Calcutta High Court (Appellete Side)
Md. Kanwar @ Naimuddin vs The State Of West Bengal on 21 July, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 334 of 2015
MD. KANWAR @ NAIMUDDIN
VS
THE STATE OF WEST BENGAL
For the Appellant : Mr. Soumyajit Das Mahapatra, Advocate.
Mr. Samrat Chowdhury, Advocate.
For the State : Mr. Ayan Basu, Advocate
Heard on : July 21, 2017
Judgement on : July 21, 2017
Joymalya Bagchi, J. :
The appeal is directed against the Judgement and order dated May 12, 2015 & May 13, 2015 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Barrackpore in Sessions Trial No. 13(03) 2014 arising out of Sessions Case No. 453/2013 convicting the appellant for commission of offence punishable under Section 489(C) of the 2 Indian Penal Code sentencing him to suffer Rigorous Imprisonment for a period of five years and to pay a fine of Rs.3,000/- in default to suffer Rigorous Imprisonment for a period of six months more,.
The prosecution case, as alleged, against the appellant is that one Sahabuddin Mondal, S.I. of police attached to Airport Police Station (P.W.5) received secret information that one Md. Kanwar @ Naimuddin of Belgachia had entered Airport Police Station area and was to come to Punjab Junction Dhaba at around 5.00PM and 5.30 PM for trafficking fake currency notes. He diarised such information being Airport P.S. G.D.E. No. 1699 dated 30.06.2013 and after obtaining permission of I/C, Airport, P.S. left with A.S.I. Mijanur Rahaman Mondal, .P.W. I, constables Ajoy Kumar Mondal, P.W.3 and Dipankar Naskar, (P.W. 7) for the spot in a hired vehicle. At around 16.50 hours they reached Punjab Junction Dhaba on Jessore road and exchanged information with the source. They requested two passersby namely Mandeep Singh, P.W. 2 and Rakesh Mondal, P.W. 6 to be independent witnesses of the search and seizure if necessary. The said persons agreed to join the raid. At around 17.20 hours the source identified the suspect coming from Birati side and they cordoned the area and apprehended the 3 suspect. The raiding party revealed their identities and the suspect disclosed his identity, as Md. Kanwar @ Naimuddin, that is, the appellant herein. The raiding party informed the suspect about their intention to search him as he was possessing F.I.C.Ns. P.W. 5 offered himself for search by the appellant. The latter searched P.W. 5 but nothing was recovered. Thereafter P.W.5 conducted search on the appellant. Upon search 40 pieces of currency notes suspected to be FICNs of Rs.500/- each that is, Rs.20,000/- wrapped in old English newspaper was recovered. The appellant was arrested and written complaint was lodged by P.W. 5 at the police station resulting in registration of Airport Police Station case No. 185 dated 30.06.2013 under section 489B and 489C of Indian Penal Code. In conclusion of investigation, charge sheet was filed and the case was committed to the Court of sessions and transferred to the Court of learned Additional Sessions Judge, 2nd Court, Barrackpore, North 24 Parganas for trial and disposal. Charges were framed under section 489B and 489C of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial prosecution examined nine witnesses and exhibited number of documents. The defence of the appellant was one of innocence and false implication in conclusion of trial, the trial Judge by the impugned judgement and 4 order convicted & sentenced the appellant, as aforesaid. However, by the self same judgement the appellant was acquitted of the charge under section 489B of the Indian Penal Code.
The learned counsel for the appellant submitted that the prosecution case has not been proved beyond reasonable doubt. Factum of seizure has not been established. It was also submitted that the quantum of sentence imposed on the appellant is disproportionately high.
On the other hand, learned counsel appearing on behalf of the State submitted that the evidence of the official witnesses are corroborated by the independent search witnesses. Expert P.W. 8 has opined that the seized currency notes are fake. Hence, the appeal is liable to be dismissed.
P.W. 5 is the leader of the raiding party and the de facto complainant in the instant case. He deposed that he was posted at Airport Police Station as S.I. of Police at the material point of time. On 30.06.2013 at about 4.15 PM he received information that one person named Md. Kanwar @ Naimuddin was coming to Punjab Junction Dhaba carrying FICNs around 5.00 PM to 5.30 pm. He diarised the said information being GDE after 5 information no. 1699 and after intimating I/C, Airport, P.S., left for the spot in a hired vehicle around 16.30 hours with A.S.I. Mijanur Rahaman Mondal, .P.W. I, constables Ajoy Kumar Mondal, P.W.3 and constable Dipankar Naskar, P.W. 7. At around 16.50 hours they reached the spot and requested two local persons named Mandeep Singh and Rakesh Mondal to assist the raid. They agreed to co-operate with the raiding party. At around 17.20 hours a person was coming from Birati side on foot, the source pointed out that person as the suspect. Thereafter the raiding party cordoned the area and apprehended the suspect. They revealed their identities and the suspect disclosed himself as the appellant. Thereafter the witness informed the appellant that he intended to search him on suspicion that he possessed FICNs with the intention of circulating and selling the same in the area. The witness offered himself to be searched by the appellant and the latter searched the witness. Nothing was recovered from him and a nil seizure list was prepared (Exhibit 2/3). Notice was issued under section 100 of Code of Criminal Procedure (Exhibit 9). Thereafter the appellant was searched and 40 pieces of currency notes of Rs.500/- each, that is Rs.20,000/- in all suspected to be FICNs were seized from the left trouser pocket of the appellant. The appellant confessed that the seized notes 6 were fake. A money bag containing Rs.220/- was seized from his right trouser pocket. 40 pieces of currency notes suspected to be FICNs were seized under a seizure list (Exhibit 1 / 4 ). An inventory list of the seized notes was also prepared (Exhibit 3 / 4). The witness identified the seized notes in Court as Material Exhibit - II (40 Pieces of 500 rupees notes) as the seized money from the left pocket of the appellant (Exhibit 1). He also identified the newspaper in which the FICNs was wrapped, labels were prepared and fixed on the seized articles (Exhibit 4/2, 5/2 and 6/2)). Thereafter the appellant was arrested. The complaint was typed in a computer at the police station under the dictation of the witness. He signed the complaint (Exhibit 7/2).
The evidence of P.W. 5 had substantially been corroborated by other members of the raiding party. A.S.I. Mijanur Rahaman Mondal, .P.W. I, constables Ajoy Kumar Mondal, P.W.3 and constable Dipankar Naskar, P.W. 7 have also proved their signatures on the seizure lists and labels affixed on the seized articles. Independent witnesses of the seizure are P.W. 2 Mandeep Singh P.W.6 Rakesh Mondal, P.W. 2 deposed that on 30.06.2013 he was in a garage near Punjab Junction Dhaba in connection with his father's truck business. At around 5.10 pm/5.20 pm he was crossing the area he saw a police van 7 standing there. A police officer also requested him and another person namely Rakesh Mondal to act as witnesses to the seizure, if necessary. Thereafter a person came by foot and the police personnel encircled him. Witness deposed with regard to the seizure of 40 pieces FICNs from the apprehended person. He also spoke about the preparation of the seizure list and inventory list in respect of the seized currency notes. He proved his signature on the seizure list as well as on the inventory list. He has identified the seized notes.
P.W. 6, the other seizure list witness has also corroborated the evidence of P.W. 2. He has also proved his signature on the seizure list. P.W. 8 was posted as Deputy General Manager at Bharatiya Reserve Bank Note Mudrn Pvt. Ltd. He received one sealed envelope containing 40 pieces of suspected FICNs of Rs.500 each in connection with the instant case. The suspected notes had been sent to his office for expert opinion. The reference number of examination was BRB/875 dated 09.07.2013. After analysis and examination of the FICNs they were found to be counterfeit. He proved the examination report which was typed under his dictation and sent under his seal and signature (Exhibit 8
- II). He has also identified the envelope in which the examination report was sent (Exhibit
12). He identified the FICNs produced in Court as the currency notes examination by him.
P.W. 9 the Investigating Officer in the instant case. He drew up formal F.I.R. and interrogated witnesses under 161 of Code of Criminal Procedure. He visited the place of occurrence and prepared rough sketch map with index (Exhibit 13). He sent the seized currency notes for expert opinion to Salbani. Examination report was received by him on 13.08.2013. On completion of investigation he submitted charge sheet. He has identified the seized FICNs as well as the seized money bag as material Exhibits -II and I respectively.
From the evidence on record it appears that on 13.06.2013 on receipt of secret information P.W. 5 diarised such fact and upon intimation to the I/C Airport P.S. had gone out with other police personnel to work out the said secret information in a hired vehicle. He arrived at the spot and had requested independent witnesses, namely, P.W. 2 and 6 to assist them in the search and seizure, if necessary. The said witness agreed to do so. At around 5.20 PM they found a person coming by foot from Birati Side was identified by the source as the suspect. The raiding party encircled the suspect who disclosed his identity 9 as the appellant. P.W. 5 expressed his intention to search the appellant and offered himself to be searched by him. The appellant searched P.W. 5 and a nil seizure list was prepared. Thereafter search was conducted on the appellant and 40 pieces of currency notes suspected to be FICNs were recovered from the left trouser pocket of the appellant. Inventory list was prepared by P.W. 5 was prepared by P.W. 5 and FICNs were duly seized. The members of the raiding party and the independent witnesses put their signatures on the seizure list as well as inventory list. Labels were put on the seized currency notes suspected to be fake and they were dispatched for expert opinion. Expert opinion of P.W. 8 (Exhibit - II) showing the seized notes to the counterfeit was duly proved.
It appears that the version of the official witnesses with regard to seizure of the currency notes was printed to be fake from the appellant has been corroborated by the independent search witnesses namely P.W. 2 and P.W. 6, I do not find any illegality in the search of 40 pieces of currency notes from the possession of the appellant on the fateful day on the suspicion that they were fake. Expert report has also been proved showing that 10 the seized currency notes are counterfeit. Prosecution case has, therefore, been proved beyond reasonable doubt. Conviction of the appellant is, thus, upheld.
Coming to the issue of sentence, it has been argued that the appellant does not have criminal antecedent and the sentence imposed upon him may be reduced. Having considered the nature of offence and the volume of FICNs seized from the appellant, I am of the opinion that no concession on the score of sentence is called for. Sentence imposed on the appellant is, therefore, upheld.
Period of detention undergone by the appellant during the course of investigation, inquiry and trial shall be set off in terms of section 489C of Code of Criminal Procedure.
With the aforesaid observation, the appeal is dismissed.
Copy of the judgement along with L.C.R. be sent down to the Trial Court at once.
(Joymalya Bagchi, J.) Item No. 18 SB