached to S.O.G. C.I.D., W.B. as S.I. of Police. On 16th February, 2015 at about 5.15 p.m. he received information that a deal of F.I.C.N. was going to be conducted at Farakka Station More near adjacent area of NH 34. Thereafter, he informed this fact to his superior officers and after obtaining permission on the next day, i.e. 17th February, 2015 at about 6.45 a.m. he along with Timir Acharyya, A.S.I. of police, Constable Sourindra Bhattacharya, Constable Kazi 8 Najrul Islam and Constable Ashim Das with command certificate number 59/15 proceeded towards Farakka from Bhabani Bhawan along with their investigation kit box, official laptop, portable printer etc. by availing their office vehicle being no. W.B. 26C/7322 (Tata Sumo vehicle) driven by Arjun Tewari. His source also accompanied them. At about 13.05 hours they reached at Farakka and at around 15.00 hours they went to Farakka P.S. and at about 15.05 hours he lodged diary at Farakka P.S. being no. 965 dated 17th February, 2015. Thereafter, at about 15.20 hours he along with his accompanied team members came to Farakka Station More and N.H.34 junction. They placed themselves strategically and they were in plain cloths. At around 16.00 hours their source indicated towards a person who was coming towards that crossing wearing an ash colour jacket and he met with another person who was wearing brown colour jacket. At that point of time when they were coming across each other, they encircled them and asked to detain there. Then he disclosed his identity to them and also asked their identity. He also disclosed to them about their purpose of detaining them. Their body language was shattered at that time. Then they disclosed their purpose to the local people and requested them to assist them and to remain present there for becoming the witness of the next proceedings. But unfortunately none of them was agreed to become a witness of the police activities. Thereafter, he requested both the detainees to search himself and any other team members by themselves or by any representative of them, but they declined to do so. Thereafter, he searched both the persons and from the person 9 who was wearing brown colour jacket namely, Morselim Sk. he recovered four bundles of fake Indian currency notes of denomination of Rs. 500/- each and each bundle was containing 100 pieces of such notes. He marked them as Ext. A, B, C, & D. Then he also recovered one voter identity card, adhar card and Rs. 300/- original currency notes from his money bag. After recovery of those articles he searched the body of another person who disclosed his identity as Mehedi Hasan, who was wearing ash colour jacket. From his jacket he recovered two bundles of fake Indian currency notes of denomination of Rs. 500/- each and each bundle was containing 100 pieces of such notes. He also recovered another bundle from the possession of that person and that bundle was containing 100 pieces of F.I.C.N. having denomination of Rs. 1000/- each. From the possession of Mehedi Hasan he also recovered original currency notes of Rs. 5,000/-. He also seized the jackets of those persons. He marked the three bundles of currency notes, which were recovered from the possession of Mehedi Hasan as E, F. & G. He prepared the seizure list and the articles, which were marked as Ext. A to G, were seized as alamats of this case and remaining articles were seized as personal articles. Thereafter, at about 19.10 hours he issued memo of arrest to both of them and he obtained signature of the persons, who were detained as witnesses. The detained persons also signed the memo of arrest as copy receipt. He also narrated them the ground of arrest because all the currencies recovered from them appeared as fake after considering the security measures of Indian original currency. Then they made local search at that place of 10 occurrence. He and his team members along with seized alamats and his papers and documents went to Farakka P.S. After reaching Farakka P.S., he prepared written complaint with the help of his laptop and he submitted the letter of complaint to the I.C., Farakka P.S. for registering a case under Section 489B/489C/120B of the Indian Penal Code.
During cross-examination P.W.1 stated before the Court that the investigation was taken by Md. Jamaluddin, S.I. C.I.D., Murshidabad in anticipation of the order of superior officers. He admitted the suggestion put to him that the accompanied police persons were under his control. He further admitted the suggestion that he received the information from source at 5.15 p.m. on 16th February, 2015 and reached Farakka on 17th February, 2015 at 13.05 hours and there was every scope to inform the same to Farakka P.S. but to maintain sanctity and secrecy of operation, he did not inform the same to the police of Farakka P.S. He informed the same to Farakka P.S. on 17th February, 2015 at 15.05 hours as he deemed fit and the time of operation was approached. He admitted before the Court that he made no request to Farakka Barriage Officer, Teacher of the local school or any other local respective person, shop keepers at that point of time and he had no knowledge that bus stand and taxi stand situated near to P.O. He further admitted that he did not open the envelope for marking, the I.O. realised the number and total number of the alleged seized currency notes.
11P.W.2, Timir Kanti Acharjee, S.O.G. Section, C.I.D. stated in his evidence that he under the leadership of Sougata Ghosh, S.I., P.W.1 proceeded towards Farakka for the purpose of detecting a deal of F.I.C.N. accompanied by Constable Sourendra Bhattacharya, Constable Kazi Najrul Islam and Constable Ashim Das. They obtained command certificate being no. 59 from their department. They arrived at Farakka by Tata Sumo vehicle at about 1.00 p.m. At about 3.00 p.m. they went to Farakka P.S. and Sougata Ghosh lodged a G.D. there and also submitted a requisition for conducting raid. At about 3.20 p.m. they came to Farakka Station More and stayed in scattered manner by the side of N.H. 34. At about 3.55 p.m. the de facto complainant indicated them towards two persons and asked him to apprehend them. Some people came to that spot and the de facto complainant disclosed their identity to the assembled people and sought for help for conducting search to the apprehended persons, but the assembled people refused to be the witness of search and seizure. Then the de facto complainant asked those apprehended persons to search their bodies, but they refused to do so. Then the de facto complainant asked the name of those two persons who disclosed their identities as Morsalim Sk. and Mehedi Hasan. Sougata Ghosh conducted search on the body of Morsalim Sk. wearing a jacket of ash colour and from the pocket of that jacket he recovered four hundred pieces of F.I.C.N. having denomination of Rs. 500/- each and also recovered genuine Indian currency notes of Rs. 300/- from his money bag. One voter card and addhar card had also been seized. Thereafter, Sougata Ghosh searched the body of Mehedi 12 Hasan, who was wearing a brown colour jacket. From the pocket of that jacket 200 pieces of F.I.C.N. having denomination of Rs. 500/- each and 100 pieces of F.I.C.N. having denomination of Rs. 1000/- each had been recovered and also Indian currency notes were recovered from the possession of Mehedi Hasan. Sougata Ghosh seized the said articles by observing all the legal formalities. The said articles were seized and the said F.I.C.N. were packed and sealed and the accused put their signature on the seizure list. Thereafter, they went back to Farakka P.S. with the seized articles, documents and with the accused persons. Sougata Ghosh lodged a written complaint to I.C., Farakka P.S. in respect of the incident.
P.W.3, Asim Das, Constable, who accompanied the de facto complainant, corroborated the evidence of P.W.2.
P.W.4, Kazi Najrul Islam, Constable, who accompanied the de facto complainant, corroborated the evidence of P.W.2 and P.W.3.
P.W.5, Sourindra Bhattacharyya, Constable, who accompanied the de facto complainant, corroborated the evidence of P.W.2, P.W.3 and P.W.4.
P.W.6, Arjun Tiwari, police driver posted at C.I.D. Bhawani Bhawan stated before the Court that he had to carry Sougata Ghosh, the de facto complainant on 17th February, 2015 by availing Tata Sumo vehicle being no. WB 26C/7322 and reached at Farakka at about 1.10 p.m. and after taking departure from Farakka P.S. they came to N.H. 34 Farakka Station area where the officers stepped 13 down from the vehicle and instructed him to go away and to keep the vehicle at a certain distance. He further stated that at about 4.20 to 4.25 p.m. the de facto complainant over telephone called him and instructed him to come to that place. After arriving he came to know that the de facto complainant recovered F.I.C.N. from the possession of the accused persons. Then they again went to Farakka P.S. P.W. 7, Shyamal Kumar Das, A.S.I. of Farakka Police Station stated before the Court that on 17th February, 2015 he recorded the G.D. no. 965 dated 17th February, 2015 as per instruction of Sougata Ghosh, S.I. in the matter of getting police assistance for detecting a deal of F.I.C.N. After recording the G.D., he informed the matter to the then I.C., Daud Mansur Mohammad Hossain and as per direction of I.C., he informed the matter to R.T. officer and also requested him to provide necessary assistance to Sougata Ghosh, S.I. of Police in the said raid. He identified the formal F.I.R. in connection with Farakka P.S. case no. 34 of 2015 dated 17th February, 2015 for the offences under Section 489B/489C/120B of the Indian Penal Code. The formal F.I.R. was prepared by the I.C. himself and marked as Ext. 6/1.
P.W.8, Md. Jamaluddin, Sub-Inspector of Police posted at C.I.D. West Bengal of Berhampur unit, Investigating Officer in this case stated before the Court that on 17th February, 2015 he received telephonic information from Sougata Ghosh, Sub-Inspector of Police, S.O.G., C.I.D. and he made contact with him from Farakka over phone. The de facto complainant informed him that they would 14 conduct a raid for detecting the deal of F.I.C.N. and thereafter, he proceeded to Farakka from Berhampore. On that date Sougata Ghosh lodged F.I.R. at Farakka P.S. and the case was endorsed to him for investigation. He further stated that during investigation he examined the two accused persons, who were identified by Sougata Ghosh and recorded their statement. He examined the complainant but he had not recorded the statement of the complainant as he corroborated the facts stated in the F.I.R. He also examined the other persons namely, Timir Kanti Acharya, Kazi Najrul Islam, Sourindra Nath Bhattacharya, Ashim Das and Arjun Tewari and also recorded their statement. Then he visited the place of occurrence and prepared the sketch map on 18th February, 2015. He came back to Farakka P.S. and took possession of seven sealed packets containing F.I.C.N. He had taken custody of the accused persons and forwarded them to the learned A.C.J.M., Jangipur with the prayer for police custody of seven days. The learned A.C.J.M., Jangipur was pleased to allow the prayer for police custody of five days. During police custody period he interrogated the accused persons and conducted raid at various places of Baishnabnagar. He went to the house of the accused Mehedi Hasan and conducted search but failed to recover anything. Then on 23rd February, 2015 he forwarded the accused persons to the Court of the learned A.C.J.M., Jangipur after P.C, period and he sent the seized F.I.C.N. to Bharatiya Reserve Bank Note Mudran Pvt. Ltd., Salboni by deputing departmental Constable Kamrul Hasan for collecting the report and receiving the alamats after examination. He deposited the sealed packets of alamats to the 15 learned Court of A.C.J.M., Jangipur. Thereafter, he submitted charge sheet against the accused persons for the offence under Section 489B/489C of the Indian Penal Code.
On perusal of the evidence on record it appears that P.W.2 to P.W.5 deposed that the accused/appellants were in possession of F.I.C.N. amounting to Rs. 4,00,000/-, consisting of 4 bundles containing 100 pieces each of such note having denomination of Rs. 500/- possessing by Sk. Morsalim and 2 bundles out of which one bundle containing 100 pieces of such notes having denomination of Rs. 500/- and another bundle containing 100 pieces of such notes having denomination of Rs. 1000/- each possessing by Mehedi Hasan, which were seized by the de facto complainant. Therefore, it is proved that the appellants committed offence under Section 489C of the Indian Penal Code. The learned Trial Judge also framed charge against the appellants under Section 489B of the Indian Penal Code on the ground that the appellants were in possession of fake Indian currency notes and were trying to use the same as genuine knowing it fully well that the said currency were F.I.C.N. Therefore, the learned Judge convicted the accused/appellants under Section 489B/489C for committing the same offence. Section 489B of the Indian Penal Code postulates that -
"489B- Using as genuine, forged or counterfeit currency-notes or bank-notes - Whoever sells to, or buys or receives from, any other person or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to 16 believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."
From the above provisions of law it is evident that without mens rea and in the absence of any direct evidence to implicate the appellants for alleged crime of selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit notes or bank notes, it is not prudent to constitute offence under Section 489B of the Indian Penal Code.
Hence, the accused/appellants are not found guilty for commission of offence under Section 489B of the Indian Penal Code.
In view of such fact, The order of conviction and sentence passed by the learned Trial Judge is modified to the extent that the appellants are convicted for commission of offence under Section 489C of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 3,000/-, in default of payment of fine, they shall suffer rigorous imprisonment for two months more.
Accordingly, the appeal is partly allowed. The appellants are acquitted from the charge framed under Section 489B of the Indian Penal Code.
Copy of the judgement along with Lower Court Records be sent down to the trial court at once for necessary compliance.
17Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Rajarshi Bharadwaj, J.)