Calcutta High Court (Appellete Side)
Pradip Kumar And Others vs State Of West Bengal on 21 September, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.A. No.169 of 2014
with
C.R.A.N. No.995 of 2017
PRADIP KUMAR AND OTHERS
. . .APPELLANTS
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellant No.1 : Mr. Biswajit Manna, Adv.
Amicus Curiae for the : Mr. Saryati Dutta, Adv.
Appellant Nos.2 and 3
For the State/Respondent : Mr. Ayan Basu, Adv.
Heard on : 14th September, 2017.
Judgment on : 21st September, 2017.
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 12.2.2014 and 14.2.2014 passed by learned Additional Sessions Judge, 3rd Court, Malda, in Sessions Trial No.17 of February 2013 corresponding to Sessions Case No.171 of 2013 convicting the appellants herein for the commission of offence punishable under section 489C of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5000/- each, in default to undergo simple imprisonment for another period of six months more.
Prosecution case, as alleged, against the appellants is that on 21.2.2013 at about 13.45 hours an information was received at the Baisnabnagar police station relating to procurement and transportation of large amount of Fake Indian Currency Notes ( for short 'FICNs') through New 18 Mile More; such information was diarized at the police station being G.D. Entry No.822 dated 21.2.2013; as per direction of I.C., Baisnabnagar, A.S.I. Sunirmal Singha and other police officers went to New 18 Mile More to work out the information after lodging general diary being G.D. No.823 dated 21.2.2013. On reaching New 18 Mile More at about 14.15 hours, they started patrolling the area and at about 14.35 hours they noticed three persons loitering at 18 Mile More. As per identification by the source, the raiding party detained those three persons and the aforesaid persons were thereafter searched in presence of local people. 100 pieces of FICNs amounting to Rs.50,000/- of denomination of Rs.500/- each were recovered from a black coloured plastic carry bag concealed in the left side pocket of pant of the appellant No.1, Pradip Kumar and 50 pieces of FICNs amounting to Rs.25,000/- of denomination of Rs.500/- each were recovered from the appellant Nos.2 and 3. Other articles such as mobile phone, ATM cards, PAN cards, voter cards were also seized under proper seizure list and the seized articles were labelled in presence of witnesses. Upon interrogation, the appellants admitted that they had procured the FICNs from Sahabjpur under Kaliachak police station in order to use them as genuine. The appellants were arrested and S.I. Ramprasad Chakladar (P.W.1) lodged complaint at the police station resulting in registration of Baisnabnagar P.S. Case No.45 of 2013 dated 21.2.2013 under sections 489B/489C/120B of the Indian Penal Code against the appellants. In the course of investigation, the seized FICNs were sent for examination at Bharatiya Reserve Bank Note Mudran Pvt. Ltd. and on receipt of report, charge-sheet was filed against the appellants. The case was committed to the Court of Sessions and charges were framed under sections 489B/489C/120B of I.P.C. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined nine witnesses and exhibited a number of documents including the expert report (Exhibit-12). Prosecution also exhibited the FICNs in Court. In conclusion of trial, the learned Sessions Judge by judgment and order dated 12.2.2014 and 14.2.2014 convicted and sentenced the appellants, as aforesaid.
Learned counsels appearing for the appellants submitted that the prosecution case has not been supported by the independent witnesses, namely, Anarul Sk. (P.W.2) and Saifuddin Sk. (P.W.3). Evidence of the official witnesses are inconsistent to one another and are contrary to the materials on record. General diary recorded in the instant case does not show that P.W.1 had gone to the place of occurrence for conducting the raid. There is also confusion as to the place where the incident occurred and it appears that the seized articles were not labelled at the place of occurrence. There is nothing on record to show that the seized FICNs were handed over to the duty officer of the police station and, therefore, there is a break in the live link between the seized articles and those sent for forensic examination. Hence, the appellants ought to be acquitted from the instant case.
On the other hand, learned lawyer appearing for the State/respondent submitted that the evidence of official witnesses clearly established the seizure of FICNs from the possession of the appellants. The articles were duly seized and sealed and sent for forensic examination. Moreover, expert report which has been exhibited in the instant case shows that the currency notes were fake. Minor discrepancy in the evidence of the witnesses does not affect the genuineness of the case. Independent witnesses were won over and, therefore, did not support the prosecution case. Hence, the prosecution case has been proved beyond reasonable doubt.
P.W.1, Ramprasad Chakladar who is the de facto complainant in the instant case deposed that on 21.2.2013 he was posted at Baisnabnagore police station as S.I. of Police. On that day at about 01.45 p.m. he received secret source information that few persons were proceeding towards Bihar from New 18 Mile More with FICNs. He lodged general diary at Baisnabnagar P.S. being G.D.E. No.822 dated 21.2.2013 (Exhibit-1). As per direction of I.C., Baisnabnagar he along with A.S.I., Sunirmal Singh and others left the police station for 18 Mile More after lodging general diary being G.D.E. No.823 dated 21.2.2013 (Exhibit-2). They reached 18 Mile More at about 14.15 hours. The source indicated three persons near 18 Mile More. They apprehended those persons in the presence of local witnesses. He requested Anarul Sk. (P.W.2) and Sifuddin Sk. (P.W.3) to join the search. He asked the witnesses and the suspects to search the raiding party but they refused to do so. The suspects disclosed their identities. Thereafter, they were searched and 100 pieces of FICNs of denomination of Rs.500/- amounting to Rs.50,000/- wrapped in a black coloured plastic carry bag were recovered from the left side pant pocket of appellant No.1. On further search of his right side pocket, two debit cards, namely, one of Gold Plus in the name of Rita Debi, another of Global in the name of Rajkumar Mehata, one voter's identity card in the name of Pradip Kumar and one Nokia mobile phone were recovered. On similar search of appellant No.2, Sonu Kumar, 50 pieces FICNs of denomination of Rs.500/- amounting to Rs.25,000/- were recovered from right side pocket wrapped in a black coloured plastic carry bag. Apart from that, three debit cards, - two international debit cards and one visa, one mobile phone, voter's identity card and PAN card of appellant No.2 were also recovered. Upon search of appellant No.3, Vishal Kumar, 50 pieces of FICNs of Rs.25,000/- of denomination of Rs.500/- wrapped in a black coloured plastic carry bag were recovered from the right side pocket of his pant. That apart, two debit cards, PAN card and mobile phone were also seized. He seized all the FICNs and other articles under a seizure list. The articles were labelled and he took signature of the appellants and the witnesses. He proved the seizure list (Exhibit-3). On interrogation, the appellants confessed that the currency notes were fake and they had been procured from Sahabajpur under Kaliachak P.S. and were intended to be used as genuine in the State of Jharkhand. The appellants were arrested and brought along with seized articles to the police station. He lodged complaint dated 21.2.2013 (Exhibit-4). After return to the police station he lodged general diary being No.826 dated 21.2.2013. He identified the FICNs and other articles which had been seized from the appellants as Mat. Exhibits-I to XVIII. In cross-examination, he stated that the distance between Baisnabnagar P.S. and New 18 Mile More is about 6/7 km. He admitted that there was a place called Old 18 Mile More and New 18 Mile More was also called as 18 Mile More. He admitted that it is not stated in G.D.E. No.826 dated 21.2.2013 (Exhibit-9) that he sealed and labelled the recovered articles at the spot. He admitted in G.D.E. No.823 dated 21.2.2013 (Exhibit-2) and in the written complaint (Exhibit-4) excepting the name of S. Singha, the names of other members of the raiding party have not been mentioned.
P.W.4, Md. After Hossain deposed that on 21.2.2013 he was posted at Baisnabnagar police station as constable. He accompanied P.W.1 and A.S.I. Sunirmal Singha (P.W.7) went to New 18 Mile More for working out secret information that a few persons were transporting FICNs near New 18 Mile More. He has corroborated the evidence of P.W.1. He has proved his signature on the seizure list and identified the FICNs in Court.
Similarly, P.W.5, Dibendu Majumdar who was posted as Constable on 21.2.2013 has corroborated the evidence of P.W.1 and P.W.4. He has identified his signature on the label as well as seizure list. He identified the FICNs in Court.
P.W.6, Sukumar Mondal who was posted as Homeguard at Baisnabnagar P.S. on 21.2.2013 stated that he accompanied the raiding party on the date of occurrence to New 18 Mile More. He has corroborated the evidence of P.W.s 1, 4 and 5. He proved his signature on the seizure list. He has also identified the FICNs in Court.
P.W.7, Sunirmal Singha was posted as A.S.I. of Police at Baisnabnagar P.S. On 21.2.2013 at about 1.00 p.m. he accompanied P.W.1 to New 18 Mile More along with other members of the raiding party. He was present at the time of search and seizure from the possession of the appellants. He corroborated the evidence of P.W.1 and other members of the raiding party. He proved his signature on the label as well as the seizure list. He identified the seized FICNs and other articles seized from the possession of the appellants.
P.W.8, Manik Debnath received the complaint from P.W.1. He drew up the formal F.I.R. (Exhibit-10).
P.W.9, Abhijit Bhowmik is the investigating officer in the instant case. He examined the complainant. He interrogated the accused persons. He visited the place of occurrence. He prepared the rough sketch map along with index (Exhibit-11 and 11/1). He examined available witnesses at the place of occurrence. He examined members of raiding party. He conducted raid at various places. During police custody of the appellants no incriminating articles were recovered. He sent FICNs to Bharatiya Reserve Bank Note Mudran Pvt. Ltd., Salbani on 10.3.2013 for examination by expert. He contacted Bharatiya Reserve Bank Note Mudran Pvt. Ltd., Salbani on 24.4.2013 for getting report and was informed that the report was already ready for delivery. On 27.4.2013 he received the examination report from Bharatiya Reserve Bank Note Mudran Pvt. Ltd., Salbani in respect of the seized FICNs being reference No.655/(S) 21.02.02/2013-14 dated 25.4.2013. He has proved the examination report (Exhibit-
12). He proved the currency notes which were sent by him to expert. After receipt of report he submitted charge-sheet. In cross-examination, he stated that he examined the witnesses, namely, Anarul Sk. and Saifuddin at the place of occurrence on 21.2.2013 at 20.55 hours. The witnesses had not been kept under guard by the police. The house of Anarul Sk. is situated at Old 18 Mile More which was three miles away from the place of occurrence and the house of Saifuddin is at Jaladitola. He sent the seized currency notes to the Court of ld. C.J.M., Malda on 4.3.2013 for sending the same for expert's report. The seized currency notes were kept at malkhana of the police station till they were sent for expert's opinion. The currency notes seized in connection with different cases under Baisnabnagar P.S. were kept at malkhana of the P.S. He did not examine malkhana officer of the P.S. He did not seize the property register of the Malkhana. He received the seized currency notes from malkhana officer. It was not mentioned in the forwarding report (Exhibit-A) dated 22.2.2013 that he examined witnesses on 21.2.2013 and prepared rough sketch map of the place of occurrence. Serial number of one note was mentioned and serial number of the other notes were not mentioned in Exhibit-12. The seized currency notes were sent to the Bharatiya Reserve Bank Note Mudran Pvt. Ltd. by constable Sankar Prasad. He did not examine constable Sankar Prasad.
Anarul Sk. (P.W.2) and Saifuddin Sk. (P.W.3) are the independent witnesses of the seizure. They proved their signatures on the seizure list as well as the labels. However, they did not support the prosecution case and were declared hostile. They have extensively been interrogated in respect of their previous statement to the police.
From the evidence on record it appears that secret information was received at Baisnabnagar P.S. with regard to illegal transportation of FICNs near New 18 Mile More. The fact was diarized and P.W.1 along with other police officers went out to work out such information at the place of occurrence. The force identified three persons who disclosed their identities as the appellants and upon search 100 pieces of FICNs of denomination of Rs.500/- each were recovered from the possession of the appellant No.1 and 50 pieces of FICNs of denomination of Rs.500/- each were recovered from the possession of the appellant Nos.2 and 3 respectively. The articles were seized under a seizure list and labelled. The appellants were arrested and brought to the police station with the seized articles and the instant case was registered.
It has been argued that there is discrepancy as to the place of occurrence. There is another place, namely, Old 18 Mile More which is far away from the place of occurrence and it is unclear where the alleged seizure took place. P.W.1, the de facto complainant has explained away such apparent discrepancy stating that New 18 Mile More is also known as 18 Mile More and, therefore, there is no discrepancy as to the place of occurrence in the instant case. It has also been argued that presence of P.W.1 is not noted in the F.I.R. or the general diary being G.D.E. No.823 dated 21.2.2003 (Exhibit-2) and the written complaint (Exhibit-4). P.W.1 was the leader of the raiding party and had lodged the F.I.R. himself. He had prepared the seizure list and labelled the FICNs. Exhibit-4, the written complaint is authored by P.W.1 himself and G.D.E. No.823 (Exhibit-2) dated 21.2.2013 speaks of presence of other police officer along with P.W.7 who went from the police station to work out the secret information. Hence, it is of little consequence that the name of P.W.1 is not reflected in the aforesaid general diary (Exhibit-2) and such omission in the face of overwhelming evidence as to the presence of P.W.1 at the time of seizure by no stretch of imagination affects the genuineness of the prosecution case. It has further been contended that there is a snap in the live link between incriminating articles, that is, seized FICNs and their examination at Salbani as the malkhana register was not seized and the malkhana officer had not been examined. It is also submitted that there is confusion as to where seized articles were labelled at the spot. I am unable to accept such contentions. The numbers of the seized FICNs were stated in the contemporaneous documents like the seizure list and the general diary recorded at the time of seizure. FICNs which were sent for examination at Salbani and those produced in the Court also bore the same numbers. In view of such fact, I am of the opinion the live link between the FICNs seized and those examined at Salbani cannot be discredited by reference of minor contradictions in the evidence of prosecution witnesses. Finally, it has been submitted that the official witnesses ought not to be believed as their version is not supported by the independent witnesses. P.W.2 and P.W.3 were declared hostile as they had resiled from their earlier statements to the investigating officer (P.W.7). Cross-examination of P.W.s 2 and 3 clearly established that they were unreliable witnesses who had resiled away from their earlier statements to the police and, therefore, I am of the opinion that the consistent official version of the prosecution witnesses cannot be disbelieved on such score.
In view of the aforesaid discussion, conviction and sentence of the appellants are thus upheld.
The appeal along with the application is accordingly dismissed. The period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure.
A copy of the judgement along with L.C.R. be sent down to the trial Court at once for necessary action.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
(JOYMALYA BAGCHI, J.) PA to J. Bagchi, J.