Calcutta High Court (Appellete Side)
Salam Mondal vs The State Of West Bengal on 4 January, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Sl. No. 105 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. 243 of 2016 with CRAN 4092 of 2017 Salam Mondal
-Vs-
The State of West Bengal With CRA 343 of 2016 Zashim Mondal @ Jashim Mondal Vs. The State of West Bengal For the appellant : Debasish Kundu For the State : Mr. Debajyoti Deb Heard on : 04.01.2019 Judgment on : 04.01.2019 Joymalya Bagchi, J. :-
The appeals are directed against the judgment and order dated 15.02.2016 and 16.02.2016 passed by the learned Additional Sessions Judge, Fast Track, 8th Court, Alipore, South 24 Parganas, in connection with Sessions Trial No. 1(4)2011 convicting the appellant Zashim Mondal alias Jashim Mondal for commission of 2 offence punishable under Section 489B and 489C of the Indian Penal Code and also under Section 14 of the Foreigners Act and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/- in default, to suffer rigorous imprisonment for six months more for commission of offence punishable under Section 489B of the Indian Penal Code, to suffer rigorous imprisonment for five years and also pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for three months more for commission of offence punishable under Section 489C of the Indian Penal Code and to suffer simple imprisonment for five years more and pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for three months for the offence punishable under Section 14 of the Foreigners Act and convicting the appellant Salam Mondal for commission of offences punishable under Sections 489B and 489C of the Indian Penal Code and sentencing him to suffer the same amounts of imprisonment and fine on the said courts as the co-appellant. All the sentences to run concurrently.
The prosecution case as alleged against the appellants is to the effect that on pursuant to prior permission obtained from superior officer of Special Task Force, P.W.1, Nazrul Hossan being accompanied by a team of officers of Special Task Force, Kolkata Police along with the source kept watch on 13.5.2010 at 14.45 hrs. in and around Five Star Market, 26, Karl Marx Sarani, Kidderpore, Kolkata-23. During the watch, at around 17.15 hrs. the source identified a person on the first floor of the market in front of a shop being no. 31A, as traffickers of FICNs. The said person was accompanied by another individual aged around 23 years and the shop keeper was loudly talking with them over the issue of payment of materials sold to them. The persons looked very restless and were trying to escape from the spot. Immediately they were intercepted and on being asked one of them disclosed his identity as Salam Mondal, s/o Munnaf Mondal of Village - Ramnagar, P.O.-Kumari Ramnagar, P.S.- 3 Hanskhali, District-Nadia. The other person disclosed his identity as Zashim Mondal, s/o of Hanif Mondal of Village-Jhiktipota, P.O-Zinnah Nagar, P.S.-Maheshpur, District-Jhinaidaha, Bangladesh. Zashim Mondal was unable to produce travel documents regarding his lawful entry into India. Md. Firoz, the shopkeeper of shop no. 31A stated the said persons had come to his shop at about 16.55 hrs. and had proposed to purchase four pieces of jeans trousers and six pieces of T-shirts. Accordingly, he raised a bill for Rs.5900/- and handed over it to Zashim Mondal. Thereafter, Zashim Mondal took out six pieces of notes of Rs.1000/- each to Md. Firoz which the latter suspected were fake and returned the said notes. Thereupon, Salam Mondal took out 12 pieces to Rs.500/- each of notes and handed them to Md. Firoz which was also returned by the shop keeper on similar ground. For this issue, an altercation ensued when the police team intervened. The police officials searched the aforesaid persons. From Zashim Mondal six notes of Rs.1,000/- and a bill of Rs.5,900/- raised by Md. Firoz and visiting card of the shop "Aseer Collection" shop no.31A(first floor), 26, Karl Marx Sarani, Kolkata-700 023 along with two notes of Rs.1,000/- each and four pieces of Rs.500/- each were recovered. On further search, two bundles of notes of Rs.1,000/- each, one bundle containing 100 pieces of Rs.1,000/- each and another containing 92 pieces of Rs.1,000/- was seized from a synthetic bag carried by Zashim Mondal. From the said synthetic bag, four more bundles of currency notes of Rs.500/- each, that is, three bundles containing 100 pieces of notes of Rs.500/- each and one bundle containing 96 pieces of notes of Rs.500/- i.e. Rs.4 lakhs in all were also recovered from the said bag. Upon searching Salam Mondal, the police team found 12 pieces of notes of Rs.500/- in his right hand and two bundles of currency notes of Rs.500/- each from his trouser pockets one of which containing 100 pieces of currency notes and the other contained 88 pieces of currency notes of Rs.500/- each i.e. Rs.1 lakh in all. All the aforesaid notes suspected 4 to be fake were seized under seizure list. They were sealed, labelled and packed. Zashim Mondal and Salam Mondal were arrested and on the written complaint of P.W.1 Nazrul Hasan, First Information Report being Watgunge P. S. Case No.138 dated 13.5.2010 under Sections 120B/498b/498C of the Indian Penal Code and under Section 14 of the Foreigners Act was registered for investigation. The seized currency notes were sent for examination to Currency Note Press, Nasik Road, Maharashtra and upon receipt of report, charge sheet was filed. The case was committed to the Court of Sessions and charges were framed under Sections 120B/498B/489C of the Indian Penal Code against both the appellants and also under Section 14 of the Foreigners Act against the appellant Zashim Mondal. Both the appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined six witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by the impugned judgement and order dated 15th February and 16th February, 2016 convicted and sentenced the appellants, as aforesaid.
Learned Counsel appearing for the appellants submits that the prosecution has not been able to prove its case beyond reasonable doubt. Numbers of the currency notes were not reflected in the First Information Report but were subsequently introduced in the seizure list. It is argued that no independent witnesses including the owner of the shop Md. Firoz, the most vital witness, has been examined. Prosecution has solely relied on the version of police witnesses who were members of the raiding party and the evidence of P.W.4, purported employee of the shop, does not inspire confidence. Hence, the appellants are entitled to acquittal.
Learned Counsel appearing for the State submits that the evidence of the prosecution witnesses show a large quantity of FICNs were recovered from the appellants. No satisfactory explanation was offered by the appellants with regard to 5 the possession of such huge quantity of FICNs from their possession. The evidence of official witnesses were corroborated by independent witness. P.W.5. The Expert (P.W.5) proved the report (Ext.7) that the currency notes were fake. Hence, both the appeals are liable to be dismissed.
P.W.1, Nazrul Hassan, P.W.2, Purnendu Singha and P.W.3, Nirmal Kumar Ghosh were members of the raiding party. P.W.1 was the leader of the raiding party as well as the informant in the instant case. He deposed that he received secret information on 13.5.2010 that two persons aged about 24/25 years were present at Star Market within Khidirpur area under Watgunge Police Station for circulation of FICNs. One of them was a citizen of Bangladesh. He communicated such information to his superior and obtained permission from Assistant Commissioner of Police, Asit Baran Shill to conduct raid. He proved the endorsement of the superior officer (Ext.2) on the application. Pursuant to such permission, he along with members of the raiding party went to Star Market and kept watch from 14.45 hours. Around 17.45 hours, they found two persons in front of shop No.31A who were identified by their source. They also noticed that there was heated conversation between the said persons and the owner of shop. No.31A with regard to payment of purchased items. The said persons were trying to flee away. At that time, they encircled them. The said persons gave out their identities. Appellant Zashim Mondal also admitted that he was from Bangladesh and did not have any valid document. Md. Firoz, owner of shop No.31A stated that the appellants had selected four trousers and six T-shirts and purchased the said commodities. A bill of Rs.5,900/- was prepared. Thereafter, Zashim Mondal gave six pieces of Rs.1,000/- notes to the shop keeper which he suspected to be fake and returned them. Subsequently, Salam Mondal gave 12 pieces of currency notes of Rs.500/- each which were also returned on the suspicion that they were fake. Thereafter, the said persons tried to flee away when they were 6 apprehended by P.W.1 and others. P.W.1 further deposed that upon searching of the appellants, currency notes of denominations of Rs.500/- and Rs.1,000/- in large numbers were recovered from Zashim Mondal and Salam Mondal to the value of Rs.4 lakh and Rs.1 lakh respectively. The said currency notes were seized under a seizure list on the suspicion that they were fake. They were also sealed, packed and labelled and signatures of witnesses were obtained on the seizure list as well as on the sealed packets. Subsequently, the appellants were arrested and taken to the police station along with the alamats. He lodged the written complaint in the police station, Ext.1. P.W.1 identified the seizure list and seized currency notes in Court. His deposition is corroborated by other members of the raiding party, P.W.2 and P.W.3. They have also proved their signatures on the seizure list and envelopes.
P.W.4, Shakil Ahamed, is an employee of shop no.31A. He corroborated the evidence of the official witnesses. He identified his signatures on the seizure list as well as on the sealed envelops. He has also identified the seized currency notes.
P.W.5, P. D. Kale is an Officer attached to Currency Note Press, Nasik, Government of India. He deposed that he examined the currency notes received from Kolkata Police in connection with this case and prepared report. He proved the report, Ext.7.
P.W.6, Debabrata Das is the Investigating Officer who investigated the case and filed charge sheet.
From the evidence on record, I find that the evidence of the official witnesses, P.W.1, P.W.2 and P.W.3 herein have been corroborated by P.W.4, an employee of shop No.31A, Five Star Market, 26, Karl Marx Sarani, Kolkata-700 023 where the incident occurred. It has been argued that the numbers of the currency notes are not reflected in the First Information Report. I find little substance in such argument as the numbers of the currency notes have been extensively quoted in the seizure list which 7 was contemporaneously prepared by P.W.1. That apart, the currency notes were sealed, packed and labelled at the spot and the seizure list and sealed envelopes bear the signatures not only of the official witnesses but also of the independent witness P.W.4. Failure to examine Md. Firoz, the shop owner, in my considered opinion, does not cause an inherent wedge in the unfolding of the prosecution case as the incident which occurred in the shop room is succinctly narrated by his employee, P.W.4. Hence, the search and seizure of a large volume of currency notes of denominations of Rs.1,000/- and Rs.500/- each valued at Rs.4 lakh and Rs.1 lakh from the appellants Zashim Mondal and Salam Mondal respectively have been proved beyond doubt. In addition thereto, the opinion of the Expert at Currency Note Press, Nasik, Ext.7 unequivocally establishes the fact that the seized notes were fake. The appellant Zashim Mondal, a Bangladeshi Nnational was unable to produce any travel document showing his lawful entry into India.
Hence, the conviction and sentence of the appellants were rightly recorded and does not call for interference.
Both the appeals and the connected application are dismissed. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
Copy of the judgement along with the Lower Court Records be sent down to the Trial Court at once for necessary compliance.
Urgent photostat certified copy of the order, if applied for, be given to the parties on priority basis.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.)