Calcutta High Court (Appellete Side)
Eunus Ali Mondal vs The State Of West Bengal on 8 December, 2022
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 2111 of 2019
Eunus Ali Mondal
Vs
The State of West Bengal.
For the Petitioners : Mr. S. Lahiri,
Mr. S. Azam.
For the State : Mr. S.G. Mukherjee,
Mr. A. Ganguly,
Mr. S. K. Das.
Heard on : 23.11.2022
Judgment on : 08.12.2022
2
Shampa Dutt (Paul), J.:
The revisional application has been filed praying for quashing of proceedings being G.R. 816 of 2016 arising out of Beliabera Police Station Case No. 85/2016 dated 06.12.2016 pending before the Court of the learned Additional Chief Judicial Magistrate II, Jhargram, Paschim Medinipur, alleging commission of offence under Section 379/411/120B of the Indian Penal Code added Section 489A/489B/489C of the Indian Penal Code.
The petitioner/accused's case is to the effect that G.R. 816 of 2016 arising out of Beliabera Police Station Case No. 85/2016 was registered on the basis of a complaint lodged by Sub-Inspector of police Anup Hembram. The allegations in the said complaint is that on 06.12.2016 at around 13.15 hours when the complainant was on mobile duty, he received an information from a reliable source to the effect that one lorry bearing no. WB-25F-2474 was parked near Feko Hat and one person aged about 37 years with black complexion, short height was inside the driver cabin of the said lorry. He was carrying a nylon bag containing old currency notes which was illegal, after declaration of demonetization by the Government of India. The complainant along with other police officers left for Feko Haat to work out the information and on the way they took two witnesses and after reaching there, on being identified by the source, they located the said lorry and a person matching the said description inside the driver cabin of the lorry. On disclosure of the identity of the said person to be Dulal Mondal, a medium seized nylon bag containing some suspicious articles wrapped with newspaper was found in his 3 possession. On interrogation the said Dulal Mondal stated before the complainant party that the said bag contained old currency notes of different denominations which were declared to be void by Government of India due to demonetization. Dulal Mondal allegedly also stated that those currency notes were given to him by the petitioner and that he was asked by the petitioner to hand over the said old currency notes to one person and in lieu of that he was supposed to be handed over new Indian currency notes. As Dulal Mondal could not divulge the actual source of the money, a presumption was drawn by the complainant party to the effect that such currency notes were presumed to have been procured either by theft or fraudulent means.
All together 21 pieces of 1000 rupee old currency notes and 58 pieces of 500 rupee old currency notes were seized by the complainant from the custody of Dulal Mondal under a seizure list dated 06.12.2016.
The seized currency notes were sent to the Bharatiya Reserve Bank Note Mudran Private Limited to determine the genuinity vide order dated 12.12.2016 passed by the learned Additional Chief Judicial Magistrate, Jhargram, Paschim Medinipur.
Out of those seized currency notes, one 500 rupee currency note bearing No. 7NV 968734 was found to be not genuine, by virtue of the report forwarded by the Assistant General Manager (PP) of Bharatiya Reserve Bank Note Mudran Private Limited dated 19.12.2016 and as such a prayer was forwarded by the investigating agency to add Section 489A/489B/489C of the Indian Penal 4 Code, which was allowed by the learned Additional Chief Judicial Magistrate, Jhargram, Paschim Medinipur on 26.12.2016.
After completion of investigation the investigating officer submitted charge-sheet vide Beliabera Police Station Charge Sheet no. 05/18 dated 31.01.2018 under Section 379/411/120B of the Indian Penal Code added Section 489A/489B/489C of the Indian Penal Code against the said Dulal Mondal and the petitioner.
Mr. Satadru Lahiri, learned Counsel for the petitioner has argued that from the charge sheet, it is clear that the petitioner was neither present at the place of occurrence nor any incriminating article were seized from the possession of the petitioner. It is further submitted that the vehicle from which the incriminating articles were allegedly recovered is also not registered in the name of the petitioner. The petitioner has been implicated falsely with malafide intention only on the basis of statement made by accused Dulal Mondal. Other than the said statement of Dulal Mondal there is no other substance or evidence in support of the offences alleged against the petitioner. The alleged articles were seized from the exclusive possession of Dulal Mondal and the petitioner being implicated in this case is a result of a deep rooted criminal conspiracy at the behest of the investigating agency.
It is submitted that it is settled position of law that only on the basis of the inculpatory extra judicial statement of the co-accused particularly before the police authority during custody so recorded under Section 161 of the Code of Criminal Procedure and not being corroborated by any 5 independent and cogent evidence, the proceeding should not continue any further since conviction cannot be sustained on the basis of the same and hence the said proceeding is liable to be quashed by this Hon'ble Court.
The allegations so ventilated in the complaint as well as the statements of the witnesses so recorded under Section 161 of the Code of Criminal Procedure coupled with the other incriminating materials collected during investigation, does not project any averment relating to the involvement of the petitioner in selling or buying or receiving from any other person or otherwise trafficking in or using as genuine any forged or counterfeit currency note or bank note knowing or having reason to believe the same to be forged or counterfeit and hence the said proceeding is liable to be quashed by this Hon'ble Court.
The charge under Section 379/411 of the Indian Penal Code and the charge under Section 489A/489B/ 489C of the Indian Penal Code cannot go together because both are conflicting and/or contradictory in nature to each other and as such there being no recovery from the possession of the petitioner and the petitioner being implicated in this false case only on the basis of a statement of a co-accused while in custody without any other substantive corroborative evidence against the petitioner the total investigation which ended in a charge sheet is liable to be quashed in the interest of justice and to prevent abuse of process of law by the investigating authority.
Learned Public Prosecutor has filed a copy of the case diary and submitted that there is sufficient material in the case diary against the present 6 petitioner and the offence alleged being very serious and the investigation having ended in charge sheet on findings of a prima facie case against the accused/petitioner if the present proceedings are quashed there will be serious miscarriage of justice.
It is further submitted that the said currency notes were sent for forensic examination and the report received from the expert shows that one old currency note of Rs. 500 No. 7NV968734is a high quality counterfeit note.
It is further submitted that from page 111 of the case diary, which relates to the details of the vehicle no. WB-25F-2474 from which alleged articles were seized in this case, is registered in the name of the present petitioner Eunus Ali Mondal. The said documentary evidence relating to the incriminating vehicle which stands in the name of the petitioner herein as the registered owner, goes to show that there is clear evidence against the present petitioner being involved in this serious offence. The statement of the co- accused is an additional piece of evidence. The quality of the evidence collected by the investigating agency clearly makes out a cognizable case against the petitioner and as such the revisional application is liable to be dismissed. A memo of evidence has been filed by the officer-in-charge of Beliabera Police Station, Jhargram stating the materials collected by the investigating officer.
The case diary placed includes the statements of several witnesses implicating both the accused persons, which includes the petitioner. From the statement of accused Dulal Mondal recorded on 20.12.2016 it has transpired that on 06.12.2016 Dulal along with other persons had been to Feko Haat with 7 two vehicles to purchase cow and calf with the FICN and demonetized currency notes. One vehicle was with number plate WB-25F-2474 and the other vehicle in which other persons were travelling had the no. WB-25B-4025. A sum of rupees 50,000 and vehicle no. WB25F2474 (registered in the name of the present petitioner) was recovered from the possession of Dulal Mondal. The other persons fled away leaving behind the other vehicle bearing no. WB- 25B-4025. The seizure list supports the evidence that vehicle no. WB-25F- 2474 was seized from accused Dulal Mondal along with the demonetized currency and FICN. Report from the concerned authority shows that the said vehicle is registered in the name of the petitioner herein.
Learned Counsel for the petitioner has relied upon a judgment of the Supreme Court in Criminal Appeal No. 714 of 2019 Dipakbhai Jagadishchandra Patel vs. State of Gujarat and Anr., wherein in paragraph 51, the Court held:-
"51. We also notice the following statement in judgment rendered by Bench of seven learned Judges in Haricharan Kurmi v. Sate of Bihar17:
"As a result of the provisions contained in S.30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S.30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession 8 of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is 17 AIR 1964 SC 1184 (quoted portion at page 1184) permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
Thus, the confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt."
52. Proceeding on the basis that it is a confession by a co-accused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offences (ignoring the fact that other accused are absconding and appellant appears to be proceeded against on his own) and having found that there is no recovery from the residence of the appellant of the counterfeit notes and that there is no other material on the basis of which even a strong suspicion could be aroused............"
In the present case the confession of a co-accused is not the sole evidence collected by the investigating agency. One of the most important piece of evidence is that the vehicle from which the incriminating articles were seized is registered in the name of the present petitioner. In addition there are 9 statements of the co-accused and other witnesses. The evidence as collected by the investigating agency in this case prima facie shows that there is sufficient material against the present petitioner connecting him with the incident in this case and the offence as alleged therein. As such the said judgment relied upon by the petitioner does not help his case.
Another judgment of a coordinate bench of this Court reported in (2022 SCC Online Cal 2451), Anikul and Anr. Vs. State of West Bengal & Ors. (CRA 123 of 2019, CRA 37 of 2019, CRA 189 of 2017 and CRA 702 of 2018) decided on 29.08.2022 has been placed before this Court by the counsel for the petitioner submitting that the points referred by the said bench by way of reference to a larger bench are required to be decided in respect of the present petitioner also in connection with this case. In the said judgment in para 40 the Court held:-
"40. Thus the term 'possession' in some of the judgments have been interpreted to have an extended meaning equivalent to 'otherwise traffics in' while a set of judgments have refused such an interpretation. In view of such conflicting decisions referred to above as has been pointed out by the learned Advocates appearing for the State as well as the appellants, I am of the opinion that the following issues arise for reference to be decided by a Larger Bench:
1) Whether the aid of 'presumption' is available when the seizure of FICN is effected from the possession of an individual?
2) If quantity/volume of FICN is a ground of 'presumption', what would be the cut off 10 number for presuming that the 'possession' was for the purpose of 'otherwise traffics in'?
3) When substantial number of FICN are recovered from the possession of a security personnel associated with the Government i.e. Police, CISF, Defence Forces etc. can it be presumed that the ingredients of the term 'otherwise traffics in' used in Section 489B of the Penal Code, 1860 is automatically attracted?
4) Do seizure from the possession of an individual of High Quality Counterfeit Notes (as referred to in the provisions of UAPA, 1967), opined by an Expert automatically attract the provisions of Section 489B of the Penal Code, 1860?"
In the present case also the said questions raised are very relevant and important for its proper adjudication and the facts and circumstances of the case in Anikul and Anr. Vs. State of West Bengal & Ors., (CRA 123 of 2019, CRA 37 of 2019, CRA 189 of 2017 and CRA 702 of 2018) decided on 29.08.2022, is very similar to the facts and circumstances of the present case before this Court. Considering the said circumstances the present matter should also be referred to the larger bench for deciding the said issues to avoid conflicting decisions.
Accordingly let the records of CRR 2111 of 2019 be also placed before the Hon'ble Chief Justice, High Court, Calcutta for necessary directions with CRA 123 of 2019, CRA 37 of 2019, CRA 189 of 2017 and CRA 702 of 2018.
Let a copy of this judgment be sent to the Trial Court at once. Case diary be returned.
11Urgent Photostat Certified copy of this Judgment, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Shampa Dutt (Paul), J.) Later After the judgment is delivered in open Court, learned Counsel for the petitioner prays for stay of the proceedings before the learned Trial Court. It is submitted that during pendency of the reference, the Trial Court in the absence of an order of stay may proceed with the trial causing prejudice to the petitioner. Considering the said circumstances, prayer for stay is allowed. Let there be an order of stay in respect of G.R. Case No. 816 of 2016 pending before the learned Additional Chief Judicial Magistrate II, Jhargram, Paschim Medinipur, till final disposal of the reference.
(Shampa Dutt (Paul), J.)