Calcutta High Court (Appellete Side)
Hoda Sk vs State Of West Bengal on 3 January, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 380 akd/ap/sdas/tkm & PA IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Suvra Ghosh C.R.A. 321 of 2015 Hoda Sk.
-Vs-
State of West Bengal
For the Appellant : Mr. Goutam Wilson .. Advocate
For the State : Mr. Sanjay Bardhan .. Advocate
Heard on : 03.01.2020
Judgment on : 03.01.2020
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 20th/21st April, 2015 passed by the learned Additional Sessions Judge, 1st Court, Jangipur, Murshidabad in Sessions Serial No. 1461 of 2014 (77/2014) corresponding to Sessions Trial No. 05(June)/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.5,000/-, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 489B IPC and to suffer rigorous imprisonment for seven years and to pay fine of Rs.3,000/-, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Section 489C IPC; both the sentences to run concurrently.2
The prosecution case as alleged against the appellant and co-accused namely, Monirul Islam (a juvenile in conflict with law) is to the effect that on 10th October, 2013 at about 10:35 hrs. Amit Bhakat, PSI of Police, de-facto complainant in the instant case attached to Samserganj Police Station received secret information from source that two persons were coming from Baisnavnagar area with fake Indian currency notes (in short 'FICN'). They would reach Dhulian ferry ghat for delivering the same as genuine. He diarised the information vide Samserganj Police Station G.D. Entry No.491 dated 10th October, 2013 and as per the direction of Officer-in-charge, Samserganj Police Station he proceeded to the spot with other police personnel after making a diary entry being Samserganj Police Station G.D. Entry No. 492 dated 10th October, 2013. The raiding party arrived at Dhulian ferry ghat around 10:50 hrs. and kept watch. At that time the source pointed out two persons who were moving suspiciously in the said ferry ghat. Seeing the police party the persons tried to flee away but they were apprehended. In presence of local witnesses, the aforesaid persons were searched and four bundles containing 100 numbers of FICN of Rs.1,000/- in each bundle, i.e. Rs.4,00,000/- in all, were recovered from a black plastic carry packet which was carried by the appellant in a red and black handbag in his right hand. Some genuine currency notes were also recovered from his possession. From the other co-accused namely, Monirul Islam, five bundles containing 100 numbers of Rs.500/- in each bundle and one bundle containing 97 numbers of Rs.500/- each, i.e. Rs.2,98,500/- in all, wrapped in a black plastic carry packet were recovered. The currency notes suspected to be fake were seized under a seizure list which was signed by witnesses and accused persons. The currency notes were kept in ten yellow envelopes marked as Exhibits A to J respectively. On the written complaint of Amit Bhakat (PW1), Samserganj Police Station Case No. 345 of 2013 3 dated 10.10.2013 under Sections 489B/489C IPC was registered for investigation. In the course of investigation, currency notes were sent for forensic examination at Bharatiya Reserve Bank Note Mudran Private Limited, Shalboni, West Midnapore. After receipt of the report from the Bharatiya Reserve Bank Note Mudran Private Limited stating that the 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 learned Additional Sessions Judge, 1st Court, Jangipur, Murshidabad for trial and disposal. Charges were framed under Sections 489B/489C IPC against the appellant. The appellant pleaded not guilty and claimed to be tried. Case of co-accused namely, Monirul Islam (a juvenile in conflict with law) was referred to the Juvenile Justice Board for enquiry. In the course of trial, prosecution examined 9 witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by the impugned judgment and order dated 20th/21st April, 2015 convicted and sentenced the appellant, as aforesaid.
Mr. Goutam Wilson, learned advocate appearing for the appellant argued that the evidence of official witnesses have not been supported by the independent witnesses namely PW 6 and 7. They deposed that they had signed the currency notes as well as the seizure list at the police station. He also pointed out the discrepancies in the evidence of PW 1 with regard to number of FICNs seized from the accused persons He also submitted that the examination of the appellant under section 313 of the Cr.P.C. was not in accordance with law. He also submitted that there is no evidence on record to show that the appellant was trying to use the currency notes as genuine. Hence, ingredients of offence punishable under Section 489B of the Indian Penal Code is not disclosed in the instant case.4
Mr. Sanjay Bardhan, appearing for the State submitted that the evidence of official witnesses clearly established that a large volume of FICNs was recovered from the appellant and co-accused person. Discrepancy in the evidence of PW 1 with regard to the volume of seized currency notes appears to be a slip of tongue. Number of currency notes seized has been clearly reflected in the First Information Report, seizure list which was contemporaneously prepared at the time of seizure. Signatures of the witnesses and accused persons were recorded in the FICNs seized in the case. Possibility of planting and false implication, therefore, are wholly ruled out. Independent witnesses were extensively cross-examined with regard to their previous statement before the police and, therefore, have been wholly discredited. There are ample materials to show that the appellants were carrying a huge volume of FICNs through a public place. This gives an inference to their intention to use the FICNs as genuine establishing the ingredients of offence punishable under Section 489B of the Indian Penal Code.
I have considered the rival submissions made on behalf of the parties in the light of the evidence on record. PW 1 is the leader of the raiding party. He deposed that on 10.10.2013 he was posted at Samserganj Police Station as PSI. At around 10:35 hrs on that day he received secret information that two persons from Baisnavnagar were proceeding through Dhulian ferry ghat and they were possessing FICNs. He diarised the information and as per direction of officer-in- charge of the police station and along with other police officers proceeded to the ferry ghat in their official vehicle. They arrived at the ferry ghat at about 10:55 hrs. They parked their vehicle at a distance from Dhulian ferry ghat and approached towards the ferry ghat by foot. On reaching the ferry ghat, the source identified two persons who were found wandering near the ferry ghat in a suspicious manner. Seeing the police personnel, they tried to run away. PW 1 and others 5 apprehended the said persons. In the presence of witnesses they were searched and four bundles containing 100 numbers of FICN of Rs.1,000/- in each bundle, in total amounting to Rs.4,00,000/- were recovered from the appellant. Similarly, large volumes of FICNs were recovered from co-accused Monirul Islam. Currency notes were suspected to be fake and seized under a seizure list. PW 1 obtained signatures of the accused persons and witnesses on the seizure list as well as on the seized currency notes which were suspected to be fake. He lodged complaint (Exhibit 1). He proved the seizure list (Exhibit 2). He identified the FICNs in court (Mat. Exhibit 1 series). He also proved the general diary extract recorded at the police station.
PW 2 (Abhiram Mondal), A.S.I. of Police, PW 3 (Sk. Yeasin Ali), Constable, PW 4 (Biswajit Purti), Constable and PW 5 (Tapas Kumar Das), Home Guard, were members of the raiding party. They have substantially corroborated the evidence of PW 1.
PW 6 (Lutu Sk) and PW 7 (Ashoke Kumar Boshak) were independent witnesses. They were declared hostile. They, however, admitted their signatures on the seizure list as well as on the seized notes. They were extensively cross- examined with regard to their previous statements before police officer.
PW 8 (Krishna Mukherjee) collected the opinion of the expert from Bharatiya Reserve Bank Note Mudran Pvt. Ltd., Shalboni. He proved the report (Exhibit 8).
PW 9 (Brojogopal Debnath) is the Investigating Officer in the instant case. He submitted charge sheet.
From the consistent evidence of the members of the raiding party i.e. PW 1 to PW 5, I have no doubt in my mind that four bundles containing 100 numbers of 6 currency notes of Rs.1,000/- each, amounting to Rs.4,00,000/-, suspected to be fake, were recovered from a black plastic carry packet carried by the appellant in a red and black carry bag. No doubt there are some discrepancies between the evidence of PW 1 in court and the FIR with regard to the number of FICNs recovered from co-accused Monirul Islam. However, in view of the entries made in the seizure list (Exhibit 2) and the number of FICNs produced in court (Material Exhibit 1 series), I am of the opinion that such discrepancy in the evidence of PW 1 with regard to the number of FICNs seized from Monirul Islam was an inadvertent mistake and does not affect the truthfulness of his version relating to seizure of FICNs from the accused persons. It has been strenuously argued that the evidence of official witnesses ought not to be believed as the independent witnesses i.e. P.Ws. 6 and 7 have not supported the prosecution case. It is trite law that the evidence of hostile witnesses are to be examined in the backdrop of other evidence on record. Although P.Ws. 6 and 7 claimed that they had signed the seizure list and the seized currency notes in the police station, they were wholly discredited by being confronted with their previous statements to the police which portrayed a completely different picture. In view of prevaricating stance of the said witnesses, I am of the opinion that they had been won over during trial and had resiled from their earlier statements recorded during investigation.
Hence, little credence ought to be given to their deposition in Court and the prosecution case based on the evidence of the official witnesses ought not to be rejected on such score alone. Furthermore, the expert opinion (Exhibit - 8) with regard to the seized currency notes shows that the said notes were fake.
In view of the aforesaid evidence on record, I am of the opinion that prosecution has been able to prove that the appellant was in possession of 400 pieces of FICNs of denomination Rs.1,000/- each valued at Rs.4,00,000/-. 7 Conviction and sentence of the appellant for commission of offence punishable under Section 489C of the Indian Penal Code is, therefore, established.
With regard to the conviction of the appellant under section 489B IPC, let me examine the ingredients of the said offence.
Section 489B of the Indian Penal Code reads as follows:-
"S.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 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."
Analysis of the aforesaid section shows whoever sells, buys or receives from any other person or otherwise traffics in or uses as genuine any forged or counterfeit currency notes or bank notes with the knowledge or reasonable belief that the said notes are forged or counterfeit is said to have committed the offence. Hence, sale, purchase or receipt from any person, or otherwise trafficking in counterfeit currency notes as genuine is a sine qua non of such offence. There is no evidence that the appellants had sold, received or used any counterfeit notes. However, it has been argued on behalf of the prosecution that the appellant was "otherwise trafficking in" counterfeit notes by knowingly transporting a large volume of forged currency notes in a bag through a public road and had reached the ferry ghat when they were apprehended. Hence, he had committed the offence under section 489B of the Indian Penal Code.
What would the expression "otherwise traffics in" mean in the context of aforesaid offence?
8
In K. Hasim Vs. State of Tamil Nadu, AIR 2005 SC 128, the Apex Court interpreted the object of section 489B of the Indian Penal Code as follows:-
"42. Similarly Section 489B relates to using as genuine forged or counterfeited currency notes or bank notes. The object of Legislature in enacting this section is to stop the circulation of forged notes by punishing all persons who knowing or having reason to believe the same to be forged do any act which could lead to their circulation."
Expression "otherwise traffics in" when interpreted in the light of the aforesaid object would include any act undertaken by the accused which would lead to circulation of notes.
In Black's Law Dictionary, 10th edition, p. 1725, the word 'traffic' is defined as follows:-
"traffic- 1. Commerce; trade; the sale or exchange of such things as merchandise, bills, and money. 2. The passing or exchange of goods of commodities from one person to another for an equivalent in goods or money. 3. People or things being transported along a route. 4. The passing to and fro of people, animals, vehicles, and vesels along a transportation route."
(emphasis supplied) Lexicographically the expression 'traffic' means transportation or movement of goods through a route or public road. Interpreting the expression "otherwise traffics in" in section 489B of the Indian Penal Code in that perspective, transportation of a large volume of fake currency notes with the knowledge or reasonable belief that such notes are forged would definitely fall within the penal ambit of section 489B IPC. However, in the present case no charge of transportation of fake currency notes has been framed. On the other hand, charge framed under the head of section 489B of the Indian Penal Code is as follows:-
"Firstly, that you on 10.10.2013 at about 11:05 am at Dhuliyan ferry Ghat under P.S. Samserganj, Dist. Murshidabad you were 9 found possessing fake Indian currency notes of Rs.4,00,000/- consisting of 400 pieces of such notes of denomination of Rs.1,000/- and also found possessing 597 pieces of FICN of denomination of Rs.500/- with knowledge that the said currency notes are fake Indian Currency Notes and thereby committed the offence punishable u/s 489B of I.P.C. and which is within the cognizance of this court of sessions."
Hence, the appellant had not been called to answer a charge of "otherwise trafficking in" fake currency notes by transporting such notes through a public thoroughfare for commercial use. To convict the appellant on such score at the appellate stage without reframing the charge would cause prejudice to them and occasion failure of justice. In this factual backdrop, I am constrained to hold that the appellant is entitled to an order of acquittal under section 489B of the IPC in the present case.
Lastly, it has been argued that examination of the appellant under section 313 Cr.P.C. is not in consonance with the law. Reliance has been placed on Mongat Ram Singh & Anr. Vs. State of West Bengal, 2005 (1) CHN 421 in that regard. I have gone through the examination of the appellant under sections 313 Cr.P.C. Although the questions posed to the appellant may have been framed in a more elegant manner, impact of such questions and the intelligent answers given by the appellant to them, in my estimation, does not give an impression that the appellant failed to understand the meaning and purport of those questions and had suffered any prejudice in that regard. In the cited decision, this court held that questions posed to the appellant were of such nature that it had caused prejudice to the appellant. In fact, the prosecution also admitted to such fact. In the present scenario the aforesaid ratio is clearly distinguishable for the reasons recorded hereinabove.
10
In the light of the aforesaid discussion, I uphold the conviction and sentence of the appellant under section 489C of the Indian Penal Code. I set aside the conviction and sentence of the appellant for the offence punishable under section 489B IPC.
Appeal is partly allowed.
The period of detention suffered by appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon the appellant in terms of Section 428 of the Code of Criminal Procedure.
Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)