Calcutta High Court (Appellete Side)
Md. Morful Haque vs The State Of West Bengal on 21 April, 2017
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA 271 of 2011
Md. Morful Haque
Vs.
The State of West Bengal
For the appellant : Mr. Sekhar Basu, Ld. Sr. Advocate
Mr. Avishek Sinha, Ld. Adv.
For the State
: Mr. Madhusudhan Sur, Ld. A.P.P.
Mr. Arnab Chatterjee, Ld. Adv.
Heard on : 20.3.2017, 21.3.2017, 22.3.2017 & 23.3.2017
Judgment on: 21.04.2017.
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated April 28, 2011 and April 29, 2011 respectively passed by the Ld. Additional District and Sessions Judge, 5th Fast Track Court, Malda in Sessions Trial No. 52(9)/2010 arising out of Sessions Case No. 189/2010. By virtue of the impugned judgment appellant was convicted for commissioning of the offence punishable under Section 489B and 489C of the Indian Penal Code (hereinafter referred to as IPC) and was sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 5000/ in default rigorous imprisonment for further one year for the offence under Section 489B IPC and was also sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 2000 in default to suffer rigorous imprisonment for further six months for the offence punishable under Section 489C IPC. Both the sentences were directed to run concurrently and the period of detention already undergone to be set off as per provisions of Section 428 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.) The prosecution case, in brief, is as follows:-
On August 19, 2009, P.W.2 received one information at English Bazar P.S. that one suspect possessing fake Indian currency notes is staying in the lobby in front of reception counter of hotel Pratapaditya located at Kanir More on station road under English Bazar P.S., District Malda. Accordingly, as per instruction of Inspector-in-charge English Bazar P.S. P.W.1 along with ASI Bapi Chakraborty, constables Asit Saha (P.W.4), Jakir Hossein (P.W.5) and Dilwar Hossain (P.W.3) left the P.S. to work out the information under direct supervision of Sri Abhijit Banerjee, Dy. S.P. (D & T) Malda and reached at hotel Pratapaditya at about 13.35 hours. As per source indication they surrounded the appellant who was sitting in the lobby in front of the reception counter of hotel Pratapaditya possessing one a black coloured office bag on his lap. P.W.1, then in presence of manager (P.W.6), assistant manager (P.W.7) and hotel boy (P.W.8) of Hotel Pratapaditya searched the bag and found 300 pieces of Rs. 500 denomination fake Indian currency notes amounting of Rs. 1,50,000/ and one mobile phone in that bag. He then seized those currency notes and the mobile phone under a seizure list in presence of the above witnesses and obtained their signatures.
During interrogation appellant admitted that he has procured those fake currency notes from one Mahibur Rahaman and Mostofa Hossain who were the main dealers of fake Indian currency notes and running an illegal business of dealing in fake Indian currency notes through Indo-Bangladesh border under Kaliachak P.S. with intention to use those fake Indian currency notes as the genuine in Malda Town market knowing well that the notes were fake. Appellant was then arrested and brought to the P.S. P.W.1, then started English Bazar P.S. case No. 550/09 dated August 19, 2009 against the appellant under Section 489B and 489C IPC and the case was endorsed to P.W.10 for investigation who then investigated the same and thereafter it was investigated by P.W.9 who then on completion of investigation submitted charge sheet being No. 257/10 dated April 5, 2010 under Section 489B/489C IPC against the appellant.
Charge was framed on September 3, 2010 against the appellant under Section 489B/489C IPC and after the appellant denied his involvement in the crime trial commenced.
Prosecution examined 10 witnesses and also produced and proved the certain document namely written complaint, seizure list, GDEs, rough sketch map with index, opinion of the expert, label etc. Thereafter on completion of trial and after examination of the appellant under Section 313 Cr.P.C. passed the impugned judgement. Defence also examined one inspector of police of English Bazar P.S. and on behalf of the defence, arrest cum inspection memo, GDE were produced and proved.
Mr. Sekhar Basu Ld. Senior Advocate appearing for the appellant, submitted that the impugned judgment order of conviction and sentence are not sustainable as search and the seizure of counterfeit Indian currency notes from the possession of the appellant was not proved beyond doubt, none of the independent witnesses supported the case of the prosecution and the evidence of the police personnel appeared to be a parrot like evidence which render the prosecution case doubtful, contradiction with regard to the place of occurrence, doubt with regard to the identification of of the person concerned, inordinate delay in sending the seized currency notes to the expert, no explanation with regard to the whereabout of the seized bag, non production of the malkhana register, absence of signature of the witnesses and the accused on the seized articles or the label, no evidence with regard to mens rea to attract the provisions of the offence under Section 489B/ 489C IPC and improper examination of the appellant under Section 313 Cr.P.C. thereby depriving him from giving any explanations to the circumstances appearing in the evidence adduced by the prosecution.
According to Mr. Basu, ld. court below did not take into consideration the above aspect of the matter while passing the impugned judgment, order of conviction and sentence.
Mr. Basu relied upon the decisions in the matter of Umashanker Vs. State of Chattisgarh reported in (2001) 9 SCC 642, in the matter of State of Rajasthan Vs. Gurmail Singh reported in (2005) 3 SCC 59, in the matter of Jiban Sasmal Vs. State of West Bengal reported in 1987 (11) CHN 430 and in the matter of Ali Hossain @ Dulal Vs. State of West Bengal reported in 1995 (II) CHN 448 in support of his submissions.
Mr. Madhusudhan Sur, ld. Advocate appearing for the state submitted that as per source indication appellant who was sitting in the lobby in front of the reception counter of Pratapaditya hotel was apprehended and on being searched huge number of fake Indian currency notes kept in a bag were recovered from his possession which were seized in the presence of the independent witnesses and police personnel, sealed, labelled and signatures of the witnesses and the accused was obtained there and there was no illegality or irregularity with regard to search and seizure.
According to Mr. Sur though the independent witnesses turned hostile but simply because of that there was no reason to disbelieve the evidence of police personnel.
According to Mr. Madhusudhan Sur non labelling of the entire currency notes had not caused any prejudice to the appellant as denomination of notes and its numbers were duly mentioned in the seizure list and those also tallied with the forensic report.
According to him non production of malkhana register or delay in sending the seized currency notes to the expert did not cause any prejudice to the appellant as the same notes which were seized were sent to the expert for their examination and opinion.
According to Mr. Sur prosecution had been able to prove the case against the appellant beyond all reasonable doubt.
We have considered the submissions advanced by the learned counsels appearing for the respective parties. We have also given thoughtful consideration and gone through the materials on record to examine the propriety of the impugned judgment, order of conviction and sentence passed by the ld. Trial judge.
The learned Court below took into consideration the evidences of P.W.1, P.W.3, P.W. 4 and P.W. 5 who proved the search, recovery and seizure of three hundred peices of counterfeit (Fake) Indian Currency Notes of Rs.500.00 denomination amounting to Rs.1,50,000, from the possession of the appellant kept in black colour office bag and also took into consideration Ext.6, the expert opinion from the General Manager, Currency Note Press, Nasik where the expert had opined that all the Notes sent for examination were 'Counterfeit Notes' to arrive at the conclusion that prosecution has been able to prove the charges under Section 489B/ 489C IPC against the appellant beyond all reasonable.
On perusal of the evidence on record, it appears that seizure of the alleged counterfeit Indian currency notes was shown to have been made on August 19, 2009 in between 13.55 hrs. to 15.45 hrs. from the lobby in front of the reception counter of hotel Pratapaditya at Kani More on Station road by S.I. Jayanta Choudhury, P.W.1, in presence of three independent witnesses P.W.6, P.W.7 & P.W.8. But from the evidence of those independent witnesses we find that save and except identifying their signatures on the seizure list they have not identified the appellant nor stated anything against him and/or about the recovery of any such counterfeit Indian currency notes in their presence from his possession. According to P.W.6, Manager of Pratapaditya Hotel, on that date at about 9.30 AM when he came to the hotel for his duty he found large number of persons and police personnels present in the hotel and police told him that they have seized some money and had prepared seizure list and asked him to put his signature and as such he signed there. According to P.W.7, Receptionist of the said Hotel, on that date at about 8/8.30 AM he found some persons inside the hotel and a number of bundles of notes lying on the tea table and as per instruction of police he signed on the seizure list. P.W.7, Waiter of the said Hotel, merely identified his signature on the seizure list declaring that he does not know the contents of that paper. Though they were declared hostile by the prosecution and cross-examined by the prosecution but to no effect.
The other witness relied on by the prosecution towards search and seizure was P.W.1, S.I. Jayanta Choudhury, the defacto-complainant, who made the reported search and seizure. According to him, on August 19, 2009 at 13.15 hrs duty officer (P.W.2) received an information that one suspected person was sitting in the lobby in front of the counter of Pratapaditya hotel. Accordingly, he along with ASI Bapi Chakraborty and constables P.W.3, P.W.4 and P.W.5 under direct supervision of Abhijit Banerjee, Dy.S.P. (D & T) went there at 13.35 hrs. and after entering into the hotel they found the appellant sitting in the lobby in front of the counter of Pratapaditya hotel having one black colour office bag in his possession. He then searched the bag in presence of P.W.6, P.W.7 and P.W.8 and found three hundred pieces of Indian Currency Notes of Rs. 500.00 denomination amounting to Rs.1,50,000 suspected to be fake and one Nokia Mobile and accordingly he seized the same by a seizure list in their presence and put label on the seized articles. But according to P.W.2, he received the information that one person was standing with fake notes near Pratapaditya hotel. This shows the contradiction with regard to the place where suspect's presence was concerned. Moreover, information was about an unknown person in possession of fake Indian currency notes without any description of that person then how that person was identified has not been spelt out by any of the witnesses. This also shows suspicious circumstances about identification of the person concerned.
Furthermore, P.W.1 admitted during cross-examination that labels put on the seized notes were loose papers and not pasted and the same also did not bear his signature or signature of the witnesses. He also admitted that he did not put his signature nor obtained signatures of the witnesses and accused on the seized notes. Seized articles were also not produced before P.W.6, P.W.7 & P.W.8 for their identification. Even there was no whisper by P.W.1 that seized currency notes were at all sealed nor there was any whisper that the label in question was prepared in presence of those witnesses and they also put their signatures on the same. According to P.W.1 he kept those articles in thana Malkhana but in spite of his thorough search said Nokia Mobile and the black coloured bag were not found. In course of argument our attention was drawn to the court's order with regard to return of the Nokia Mobile to the person from whom seized but what happened to the bag was a mystery. Even Malkhana register was not produced to support the claim of P.W.1.
Admittedly, seizure list or the currency notes in question did not bear any signatures of either P.W.3, P.W.4 or P.W.5 who claimed to had also accompanied P.W.1 at the time of search and seizure of counterfeit currency notes. Save and except their verbal claim nothing was produced to show their presence at the time of alleged search and seizure. Their evidence appear to be in a same tone and parrot like which casts reasonable doubt about their veracity. In our opinion none of the above witnesses can at all be relied upon. Other witnesses examined by the prosecution are investigating officers.
The Indian Currency Notes suspected to be fake seized on August 19, 2009 were sent to General Manager, Currency Note Press, Nasik for expert opinion by P.W.9 only on February 3, 2010 and was received there on February 6, 2010. But such inordinate delay had not been explained. The claim of P.W.10 that on September 1, 2009 he applied before CJM Malda for sending the seized currency notes to Nasik for examination through court and got permission is without any basis. Seized articles were reportedly kept in the thana Malkhana but neither the Malkhana register was seized and produced during trial nor Malkhana -in-charge was examined to prove that those alamats were kept in Malkhana and were properly sealed, packed and labelled when received in Malkhana. There was also no explanation to that effect. Taking into account the entire circumstances, we find that recovery of the counterfeit Indian Currency Notes from the possession of the appellant was not proved beyond reasonable doubt.
The learned trial court did not take into consideration the above facts and circumstances.
Learned court below convicted the appellant under section 489B and 489C IPC, which read as under :
"489-B. 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 forced 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.
489-C. Possession of forged or counterfeit currency-notes or bank-notes. - Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine, or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
From the above provisions of law it was evident that without mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit notes or bank notes is not enough to constitute offence under section 489B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or bank notes is not sufficient to make out a case under section 489C IPC in the absence of mens rea. Criminality of mind and/intention must be there to constitute the offence under those sections but on critical analysis of the evidence of the prosecution witnesses on record we do not find any such evidence to the effect that the appellant had the requisite mens rea.
Furthermore, from the questions put to the appellant during his examination under section 313 Cr.P.C., we find that not a single question was put to him with regard to the recovery of any counterfeit Indian currency notes from his possession and all the questions were astonishingly directed towards recovery of counterfeit Indian currency notes from one suspect. So, the incriminating material appearing on record against the appellant being not not put to him during his examination under section 313 Cr.P.C. for offering any explanation can not be used against him.
The learned trial court did not take into consideration the above aspect of the matter also.
In view of the foregoing discussions, we find no other option but to hold that the prosecution has failed to prove the charges framed under section 489B and 489C IPC against the appellant.
We, therefore, allow the appeal and quash and set aside the impugned judgment, order of conviction and sentence passed by the court below. If the detention of the appellant is not required in connection with any other case, he be set at liberty forthwith.
Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)