Calcutta High Court (Appellete Side)
Jhantu Sk. & Anr vs The State Of West Bengal on 11 March, 2020
Bench: Joymalya Bagchi, Suvra Ghosh
Item no. 185
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Suvra Ghosh
CRA 47 of 2012
Jhantu Sk. & Anr.
Vs.
The State of West Bengal
With
CRA 93 of 2012
Safikul Islam
Vs.
The State of West Bengal
For the appellants in : Mr. Soubhik Mitter,
CRA 47 of 2012 Ms. Sreyashee Biswas,
Mr. Sumanta Ganguly
For the appellant in Mr. Biswajit Manna
CRA 93 of 2012
For the State : Mr. Sanjoy Bardhan,
Ms. Rita Datta
Heard on : 11.03.2020
Judgment on : 11.03.2020
Joymalya Bagchi, J.:-
These appeals are directed against the judgment and order dated
29.11.2011and 30.11.2011 passed by the learned Additional District and Sessions Judge, Fast Track 3rd Court, Jangipur, Murshidabad in Sessions Trial No. 4/May/2011 arising out of Sessions Serial No. 63/2011 convicting the appellants namely Jhantu Sk., Safikul Islam and Safikul Islam, son of Late Abdul 2 Sattar for commission of offence punishable under Section 489B/498C of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 489B of the Indian Penal Code and to suffer rigorous imprisonment for seven years and pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for 1 year more for the offence punishable under Section 489C of the Indian Penal Code and further convicting Safikul Islam, son of Late Abdul Sattar (appellant in CRA 93 of 2012) for commission of offence punishable under Section 14 of the Foreigners Act and directing him to suffer rigorous imprisonment for 5 years and pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for one year more. All the sentences shall run concurrently.
Prosecution case as alleged against the appellants, is to the effect that on 24.08.2010 S.I. Dipak Kumar Das (PW 7) attached to Sagardighi Police Station received source information and upon diarising it as Sagardighi Police Station GD Entry No.1321 dated 24.08.2010, he along with others proceeded to Sagardighi Cattle Haat to work out the information. Upon arrival at the spot, the source identified the appellants and they were intercepted. On interrogation, the appellant disclosed their identities. One of them was a Bangladeshi national. In the presence of witnesses, search was conducted and upon search a sum of Rs.15,000/- in Currency Notes of denomination of Rs.500/- each suspected to be fake was recovered from the Bangladeshi National. Similar currency notes amounting to Rs.5,000/- each were recovered from the possession of the other appellants. The currency notes were seized in the presence of witnesses under a seizure list. Thereafter, the said notes were packed, sealed and labeled and signatures of accused persons were obtained on the labels. Accused persons along with the 3 seized currency notes, suspected to be fake, were taken to the police station. On the written complaint of PW 7, Sagardighi Police Station Case No.368/2010 dated 24.08.2010 under Section 489B/489C/34 of the Indian Penal Code was registered against the appellants.
PW 13 dispatched the seized currency notes for forensic examination and on receipt of the report (exhibit 7) showing that they were fake, charge-sheet was filed against the appellants.
Charges were framed under Section 489B/489C of the Indian Penal Code against all the appellants. Additional charge under Section 14 of the Foreigners Act was framed against Safikul Islam son of Late Abdul Sattar (appellant in CRA 93 of 2012).
In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. Appellants pleaded not guilty and claimed to be tried. The defence of the appellants was one of innocence and false implication.
In conclusion of trial, trial judge by the impugned judgment and order dated 29.11.2011 and 30.11.2011 convicted and sentenced the appellants, as aforesaid.
Mr. Soubhik Mitter with Ms. Sreyashee Biswas learned advocates appearing for the appellants in CRA 47 of 2012 argued that the independent witnesses have not supported the prosecution case. None of the independent witnesses identified their clients in court. PW 9 deposed for the first time in court. Chain of custody of the seized currency notes has not been established and, therefore, the report (exhibit 7) is not a reliable one. It is also submitted that ingredients of offence punishable under Section 489B of the Indian Penal Code are not disclosed in the facts of the case.
Mr. Sumanta Ganguly who was requested to assist the court has also adopted the submissions of the learned counsel for the appellants. 4
Mr. Biswajit Manna, learned advocate appearing for the appellant in CRA 93 of 2012 submitted that his client had entered the country with a valid passport and visa. Evidence of the prosecution witnesses suffer from various contradictions and inconsistencies. There is no material to show that the appellant intended to use the alleged Fake Indian Currency Notes ('FICNs' for short) and accordingly he may be acquitted of the charge levelled against him.
On the other hand, Mr. Sanjoy Bardhan appearing for the State deposed that evidence of de facto complainant, PW 7, is corroborated by the other members of the raiding party. PW 12 also deposed seizure of currency notes from the spot. These witnesses identified Safikul Islam son of Late Abdul Sattar, a Bangladeshi national in court. PW 11 admitted his signatures on the seizure list and other documents. He was declared hostile. He was extensively cross- examination with regard to his previous statement to police. PW 13 sent the seized currency notes for examination and the examination report (Exhibit 7) has been proved by PW 15. Hence, there is no breach in the chain of custody and the prosecution has been proved beyond doubt.
PW 7 is the de facto complainant and leader of raiding party. He deposed on receipt of secret information which was diarised at the police station he proceeded along with other police personnel to Sagardighi Cattle Haat. On being identified by the source, appellants were apprehended. They disclosed their identities. Upon search, currency notes suspected to be fake in denomination of Rs.500/- each amounting to Rs.15,000/- was recovered from the possession of Safikul Islam son of Late Abdul Sattar a Bangladeshi national. Similar currency notes amounting to Rs.5,000/- each were recovered from the other appellants. Currency notes were seized under seizure lists. Accused persons as well as the witnesses signed on the seizure list. The notes were packed, sealed and labeled and appellants along with 5 witnesses signed on the labels. Currency notes were taken to the police station where he lodged complaint (Exhibit 2). He proved the formal complaint (Exhibit 1). He also proved the aforesaid seizure lists (Exhibit 3, 4 and 5 respectively).
PW 1, Sovan Saha and other members of the raiding party namely PW 2, PW 3, PW 4, PW 5, and PW 8 have corroborated the evidence of PW 7 and also proved their signatures on the seizure list.
PWs 9 to 12 were examined as independent witnesses. PW 9 deposed police seized currency notes from the possession of Safikul Islam son of Late Abdul Sattar a Bangladeshi national. He identified him in court. He proved his signature on the seizure list.
PW 12 deposed that police officers had arrested three persons from whom they recovered Fake Indian Currency Notes. He, however, only identified Safikul Islam son of Late Abdul Sattar a Bangladeshi national.
PWs 10 and 11 did not support the prosecution case and were declared hostile. PW 11 admitted his signature on the seizure list. Both the witnesses were extensively cross-examined with regard to their previous statement to police.
PW 13 dispatched the currency notes for examination at Salboni. PW 14 collected the report and submitted the charge-sheet (Exhibit 7).
PW 15, manager of Bharatiya Note Mudran Pvt. Ltd. proved the examination report (Exhibit 7).
From the aforesaid evidence on record, it appears on the fateful day PW 7 along with police force had gone to Sagardighi Cattle Haat to work out the source information received by him. Upon being identified by source, the appellants were confronted by the raiding party. They disclosed their identifies and pursuant to a search, a large quantity of Fake Indian Currency Notes were seized. One of the appellants (a Bangladeshi national) failed to produce his passport and other travel 6 documents. Evidence of PW 7 in this regard has not only been corroborated by the police witnesses but also by independent witnesses namely PW 9 and PW 12.
Learned counsel appearing for the appellants in CRA 47 of 2012 submitted that PWs 9 and 12 did not identify the appellants namely Jhantu Sk, Safikul Islam son of Late Amirul Sk. in court. Hence, their presence at the place of occurrence is doubtful.
I am unable to accept such contention. The appellants had been identified by PW 7 and other members of the raiding party. PW 12 unequivocally stated that police had arrested three persons from whom Fake Indian Currency Notes were seized. It is possible that the independent witnesses due to imperfect recollection were unable to identify two appellants in court.
The other independent witnesses, namely PWs 10 & 11 appear to have been won over. PW 11 admitted his signatures in the seizure list. However, he did not support the prosecution case in court. Both these witnesses were declared hostile and were extensively cross-examined with regard to their previous statements to police. Accordingly, I am inclined to rely on the consistent evidence of official witnesses and ought not to be swayed by the prevaricating stance of PWs 10 and 11 who appear to be untruthful witnesses. I am further fortified to come to such conclusion as one of the independent witnesses that is P.W.12 has substantially corroborated the substratum of the prosecution case of seizure of Fake Indian Currency Notes from three persons who were arrested from the spot particularly when apprehension and arrest of the appellants from the spot is beyond any pale of controversy.
For the aforesaid reasons, I am of the opinion seizure of a large number of Indian currency notes from the appellants, suspected to be fake, amounting to 7 Rs.25,000/- in aggregate, at Sagardighi Cattle Haat has been proved beyond doubt.
Prosecution has also been assailed on the score that the chain of custody of the seized notes has not been proved. It is contended P.W.13 did not disclose how he took custody of the seized notes. I am unable to accept such contention. P.W.1 and P.W.7 have unequivocally stated that they brought the arrested persons along with the seized currency notes to the police station. Investigation was entrusted to P.W.13. P.W. 13 sent the seized notes for examination to Salboni and the examination report (Ext. 7) was received by the second IO (P.W 14) who submitted the chargesheet. Reading the evidence of the aforesaid witnesses as a whole, I have no doubt in my mind that the seized currency notes suspected to be fake were dispatched from the police station by the investigating officer, P.W.13 for examination at Salboni. Under such circumstance, failure of PW 13 to re-seize the notes is of little consequence as the particulars of the seized notes appear to be clearly reflected in the seizure lists, Ext.3, 4 and 5 prepared by P.W.7.
Hence, I am of the opinion that there is no snap in the chain of custody between the currency notes seized at the spot and those which were examined at Salboni.
It has been argued that the ingredients of the offence punishable under Section 489B of the Indian Penal Code have not been proved. There is nothing on record to show that the appellants were selling the fake Indian currency notes as genuine. The offence under Section 489B of the Indian Penal Code not only applies to sale, purchase or receipt of fake Indian currency notes as genuine alone. Its penal amplitude includes the expression 'otherwise traffics in' with regard to such currency notes. The word 'traffic' would include transportation of currency notes 8 with the intention of using the same as genuine. Such view has been taken by this Court in Hoda Sk. Vs. State of West Bengal.1 However, we note no charge has been framed against the appellants on such score. They have been called upon to answer the charge as follows:-
"That you, same day and same time and same place sold to the different persons of the said cattle hut forged currency note amounting to Rs.25,000/- (Twenty fine thousands) and that you thereby committed an offence punishable under Section 489B of the Indian Penal Code and within the court of my jurisdiction and thereby committed an offence punishable under Section of the Indian Penal Code, and within....."
When the actus reus involves anyone of several independent acts defining the offence eg. sale, purchase, receipt etc. as in section 489B IPC, it is incumbent on the prosecution to specifically spell out in the charge the alleged culpable act, failing which the appellant would be at a loss as to the nature of accusation levelled against him and would be highly prejudiced in preparing his defence.
When the appellants had not been called upon to answer a charge of 'otherwise trafficking' in currency notes but one of sale of such currency notes of which I do not find any evidence, I am loath to permit the prosecution to make out a new case at the appellate stage in order to justify the conviction of the appellants under Section 489B of the Indian Penal Code. Accordingly, I am of the opinion that the appellants are guilty of offence punishable under Section 489C of the Indian Penal Code but the prosecution has failed to prove its case under Section 489B of the Indian Penal Code beyond reasonable doubt.
Finally, it has been argued on behalf of Safikul Islam son of the late Abdul Sattar (appellant in C.R.A. 93 of 2012) had valid passport and visa at the time of 1 MANU/WB/0019/2020 9 occurrence. Learned Counsel brought out a Bangladeshi passport purportedly standing in the name of the appellant and visa from the lower Court records. However, none of these documents have been exhibited in the course of trial. It is unclear how these documents came into the records and there is nothing to confirm their authenticity. Even if for argument sake, the documents are treated to be valid, there is no escape from the conclusion that the appellant who is a Bangladeshi national, had committed the crime of unlawfully possessing of fake Indian currency notes while in India. Hence, the offence under section 14 of the Foreigners Act has been proved beyond doubt.
Under such circumstances, all the appellants are convicted for commission of offence punishable under section 489C IPC. In addition, Safikul Islam, son of late Abdul Sattar (appellant in C.R.A.93 of 2012) is convicted under Section 14 of the Foreigners Act. All the appellants are acquitted of the offence under section 489B IPC.
Coming to the sentence, I note Jhantu Sk. and Safikul Islam (appellants in C.R.A no. 47 of 2012) are Indian citizens and have no criminal antecedents. Hence, sentence imposed on them under Section 489C of the Indian Penal Code is modified. They are directed to suffer rigorous imprisonment for five years and to pay fine of Rs.10,000/- each i.d. to suffer one year more. Sentences imposed on Safikul Islam (appellant in C.R.A 93 of 2012), son of late Abdul Sattar, a Bangladeshi national on the score of section 489C IPC and under section 14 of the Foreigners Act remains unaltered.
Both the sentences shall run concurrently.
Period of detention suffered by the appellants during investigation, enquiry, trial and hearing of appeal shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure. 10
Bail bonds of Jhantu Sk. and Safikul Islam (appellants in C.R.A no. 47 of 2012) are cancelled. They are directed to forthwith surrender before the trial court and serve out the remainder of their sentences in accordance with law failing which the trial court shall take appropriate steps for execution of sentences and realization of fine in accordance with law.
The appeals are, thus, is disposed of.
Copy of the judgment along with L.C.R.s be sent down to the trial court at once.
In view of the fact that Safikul Islam son of late Abdul Sattar (appellant in C.R.A 93 of 2012) has already served out the sentence imposed on him, correctional home as well as the appropriate authorities are directed to take immediate steps for his repatriation to his own country i.e. Bangladesh at the earliest.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.) AP, AS & PA