Calcutta High Court (Appellete Side)
Amin Sk vs The State Of West Bengal on 24 August, 2015
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee C.R.A. 487 of 2014 Amin Sk.
Versus
The State of West Bengal
For the Appellant: Mr. Usof Ali Dewan
For the State: Mr. Anjan Dutta.
Heard on: 24-08-2015
Judgement on: 24-08-2015
Indrajit Chatterjee, J.- I am hearing this appeal as against the judgment and order of conviction dated 26th June, 2014 passed by the learned Additional Sessions Judge, Jangipur, within the District of Murshidabad in Sessions Serial No. 176 of 2013 arising out of Sessions Trial No. 03/May/2013 in which the learned Trial Court was pleased to convict the present appellant, before this Court in respect of the charge punishable under Sections 489B/489C of the Indian Penal Code (hereinafter called as the said Code). The Trial Court was pleased to impose the sentence in respect of the charge punishable under Section 489B of the I.P.C. to suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/- and in default of payment of fine, the appellant-convict was also sentenced to suffer rigorous imprisonment for three months more. The appellant- convict was sentenced to suffer for three years in respect of the charge under Section 489C of the Code and he was also directed to pay fine of Rs. 3000/- and in default of payment of fine, he shall suffer rigorous imprisonment for two months.
It may be mentioned that this case arose out of Suti P.S. Case No. 207 of 2012 dated 07-05-2012 and the F.I.R. was registered at 08.15 hours. At present the appellant is enjoying bail being released as such in CRAN No. 265 of 2015 dated 26-03-2015.
The case as unfold at the time of the trial can be stated in brief thus, that the de facto complainant of this case, namely, Ujjal Dutta of Suti Police Station within the District of Murshidabad, received one source information that the present appellant would be awaiting at Sajur More Bus Stop and he would be carrying Fake Indian Currency Notes (hereinafter called as FICN). On receipt of such source information, this de facto complainant, who was examined as P.W.1, along with force went to that place. The police officers, who accompanied P.W.1, were Constable No. 645, Ananda Debanshi (P.W.2), Constable No. 1972, Ajoy Kumar Hazra (P.W.3) and Constable No. 385, Rajendra Nath Majhi (P.W.4) to work out the information. Before P.W.1 left that place of occurrence, he diarised the matter, being Suti P.S. G.D. Entry No. 348 dated 7th May, 2012 at 6.05 hours. Officer-in-Charge of Suti P.S. was also informed by P.W.1 before his departure with force.
It also revealed during the trial that after reaching that place of occurrence, P.W.1 collected two dis-interested witnesses, namely, Ibrahim Momin (P.W.5) and Tutul Sk. (P.W.6) respectively of village Sankarpur and Mahisasthali. Sankarpur is admittedly within Suti P.S. whereas Mahissathali is within Samsherganj P.S. of Murshidabad District.
It further revealed at the time of trial that the source showed the person who was standing there wearing lungi and shirt. Then the police party apprehended that person and on interrogation, the said person disclosed his identity. His body was searched and P.W.1 recovered 25 numbers of currency notes of Rs. 1000/- denomination which were contained in a black colour plastic bag which was inside the pocket of the shirt of the accused convict. Those currency notes appeared to be fake to the satisfaction of P.W.1 and he seized those as per seizure list dated 07-05-2012. It may also be mentioned that those notes were of two series namely, 9CM and 2AW of different numbers. A copy of the seizure list was given to the accused by taking his L.T.I on the seizure list. Such seizure was made in presence of the witnesses and those witnesses also signed on the seizure list. The seizure list was marked as Ext.1 and the signatures of the two seizure list witnesses were marked as Exts. 1/1 and 1/2 respectively.
Thereafter the accused person with the Alamat was taken to the police station and a formal complaint was lodged by Ujjal Dutta (P.W.1). On receipt of that F.I.R. as I have already stated Suti P.S. Case No. 207 of 2012 was registered under Sections 489B and 489C of the Code as per formal F.I.R. which was marked as Ext.4. Investigation of this case was taken up by one Kalidas Roy Chowdhury (P.W.7). This witness, during the course of investigation, prepared a sketch map with index of the place of occurrence (both of which were marked as Ext.5). He also recorded the statements of the witnesses under Section 161 of the Cr.P.C. He forwarded those FICNs to Bharatiya Reserve Bank Note Mudran (P) Limited and collected the report of the expert. On completion of investigation, he submitted charge sheet against the appellant-convict in respect of Sections 489B/489C of the Code.
The case was committed to the Court of Sessions and Sessions Serial No. 176 of 2013 was started. The case was transferred to the learned Trial Court and Sessions Trial No. 03 May of 2013 was registered. The charge was framed against the accused to which he pleaded not guilty and claimed to be tried and as such, the trial started.
In course of the trial, the prosecution examined as many as seven witnesses including the raiding party, the seizure list witnesses and the Investigating Officer of the case.
On behalf of the prosecution several documents were marked as Exts. including the seizure list, the F.I.R., the formal F.I.R. and the report of the expert. The report of the expert was marked as Ext.6. On 11-02-2014 through the evidence of P.W.7, i.e. the Investigating Officer of this case, admittedly there is no note either in the deposition sheet of the P.W.7 or in the order No. 14 dated 11- 02-2014 as to in which manner the said Ext.6 was marked that is on proof, on admission or under Section 292 of the Code of Criminal Procedure.
The accused was examined under Section 313 of the Cr.P.C. The accused did not make out any specific case while answering the question asked by the court in 313 Cr.P.C. Nothing also came out from the suggestion given to the witnesses as to the defence case. The Trial Court after hearing the argument of both sides pronounced the judgement and I have already stated the result of this case.
It was submitted by the learned defence counsel, Mr. Dewan that this accused faced custody trial and he remained in custody for two years ten months till he was released on bail by this court. He also fairly submitted that a rule for enhancement was issued by this court. In counter to this, he submitted that there cannot be any enhancement of sentence even if the conviction is affirmed. He cited the following decisions of the apex court: -
AIR 1990 SC 1188 (Sahab Singh and Ors. Vs. State of Haryana) wherein the Hon'ble Apex Court did not concur with the decision of the High Court as regards the enhancement of sentence of fine from Rs.200/- to Rs.500/- per count per appellant. Learned Counsel took me to paragraph 5 of the said judgement to show that the High Court has the power to issue such rule under Section 397 and Section 401 of the Code. On my asking, learned Counsel submitted that the rule was issued by exercising power of this Court under Section 401 of the Code of Criminal Procedure. This judgement relates to a case under Sections 302/149 of the Code and fine amount was enhanced by the order of the High Court. It is true that the Apex Court did not concur with the High Court but that does not mean that this court has no power to issue such a rule. The fact before the Apex Court was totally different and unfortunately this decision cannot match with the present case.
(2009)2 SCC (Cri) 115 (Jarnail Singh Vs. State of Punjab) - learned Counsel took me to paragraph 18 of the above judgement in support of his contention that in the instant case, this Court should not consider the question of enhancement of the punishment for a higher degree of offence.
I have gone through the fact of this case before the floor of the Apex Court. Learned trial court convicted the accused in respect of the offence punishable under Section 304 Part I of the Code. The single judge lowered down the punishment but also converted the conviction from Section 304 Part II to Section 304 Part I to reduce the sentence from eight years to five years. The Apex Court ultimately ruled that such a conversion was not warranted on the part of the Single Judge. Unfortunately, in the present case before this court, the rule was not issued for conversion of the conviction from Section 489B to Section 489C or to any higher section. It may not be out of place to mention that 489B is already one higher section after the amendment was made effective and the maximum period of imprisonment was prescribed by the legislature to be life imprisonment. Sorry, this decision also cannot apply in the present case before this court.
(3) (2012)3 C. Cr. LR (Cal) 399 ( Md. Mukhtar Vs. State of West Bengal) wherein the Hon'ble Single Judge of this court declined to exercise its discretion to enhance the imprisonment even though the rule was issued on the facts and circumstances of that case.
I have gone through the fact of this case. In that case, sympathy was shown to the appellant mainly on the ground that the incident took place nine years ago and the court further observed that the man might have understood the seriousness of the crime he has committed and also considered the fact that except one elder sister and daughters and son of the elder sister, ailing brother, there was none for the appellant. In the present case before us, the offence was allegedly committed on 7th May, 2012 and we are yet to finish 2015 and as such, it cannot be said that the trial and the appeal continued for a long period to show any special mercy to the accused appellant. Thus, this court is of the considered view that the rule was rightly issued and this court will consider later on as to whether it is necessary to enhance the sentence of conviction or not.
Regarding the merit of this case, learned defence counsel submitted that the seizure made by P.W.1 is bad in law as Section 100(4) of the Code of Criminal Procedure was not applied. He submitted that no respectable man of the locality was called to be the witness to the seizure and both the seizure list witnesses ultimately turned to be hostile.
Learned Defence Counsel further argued by taking me to the FIR that in the FIR it was written very specifically that the name of the accused was known to P.W.1, the de facto complainant when the source informed him as to the matter. He also submitted that it is strange to believe that a person with Rs.25,000/- of F.I.C.Ns. will wait for 50 minutes, i.e. from 05.15 a.m. to 06.05 a.m. just to practically surrender him to the police so that he may be arrested with the articles. He submitted that this fact of the prosecution case cannot be believed by this court of appeal.
He also submitted that the P.W.1 and P.W.2 both deposed candidly that the public witnesses were called before the accused was apprehended but their companion P.W.3 and P.W.4 who are also police men deposed in their evidence that the seizure list witnesses were only called after the accused was apprehended.
He also attracted the findings of the trial court that the accused was as if trafficking or selling those FICNs. He took me to the entire evidence on record to show that there is no iota of evidence to convince the learned trial court that this accused was either trafficking or selling those FICNs. Thus, he submitted that there was no reason to convict the accused appellant in respect of the charge under Section 489B of the Code.
As regards the conviction under Section 489C of the Code, he submitted that this accused appellant already remained in custody for two years and ten months and apart from this aspect except the four police witnesses, not a single public witness came to depose in respect of the prosecution case that actually on that date and time of incident Rs.25,000/- FICNs were recovered from the possession of this accused appellant. Thus, he submitted that the accused appellant may be acquitted in respect of the charge and the enhancement rule be also discharged. He also submitted to consider the fact that the present appellant used to maintain one wife and the three minor children before he was apprehended.
Learned Counsel for the prosecution Mr. Datta submitted that, if this court scrutinizes the fact of this case, vis-à-vis the oral and documentary evidence, then this court will come to this irresistible conclusion that this accused was actually engaged in trafficking of FICNs and as such, it was his argument that the rule was rightly issued and the sentence imposed by the learned trial court at least for the offence under Section 489B of the Code be enhanced being inadequate to serve the purpose.
He also submitted by taking me to the examination sheets as regards examination of the accused under Section 313 of Code of Criminal Procedure to show that the accused did not make out any case in his defence except the plea that he was innocent. Thus, he submitted that if the case is for false implication, the foundation of the same must be established by that person. He submitted that the offences as against the counterfeit currency notes and their circulations and possessions are affecting the fibre of the economy of this country.
As against the argument of the defence that this accused appellant was found to be waiting at the bus-stand for about 50 minutes cannot be treated as a circumstance while will go in favour of the defence. He submitted that why he remained there is anybody's guess but the fact remained that he was apprehended by the police already at that point of time from that very place. The reasons for his presence in that morning may be various, like non availability of bus of his route, that some other person would have come to collect those F.I.C.Ns. etc. He also submitted that the word 'trafficking' means illegal trade or exchange of goods often drugs. He also argued that this accused who was a "biri binder" must have received such huge amount of FICNs from some other person and the court can very much infer that the accused was engaged in trafficking of such notes. Thus, he tried to suggest that Section 489B of the Code will be the proper section and not Section489C of the Code. On my asking, he submitted that such a person cannot be convicted in the present facts and circumstances in respect of both the charges under Section 489B and 489C of the Code. It was his frank submission that the accused be acquitted in respect of the charge under Section 489C of the Code if he is convicted in respect of the charge Under Section 489B of the Code. He also submitted that this is a clear case in which Section 106 of the Evidence Act will certainly apply as it was for the accused who was to explain how he acquired such currency notes and where he was going to supply those FICNs.
In reply, it was submitted by the learned Defence Counsel that this accused appellant was taken into police custody for three days but no other person could be apprehended during that period and no article was recovered during this period.
Thus I am to consider what is there in the evidence on record. P.W.1 is the main witness of this case. He has supported the case in toto. He is also the FIR maker, he also prepared the seizure list and produced the accused along with the articles to the Officer in Charge of Suti P.S. It is true that his evidence in chief is scrutinized, then one will say that the name of this accused was not to the knowledge of this witness but in the FIR he duly noted the name of the accused. Except this, this witness has duly supported the prosecution story and withstood the test of cross-examination. The question is - should I disbelieve this witness only for this lapse. My answer is clear 'no'.
P.W.2 is another witness who came to support the prosecution story. He is also one policeman. P.W. 3 has supported the prosecution story. I am not unmindful of the fact that both the witnesses deposed candidly that the seizure witnesses were called after the accused was apprehended which is at variance with the evidence of P.W.1 who categorically deposed that the witnesses were called before the apprehension of the accused. Both the seizure list witnesses were hostile and it is very natural also that in these days, public has developed a tendency not to put them in trouble in any criminal proceeding. The reasons are many. The witnesses are to attend the courts time and again in connection with a particular case losing their daily earnings as their cross examination are deferred on flimsy grounds, they are to face unnecessary cross-examinations and apart from these, there is no protection for the witnesses. Thus, why the public will come forward to be witnesses in a criminal trial? The Apex Court in its judgement AIR 2006 SC 3709 State of A.P. Vs. S. Rayappa & Others also ruled regarding the reluctance of the public to appear and depose before the court especially in criminal cases.
The defence cannot get any benefit from this as it is a settled principle of law that evidence of a hostile witness can be relied upon to the extent it has supported the prosecution case and not anything more than that. The variance of the witnesses (PWs 2 and 3) vis-a-vis PW-1 cannot be considered to be material contradiction to touch at the very root of the prosecution case.
The fact that the accused was found waiting for about fifty minutes at the P.O. also cannot help the defence as it is difficult to fathom why he was waiting at the P.O. The explanation given by the prosecutor may be true.
Here, in the instant case those seized FICNs were forwarded to the expert and the expert reported that all the Rs.1000/- notes were fake. This report was marked as Ext.6. It is true that the order sheet of the trial court and the recording of evidence of P.W.7 are not clear how those were marked as exhibits. The defence did not take up this point before the trial court as regards the marking of that document. Section 292 of the Code of Criminal Procedure is enough to support the act of the learned trial court in admitting this document as evidence without the witness being called to prove it. Now the question is whether this court will believe the evidence of the P.Ws.
Time and again, the Apex Court has directed the learned Trial Court to assess the evidentiary value of the police personnel appearing to depose on behalf of the prosecution. I can cite here the decision of the Apex Court, as reported in AIR 1956 SC 217 in the case of Aher Raja Khima -vs- State of Saurashtra wherein the Apex Court held that evidence of a witness cannot be discarded simply because he is a police officer-in-charge of investigation. The police officers are not worse than ordinary human being. It cannot be said that all of them are liers just as it cannot be said that all of them are truthful.
In AIR 1971 SC 28 in the case of (Girdhari Lal Gupta & Anr. -vs- D.N. Mehta, Asstt. Collector of Customs) : (1970) 2 SCC 530 wherein the Apex Court held that evidence of I.O conducting search may be relied upon without cooperation.
In a recent decision of the Apex Court as reported in AIR 2012 SC 1292 in the case of Govindaraju -vs- State, the Apex Court held that it cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case which will depend upon fact of a given case - if testimony of such a witness is reliable, trustworthy, cogent, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. The Apex Court proceeded to say that only when his interest in success of case is motivated by over zealousness to an extent of his involving innocent people, then, no credibility can be attached to his statement.
In another decision of the Apex Court as reported in (2013) 6 SCC 588 in the case of Pramod Kumar -vs- State (Govt. of NCT of Delhi) wherein the Apex Court held on this subject that non-examination of public witness is not automatically fatal to prosecution case, as ordinarily, public at large show their disinclination to come forward to become witness and the evidence of police witnesses would depend upon veracity, credibility and unimpeachability of their testimony. It further proceeded to say if the testimony of the police official is found to be reliable and trustworthy, court can definitely act upon the same. The court has every right to disbelieve one unreliable and untrustworthy police man but it should not do so solely on the presumption that a police witness should be viewed with distrust.
Thus, this court on scrutiny of the evidence is satisfied that this appellant, who was a "biri binder", was apprehended by the police along with FICNs worth Rs. 25,000/-. This was hefty amount for a "biri binder". The question is how he came in to the possession of those FICNs. The opportunity was given to the accused in his examination under Section 313 of the Code of Criminal Procedure to establish a case to disown his responsibility as regards the possession of those articles. Unfortunately, for the defence the accused appellant did not establish any positive case. The accused only took the defence that he was falsely implicated in this case. In a case of plea of this nature where the accused pleaded that he was implicated falsely, then the foundation of such false implication must be proved by the defence. This court can rely upon the judgement of the Apex Court as reported in 2002 SCC (Cri) 1834: (2002)7 SCC 691 (Ruli Ram vs. State of Haryana) wherein the Apex Court held when a plea of false implication is raised by the accused the foundation for the same has to be established.
The accused appellant thus could not disown the possession of such a huge amount of FICNs. It was naturally within his personal knowledge where he got such Fake Indian Currency Notes of only two series i.e. 9CM and 2AW. It was also within his knowledge how he was going to dispose of those FICNs. By applying this principle of law as laid down in Section 106 the courts are not asking the accused to be a witness against him. This section has shifted the burden of proof on the person who has special knowledge about the incident to which the prosecution cannot travel.
Such FICNs were not like playing cards or a play thing and as such, the accused appellant must have a motive behind such acquisition of such FICNs. Thus, this court can say in the same tone with the learned prosecutor that the accused was engaged in trafficking of Fake Indian Currency Notes. In assessing the charge under Section 489B what has weighed the court is the recovery of huge F.I.C.Ns from his possession. The inference ought not to have been made as regards that section had the quantity of such notes been meagre. In these days, this type of crime is alarmingly increasing. This has partially crippled our economy. Considering the huge amount of recovery of such notes, I can certainly presume that this accused was a 'Peddler' or 'Trafficker' of such FICNs. Thus, this court is at one with the learned trial court but at the same time, this court must say that one person cannot be convicted in respected of the charge under Sections 489B and 489C in the given circumstance. It is not the prosecution case that the accused appellant tried to circulate a portion of it when some notes were seized at the time of such circulation and other portion of such notes were seized from his possession. In such a case dual charge both under Sections 489B and 489C of the Code would have been well maintainable. Thus I am satisfied that the order of conviction under Section 489C of the Code is fit to be set aside and I do that.
From the discussion made so long, this court is satisfied that the prosecution rightly brought home the charge under Section 489B of the Code and conviction is well maintainable and sustainable also.
As regards the rule of enhancement, this court is of the opinion that considering the plight of the accused, society from which he is coming, his economic background and the burden which he had to maintain his family, this court is satisfied that the period of imprisonment as imposed by the learned trial court including the fine amount should not be enhanced.
The rule is thus discharged. This court reiterates that this accused appellant was nothing but a carrier of those FICNs. It is very unfortunate that the Investigating Agency could not unearth from where he got such huge supply.
Thus, this appeal succeeds in part.
The order of conviction and sentence as clamped on the accused appellant in respect of the charge under Section 489C is set aside. The conviction and sentence of imprisonment including the fine amount as imposed by the learned trial court in respect of the charge under Section 489B of the Code are hereby confirmed. The accused appellant is entitled to get set off under Section 428 of the Code of Criminal Procedure including the period of remission which he may be earning as per the jail Code.
After the period of appeal is over, the counterfeit notes shall be handed over to the Officer in Charge, Suti P.S., district Murshidabad on proper receipt, as per rule 222(2) of the Criminal Rules and Orders for sending the same to the Issue Department of the Reserve Bank of India, Kolkata with a brief report to this case.
Let a copy of this order be forwarded by the department to the said Officer in Charge within seven days from this date by Registered Post with A/D at the cost of this court. The said Officer in Charge on receipt of this copy will deposit the Fake Indian Counterfeit Notes as directed.
The appellant is enjoying bail. He must surrender before the learned trial court within fifteen days of the communication of this order to him by the Officer-in-Charge, Suti P.S. to serve out the remaining portion of the sentence. If the complainant fails to comply with the direction then the trial court will direct the Chief Judicial Magistrate/the Additional Chief Judicial Magistrate, on being satisfied with the service of notice, to issue warrant of arrest against the appellant convict and simultaneously start proceeding against the sureties.
The Lower Court Record along with a copy of this judgement be forwarded to the learned trial court.
Urgent photostat certified copy of this judgement, if applied for, be supplied to the parties as per rules.
(Indrajit Chatterjee, J.)