Calcutta High Court (Appellete Side)
Anita Mandal vs State Of West Bengal on 10 November, 2017
Author: Siddhartha Chattopadhyay
Bench: Siddhartha Chattopadhyay
ARDR
CRA 598 of 2015
Anita Mandal
Vs.
State of West Bengal
Present:
The Hon'ble Justice Siddhartha Chattopadhyay
For the Appellant : Mr. Arnab Chatterjee,
Mr. Anisur Rahaman,
For the Respondents : Mr. Narayan Prasad Agarwal,
Ms. Sujata Das, Heard on : 10/11/2017.
Judgment on : 10/11/2017.
Doubting the correctness of the judgment and order of conviction dated 14/8/2015 passed by the learned Additional District and Sessions Judge, 5th Court, Malda in S.T. no. 21 (2015) by which the learned trial Court convicted the appellant under Section 489 (c) of Indian Penal Code read with Section 46 of the Bengal Excise Act, the appellant has preferred this appeal.
At the very outset, learned counsel appearing on behalf of the appellant argued that there is no proof of search and seizure as per law and as a result the accused/appellant should be acquitted. He further submitted that the learned trial Court has failed to appreciate the evidence of the prosecution witnesses in its proper perspectives.
To come to a conclusion, we should now revisit the factual matrix of this case.
Sieving out unnecessary details, the prosecution case, in a capsulated form, is such that on 02/11/2014 at or about 8 p.m. the Border Security Force personnel (hereinafter referred to as "BSF") got an information that fake Indian currency notes (hereinafter referred to as "FICN") would be trafficked in that area and to workout the same, they became vigilant. On the basis of such information, the members of the raiding party searched the house of the appellant and found one polythene bag which was kept as her belongings. On being asked, when the appellant opened the polythene bag, the BSF personnel found that there were about 10,94,000/- FICN. They also got thirty bottles of country made liquor and other accessories. They produced the seizure list and articles along with the accused to the local police station. In this way, the law was set into motion.
Defence case, as it appears from the trend of cross- examination that nothing was seized from their possession and that the search and seizure are defective and that was not in terms of the rule of law.
In such circumstances, we should delve into the issue of search and seizure.
P.W. 3 and P.W. 4 stated, in their evidence, that on the basis of an information they had conducted a raid in the house of the appellant and recovered FICN amounting to Rs.10,94,000/- along with thirty bottles of country made liquor. In course of cross- examination the defence could not shake their evidence substantially.
At the time of argument, learned counsel appearing on behalf of the appellant contended that there is a defect in the search and seizure so far as seizure list is concerned. According to him, the seizure list speaks the number of currency notes. If it is added with each other, then it would be 10,44,000/-, but the seizure list speaks that it was 10,94,000/-. He has also argued that there is nothing on record that it was re-seized by the appellant from BSF personnel.
On perusal of the front page of the seizure list it appears that 10,94,000/- was recovered from the possession of the appellant. It further appears from the report of the Reserve Bank of India that they have received FICN amounting to 10,94,000/- for examination. Therefore, the report of Reserve Bank authority cannot be brushed aside under the carpet. They do not have any enmity with the appellant. If they have not received 10,94,000/- from the police authority, why they would mention the same in their report. Regarding search and seizure, it appears from the charge sheet (back sheet) that the accused was rearrested by the Kaliachak Police Station and articles produced by the BSF personnel were re- seized. It is true that the person who had re-seized it i.e. Motahar Hossain of Kaliachak police station, has not been examined nor he is shown in the charge sheet. No question was put to the I.O. as to why Motahar Hossain has not been cited as a charge sheet witness. Therefore, it cannot be said that there is any defect in the prosecution case. May be, Motahar Hossain is no more in existence. Until and unless I.O. was asked about the whereabouts of Motahar Hossain, I am not inclined to give any benefit to him. Not only that what prevented him from citing that Motahar Hossain as D.W. is also is a matter of concern.
However, on perusal of the evidence of the members of the raiding party, it appears to me that the search and seizure were conducted properly. One of the local witnesses did not support the prosecution. Sometimes, local witnesses did not come to adduce evidence before a Court of law against his co-villager lest he incurs wrath of the co-villager. That aspect cannot be lost sight of. However, there is no strong evidence in regard to Section 46 of the Bengal Excise Act because only country made liquor was recovered. There is no element that those liquors were tested by a competent person. There is no reason to disbelieve the police personnel simply because the said police personnel is an agent of the prosecution. In our present days such type of offences are being increased day by day and particularly in that area. There is no reason to come to a conclusion that no proof of FICN (value of which is 10,94,000) was given to the possession of the appellant by the BSF personnel. On the contrary, it appears that the appellant resides within a short distance from the B.O.P. Since, search and seizure is perfectly done by the members of the raiding party, I do not find any reason to acquit the accused/appellant from that Section.
Learned counsel appearing for the State contended that 489(b) ought to have invoked, but the State has not taken any plea for enhancement of punishment or preferred any appeal against the finding of the learned trial Court. This apart, factual aspect speaks that the appellant was having possession of that amount, but there is no evidence that he used the same. There is thin line of difference between Section 489 (b) and Section 489(c) so far as use of the same is concerned.
In my view, learned trial Court has taken care of all these legal aspects substantially and it does not call for any interference. However, the sentence of imprisonment imposed upon the accused under Section 46 of the Bengal Excise Act has not been proved to the best judicial satisfaction of this Court. Accordingly the accused is acquitted from that Section. I find nothing wrong regarding the sentence awarded by the learned trial Court in respect of Section 489(c). Hence, the appeal merits its rejection. Only modification can be done because the appellant faced the trial keeping herself behind the bar. So she is to suffer imprisonment for five years instead of six years and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for six months more. Period of detention already undergone, shall be set off.
The department is directed to send a copy of this judgment along with the lower Court records at once to the learned trial Court below for taking appropriate action.
Urgent photostat certified copy of this order, if applied for, be given to the parties.
(Siddhartha Chattopadhyay,J.)