Calcutta High Court (Appellete Side)
Matibur Rahman @ Majibur Rahaman @ ... vs State Of West Bengal on 16 May, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
572
Dns/Aloke
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Mr. Joymalya Bagchi
C.R.A. 519 of 2014
Matibur Rahman @ Majibur Rahaman @ Panchu
versus
State of West Bengal
with
C.R.A. 357 of 2014
Amirul Hossain @ Amirul
versus
State of West Bengal
with
C.R.A. 474 of 2015
Soleman Ali
versus
State of West Bengal
For the appellants : Mr. Md. Sabir Ahmed and Mr. Nirupam Dhali,
in CRA 474 of 2015
Mr. Kamalesh Chandra Saha,
Mr. Md. Nauroz Rahber
Ms. Payel Mitra,
in CRA 519/2014 and CRA 357/2014
For the State : Ms. Anasuya Sinha
Mr. Ranadeb Sengupta
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Heard on : May 16, 2017
Judgment on : May 16, 2017
Joymalya Bagchi, J.
These appeals are directed against judgment and order of conviction and sentence dated March 31, 2014 passed by the learned Additional Sessions Judge, Fast Track Court No. II at Islampur, Uttar Dinajpur, in Sessions Trial No. 30 of 2012 corresponding to Sessions Case No. 88 of 2012 convicting the appellants for commission of offence punishable under Section 489(C) of the Indian Penal Code and sentencing them to suffer simple imprisonment for five (5) years and to pay a fine of Rs.5,000/- (Rupees five thousand) only each in default to suffer further imprisonment for one year.
The prosecution case, as alleged, against the appellants is to the effect that on September 19, 2008, upon receiving secret information, one Suryadipta Bhattacharya, Sub Inspector of Police, Criminal Investigation Department (Economic Offence Wings), West Bengal, prosecution witness no. 1, along with Sub Inspector Sandip Ganguly, prosecution witness no. 2 and Sub Inspector Asim Majumder, prosecution witness no. 3, had left for Raiganj Detective Department, Criminal Investigation Department, West Bengal. On September 21, 2008, the prosecution witness no. 1 came to know from his source that three (3) persons of Goalpokher area had 3 come to Islampur new bus terminus with forged Indian Currency Notes (hereinafter referred to as FICNs). Accordingly, the prosecution witnesses no. 1, 2 and 3 started for Islampur taking Sub Inspector Bindubhusan Nandi of Raiganj Detective Department, Criminal Investigation Department, West Bengal, prosecution witness no. 4 in a hired vehicle. They informed the local police station and such information was diarised at the said Police Station. At around 3-45 p.m. on the said date, their source indicated three persons to them, who were standing with a motor cycle in front of Islampur Poura Abas. They, thereafter, surrounded those persons and apprehended them. The said persons disclosed their identities as the appellants. They requested two local people, namely, Nibir Kumar Ray, prosecution witness no. 5 and Susil Bhowmick, prosecution witness no. 7 to assist them as witnesses. The prosecution witness no. 1 along with other officers of the raiding party thereafter searched the appellants in presence of the witnesses and recovered and twenty six (26) pieces of FICNs of Rs.500/- denomination each from Amirul Hossain; forty one (41) pieces of FICNs of Rs.500/- denomination each from Majibur Rahaman and six (6) pieces of such notes of same denomination each from Soleman Ali along with other articles. On interrogation, it was revealed that they had collected those fake currency notes from one Manirul of Kaliachowk Police Station in the district of Malda, one Tahid of Bangladesh supplied those fake currency notes and one Lakshman of Baisnabnagar Police Station in the district of Malda was 4 also an active member of the racket. The prosecution witness no. 1 labeled those fake currency notes and seized them under a seizure list in presence of the witnesses.
The appellants were arrested and first information report was lodged at Islampur Police Station which was registered as Islampur Police Station Case No. 362 of 2008 dated September 21, 2008 under Sections 489(B)/489(C)/120B of the Indian Penal Code. In completion of investigation, charge sheet was filed in the instant case under Sections 489(B)/489(C)/120B/414 of the Indian Penal Code.
The case being a sessions triable one committed to the court of sessions and transferred to the court of the learned Additional Sessions Judge, Fast Track Court No. II at Islampur, Uttar Dinajpur, for trial and disposal. Charges were framed under Sections 489(B)/489(C)/120B of the Indian Penal Code against the appellants and under Section 414 of the Indian Penal Code against Majibur Rahaman. Charges, so framed, were read over and explained to the appellants, who pleaded not guilty and claimed to be tried.
In the course of trial, the prosecution examined thirteen (13) witnesses and exhibited a number of documents.
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In conclusion of trial, the trial court by the impugned judgment and order of conviction and sentence dated March 31, 2014, convicted and sentenced the appellants, as aforesaid. Hence, the present appeals at the behest of the appellants. At the time of admission, rule for enhancement of sentence was issued against Majibur Rahaman which is heard along with the appeals.
Mr. Kamalesh Chandra Saha, learned advocate appearing for the appellants, namely, Matibur Rahman and Amirul Hossain in Criminal Appeal No. 519 of 2014 and Criminal Appeal No. 357 of 2014 respectively, submits that the prosecution case has not been supported by the independent witnesses, namely, prosecution witness no. 5 and 7. He further submits that they have not supported the seizure of fake currency notes from the possession of the appellants at the place of occurrence as per the prosecution case. He also submits that the evidence of official witnesses does not inspire confidence and suffers from various infirmities. Accordingly, he prays that his clients are entitled to be acquitted of the charges levelled against them.
Mr. Md. Sabir Ahmed, learned advocate appearing on behalf of the appellant, namely, Soleman Ali in Criminal Appeal No. 474 of 2015, submits that evidence of the official witnesses are contradictory to one 6 another and there is no clarity as to how and under what circumstances the appellants were arrested and there is no independent evidence as to the manner in which the seized fake currency notes were preserved at the police station as no police officer attached to Islampur Police Station was examined. There is breach in the live link between the seizure of the fake currency notes and their examination by the expert. He further submits that prosecution witness no. 12 had deposed in cross-examination that Soleman came to Islampur for marketing and, accordingly, the prosecution case is rendered improbable. He, therefore, prays for acquittal of the said appellant.
In reply, Ms. Anasuya Sinha and Mr. Ranadeb Sengupta, learned advocates appearing on behalf of the State in the aforesaid appeals, submit that the seizure of FICNs is clearly established from the version of prosecution witnesses no. 1 to 4. Moreover, the alleged contradiction with regard to the manner of lodging first information report at Islampur Police Station is insignificant and would not improbabilise the seizure of a large quantity of FICNs from the appellants. The evidence of prosecution witnesses no. 5 and 7 taken as a whole probabilises the prosecution case of seizure of fake currency notes from the appellants as they admitted that soon after the seizure, the official witnesses reported such fact to them. Their evidence, therefore, can be treated as admissible as res gestae under Section 6 of the Evidence Act. It has been further submitted that 7 non-examination of any officer attached to Islampur Police Station does not cause any breach in the live link as the identifying numbers of seized FICNs seized from the possession of the appellants were contemporaneously recorded in the seizure list and tallies with the numbers of the notes produced as material exhibits in the instant case. Hence, the question of substitution of the said notes is a fanciful imagination and is not borne out from the materials on record. Accordingly, they pray that the appeal be dismissed.
I have gone through the evidence on record. The official witnesses in the instant case who have proved the seizure of the FICNs from the appellants are prosecution witnesses nos. 1 to 4. Prosecution witness no. 1 is the de facto complainant in the instant case. He deposed that on September 19, 2008 he was posted at Economic Offence Wing of the Criminal Investigation Department, Bhabani Bhawan. On that date, he received secret information that a deal with regard to the FICNs would take place at Islampur Bus Stand. He went to Islampur on that night. At Raiganj he took Sub Inspector of Police, Bindu Bhusan Nandi from Detective Department Bhawan and waited for information from the source. Sub Inspector of Police Sandip Ganguly, prosecution witness no. 2 and Sub Inspector of Police Asim Majumder, prosecution witness no. 3 were in his team. On September 21, 2008, they got information that the transaction would take place on that day itself. They reached Islampur by 8 a hired private vehicle and lodged a general diary at Islampur Police Station with regard to the source information. They were waiting at Islampur New Bus Terminus at around 3-30/4-00 p.m., when two persons came to the bus terminus riding in a bike where another person was waiting for them. Their source indicated the said three persons, who were cordoned by them. He deposed that two independent witnesses were present there. Thereafter, the official witnesses searched the appellants and recovered forty one pieces of fake currency notes of the denomination of Rs.500/- each from one person, twenty six pieces of fake currency notes of the denomination of Rs.500/- each from another person and six pieces of such currency notes of same denomination from the third person. They also seized other articles , namely, motor cycle, nokia mobile set, photocopy of voter identity card, bank passbook, etc. under a seizure list. They sealed and labeled the seized fake currency notes and lodged complaint at Islampur Police Station. They arrested the appellants and handed over to the said police station along with the complaint.
The prosecution witness no. 1 proved the seizure lists being exhibits 1, 2 and 3. He proved the first information report (Exhibit-4). He also proved the consignments of fake currency notes recovered from the appellants, the consignments of genuine Indian Currency Notes of the denomination of Rs. 100/- and the nylon bag along with the mobile set, etc. recovered from the appellants being material exhibit I, II and III 9 respectively. He also proved his signature on the labels of seized currency notes being material exhibits I/a, I/b and I/c.
In cross-examination, the prosecution witness no. 1 stated that he had given general diary entry number on all the labels of seized currency notes. He further stated that he left the Islampur New Bus Terminus between 5-30 and 5-40 p.m. after the incident. He could not say who searched the members of the raiding party, but he stated that the official witnesses searched the appellants. He also stated that he did not take the signature of the appellants and the witnesses on the fake currency notes.
P.Ws. 2 and 3 accompanied P.W. 1 to the raiding party. They have corroborated the evidence of P.W. 1 and have also proved their signatures on the seizure list as well as on labels of the seized F.I.C.Ns. Their evidence has not been dented in the course of cross-examination.
P.W. 4 was the S.I. of police, attached to Raiganj in D.D. of C.I.D. who accompanied P.Ws. 1 to 3 at the time of raid. He deposed that on 21.09.2008 he had accompanied the raiding party in a hired Tata Sumo vehicle. They had reached Islampur P.S. at 3-3.15 p.m. and lodged a general diary. They found two persons in a motor bike and one person standing in the bus terminus. He has corroborated the seizure of F.I.C.Ns from the 10 appellants. He stated that they made telephone call to Islampur P.S. and some staff came to bus terminus and they handed over the accused persons and official papers. He proved the signature in the seizure list as well as on the labels of the seized notes.
P.W. 6 is the driver of the vehicle who had taken the members of the raiding party to the place of occurrence. He has identified the accused persons.
P.Ws. 5 and 7 are the independent witnesses. They however have not supported the prosecution version in toto.
P.W. 5 deposed that he was the Manager of Poura Avas situated in the Bus terminus. On 21.09.2008 he was on duly at Poura Abas. The police officers detained three accused persons for having fake currency notes and came to their office of Poura Avas. The accused persons were arrested from the bus terminus. The C.I.D. officers seized some fake notes from the accused persons and prepared a seizure list. After that they told him to put signature on the seizure list. He put his signature on the seizure list. Then the accused persons were taken Islampur P.S. In cross-examination he stated that C.I.D. officers booked a room at Poura Avas. They took the accused in their room at Poura Avas. Thereafter the C.I.D. officers told them that they recovered fake Indian currency notes from the accused persons. 11 C.I.D. officers had not seized F.I.C.Ns from the accused persons in his presence.
P.W. 7 is a room boy employed at Poura Avas. He deposed that he and P.W. 5 were at the reception when police officers who were in civil dress, caught three persons from Bus terminus and came to Poura Avas. The police officers showed them F.I.C.Ns which were seized from the accused persons and told them to put their signature on papers. He put his signature on that paper. He proved his signature on that paper. He identified the accused persons. In cross-examination, he stated that he did not see from where and from whom F.I.C.Ns were seized.
P.Ws. 8, 9 and 10, 11 and 12 are persons who witnessed search conducted by the investigating team at the residence of the appellants. Such searches, however, did not reveal any incriminating articles and, therefore, their evidence is not of much help to prove the prosecution case.
P.W. 13 is the Investigating Officer of the case. He proved the formal FIR. He took up investigation. He visited the place of occurrence and prepared sketch map with index (exbt. 7 and 8). He took police custody of the accused persons. During police custody he searched the houses of accused persons but did not recover any incriminating material. He sent the 12 seized F.I.C.Ns to Salbani for examination and collected report. He proved the report (exbt. 6). In conclusion of investigation he submitted police report.
From the aforesaid evidence, it appears that the prosecution is essentially dependant on the version of the official witnesses who have unequivocally spoken of interception of the appellants at Ismalpur new bus terminus in the afternoon of 21.09.2008 and seizure of a large quantity of F.I.C.Ns. from their possession at that spot. Their evidence is unshaken in cross-examination in that respect. It is true that there is some confusion as to how first information report was registered but there is no doubt that upon search and seizure of the accused persons a large number of note of F.I.C.Ns were seized and labeled, thereafter the accused persons and the seized F.I.C.Ns were handed over to Islampur P.S. Thereafter, FIR was registered and the investigation in the instant case was taken over by P.W. 13 who is attached to C.I.D. department.
It has been strenuously argued on behalf of the appellant that the evidence of P.Ws. 5 and 7 the independent witnesses had supported the prosecution case. It is true that P.Ws. 1 to 4 claimed that P.Ws. 5 and 7 were present when the seizure had taken place at the bus stand. However, P.Ws. 5 and 7 stated that the accused persons after arrest had brought them to Poura Avas and informed them that they had seized F.I.C.Ns from the possession of the appellants and instructed them to sign the seizure list. 13 Accordingly, they signed on the seizure lists. Even if such version of P.Ws. 5 and 7 is accepted, their evidence does not destroy the substratum of the prosecution case altogether. If the evidence of the P.Ws. 1 to 4 is read along with P.Ws. 5 and 7 it would show that soon after the seizure of the F.I.C.Ns from the appellants at the bus stand, the police officers brought the appellants along with F.I.C.Ns to Pour Avas and informed such fact to the said witnesses who thereafter signed on the seizure list. The evidence of the said witnesses are, therefore, admissible as res gestae under Section 6 of the Evidence Act as they were informed of the factum of seizure in the course of the same transaction. Their version, therefore, corroborates the prosecution case of seizure of F.I.C.Ns from the appellants at the bus stand instead of improbabilising it.
It has also been argued that no police officer attached to Islampur P.S. was examined and, therefore, the live link between the seizure of F.I.C.Ns at the place of occurrence and their examination at Salbani has snapped. I am unable to accept of such version. Analysis of the ocular version of P.W.s 1 to 4 along with the seizure lists contemporaneously in the instant case would show that the identifying numbers of the F.I.C.Ns seized from the appellants at the place of occurrence are noted in the said seizure lists. The said numbers tally with the numbers on the face of F.I.C.Ns produced and exhibited during trial clearly establishing the live link between the currency notes seized from the appellants and those which were 14 examined at Salbani and subsequently exhibited during trial. Hence, failure to examine any police officer from Islampur P.S. does not breach the live link in the instant case or cause prejudice to the prosecution case in any manner whatsoever. The prosecution case is, therefore, proved beyond reasonable doubt.
Conviction of the appellants are upheld. Coming to the issue of sentence, I find that although a large number of F.I.C.Ns were seized from the possession of the appellants, there is nothing on record to show that the appellants have been convicted on earlier occasion and/or had any criminal antecedent. The rule for enhancement issued against appellant Matibur Rahman @ Majibur Rahaman @ Panchu is thus discharged. Sentence imposed on the appellants are, however, upheld.
Appellants Amirul Hossain @ Amirul and Soleman Ali are on bail. Their bail bonds are cancelled and they are directed to surrender within seven days from date and serve out the remainder of their sentences in accordance with law.
Period of detention suffered by the appellants 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. 15
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and execution of the sentence.
The appeals are, thus, dismissed.
(Joymalya Bagchi, J. ) Item no. 572 Dns/Aloke