Calcutta High Court (Appellete Side)
Md. Sawkat Ali vs The State Of West Bengal on 22 November, 2019
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
THE HON'BLE CHIEF JUSTICE THOTTATHIL B. RADHAKRISHNAN
AND
THE HON'BLE JUSTICE ARIJIT BANERJEE
CRA 812 OF 2008
with
CRAN 2765 OF 2018
In the matter of : md. sawkat ali
-Versus-
The State of West Bengal
For the Appellant : Mr. Arnab Chatterjee
Mr. A. Rahaman
Ms. Arpita Saha........ Advocate
For the State/Respondent : Mr. Saswata Gopal Mukherjee, Ld.
Public Prosecutor
Ms. Zareen N. Khan
Mr. J. Mitra
Heard on : 04.09.2019
Judgment on : 22.11.2019
Thottathil B. Radhakrishnan, C.J. :
1) This appeal is against an order of conviction and sentence imposed by court below for offences found to be punishable under Section 489B and 489C of the Indian Penal Code, for short IPC.
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2) Heard the learned counsel for the appellant and learned Public Prosecutor assisted by the learned Government Advocate.
3) On the basis of a tip off, the appellant and one Ajijur Rahaman were intercepted from Suruchi Hotel at Dhulian Market. 125 pieces of Fake Indian Currency Notes ('FICN' for short) of Rs. 500/- denomination each were recovered from inside the underwear of the appellant and 100/- pieces of FICN of Rs. 500/- denomination each from the inside pocket of the jacket of Ajijur Rahaman. Both of them were arrested and FICN of Rs. 1,47,000/- were seized from them. After due process of registering the case in the Police Station and on completion of investigation, the learned Additional Sessions Judge, Jangipur, sent the accused Ajijur Rahaman to Juvenile Court by order dated 14.02.2007 since he was a minor on the date of occurrence. The case against the appellant Md. Sawkat Ali was committed to the Court of Session. The Court below framed charge against the appellant for offences punishable under Sections 489B and 489C of the Indian Penal Code. The accused pleaded not guilty, and was tried. At conclusion of trial, the accused was found guilty of the offences punishable under Sections 489B and 489C of the Indian Penal Code. After hearing on the question of sentence, the appellant was sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/- and in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 489B of the Indian Penal Code. The appellant was also sentenced to suffer rigorous imprisonment for two years for the offence punishable under Section 489C of the Indian Penal Code.
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4) In this appeal by the convict Md. Sawkat Ali, his learned counsel argued that the nature of allegation against the appellant and the legal evidence on record, even if tantamounts to proof of commission of any offence, that could only for offence punishable under Section 489C, that is, possession of forged or counterfeit currency-note or bank-note, and no offence under Section 489B is made out. It is further argued that the appellant has been handed down punishment for imprisonment for life which is the highest count of imprisonment prescribed for the offence punishable under Section 489B and such punishment is harsh and is liable to be reduced.
5) The learned Public Prosecutor supported by the learned government advocate argued that this is a case of well planned and prepared activity, which has been accomplished by a foreign national and there is no reason to interfere with the finding of guilt or the sentence imposed.
6) Assimilating the evidence of the thirteen witnesses examined by the prosecution, the Court below held that the recoveries and arrest have been proved by cogent evidence. It was held that the nature of the seized materials was established as Fake Indian Currency Notes (FICN). The recoveries of the FICN from the appellant was effected from inside his under- wear. The Court below repelled the plea of the accused that there is no evidence that the accused had the knowledge or reason to believe that those notes were forged or counterfeit.
7) Having found that the recovery was effected from inside the under- wear of the accused and that the recovered materials were Fake Indian 4 Currency Notes, the Court below was justified in imputing the accused with knowledge about the nature of such incriminating material as being fake currency notes. Mens rea stood established and this is not one of those cases where the court assumes the absence of mens rea on the premise that the appellant innocently possessed the FICN or the fake currency notes came into his possession accidentally.
8) Assessing the material evidence on record, we are of the view that the Court below rightly negatived the argument on behalf of the accused that the allegation and the evidence do not disclose and prove an offence that would fall under Sections 489B and 489C of the IPC. The Court below was of the view that the defense plea in that regard is only to be rejected having regard to the possession of the counterfeit currencies by the appellant and Ajijur Rahaman whose case has been sent to the Juvenile Court. We do not find any infirmity in the appreciation of the evidence and the resultant conviction of the accused under Section 489C.
9) The Court below held that the accused Md. Sawkat Ali is a Bangladeshi national and 195 pieces of FICN were found from his possession. It was also noted that Ajijur Rahaman is an Indian and 100 pieces of FICN were found from his possession. According to the Court below, it is, therefore, apparent that either of the two has trafficked in or transacted FICN. The Court below was of the view that it would be a case where either the appellant Md. Sawkat Ali has given 100 pieces of FICN to Azijur Rahaman or Azijur Rahaman has transferred 195 pieces of FICN to the accused Sawkat Ali. On this premise, the learned Judge proceeded to 5 hold that had there been no transfer in between the said two persons, FICN would not have been found from the possession of both the accused. Hence, it was concluded that recovery of FICN from both the persons proves that there was a transaction of FICN at least as between the accused persons Md. Sawkat Ali and Ajijur Rahaman whose case has been sent to Juvenile Court. Except from stating that he has been falsely implicated, the appellant did not state anything worth considering in his statement under Section 313 of Cr.P.C. The FICN recovered from the appellant were found to be inside his underwear. Having regard to the nature of recovery and the manner in which the appellant was found to be in possession of the FICN in his underwear, it was definitely for him to discharge the burden of proof in terms of Section 106 of the Evidence Act. That has also not been done. The recovery from his companion Ajijur Rahaman was also from the underwear of that person. Active concealment by the accused and the person who was also arrested along with him and produced before the court below showed that they were involved in trafficking of fake currency notes as understood in law. Such possession is active transportation of fake currency notes and would amount to an offence punishable under Section 489B IPC as well. For support, see the decisions in CRA 562 of 2018 of this Court (Jubeda Chitrakar vs. The State of West Bengal) and the decision of Gujarat High Court in Rayab Jusab Sama vs. State of Gujarat reported in 1998 Cri LJ 942 and High Court of Madhya Pradesh(Jabalpur Bench) in Shabbir Sheikh vs. The State of Madhya Pradesh Crl. Appl. Nos. 162, 452 and 453/2015 relied on by this Court in CRA 562 of 2018. Hence, it is found 6 that the appellant is guilty of offences punishable under Sections 489B and 489C IPC.
10) On to the question of sentence, we may recall that 195 pieces of FICN of Rs. 500/- denomination were recovered from the appellant and 100 pieces of Rs. 500/- denomination FICN were recovered from Ajijur Rahaman. We are clear in our mind that the trial court was abundantly justified in taking the view that the legislature has given the message that reduction in sentence should be in exceptional circumstances and the factual scenario is that the appellant, who is a foreign national had entered India without a valid passport and visa and indulged in the criminal activity which is prejudicial to the interest of the State. The learned trial Judge has taken the view that the appellant's activity eloquently reveals that he, a foreign national, entered India with the sole object of spreading FICN, which is an activity destructive to the economic fabric of an independent State. This is essentially a case of corss-border activity prejudicial to the interest of Indian economy. Though the FIR was registered for offence punishable under Sections 489B/489C of Indian Penal Code and Section 4 of the Foreigners Act, no charge was framed under the Foreigners Act. While we affirm the approach of the court below on the principles of sentencing, we are of the view that taking into consideration the totality of the facts and circumstances and the quantity of FICN recovered from the appellant as well as the quantity of FICN on the possible transactions as between the appellant and Ajijur Rahaman, also balancing the incriminating and extenuating circumstances in the case in hand, ends of justice will be 7 satisfied and it would be prudent if the appellant is handed down rigorous imprisonment of ten years, instead of imprisonment for life, for the offences punishable under Section 489B IPC and the default sentence as regards payment of the fine imposed by the court below for offences punishable under Section 489B IPC is reduced to six month. The sentence imposed by the court below on the appellant for offences punishable under Section 489C IPC do not warrant any interference.
11) In the result, this appeal is allowed in part as follows:
i) The finding of guilt and the conviction of the appellant for offences punishable under Sections 489B and 489C are affirmed.
ii) The sentence imposed by the court below on the appellant under Section 489C is confirmed.
iii) The sentence imposed by the court below on the appellant under Section 489B is modified and reduced to be rigorous imprisonment for ten years and fine of Rs. 10,000/- in default of payment of which, to suffer imprisonment of six months.
iv) The substantive sentences of imprisonment shall run concurrently.
12) As already noted, the FIR was registered for offences punishable under Section 4 of the Foreigners Act as well. However, no charge was framed on that count. The address of the appellant, as reflected in the court papers including the impugned judgment as well as the Memorandum of Appeal, shows that the appellant is a Bangladeshi national. His statement under 8 Section 313 Cr.P.C. would also reflect it. That being so, if the jail and appropriate State authorities are satisfied that the appellant is a foreign national, not eligible to be in India in terms of law, requisite steps shall be taken to deport him out of India in accordance with law, upon release.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Arijit Banerjee, J.) (Thottathil B. Radhakrishnan, C.J.)