Calcutta High Court (Appellete Side)
Muksetul Sk. & Anr vs The State Of West Bengal on 20 December, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan, Jay Sengupta
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
&
The Hon'ble Justice Jay Sengupta
CRA 577 of 2011
Muksetul Sk. & Anr.
Vs.
The State of West Bengal
For the appellants : Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Susil Kr. Mahato
Mr. Samimul Bari
Mr. Soumyajit Das Mahapatro
For the State : Mr. Arun Maity, A.P.P.
Ms. Kakali Chatterjee
Mr. N.P. Agarwala
Heard on : 31.08.2018 & 10.09.2018
Judgment on : 20.12.2018
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellants assailing the judgment and order of conviction dated August 11, 2011 and sentence dated August 12, 2011 passed by the learned Additional Sessions Judge, 5th Fast Track Court, Malda in Sessions Trial No. 16(3) of 2011 arising out of Sessions Case No. 69 of 2011. By virtue of the 2 impugned judgment appellants were convicted for commission of the offences punishable under Section 489(B)/ 489(C)/34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and pay a fine of Rs. 2000/- each in default rigorous imprisonment for six months each for the offence under Section 489(B)/34 IPC and were sentenced to suffer rigorous imprisonment for 7 years and a fine of Rs. 1000/- in default rigorous imprisonment for two months more each of the offence punishable under Section 489(C)/34 IPC with a direction that both the sentences shall run concurrently with usual direction for set off as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.).
The prosecution case, in brief, is as follows:-
On January 14, 2010 at 07.05 hours, P.W.7 received source information with regard to a dealing in fake Indian Currency Note at Rathbari Bus Stand near Samrat Hotel. He then diarised the said information (Ext.8) and informed I.C. English Bazar P.S. As per direction of I.C. English Bazar P.S., P.W.1 along with force left the P.S. to work out the information. At around 7.25 hours they reached at Rathbari Public Bus Stand and contacted the source who told them that he would identify the culprits on their arrival. P.W.1 called two witnesses namely P.W.5 and P.W.6. At about 11.15 hours, as shown and identified by the source, they surrounded those persons namely the appellants at Rathbari Public Bus 3 Stand Passenger Shed beside Hotel Samrat. After disclosing their identity, P.W.1 asked the appellants to search their persons but they refused. P.W.1 then in presence of the local witnesses searched the appellants and during search recovered one bundle (100 pieces) of Indian Currency Notes of Rs. 1000/- denominations concealed and tied in the knot of lungi of appellant No.1 and one bundle (100 pieces) of Indian Currency Note of Rs. 1000/- denominations concealed and tied in the knot of Lungi of appellant No. 2. P.W.1 then seized those currency notes in presence of the appellants and witnesses by a seizure list (Ext.1), sealed and labelled the same (Exts.3 & 4) and obtained the signatures of witnesses and the appellants. P.W.1 also seized the lungies and gave the same in their jimma being their wearing apparel, arrested the appellants and during interrogation appellants disclosed that they had procured fake currency notes from Indo-Bangladesh Border area of Kaliachak P.S. with a view to disposing of the same at Malda Town area and Siliguri area knowing that those notes were counterfeit Indian Currency Notes. P.W.1, thereafter, returned back to the P.S. along with the seized articles and the appellants and lodged the complaint (Ext.2) and handed over the seized articles along with the seizure list and the labels at the P.S. which were kept at thana Malkhana.
On the basis of the above written complaint of P.W.1, P.W.3 started English Bazar P.S. Case No. 31 dated January 14, 2010 under Section 489(B)/489(C) of the Indian Penal Code against the appellants. P.W.9 investigated the case and 4 thereafter on completion of investigation submitted charge sheet against the appellants under Sections 489(B) and 489(C) IPC.
On March 5, 2011 charges under Sections 489(B)/34 IPC and 489(C)/34 were framed against the appellants and after they pleaded their innocence trial commenced.
Prosecution in order to prove the case examined 9 witnesses and also produced and proved the FIR, seizure list, labels, rough sketch map with index, report from Currency Note Press Nasik etc. and thereafter on completion of trial and examination of the appellants under Section 313 Cr.P.C. learned trial judge passed the impugned judgment.
Mr. Sekhar Basu, learned senior advocate appearing for the appellants submitted that the judgment and the order of conviction are not sustainable in the facts and circumstances of the case due to infirmity in framing the charges and the charges so framed against the appellants were not substantiated by any evidence, doubt with regard to search and seizure, absence of any signature of the appellants and the witnesses on the labels, doubt with regard to the keeping of the seized articles in thana Malkhana and its movement therefrom, absence of any order of the CJM authorizing the investigating officer for sending the seized articles to Nasik as claimed by the I.O., delay of 22 days in sending the seized currency notes to the Nasik Press for examination, absence of signature of the investigating officer in the property registered with regard to taking out the same for sending to the expert for examination and its return therefrom. According to Mr. 5 Basu, even if it is found that the appellants were in possession of seized currency notes then at best provisions of Section 489(C) will be attracted and there was no evidence on record that the appellants had any intention to use it for any purpose whatsoever.
Mr. Basu relied upon the decisions of State of Rajasthan vs. Gurmail Singh reported in (2005) 3 Supreme Court Cases 59, Jiban Sasmal vs. The State of West Bengal reported in 1987(II) CHN 430, Ramdayal Bishnoi vs. State reported in 2001(57) 621 and an unreported judgment of this court delivered on March 24, 2014 in CRA 261 of 2011 in the matter of Md. Muktarul Islam @ Suman vs. State of West Bengal in support of his submissions. Mr. Maity, learned advocate appearing for the State submitted that huge amount of Indian fake currency notes were recovered from the possession of the appellants which was duly proved by P.W.1, P.W.2 and P.W.8 and the appellants also put their signatures in the seizure list and labels. Mr. Maity, further submitted that though P.W.5 and P.W.6 turned hostile but the prosecution case will not fail and there was no reason to disbelieve the evidence of police personnel.
According to Mr. Maity, prosecution has been able to prove the charges against the appellants beyond shadow of doubt and the learned trial Judge was justified in passing the impugned judgment.
We have considered the submissions of the learned advocates appearing for the respective parties and gone through the materials on 6 record including the evidence adduced to consider the propriety of the impugned judgment.
The learned Court below took into consideration the evidences of P.W.1, P.W.2 and P.W.8 who proved the search, recovery and seizure of one hundred pieces of counterfeit Indian Currency Notes of Rs.1000/- denomination from the possession of each of the appellants concealed and tied in the knot of their respective lungi and also took into consideration the evidence of expert namely Assistant Works Manager, Currency Note Press, Nasik and his report (Ext.6) where he had opined that all the Notes sent for examination were not original but 'Counterfeit Notes' to arrive at the conclusion that prosecution has been able to prove the charges under Section 489B/ 489C/34 IPC against the appellants beyond all reasonable doubts.
On perusal of the evidence on record, it appears that seizure of the alleged counterfeit Indian currency notes was shown to have made on January 14, 2010 in between 11.35 hrs. to 12.40 hrs. from Rathbari State Bus Stand Passenger Shed beside Hotel Samrat under English Bazar P.S., Malda by S.I. Purnendu Mukherjee (P.W.1) in presence of two independent witnesses P.W.5 and P.W.6 besides the other police officers and force who had been there to work out the source information received and entered in the in the P.S. GD Book. P.W.7, Assistant Sub-Inspector of Police of English Bazar P.S., produced and proved the GDE No. 914 to 918 dated January 14, 2010 (Ext. 8) and GD Entry No. 944 dated January 14, 2010 (Ext.9). 7
According to P.W.1, on January 14, 2010 at 07.25 hrs. P.W.7, the duty officer, received one secret information to the effect that two persons would come to Rathbari area with fake notes. He diarized the said information vide GDE No.915 and informed to I/C, English Bazar P.S. who then directed him to work out the said information which was also diarized in the P.S. GD Book vide GDE No.916. Thereafter, he along with force had been to Rathbari near the passenger shed of the public bus stand at about 7.25 hours, arranged two public witnesses (P.W.5 and P.W.6) who agreed to remain present there. At about 11.15 hours, source identified two persons wearing lungi (the appellants) standing under the passenger shed no.1 near Samarat Hotel. They surrounded them, disclosed their own identity and offered them (appellants) to search them but they refused. He then at first searched appellant no.1 and recovered one bundle of Indian Currency Notes of Rs. 1000/- denomination of hundred pieces from the knot of his lungi. Thereafter, he searched appellant no.2 and from him also recovered one bundle of Indian Currency Notes of Rs. 1000/- denomination of hundred pieces from the knot of his lungi. Accordingly, he seized those bundles of notes in presence of witnesses by a seizure list (Ext.1) and obtained the signature of the witnesses as also the appellants, put labels on the seized bundles marked as 'A' and 'B' and also obtained the signatures of witnesses and the appellants on those labels (Ext. 3 and Ext.4), arrested the appellants and returned back to the P.S. and handed over the seized articles along with the seizure list and labels at 8 the P.S. and lodged the complaint (Ext.2). He also deposed that seized articles were kept at thana Malkhana. He identified the signatures of appellant no.1 and LTI of appellant no. 2 on the seizure list and on the labels and also identified the bundle of notes (Material Exts. I & II) recovered from the possession of appellant nos. 1 and 2 respectively. He also identified the appellants in course of his examination before the court. Thus, we find that he has fully corroborated the FIR. He was cross-examined by the defence but his evidence remained unshaken during cross-examination. He admitted that labels were not pasted with gum with the seized notes but clearly stated that those were along with the seized notes. He also specifically stated he searched both the appellants one after another under the passenger shed no.1 of Rathbari public bus stand and on search recoveries were made from the knot of lungies of the appellants and after recovery he seized the same by the seizure list and noted the same in the seizure list and after returning to the P.S. handed over the seized notes intact along with the seizure list to the Malkhana officer. The above statements of P.W.1 also found corroboration from P.W.2 and P.W.8.
According to P.W.2, on January 14, 2010 he accompanied P.W.1 along with other police officers and force for holding raid and at about 7.25 p.m. they reached Rathbari passenger shed of public bus stand near Samarhat Hotel. At about 11.30 a.m., P.W.1 apprehended two persons who were standing under the passenger shed no. 1 of the public bus stand and on enquiry they disclosed their names as 9 Muksetul Sk. and Manjur Sk. and thereafter in presence of two public witnesses P.W.1 searched those persons and recovered hundred pieces of Rs. 1000/- denomination notes from the lungi of each them. P.W.1 then seized those notes and put label on them. He identified Material Exts. I and II to be the seized Indian Currency Notes recovered from those persons. In course of his examination before court he, however, could be able to identify only appellant no.1. He was cross-examined by defence and during cross-examination also he specifically stated that those seized notes were kept in knot of the lungi of those accused persons and public witnesses were called before the accused persons were apprehended. He also stated that public witness put their signatures on the labels in his presence and it took about one hour to prepare the seizure list and labels. Admittedly, he is not the signatory of the seizure list and though he named appellant no.2 but could not identify him. But that can not be the ground to discard his evidence altogether.
According to P.W.8 also, on the relevant date and time he accompanied P.W.1 along with force to work out a source information and at about 7.25 a.m. they reached near Rathbari public bus stand in front of Samrat Hotel where P.W.1 called two public witnesses (P.W.5 and P.W.6) and at about 11.15 a.m. on the basis of identification by the source and as per instruction of P.W.1 they gheraoed those two persons (appellants). Thereafter, P.W.1 after observing necessary formalities searched the appellants and recovered 100 pieces of 1000/- denomination notes from each of them. P.W.1 10 then seized those bundles by a seizure list and also prepared labels and he and the witnesses put their signatures thereon. Appellant No.1 also put his signature while appellant No.2 put his LTI thereon. He duly identified his signatures. He also identified the appellants to be the persons from whose possession those currency notes were recovered. He was cross-examined by the defence at length and during cross-examination also he stated that the seizure list, labels and arrest memo were prepared under the passenger shed no. 1 and those labels were tagged with those bundles and the appellants were arrested after the seizure.
Thus we find that the evidence of the above eye witnesses remained unshaken during cross-examination. Defence failed to impeach their credibility in spite of extensive cross-examination. Their evidence appeared to be credible and reliable and nothing was brought on record to disbelieve their testimonies.
P.W.3, the inspector in charge of English Bazar P.S., on the basis receipt of the written complaint from P.W.1 started the case by drawing up the formal FIR (Ext.2) and endorsed the case to P.W.9 for investigation. He has also deposed that on the relevant date P.W.1 handed over him one seizure list, two bundles of Indian Currency Notes along with the labels and also produced the appellants and lodged the complaint. He then handed over the seized currency notes to the malkhana officer for keeping the same in his custody.
P.W.5 and P.W.6 are the public witnesses in whose presence search, recovery and seizure of Indian Currency Notes were made. 11 Both of them during their examination identified their signatures on the seizure list (Ext.1) and also on the labels (Ext.3 and 4) but turned hostile. They even denied that they were examined by police in connection with this case and they made their statements. As they did not support the prosecution case, they were declared hostile by the prosecution and were cross-examined by the prosecution and challenged that during investigation they stated to the investigating officer that on January 14, 2010 in the morning at about 8.00/8.30 a.m. as per request of P.W.1 they agreed to become witness and at about 11.15 a.m. police gheraoed two persons inside the passenger shed of Rathbari bus stand and they disclosed their residence of village Gangaprasad, P.S. Kaliachak and on search by P.W.1 one bundle of hundred pieces of notes of Rs. 1000/- denomination was recovered from the lungi of each of them and accordingly P.W.1 seized of those bundles of notes by a seizure list and also prepared labels of those bundles and they put their signatures on the seizure list as also on the labels to which they denied. But from the evidence of investigating officer (P.W.9) we find that they narrated all these to him during investigation. Thus we find that P.W.5 and P.W.6 inspite of admitting their signatures on the seizure list and the labels did not reveal the truth before the court. They even went to the extent of saying that they put their signatures at the P.S. On the other hand, it is the specific assertion of P.W.1 that search, recovery and seizure were made under the passenger shed no.1 near Rathbari bus stand beside hotel Samrat and seizure list and the labels were prepared at 12 that place in presence of the witnesses and obtained the signatures of P.W.5 and P.W.6, as also the appellants on those documents at that place. In support of their claim of putting their signatures at the P.S. neither P.W.5 nor P.W.6 has given any reason why they had been to the P.S. and why they put their signatures on the seizure list and the labels. Under the circumstances there appears no reason to disbelieve the version of P.W.1, P.W.2 and P.W.8.
P.W.9 is the investigating officer. According to him on the very date he took up investigation of the case as per direction of the IC English Bazar P.S. and during investigation he perused the FIR, seizure list and produced the accused persons before the court, consulted the relevant GD Book, the property register of the P.S. and saw the seized currency notes (Mat. Ext. and II), found labels at thana malkhana, kept in safe custody duly entered into the property register vide PR No 10/10 (Ext.10). According to him, on February 3, 2010 he made arrangement for sending the seized currency notes in sealed cover to Nasik under escort of ASI Ram Chandra Saha and other police personnel after receiving permission from the court of learned CJM, Malda on January 27, 2010 and on April 12, 2010 he received the report from Nasik along with the seized currency notes in sealed cover. Thereafter, on completion of investigation he submitted charge sheet against the appellants. During cross-examination he admitted that he was not present along with the raiding party. He also specifically stated that at the time of seeking permission of learned CJM, Malda for sending seized currency notes to Maharashtra he 13 produced the sealed packet containing the seized notes before the learned CJM, Malda and he himself gave the impression on the sealed cover and put metal seal there and the sealed envelope containing the seized currency notes were handed over to the escort on February 3, 2010. He also specifically stated that the seized currency notes were kept in the safe custody at thana malkhana. He admitted that he did not apply in writing before the malkhana officer for handing over the seized notes to him nor he put his signature on the property register at the time of receiving the seized notes at malkhana. But he specifically stated that escort party returned to the P.S. along with the sealed packet containing the seized notes after examination by the expert and handed over the same at thana malkhana. He, however, admitted that property register does not show that the seized notes were deposited at thana malkhana after examination by the expert.
According to P.W.4, Assistant Works Manager of Currency Notes Press, Nasik, on February 8, 2010 his office received currency notes in sealed condition in an envelope through the learned Chief Judicial Magistrate, Malda, West Bengal, vide memo No. 533/English Bazar P.S. dated January 27, 2010 sent in connection with English Bazar P.S. case No. 31/10 and sealed envelope contained two bundles having 100 pcs of Rs. 1000/- denomination notes prefix and serial No. 6AP-750197 and other 199 notes. He examined those currency notes and on examination found all those notes to be counterfeit notes. After examination of those notes he prepared a report (Ext.6) and sent the same to learned Chief Judicial Magistrate, Malda and also sent back 14 200 pcs of Indian currency notes to English Bazar P.S. in sealed cover. He identified the envelopes (Ext. 7 and 7/1) as also the seized Indian Currency Note (Mat. Exts.I and Ext.II) examined by him. He was cross-examined by the defence but nothing came out contrary to his statements in chief.
Thus, the statements of P.W.9 that after receiving permission from the court of learned CJM, Malda on January 27, 2010, he sent the seized currency notes in sealed cover to Nasik on February 3, 2010 for examination and received the report from Nasik along with the seized currency notes in sealed cover finds corroboration from this witness. Ext.10 shows the entries of the seized currency notes in the P.S. Malkhana register vide PR No 10/10. Those currency-notes, according to P.W.9, were sent by him for examination by the expert from the malkhana through the learned Chief Judicial Magistrate, Malda. Though the Malkhana register did not show the movement of the currency notes therefrom and there was no order of Chief Judicial Magistrate, Malda in the lower court record authorizing the investigating officer for sending the seized articles to Nasik but the same can not be the ground to disbelieve the prosecution witnesses especially when P.W.4 has clearly deposed that his office received currency notes in sealed condition in an envelope through the learned Chief Judicial Magistrate, Malda, West Bengal. The FIR (Ext.2/1), seizure list (Ext.1), labels (Exts. 3 and 4), entry in the Malkhana register (Ext.10) and the expert report show that the seized currency 15 notes were sent for examination and on examination those were found to be counterfeit notes.
Admittedly labels were not pasted with gum on the seized currency notes but were kept with bundle of notes in the envelope. It is not desirable to paste any paper etc. on a currency note using adhesive/gum or put any signatures on the currency notes, as in case the note is found to be genuine such act will invite penal action for defacement of currency-note. Moreover, in the case at hand, labels (Exts. 3 and 4) clearly shows the denomination and serial numbers of the notes in question which tallies with the seizure list.
Evidently, seizure of the counterfeit Indian currency notes was made on January 14, 2010 and on February 3, 2010 those were sent to Currency Notes Press, Nasik, Maharastra for examination by the expert i.e., after about 19 days from the date of seizure. But such delay in no way affects the nature of the seized currency notes nor will have any bearing on the findings of the expert as being not perishable in nature. This also can not be a ground to disbelieve the prosecution case.
Learned court below convicted the appellants under section 489B/34 and 489C/34 IPC after appreciating the evidence available on record. It was submitted by the learned Advocate appearing on behalf of the appellants that conviction of the appellants under those sections especially under section 489B/34 IPC was not proper as there was no evidence on record to substantiate the charge as framed 16 that appellants had any intention to use it for any purpose whatsoever.
Now for proper appreciation of the matter in controversy let us go through the provisions of section 489B and 489C IPC which are reproduced hereunder:
"489-B. Using as genuine, forged or counterfeit currency-notes or bank-notes. - Whoever sells to, or buys or receives from, any other person or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forced 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.
489-C. Possession of forged or counterfeit currency-notes or bank-notes.
- Whoever has in his possession 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 guanine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
So from the above provisions of law it is evident that without there being any specific evidence on selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit notes or bank notes, an offence under section 489B IPC cannot be constituted. 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 IPC in the absence of the requisite knowledge. But intention to constitute the offences under those sections can be gathered from the facts and circumstances of each case.
17
On perusal of the evidence of the prosecution witnesses it was evident that each of the appellants were found in possession of huge number of counterfeit Indian Currency Notes (each 100 pieces of Rs. 1000/- denomination notes) which they had concealed in the knots of their lungis. They are the residents of Gangaprasad, Battala P.S. Kaliachak . Such recovery was made in between 11.35 hrs. to 12.40 hrs. at a public bus stand under the jurisdiction of English Bazar P.S. Save and except taking the plea of false implication no explanation was offered in this regard. In the absence of any animosity between the appellants and the police officials there is nothing wrong in relying on their testimonies.
After scrutinizing the entire evidence on record, we do not find any illegality in appreciation of evidence or in arriving at the conclusion as to the guilt of the appellants by the learned Trial Court for commissioning of the offence under section 489C/34 IPC. We, therefore, affirm the conviction and sentence imposed on the appellants for the offence under section 489C/34 IPC.
But on a critical analysis of the evidence of prosecution witnesses we do not find any evidence to the effect that appellants could be found selling, buying or receiving from another person or otherwise trafficking in or using as genuine any forged or counterfeit notes in order to attract the provisions of section 489B/34 IPC. Even not a single question was put to them with regard to selling, buying, trafficking or receiving from another person or using as genuine any forged or counterfeit notes or made preparation to sell counterfeit 18 currency-notes or bring counterfeit notes from Indo Bangladesh area with a view to dispose at Malda town and Siliguri as alleged in the charge and all the questions were directed only towards recovery of counterfeit Indian currency notes from them. As such, learned Court below was not justified in holding the appellants guilty of the offence under section 489B/34 I.P.C.
We, therefore, set aside the conviction and sentence imposed on the appellants for the offence under section 489B/34 IPC and they are acquitted from the said charge.
In view of the facts and circumstances involved in this case the decisions of State of Rajasthan (Supra), Jiban Sasmal (Supra), Ramdayal Bishnoi (Supra) and Md. Muktarul Islam @ Suman (Supra) do not help the appellants due to distinguishable facts and circumstances of those cases.
Accordingly, for the reason stated above, this appeal is partly allowed affirming the conviction and sentence for the offence under section 489C/34 IPC while setting aside the conviction under section 489B/34 IPC.
Appellants be released forthwith after serving out the sentence imposed for the offence under section 489C/34 IPC unless their detention is required in any other case.
Copy of this judgement along with the lower court records be sent down to the trial court immediately by special messenger for information and taking appropriate steps.
19
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Jay Sengupta, J.)