Calcutta High Court (Appellete Side)
Kalam Sk vs The State Of West Bengal on 12 December, 2019
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
CRA 553 of 2016
Kalam Sk.
Vs.
The State of West Bengal
For the Appellant : Mr. Subrata Karmakar
For the State : Mr. Ranabir Roy Chowdhury
Mr. Mainak Gupta
Heard on : 12.12.2019
Judgment on : 12.12.2019
Shivakant Prasad, J:-
This appeal arises against the judgment of conviction dated 04.07.2016 and
order of sentence dated 08.07.2016 passed by the learned Additional Sessions
Judge, 1st Court, Jangipur, Murshidabad in Sessions Trial No.06/(02)/2015
corresponding to Sessions Serial No.301 of 2015, convicting thereby the appellant for
commission of offences punishable under Sections 489B/489C of the Indian Penal
Code and thereby sentencing him to suffer rigorous imprisonment for seven years
and to pay fine of Rs.5,000/- in default to suffer simple imprisonment for three
months more for the offence punishable under Section 489B of the Indian Penal
Code and also to suffer rigorous imprisonment for five years and to pay fine of
Rs.3,000/- in default to suffer simple imprisonment for three months more for the
offence punishable under Section 489C of the Indian Penal Code with direction that
both the sentences would run concurrently.
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The brief facts leading to the instant appeal is that the complainant on
12/09/2014at about 09.55 hrs. received a source information that three persons will arrive at Dhuliyan Ferry Ghat area from Benopur P.S. to deliver F.I.C.N. to their paddlers. He diarised the information vide Samserganj P.S. G.D.E. No.514 dated 12.09.14 and as per instruction of superior of Samserganj Police Station the complainant along with force namely, A.S.I., Prabir Das, Constable Nasirul Alam, Subrata Biswas, N.V.F. Biswajit Das left the P.S., for proceeding towards Dhuliyan Ferry Ghat with their office vehicle being number W.B./57B/0527 which was driven by Mijan Sk. On the way they requisitioned two witnesses namely Humayun Kabir and Mortuj. They voluntarily agreed to accompany with the police knowing the facts stated by defacto complainant to the witnesses. They arrived near ferry ghat at about 10.25 hours and kept the vehicle in a safe distance. The source identified the accused persons who were standing at ferry ghat leaving one motor cycle and gossiped. But after seeing the police persons they attempted to flew away, the police persons surrounded them and on interrogation they disclosed their identity. The defacto complainant requested the present persons to remain as witness but none turn up. As such in presence of previous noted witnesses offered the accused to search but after denial by them the defacto complainant searched the said three persons one after another with the help of other police party and recovered 100 pieces of fake Indian Currency Notes of denomination of Rs.1,000/- each from the exclusive possession of Zahirul Islam amounting Rs.1,00,000/- and it was kept in his left side waist line of his wearing lungee and further recovered 100 pieces of fake Indian Currency Notes of denomination of Rs.1,000/- each from the exclusive possession of Nabab Sk Amounting Rs.1,00,000/- and it was kept in his left side 3 waist line of his wearing lungee 100 pieces of fake Indian Currency Notes of denomination of Rs.1,000/- each from the exclusive possession of Kalam Sk Amounting Rs.1,00,000/- and it was kept in his left side waist line of his wearing pant. On interrogation they confessed that they have full knowledge about those notes are forged and they are going to circulate the fake note as genuine in the local market of Dhuliyan, Raghunathganj, Berhampur etc. They further confessed that they are involved in dealing, possession and business of fake note since long. Accordingly, the defacto complainant seized all the three bundles of F.I.C.N. and the motor cycle being number W.B.94A/0133 under seizure list and apprehended the accused persons in between 10.55 to 14.25 hours and thereafter he prepared the complaint through computer and lodged the same before P.S. On the basis of the written complaint filed by Sri Santanu Mukherjee, S.I. of Samserganj P.S., Dist.- Murshidabad, Samserganj PS. Case No.316/2014 dated 12/09/2014 for the offences U/S 489B/489C of I.P.C. was registered against the accused persons and S.I. of Police Braja Gopal Debnath of Samserganj P.S. was entrusted to carry out the investigation of the incident. After completion of investigation, he submitted C.S. against the accused persons u/s. 489B/489C of I.P.C. on 25.01.14. Nabab Sk and Ziarul Sk were juvenile at the time of incident as such they were forwarded to Juvenile Justice Board, Berhampur. The case was committed to the Court of Additional Sessions Judge who took cognizance of the offence against the accused Kalam Sk.
The learned Sessions Court framed charge under Sections 489B/489C of the Indian Penal Code on 21.02.2015 to which the accused abjured his guilty and claimed a trial. After completion of evidence of prosecution as many as 11 4 witnesses, the accused was examined under Section 313 of the Criminal Procedure Code in respect of incriminating material emerging from the evidence to which the accused declined to adduce defence evidence.
Upon hearing the prosecution and defence the Trial Judge convicted the accused holding him guilty of the charges under Sections 489B/489C of the Indian Penal Code for possessing fake Indian Currency Notes of Rs.1,00,000/- consisting of 100 pieces of F.I.C.N. of denomination of Rs.1,000/- each as they were intended to be used as genuine and after the appellant was heard on the question of sentence, the Trial Court sentenced him to suffer rigorous imprisonment for seven years for the charge under Section 489B of the Indian Penal Code with fine with default clause and for a period of five years with fine of Rs.3,000/- with default clause in respect of the charge under Section 489C of the Indian Penal Code.
Being aggrieved by and dissatisfied with the judgment impugned the appellant has preferred the instant appeal, inter alia, on the grounds that the evidence on record does not justify the conviction of the appellant under Sections 489B/489C of the Indian Penal Code as the judgment is based on conjectures and surmises and for that the prosecution has miserably failed to explain the delay in registering the case after the seizure process of fake notes for about one hour.
It is submitted that the evidence on record of the Investigating Agency reveals that to work out the secret information vide a G.D. Entry being No.516 on the basis of an information recorded in G.D. Entry No.514, the raid was conducted and on showing by the source, the appellant was apprehended and arrested with the possession of the fake Indian Currency Notes along with two others who were minor and juvenile so they were referred to Juvenile Justice Board for their trial. 5
It is argued that the information allegedly recorded was in respect of possession of fake currency notes on the basis of G.D. Entry No.516, but, there is no whisper in the formal F.I.R. regarding said fact and that two independent witnesses examined as P.W. 6 and P.W. 8, as the seizure list witnesses in respect of fake Indian currency were not present at the time of seizure who have also not identified the appellant during trial. Therefore, it is urged that seizure of fake currency notes is illegal as it was not in accordance with Section 100 of the Criminal Procedure Code.
It is pointed out that evidence of P.W. 6 and P.W. 8 are inconsistent to each other as P.W. 6 in his evidence stated that the Police Officer recovered four bundles of fake Indian Currency Notes from the three persons apprehended whereas P.W. 8 stated that the police personnel apprehended one person from whom Rs.2 lacs was recovered. Moreover, both the witnesses have failed to identify the appellant as the persons from whom the said fake Indian Currency Notes was seized. Accordingly, it is pointed that they being the independent witnesses have contradicted the story of the prosecution of fake Indian Currency Note in possession of the appellant. Moreover, P.W. 6 and P.W. 8 have not been declared as hostile witnesses. It is further argued that the place of occurrence as per the prosecution case is at a ferry ghat where the presence of care taker or any commuter is inevitable but no effect made by the prosecution to examine the independent witness and the Police Officer also failed to check for other witnesses in the locality.
I find on perusal of the seizure list that 100 currency notes of denomination of Rs.1000/- fake Indian currency notes each in a bundle were seized and the seizure list bears signature of the accused persons and that of the seizure list witnesses viz. P.W. 6 and P.W. 8. The Investigating Officer sent the same to the General Manager, 6 Bharatiya Reserve Bank Note Mudran Pvt. Ltd., Salboni through the Additional Chief Judicial Magistrate Jangipur Court and the document Exhibit 3 reflects that the Additional Chief Judicial Magistrate Jangipur forwarded the same on 19.09.2014 under forwarding letter of S.I. of police, Exhibit 5, who was involved in the investigation of the case. Relating to authorization certificate for receipt of expert opinion, the Constable Sagata Das (C-1332) was entrusted to receive exhibits marked as A, B and C being 3 exhibits sealed packets of fake Indian currency notes along with expert opinion on behalf of the Investigating Officer in connection with case being Samserganj P.S. case no. 316 of 2014 dated 12.09.2014 for the offence under Section 489B/489C of the IPC and the RBI authority being the Manager vide Exhibit 7 dated 20th November, 2014 has addressed to the Additional Chief Judicial Magistrate with regard to the examination report on suspected fake Indian currency notes being total 300 (Rs.1000/- x 300) notes as counterfeit notes which were returned along with analysis report in a sealed cover.
Thus, it appears that all the fake currency notes which were seized under the seizure list from the possession of the accused persons and the appellant herein were all fake notes. So, obviously the evidence on record is writ large to hold that the appellant was in possession of a large number of fake Indian currency notes valued worth of Rs.1 lacs.
As regards the charged under Section 489B IPC and sentence of seven years rigorous imprisonment awarded against the appellant, learned advocate appearing for the appellant has relied on a decision in the case of Umashankar vs. State of Chhattisgarh reported in AIR 2001 SC 3074 to argue that there was no mens rea of the offence under Section 489B and 489C in view of the provision thereof on the 7 score that knowing or having reason to believe the currency notes or bank notes are forged or counterfeit. In the said cited decision it has been observed that the mens rea of selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or bank notes, is not enough to constitute offence under Section 489B of the 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 in the absence of the mens rea. The observation of the Hon'ble Court was on a set of facts that on May 25, 1990 at about 10 p.m. the appellant having purchased one kilogram of mango of Rs.5, he paid fake currency note of Rs.100/- to P.W. 4 who doubted its genuineness. She showed to P.W. 2 and 7 who also said that it was a fake currency note. He was handed over to the police who recovered 13 more such fake currency notes from him. It was in that fact, charges were framed against him under Section 489A, 489B and 489C of the IPC. In that context, mens rea was not brought for using of the currency notes as it was a case of possession of fake notes. The facts scenario of the cited case is not well nigh within the facts and circumstances of the instant case as this Court finds that about 300 Indian fake notes were recovered from three accused persons including the appellant and 100 fake Indian currency notes were recovered from him which fact is well proved on evidence.
Mr. Roy Chowdhuri, learned advocate appearing for the State has invited my attention to the observation made by the learned Trial Court in regard to the charge under Section 489B IPC which provides for using as genuine, forged or counterfeit currency notes or bank notes. It describes that whoever sells to or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or 8 counterfeit currency note or bank note, knowing or having reason to believe the same to be forged 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.
The provision of Section 489C provides for possession of forged or counterfeit currency notes or bank notes which deals with possession of 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.
It is pointed out that in order to bring home charge under both the sections mens rea of offences has to be taken note of and has to be construed from the evidence on record and the circumstances attending the case. It is argued that since the appellant was in possession of a huge fake Indian currency note and his purpose was to traffic the Indian fake currency notes somewhere. But Mr. Roy Chowdhuri admits that prosecution has not been able to substantiate the charge under Section 489B IPC since there is no proof of selling or buying or receiving such fake notes having knowledge or reason to believe the same to be forged or counterfeit.
It has been observed by the Trial Court that the appellant was in possession of the fake Indian currency notes of Rs.1 lacs for purpose of trafficking the same and to use the same as genuine. In this context, the Trial Court has observed that the house of the accused person is situated at Khejurtola under P.S. Raghunathganj but he has not given any explanation as to why he came to Dhulian ferry ghat under P.S. Samserganj with huge amount of fake Indian currency notes, and for this the Trial 9 Court held the appellant guilty of the charges under Section 489B and 489C of the IPC for having possession of fake notes. Possession of huge currency notes worth Rs.1 lacs is well proved on evidence, so the offence under Section 489C of IPC is well proved and for the charge under Section 489C IPC.
In the context of what has been discussed above I hold that the appellant is guilty of the offence punishable under Section 489C IPC for possession of fake Indian currency notes worth Rs.1 lacs containing 100 fake Indian currency notes of denomination of Rs.1,000/- each, however, he is acquitted of the offence charged under Section 489B of the IPC.
It is submitted by Mr. Subrata Karmakar, learned advocate appearing for the appellant that the appellant is serving sentence since the date of his arrest on 12.12.2014, by now he has already suffered rigorous imprisonment for a period of 5 years 3 months.
With the above modification, the criminal appeal being CRA 553 of 2016 is allowed.
A copy of this judgment together with LCR be sent down to the learned Trial Court forthwith for necessary note in the Sessions Trial Register and for doing the needful.
Extract copy of this judgment be also sent to the Superintendent, Murshidabad Central Correctional Home for his information and doing the needful.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on completion of all necessary formalities.
(Shivakant Prasad, J.) K.S./s.biswas 10