Calcutta High Court (Appellete Side)
Prabir Naskar vs State Of West Bengal And Another on 25 August, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. NO.9 OF 2016
PRABIR NASKAR
. . .APPELLANT
VERSUS
STATE OF WEST BENGAL AND ANOTHER
. . .RESPONDENTS
WITH
C.R.A. NO.135 OF 2016
BAPI @ AKHTAR ALI SARKAR AND OTHERS
. . .APPELLANTS
VERSUS
THE CENTRAL BUREAU OF INVESTIGATION
. . .RESPONDENT
Mr. Sekhar Basu, Sr. Adv.
Mr. Souvik Mitter, Adv.
Mr. D.C. Kabir, Adv.
Mr. M. Mukherjee, Adv.
. . .For The Appellant in
C.R.A. No.9 of 2016
Ms. Anasuya Sinha, Adv.
Mr. A. De, Adv.
. . .For The Appellant in
C.R.A. No.135 of 2016
Mr. Ayan Basu, Adv.
. . .For The State
Mr. Asraf Ali, Adv.
Mr. Sankar Banerjee, Adv.
. . .For The CBI
Heard on: 10.1.2017, 24.1.2017, 23.2.2017, 20.7.2017, 1.8.2017 & 8.8.2017
Judgement on: 25.8.2017
Joymalya Bagchi, J. :
Both these appeals are directed against judgment and order of conviction and sentence dated 29.12.2015 passed by Special Judge, CBI Court, Alipore, South 24 Parganas in Special Case No.12/12 (Barasat) arising out of Rajarhat P.S. case No.194 dated 15.6.2002 convicting the appellants for commission of offence punishable under sections 120B/259/489C of Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years each and to pay a fine of Rs.20,000/- each in default to suffer further rigorous imprisonment for six months each for offence punishable under section 120B of I.P.C., to suffer rigorous imprisonment for seven years each and to pay a fine of Rs.1,00,000/-each in default to suffer further rigorous imprisonment for one year each for the offence punishable under section 259 I.P.C. and to suffer rigorous imprisonment for seven years each and to pay a fine of Rs.1,00,000/- each in default to suffer rigorous imprisonment for one year each for the offence punishable under section 489C of I.P.C. All the sentences are to run concurrently.
Prosecution case, as alleged, against the appellants is to the effect that on 15.6.2002 Ashoke Singha Roy (P.W.17), Circle Inspector of Police, Barasat, received information from S.I. Sankar Chowdhury (P.W.22), Officer-in-Charge of Baguihati Investigation Centre that one Sushil Haldar had been apprehended on the suspicion of using a fake hundred rupee note at the grocery shop of one Gour Haldar and on interrogation, he confessed that he had been given twenty Fake Indian Currency Notes (for short 'FICNs') by one Bapi @ Akhtar Ali Sarkar of Hatiara Mitra Para and he had already used fourteen of such notes and remaining FICNs were with him. S.I. Sankar Chowdhury (P.W.22) seized the said FICNs from Sushil Haldar and intimated the fact to P.W.17 who on receipt of the information proceeded to Hatiara Mitra Para to work out the same. Thereafter, the raiding party under the leadership of P.W.17 raided Bapi Jewellery Shop owned by Bapi @ Akhtar Ali Sarkar and in the course of such raid the following articles were recovered from a white coloured polythene bag kept in the said jewellery shop:-
1. 8 numbers of FICNs of Rs.500 denomination bearing Sl. No.3AH244282 and
2. 10 numbers of FICNs of Rs.100 denomination each bearing Sl.
No.8EL565345 each.
Police seized the said articles and the accused Bapi @ Akhtar Ali Sarkar was arrested. He stated that he had received the FICNs from one Md. Ishaq Biswas @ Ichha and pursuant to his statement a raid was conducted at the rented house of Md. Ishaq Biswas @ Iccha where he was found, along with Sabir Ali Biswas, Abdul Salam and Reajur Mondal. The following articles were recovered from the house of Md. Ishaq Biswas:-
1. 45 pieces of forged Indian Non Judicial Stamp Papers of Rs.500 each.
2. 6 pieces of forged Indian Non Judicial Stamp Papers of Rs.1000 each.
3. 4 pieces of forged Indian Non Judicial Stamp Papers of Rs.5000 each.
4. 20 pages of forged Share Transfer Stamps of Rs.5, each page containing 100 pieces of stamps.
5. 65 pages of forged Foreign Bill Stamps of Rs.100 each page containing 90 pieces of stamps.
6. 187 pages of forged Broker's Note Stamps of Rs.100 each page contains 100 pieces of stamps.
7. 6 Chambered Automatic Revolver of .38 bore made in Japan with 2 rounds of live ammunitions.
8. 29 pieces of FICNs, denomination of Rs.100 having each Sl.
No.8EL565346 each.
9. 22 pieces FICNs of Rs.500 each having Sl. No.24E271847.
10. 1 Steel Almirah.
Articles described in serial Nos.1 to 7 were recovered from a bag in the bedroom of Md. Ishaq Biswas @ Iccha as shown and handed over by him. Articles described in serial Nos.8 and 9 were recovered from his almirah. The accused Md. Ishaq Biswas @ Ichha was arrested. Ten numbers of FICNs were recovered from the shirt pocket of accused Sabir Ali Biswas, twenty-one numbers of FICNs of Rs.100/- denomination having serial No. 8EL 565346 were recovered from the shirt pocket of Abdul Salam and fifteen FICNs of Rs.100/- denomination each having Sl. No 8EL 565344 were recovered from the shirt pocket of the accused Reajur Mondal. All the accused persons were arrested. The accused Md. Ishaq Biswas @ Iccha stated that he received the FICNs and other fake stamp papers from one Prabir Naskar and pursuant to his statement and as shown by the said accused, the residence of Prabir Naskar at Hatiara Naskar Para was raided. Prabir Naskar was not found at his residence but the following articles were seized from a polythene bag kept in a Maruti Zen bearing registration No.WB 20C-1712 parked inside his residential complex :-
1. 105 pages of forged Broker's Note Stamps, each page containing 100 stamps of Rs.10 denomination.
2. 6 pages of forged Indian Non-Judicial Stamp Papers of Rs.5000 denomination.
3. 16 numbers of FICNs of Rs.100 denomination having Sl. No.8EL565345 each.
4. 10 numbers of FICNs of Rs.500 denomination having each Sl. No.3AH 244282.
5. One Seimen's Mobile.
6. 2 Walkie Talkie sets made MORSECODE.
7. 1 dressing table
8. 1 showcase.
Police also seized the following articles from a polythene bag kept and sealed in the rear of another Maruti Omni Van bearing registration No.WB Q02-2525 which was also parked in the residence of Prabir Naskar:-
1. 35 pages forged Share Transfer Stamps, each page containing 100 stamps of Rs.5 denomination.
2. 43 pages forged Share Transfer Stamps, each page containing 100 stamps of Rs.10 denomination.
3. 31 pages of forged Foreign Bill Stamps each containing 90 stamps of Rs.100 denomination.
4. 30 pieces of forged Indian Non-Judicial Stamp Papers of Rs.500 denomination.
5. 5 pieces of forged Indian Non-Judicial Stamp Papers of Rs.500 denomination.
6. 5 pieces of forged Indian Non-Judicial Stamp Papers of Rs.1000 denomination.
Thereafter, the police raided the house of one Swapan Bhattacharjee at Hatiara, Sukantanagar under P.S.-Rajarhat and recovered the following articles:-
1. 18 pieces of FICNs of Rs.500 each bearing Sl. No.1EK076824.
2. 34 pieces of FICNs of Rs.100 denomination having Sl. No.8EL565345.
The police took the arrested accused persons, along with the seized alamats to Rajarhat police station and Rajarhat P.S. Case No.194 dated 15.6.2002 under sections 120B/259/489C was registered for investigation against the aforesaid accused persons. Investigation of the case was taken up by Mani Sankar Sengupta (P.W.20). In the course of investigation, P.W.20 recovered the following articles from the residence of Md. Ishaq Biswas:-
1. 1 Panasonic Mobile Phone IMEA No.449123902860955.
2. 5 pieces of FICNs of Rs.100 each having Sl. No. 8EL565346.
3. 6 pieces of Indian Non-Judicial Stamp Papers of Rs.500 denomination.
4. 11 pages of Foreign Bill Stamps of Rs.100, each page containing 90 pieces of stamps.
5. 10 pages of Share Transfer Stamps each page containing 100 pieces of stamps of Rs.10.
6. 1 Kelvinator fridge.
Md. Ishaq @Iccha also admitted that he supplied forged share transfer stamps, foreign bill stamps, broker's notes stamps and Indian non-judicial stamp papers to one Barun Dey. Based on such information, search was also conducted by investigating officer in the house of Barun Dey and the following articles were recovered:-
1. 100 pieces of Foreign Bill Stamps of Rs.100 denomination each.
2. 100 pieces of Foreign bill stamps of Rs.100 denomination each.
3. 100 pieces of Foreign Bill Stamps of Rs.50 denomination each.
4. 100 pieces of Foreign Bill Stamps of Rs.50 denomination each.
5. 100 pieces of Foreign Bill Stamps of Rs.50 denomination each.
6. 20 pieces of Share Transfer Stamps of Rs.50 denomination each.
7. 2 diaries etc. Subsequently, the investigation was transferred to CID, West Bengal and was taken over by Nikhilesh Roy (P.W.18) and thereafter by Ashoke Kumar Mondal (P.W.19). P.W.19 sent the articles for examination before FSL, Kolkata who, however, were unable to verify the said articles and returned them with suggestion that the articles be sent to Nashik for examination. Thereafter, the articles were sent to Nashik for examination through S.D.J.M., Barasat.
Pursuant to the order passed by the Apex Court in W.P. (Crl.) No.1/2004 dated 16.3.2004 the investigation was transferred to CBI and was taken over by P.W.23. P.W.23 sent the FICNs, fake stamp papers for examination at Nashik, Maharashtra. In the course of investigation, he received report from Nashik being Exhibit-70 and 95 and 95/1 respectively stating that the stamp papers and FICNs were counterfeit. In conclusion of investigation, charge-sheet was filed against the appellants and one Swapan Bhattacharjee. The case was transferred to the Special Court for trial and disposal. Charges were framed under sections 120B/259/489C of I.P.C. against the appellants and under section 25(b) of the Arms Act against Md. Ishaq Biswas @ Ichha. In the course of trial the accused Swapan Bhattacharjee had absconded, however, the trial proceeded against the other accused persons.
Prosecution examined twenty-three witnesses and exhibited a number of documents to prove its case. The defence of the appellants was one of innocence and false implication in the instant case. They, however, did not examine any witnesses to probabilise their defence.
In conclusion of trial, the trial Judge by judgment and order dated 29.12.2015 convicted and sentenced the appellants as aforesaid. However, Md. Ishaq Biswas @ Ichha was acquitted of the charge under section 25(b) of the Arms Act as the sanction for prosecution under the Arms Act could not be proved.
Learned senior counsel appearing for Prabir Naskar argued that there was no evidence led by the prosecution to establish the charge of conspiracy against the appellant. Simultaneous seizures per se would not establish prior meeting of minds between the appellants and reliance on statements of co-accuseds before the police in that regard is of no evidentiary value. All the independent witnesses have been declared hostile and, therefore, it is dangerous to rely on the evidence of the official witnesses with regard to the alleged seizures made from the appellants. There was serious infirmity in the sealing, labelling, and seizure of the seized articles. There is no evidence as to where the articles were kept after seizure and it has transpired from the evidence of P.W.19 that instead of keeping the articles in the malkhana the seized articles were kept in his personal almirah. P.W.23 reseized the articles which is impermissible in law and without permission of the Court, had opened the envelopes containing the seized FICNs and stamp papers clearly affecting the sanctity of the seizure and due preservation of the seized articles. Hence, the live link between the seized articles and those examined by the expert at Nashik had been snapped and the prosecution case is liable to be dismissed on this score alone. It was further submitted that non-examination of the expert who examined the FICNs had caused prejudice to the appellants.
Learned counsel appearing for the appellant in C.R.A. No.135 of 2016 adopted the submission of the learned senior counsel. It was further submitted that there is no clarity as to the identity of the stamp papers seized from the possession of the respective appellants and in the light of the fact that some of the stamp papers were found to be genuine affixation of culpability on each of the appellants was not found possible in the facts of the case.
On the other hand, learned counsel for the CBI submitted that the evidence of P.W.17 was corroborated by P.W.21 and P.W.22 with regard to the search and seizure of the FICNs and stamp papers from the appellants. The appellants had not only made statements to the police officers but also led them to search in the specific hide outs from where the incriminating articles were recovered clearly disclosing a close nexus inter se in the commission of offence. It was also argued that the cogent and convincing evidence of the official witnesses should not be ignored as it appears that the other witnesses had been won over due to prolonged and protracted delay in trial and their cross-examination clearly revealed that they had resiled from the earlier statements recorded before the investigating officer. The seized FICNs and the stamp papers were duly signed by the independent witnesses as well as the seizing officers and, therefore, it cannot be believed that there was substitution of the said articles between the time of seizure and its examination by the expert. Non-examination of the expert who submitted report with regard to FICNs has not caused any prejudice, as his report is admissible into evidence under section 292 Cr.P.C. No prayer was made in the course of trial by any of the appellants to cross-examine the said expert and, therefore, such issue cannot be raised for the first time at the appellate stage. Finally it was argued that the cogent evidence of the official witnesses and the expert reports exhibited in the instant case clearly established beyond doubt the ingredients of the alleged offences.
The evidence led on behalf of the prosecution may be divided in the following categories:-
(a) Official/Police Witnesses
(b) Other Witnesses of the search and seizure
(c) Scientific Expert The official/police witnesses in this case are P.W.17, C.I of Police, Barasat, P.W.22, Officer-in-Charge, Baguihati Investigation Centre and P.W.21, Officer-in-
Charge of Rajarhat police station, who are members of the raiding party;
P.W.9, police officer attached to Rajarhat police station who received the First Information Report from P.W.17 and drew up the formal F.I.R.;
P.W.20, the investigating officer attached to Rajarhat police station; P.W.18 and P.W.19, the investigating officers attached to CID, West Bengal; P.W.23, the investigating officer attached to CBI.
P.W.7 and P.W.16 are the independent witnesses who were present at the time when the seized articles were opened and resealed by P.W.23 and observation memo was prepared;
P.W.4 and P.W.5 are brothers of the appellant, Prabir Naskar, who were present at the time of seizure from the vehicles of Prabir Naskar kept within the premises of his residential complex;
P.W.6, owner of the Maruti Omni vehicle who said that the said vehicle was let out to Prabir Naskar;
P.W.11 is an officer attached to registration authority, PVD, Kolkata. Other witnesses like Sahabuddin Mondal (P.W.1), Basudev Naskar (P.W.2), Namodipta Naskar (P.W.3), Pradip Rakshit (P.W.10), Bikash Mondal (P.W.12), Akhtar Ali Biswas (P.W.13) and Sajid Molla (P.W.14) were examined as witnesses of search and seizure of FICNs and stamp papers from the appellants but they did not support the prosecution case and were declared hostile.
The scientific expert examined in the instant case is P.W.15 who proved in the report that the stamp papers were forged (Exhibit-70). Exhibit-95 and 95/1, are the reports prepared by the scientific expert relating to FICNs, which were proved on production under section 292 Cr.P.C.
Ashoke Singha Roy (P.W.17) was posted as Circle Inspector at Barasat on 15.2.2002. On that date he was informed by S.I. Sankar Chowdhury (P.W.22), Officer-in-Charge, Baguihati Investigation Centre, that one Bappa Mallick of Village-Gouranganagar had come to Janasangha Club for some work when one Gour Haldar informed him that one Sushil Haldar had handed him a hundred- rupee note for the purchase of goods amounting to ten rupees at his grocery shop. On suspicion that the note was fake, Gour and the local people rounded up Sushil Haldar and informed Baguihati I.C. over phone. Sankar Chowdhury (P.W.22) recorded such information in the general diary and went to the place of occurrence. Sushil Haldar confessed before him that he was given twenty FICNs by Bapi @ Akhtar Ali Sarkar and he had used fourteen of such notes and the remaining FICNs were in his possession. Accordingly, P.W.22 seized the said notes from the possession of Sushil Haldar and informed the witnesses about the incident. He directed P.W.22 to inform Jayanta Ghosh (P.W.21), O.C., Rajarhat P.S. to go to the spot and he himself also left for Hatiara Mitra Para to supervise the case. P.W.22 informed him that the written complaint submitted by public with regard to recovery of FICNs from Sushil Haldar was forwarded to Rajarhat P.S. for registering a criminal case. When he reached Hatiara Mitra Para he found that P.W.22 and P.W.21 and other officers were already present there. They surrounded the jewellery shop named and styled as 'Bapi Jewellery' and the person who was inside the shop disclosed his name and identity as Bapi @ Akhtar Ali Sarkar. On interrogation Bapi admitted that he had been given FICNs by Md. Ishaq Ali Biswas and at that time he had some FICNs with him. Upon search eight numbers of FICNs of Rs.500/- denomination and ten numbers of FICNs of Rs.100/- denomination were recovered. Bapi also confessed that he had given twenty FICNs of Rs.100/- denomination to be sold in the market as genuine notes. He also confessed that one Swapan Bhattacharjee also dealt in FICNs. Under the supervision of P.W. 17, P.W.22 prepared a seizure list and seized the said FICNs. He put his signature on the seizure list (Exhibit-4/2). Bapi, was arrested and he led the raiding party to conduct further searches at Manikpur Sapui Para in the residence of Md. Ishaq Ali Biswas. Sabir Ali and two other accused persons were arrested along with Md. Ishaq Ali Biswas. Huge quantity of FICNs, forged non- judicial stamps, forged stamps, forged share transfer papers etc. were recovered from the possession of Md. Ishaq Ali Biswas. An automatic 6 chambered weapon loaded with .38 live cartridges was also recovered from him. From the other three accused persons a large number of FICNs were recovered and seized. P.W.21 prepared the seizure list of all the items seized from the possession of the accused mentioned above. He put his signature on the seizure list. Md. Ishaq Ali Biswas then revealed that one Prabir Naskar of Hatiara, Sahid Mia of Park Street and one Tapan Karmakar of Village-Ashura, P.S.-Bagda, were the main kingpins operating in FICNs, forged stamp papers, forged non-judicial papers etc. Md. Ishaq Ali Biswas led them to the residence of Prabir Naskar at Hatiara. It was a two storeyed 'pucca' building. Prabir Naskar managed to escape from the rear of his house. Huge number of FICNs of different denominations, forged stamp papers, forged non-judicial stamps, forged share transfer papers, one mobile set and two sets of powerful walkie-talkie were retrieved and seized. Seizure list was prepared by P.W.21, and P.W.17 signed on the seizure list (Exhibit-8/3). Incriminating articles were also recovered from a bag kept in the back side seat of a Maruti Zen car of Prabir Naskar, namely, a large quantity of FICNs of different denominations, forged stamp papers, forged non-judicial papers, forged share transfer papers etc. Similar recoveries were also made from another Maruti Omni vehicle, which was parked at the residential complex of the accused Prabir Naskar. As per his instruction, P.W.21 seized those articles under a seizure list in the presence of the other witnesses. He put his signature on the seizure list (Exhibit-9/3). Pursuant to the statement of the accused persons, the house of Swapan Bhattacharjee was raided and further recoveries of FICNs were made from his house. Under his order P.W.22 prepared a seizure list and he signed on the same and Swapan Bhattacharjee was arrested. All the accused persons along with the seized articles were taken to the Rajarhat P.S. under his supervision. As per his dictation P.W.22 wrote written complaint, which was treated as F.I.R. (Exhibit-73). He identified the FICNs as well as his signature on the FICNs. He also identified the accused persons. He identified his signature on the fake non-judicial stamp papers, foreign bill stamps, etc. He identified his signature on the envelopes. In cross-examination, he stated that it has been mentioned in the F.I.R. that the seized articles were sealed and labels were pasted on the articles after seizure. He did not collect the document from the Municipality in respect of ownership of the house where the seizure had been effected. There was no seal of the police station on the labels pasted on the envelopes as well as on the seized documents. He stated that he was not present when the incident occurred first. In the F.I.R. he did not mention that Sushil Haldar was brought to Hatiara Mitra para by Sankar Chowdhury and a separate case was already there. In the seizure list prepared by him he did not mention any G.D. Entry number on the seizure list but Rajarhat P.S. case number was mentioned. It is true that Rajarhat P.S. Case No.194 dated 15.6.2002 had not started when he prepared seizure list.
Sankar Chowdhury (P.W.22) was the Officer-in-Charge of Baguihati Investigation Centre under Rajarhat P.S. On 15.6.2002 at 8.30 a.m. he received information that at Gouranganagar someone had been apprehended while using FICNs. On reaching the place of occurrence he found that members of the Janakalyan Club had detained one Sushil Haldar who was trying to use a one hundred rupee note, which was suspected to be fake. On interrogation Sushil disclosed that he had obtained twenty FICNs of Rs.100/- denomination each, from one Bapi @ Akhtar Ali of Hatiara Gote out of which he had used fourteen FICNs and the remaining pieces of FICNs were seized under a seizure list and a criminal case was initiated at Rajarhat P.S. over such issue. He informed the incident to P.W.17, C.I. of Police, Barasat and P.W.21, O.C. of Rajarhat P.S. When he reached Hatiara Gote he found P.W.17 and P.W.21 had already reached the said spot. Sushil Haldar took them to a jewellery shop at Hatiara Gote named and styled as 'Bapi Jewellery' and identified Bapi @ Akhtar Ali who was inside the shop. Thereafter, P.W.17 interrogated Bapi whereupon the latter admitted that he had some FICNs in his possession and brought out a polythene packet containing the FICNs. He further deposed that, P.W.17 seized the packet and he prepared the seizure list. He signed on the seizure list along with other witnesses. Signatures were also put on the seized FICNs. The seized FICNs were kept in separate envelopes, which were closed, sealed and labelled. The members of the raiding party and the accused persons put their respective signatures on the envelopes. He proved the envelopes (Exhibit-89 and 90). Bapi was arrested. He identified the forged notes (Material Exhibit-1 and 2). He also identified his signature on the said forged notes. He also mentioned that Bapi disclosed that the forged notes had been obtained from one Md. Ishaq Ali Biswas @ Ichha and that he could identify the house of Md. Ishaq Biswas @ Iccha. Thereafter, Bapi took them to Dumdum Manikpur, Sapuipara. The room of Iccha was identified, and Ichha was found present in the room along with three other men, identified as Reajur Mondal, Sabir Ali and Abdul Salam. On interrogation Md. Ishaq admitted that he dealt in FICNs and had handed over the forged notes to Bapi. He also disclosed that other three men were also involved in the FICN racket. Thereafter, Md. Ishaq @ Ichha brought out a big jute bag and on search, a number of forged notes of Rs.500/- and Rs.100/- denomination were recovered from that bag. A huge number of fake non- judicial stamp papers, fake share transfer stamp and other stamps were also recovered from that bag. A 6-chambered firearm loaded with .38 cartridges was recovered from that bag. P.W.21 prepared the seizure list. The members of the raiding party, the accused persons and witnesses put their signatures thereon. All the seized documents were labelled and sealed separately. He put his signature on those articles. He proved his signature on the forged stamp papers as well as the FICNs. On that day raid was also held at the house of Prabir Naskar as led by the statement of the arrested accused, Md. Ishaq. Upon search a large number of forged non-judicial stamp papers, various stamps, FICNs, mobile phone and two walkie-talkies were recovered. The articles were seized by P.W.17 under a seizure list prepared by P.W.21, Officer-in-Charge of Rajarhat P.S. He along with members of the raiding party and other witnesses put their signatures on the seizure list as well as on the stamp papers and FICNs. A large number of fake stamp papers and fake non-judicial stamps were recovered from two Maruti cars - Maruti Zen and Maruti Omni respectively found within the residential premises of Prabir Naskar. He identified his signature on the seizure list. In cross-examination, he stated that he did not remember the G.D. number of the entry made with regard to the telephonic information received by him. He did not remember G.D. number of the entry with regard his to coming out from the I.C. to work out that information. He did not put his signatures on all the seizure lists, which were prepared on 15.6.2002 at different houses and shops. But he put his signatures on some of the seizure lists.
Jayanta Kumar Ghosh (P.W.21), Officer-in-Charge of Rajarhat P.S. has corroborated the aforesaid evidence of P.W.17, and P.W.22. He proved his signature on the seizure lists as well as the FICNs, forged non-judicial stamp papers and various stamps seized from the appellants. In cross-examination, he admitted he did not hand over his personal diary or any G.D. Entry to CID or CBI. He did not remember whether the son and wife of Prabir Naskar were present in the house. The envelopes which were marked 'V', 'W' and 'X' within which the seized articles were contained, were found to be open. It is true that in the seized non-judicial stamp papers (Exhibits-13/C and 17/B) signatures were not taken in specific columns of accused persons and witnesses respectively. In the seized documents there is no specific endorsement as to the identity of the accused persons from whom they were seized.
Aloke Kumar Konar (P.W.9) was posted as ASI of Police, Rajarhat P.S. on 15.6.2002. He proved the formal F.I.R. (Exhibit-30). He deposed that it was filled in by O.C., Jayanta Ghosh (P.W.21).
Moni Shankar Sengupta (P.W.20) is the first investigating officer who was attached to Baguihati Investigation Centre under Rajarhat P.S. at the material point of time. P.W.21 endorsed the investigation to him. He examined the complainant as well as the accused persons and recorded their statements under section 164 Cr.P.C. He went to Hatiara Gote and was shown the jewellery shop named and styled as 'Bapi Jewellery' by P.W.17. He prepared a sketch with index of the place of occurrence. He examined Md. Sahabuddin Ali, Sajid Molla, and Asraf Mondal and recorded their statements on 16.6.2002. Thereafter, he proceeded to Manikpur Sapuipara as mentioned by P.W.17. Place of occurrence was the rented house of Md. Ishaq Biswas, and he prepared a sketch map of place of occurrence. He examined Ahamed Ali Biswas, Akhtar Biswas and Taher Ali Biswas and recorded their statements on 16.6.2002. He went to Hatiara Naskar Para where he prepared a sketch map with index of the house of Prabir Naskar. Thereafter he examined witnesses, namely, Namadipti Naskar, Basudev Naskar, Bikash Mondal, Mukul Chandra Naskar and recorded their statements. Then he proceeded to Hatiara Sukanta Nagar to the house of Swapan Bhattacharjee as identified by P.W.17, and prepared a rough sketch map. He returned to Baguihati I.C. He examined S.I. Jayanta Kumar Ghosh, O.C. Rajarhat and S.I. Sankar Chowdhury, O.C. Baguihati I.C. and recorded their statement. P.W.22 made a prayer for police custody of all the six accused persons and the prayer was allowed by learned S.D.J.M., Barasat. During their detention, he conducted raids in different locations and arrested the co-accused persons. On 18.6.2002 he arrested one Barun Dey, and made a prayer for police custody, which was granted. As per statement of Md.Ishaq @ Ichha he conducted raid at Dum Dum, Manikpur Sapuipara. He recovered forged currency notes, forged stamps and a Panasonic mobile phone which were kept in a polythene packet in the refrigerator. He prepared the seizure list (Exhibit-31/1). He identified the stamp papers seized from the possession of Md. Ishaq @ Iccha. He identified his signature along with the signatures of the witnesses on the said stamp papers. He identified the envelope in which the stamp papers were kept. He identified the signatures on the envelope as well as on the label. He proved the statements recorded by the independent witnesses during investigation. Upon order of superior officer he handed over the investigation to CID, West Bengal. In cross-examination, he stated that he did not collect any document in respect of title of the houses shown in the sketch maps. He did not send any of the seized materials for examination either before FSL, West Bengal or Nashik, Maharashtra during his tenure of investigation. He further deposed that he noted the G.D.E. number on the basis of which he had sent the articles seized by him to the malkhana. He did not mention the respective property register numbers of malkhana, on the strength of which the articles seized before his tenure of investigation were kept in the malkhana.
Nikhilesh Roy (P.W.18) was posted at CID, Bhawani Bhawan on 15.6.2002. He was handed over the investigation in the instant case as per the order of his superior. He held raid on 2.7.2002 in the house one Tapan Dhang at Park Street. He was not found in the house. On 6.7.2002 he made a prayer for issuing warrant of arrest against Prabir Naskar and Tapan Dhang. On 11.7.2002 Tapan Dhang was arrested. Pursuant to his statement he raided the shop of Tapan Dhang and recovered two big bundles of postage stamp of Rs.500/- denomination in three small packets, four polythene packets containing different stamps and one packet containing some used envelopes, which were seized under a seizure list (Exhibit-
75). Subsequently, he handed over the case to N.C. Jana as per order of superior officer. In cross-examination he stated that during the period he conducted investigation the previous I.O. did not hand over any seized articles to him.
Asoke Kumar Mondal (P.W.19) is the investigating officer attached to CID, West Bengal who had taken over investigation from P.W.18. He received the seized articles of this case from the earlier I.O., S.I. Moni Sankar Sengupta of Rajarhat P.S. and reseized them. He sent the articles to FSL, Kolkata for examination, however the seized articles were returned with suggestion that they be sent to Nashik for examination due to the inability of the agency to conduct such examination. Thereafter, he resealed the returned alamats for the purpose of sending them to be examined at Nashik through learned S.D.J.M., Barasat. In cross-examination, he deposed that he did not find direction of D.I.G., CID, West Bengal re-entrusting him to conduct investigation in this case. The CID at that moment did not have a malkhana for preservation of seized articles. He sent the envelopes including the alamats for FSL examination, which did not bear any official seal of learned S.D.J.M., Barasat. He explained that the envelopes were kept in a big packet where learned S.D.J.M. put his signature and official seal. He received the alamats along with a memo from FSL, Kolkata wherein the said agency expressed their inability to examine those alamats. The alamats were returned to him on 5.1.2004. At the time of handing over the charge of investigation to the CBI, there were no details regarding the items, alamats and documents in the case diary. He stated that the CBI did not take the case diary and other alamats from him under seizure list but he handed over the said articles to CBI under a challan.
Raj Kumar Saha (P.W.23) is the investigating officer on behalf of CBI. He deposed on 23.9.2004 he took over charge of investigation of the instant case from P.W.19 as per order of the Apex Court. He perused the written complaint and materials collected by the earlier investigating officer. He reseized the documents, FICNs and fake stamps by preparing another seizure list dated 5.4.2004. He sent the samples of seized FICNs and fake stamp papers to Nashik for investigation. He received report from Nashik (Exhibit-70). On completion of investigation he obtained sanction from D.M. to prosecute the accused Md. Ishaq @ Ichha. The sanction had been forwarded to S.P., CBI, EOU- IV New Delhi under a memo. He re-examined the witnesses. After completion of investigation he submitted charge- sheet. In cross-examination, he admitted that the reseizure list dated 5.4.2004 was not available. At the time of reseizure the FICNs, fake stamp papers etc. were not opened by him. All of them were contained in envelopes. Subsequently, he opened the envelopes and took out the samples for sending them to Nashik for examination and for this purpose the observation memo was prepared. He did not obtain prior permission of the Court before opening the envelopes. He did not verify the title or ownership of the house of the accused persons wherefrom the seized articles were recovered. At the time of taking over investigation he did not lodge any fresh complaint but another FIR was registered. He did not seize any new articles during investigation. It was not mentioned in the case diary where the seized articles were kept after being seized and before reseizing. At the time of reseizure neither any CBI office seal nor any personal seal was used.
Mahendra Singh (P.W.7) was a Drug Inspector, posted in Delhi. He deposed on 7.5.2004 he received summon from P.W.23 for the purpose of observing the preparation of memos. P.W.23 opened sixteen packets in his presence, which contained some stamp papers. He along with Kishore Kumar (P.W.16), M.L. Sharma, Manish Bharadwaj were the witnesses. The CBI Inspector opened the envelopes at random and brought out the stamp papers of different denominations and sealed them in separate packets in their presence. The sealed envelopes were sent for examination. The entire matter took three hours. He proved the observation memo dated 7.5.2004 (Exhibit-28). He proved the sixteen packets which were opened in his presence. The observation memo was prepared by P.W.23 in his presence and he had gone through the observation memo and put his signature thereon. He stated that P.W.23 put marks on the envelopes. In cross- examination, he stated that no case number was mentioned in the observation memo. It was not mentioned in the observation memo who prepared the said memo and under whose dictation it was typed out. All the signatories to the observation memo are members of CBI except himself. He had no personal knowledge regarding the seizure of the articles in the observation memo. He could not say from whom the articles were seized. He further stated that the envelopes were not in sealed condition, they were sealed in his presence with brass seal of RKS.
Kishore Kumar (P.W.16) was posted as Constable in CBI EOU-IV branch, New Delhi. On 7.5.2004 he was another witness to the preparation of observation memo, as aforesaid. He deposed that the I.O. showed him sixteen packets which were opened in his presence. From the packets non-judicial stamp papers, share transfer stamps and foreign bill stamps were found. The I.O. took some samples of the said articles and put them in separate brown colour packets and thereafter sealed the said packets in their presence. It took three hours to complete the process. He identified the observation memo (Exhibit-28) and the signature thereon. He identified twenty-two envelopes, which were sealed in his presence (Exhibit-71 series). He also identified the markings by P.W.23 thereon. He identified sixteen envelopes which were opened in his presence. In cross- examination, he stated that no Magistrate was present when he signed the observation memo. He could not say whether the permission of Magistrate was taken by P.W.23. The I.O. did not seize his duty register. He stated that the observation memo was typed in the office of P.W.23. He further stated that there was no seal with impression of CBI on the envelopes marked as Exhibit-71 series.
Niranjan Kumar Naskar (P.W.4) and Puspen Naskar (P.W.5) are the brothers of the accused Prabir Naskar and they were present at the time when the police raided their residence. P.W.4 deposed that Prabir Naskar owned one Maruti Zen.
Nirmal Naskar (P.W.6) deposed that he had purchased Maruti Omni Van bearing registration No.WB-Q02-2525 about 9/10 years ago for valuable consideration. He further deposed that he handed over the vehicle to Prabir Naskar on hire.
Asish Kumar Ghosal (P.W.11) who is Head Assistant under Registering Authority, PVD, Kolkata proved the examination slip (Exhibit-42) relating to the ownership of the Maruti Omni vehicle.
Other independent witnesses being P.W.1, P.W.2, P.W.3, P.W.10, P.W.12, P.W.13 and P.W.14 have been declared hostile. They were, however, cross- examined with regard to their earlier statements recorded by the investigating officer during investigation in the instant case.
Dr. Shashikant Barde (P.W.15) was posted at Forgery Detection Cell in Indian Security Press Nashik on 30.6.2004. At that time he was directed to submit report after examination of alleged forged stamps. He examined the said stamps and prepared report (Exhibit-70) and the said report was enclosed under a forwarding report signed by C.B. Burkul (Exhibit-69). He marked the envelopes containing the stamps and he identified the said envelopes as Exhibit-71 series. After thorough examination and comparing the suspected stamps with original stamps kept in their office he came to a conclusion that the suspected stamps were forged excepting C1(i), C2(i), B1(ii)&(iii), D2, D3 and E1.
Analysis of the aforesaid evidence on record, particularly that of P.W.17, P.W.21 and P.W.22 would establish that on the disclosure statement made by one Sushil Haldar, raids were held in the jewellery shop of Bapi @ Akhtar Ali Sarkar, houses of Md. Ishaq @ Iccha, and Prabir Naskar wherefrom a large quantity of FICNs, forged stamp papers, etc. were recovered as well as from their persons and/or vehicles owned by the appellants.
It has been argued that there is nothing to establish a conspiracy between the appellants. I am unable to accept such contention. Evidence of the prosecution witnesses show that pursuant to the seizure at the jewellery shop of Bapi @ Akhtar Ali Sarkar resulting in recovery of FICNs from the said shop. Bapi disclosed to the members of the raiding party that he had received FICNs from Md. Ishaq @ Iccha. Thereafter, Bapi @ Akhtar Ali Sarkar led the raiding party to the house of Md. Ishaq @ Iccha and a large quantity of FICNs, forged non-judicial stamp papers and other stamp papers were recovered from Md. Ishaq @ Iccha and his associates, namely, Sabir Ali Biswas, Abdul Salam and Reajur Mondal. Md. Ishaq @ Iccha disclosed that Prabir Naskar and another were the kingpins of the fake currency notes and stamp paper racket and pursuant to such disclosure, he took the members of the raiding party to the house of Prabir Naskar. The said accused was absent at the time of raid, however, in the presence of the family members, namely, Niranjan Kumar Naskar (P.W.4) and Puspen Naskar (P.W. 5), another huge cache of FICNs, forged stamp papers etc. were recovered from his premises including two vehicles which were kept within the precincts of his premises. Evidence revealed that the said vehicles were in the control and custody of the said accused Prabir Naskar. The evidence on record establish beyond doubt that the chain of seizures from the shop of Bapi @ Akhtar Ali Sarkar, the premises of Md. Ishaq @ Iccha and his associates, and the vehicles owned by Prabir Naskar were made by the raiding party pursuant to the disclosure statements made by the accused persons and the said raiding party was led to the said places of recovery by the accused persons.
It has been argued that the statements made by the accused persons to the police officers are inadmissible in evidence and, therefore, the charge of conspiracy ought to fail in the facts of the case. It must be borne in mind that the disclosures made by the accused persons, namely, Bapi @ Akhtar Ali Sarkar and Md. Ishaq @ Iccha, led to discovery of the identity of the other accused persons as well as recovery of huge amount of FICNs and fake stamp papers from their possession. Such disclosure statements are, therefore, admissible in evidence both under section 8 and section 27 of the Indian Evidence Act. Disclosure statements made by Bapi @ Akhtar Ali Sarkar and Md. Ishaq @ Iccha respectively and their conduct in leading the members of the raiding party to the hide outs of the co-accused persons establishes their awareness as to the role of their co-conspirators which is not only relevant under section 8 of the Indian Evidence Act but is also rendered admissible under section 27 of the Indian Evidence Act due to the consequential discovery of the factum of concealment of incriminating articles in their hideouts. Such conduct of the accused persons and their disclosure statements leading to recovery of FICNs and forged non-judicial stamp papers and other stamp papers clearly establishes the charge of conspiracy and their collaborative role in the possession of FICNs and or forged stamp papers in this case.
Conspiracy is ordinarily hatched behind closed doors. Direct evidence of meeting of minds to commit an offence is rarely, if not at all, available. It is the conduct of the conspirators and other attending facts and circumstances of a case which give rise to an irresistible inference of prior consort amongst accused persons laying the foundation of the charge of conspiracy. In the present case, the prosecution evidence unerringly indicates that the accused persons were fully aware of the role played by their co-accused persons in the matter of possession of FICNs and forged stamp papers. It is not a case where the accused persons were severally possessing FICNs or forged stamp papers ignorant of the role of the other. There was commonality of knowledge as to their possession of such incriminating articles. Not only that, the nearness of the situs of possession of incriminating articles and the fact, that the serial numbers of the FICNs seized from most of them were similar to one another establish beyond reasonable doubt that their respective possession of FICNs and forged stamp papers were a product of abetment and conspiracy amongst each other.
The authorities relied on the by the appellants in this regard are factually distinguishable. In State (Government of NCT of Delhi) vs. Nitin Gunwant Shah, 2015 Cri. L.J. 4759, the Apex Court held that the appellant could not be held guilty of conspiracy merely because he was present in the same city and his vehicle had been used for commission of the crime. However, in Paragraph 16 of the said report the Apex Court held that it had not been proved that the vehicle had not been used for the commission of the said crime and thereby had acquitted the appellant of the charge of conspiracy.
In Balkar Singh vs. State of Haryana, (2015) 2 SCC 746, the Apex Court had acquitted the appellant as other accused persons who were alleged to be the masterminds and facilitators of the crime had been acquitted and there was nothing to show that the appellant had played a role in hiring the contract killers for committing the murder. In the instant case, all the accused persons were in possession of FICNs or forged stamp papers and they had led the raiding party to the hide out of the other accused persons, clearly establishing a tangible nexus and commonality in their possession of such incriminating articles seized from them.
In Subhash @ Dhillu vs. State of Haryana, (2015) 12 SCC 444, the Apex Court had acquitted the appellants of the charge of conspiracy to commit dacoity, as no incriminating materials were found connecting the appellants with the dacoity. The accuseds had also denied the disclosure statements resulting in the recovery of money from their possession. On the other hand, in the present case, the incriminating articles recovered from the possession of the appellants have not only been found to be fake but the serial numbers of the FICNs recovered from the possession of the appellants are also similar to one another. This clearly establishes the charge of conspiracy against the appellants in this case.
With regard to the recovery of the incriminating articles from the possession of the appellants, it has been argued that the evidence of the police witnesses ought not to be believed as the independent witnesses have not supported the prosecution case. Evidence of the police witnesses particularly P.W.17, P.W.21, and P.W.22 is clear, cogent and convincing and they inspire confidence. On the other hand, the other witnesses appear to have been won over and are highly unreliable. They have identified their signatures on the seizure lists as well as the seized articles while resiling away from their earlier statements to the Investigating Officer (P.W.20). Such prevaricating stances of the hostile witnesses leave no doubt in one's mind that although they were unable to deny their signatures on the seizure lists as well as the seized incriminating articles, they resiled away from their earlier statements as they had been won over in the meantime. Hence, the lack of support from the aforesaid witnesses would not cause any dent to the prosecution case of seizure of the incriminating FICNs and forged stamp papers from the possession of the appellants in the facts of the instant case.
It has also been argued that the search and seizure had not been conducted according to procedure established by law and that there is a snap in the live link between the articles seized and those which were examined by the expert. It is true that prosecution witnesses in cross-examination admitted that the case number was written on the seizure list although the seizure list had been prepared prior to the registration of the case at Rajarhat P.S. Witnesses have also admitted that some of the envelopes produced in court were opened. Irregularity of recording the case number on the seizure list does not affect the factum of seizure in the face of clear and unequivocal evidence of P.W.17, P.W.21, and P.W.22 relating to the arrest of the appellants and production of the seized alamats at the police station at the time of registration of the First Information Report. Furthermore, there was inordinate delay in holding the trial in the instant case and wear and tear of the envelopes containing the seized alamats in the interregnum cannot be ruled out. These minor irregularities do not erode the factum of seizure of the alamats from the possession of the appellants as is evident from the facts proved in the instant case.
With regard to the breach of live link, it has been argued that there is no explanation as to why the seized alamats were kept by S.I. of police, C.I.D. West Bengal, Ashoke Kumar Mondal (P.W.19), in his personal almirah and not in the malkhana. Inspector, CBI, EOU-IV, Shri Raj Kumar Saha (P.W.23) admitted that he opened the envelopes containing the FICNs and stamp papers and collected samples therefrom by preparing an observation memo without the consent of the learned Magistrate. These pieces of evidence militate against the sanctity of preservation of the seized articles and rendered them vulnerable to substitution affecting the credibility of the prosecution case. Evidence of P.W.20, the I.O. attached to Rajarhat P.S., shows that he took custody of the seized articles and kept it in the malkhana. Thereafter, the articles were handed over to P.W.19, I.O. attached to CID who had kept the seized articles in his personal custody as CID did not have a personal malkhana. P.W.19 with permission of the Magistrate sent the articles for FSL examination in Kolkata but the said authority returned the articles suggesting that the articles be sent to Nashik for examination. Subsequently, upon the order of the Apex Court investigation was taken over by CBI and the seized articles were handed over to I.O. Raj Kumar Saha (P.W.23). P.W.23, in the presence of P.W.7 and P.W.16 had opened some of the envelopes containing forged stamp papers and had collected samples therefrom. Thereafter, he sent the samples of forged stamp papers to Nashik for examination. P.W.15, the scientific officer, proved the examination report (Exhibit-70) wherefrom it appears that most of the stamp papers were fake. It is true that P.W.23 had not sought permission of the learned Magistrate to take samples of the seized articles, however, it must be seen that such irregular procedure adopted by P.W.23 has not snapped the live link in the instant case affecting the prosecution case.
Evidence of P.W. 23 along with P.W. 7 and P.W.16 show that the samples were taken from envelopes containing the fake stamp papers and the envelopes containing FICNs were sent as a whole to Nashik for examination. Secondly, all the stamp papers and FICNs sent for examination at Nashik bore the signatures of the members of the raiding party as well as the other witnesses. It is nobody's case that the stamp papers or the FICNs which had been sent for examination did not bear such signatures as claimed by the prosecution witnesses. Finally, physical examination of the FICNs, forged non-judicial stamps and other stamp papers which were produced during trial as material exhibits show that they bear the signatures of the members of the raiding party and other witnesses and the FICNs carry the same serial numbers and, therefore, the question of substituting them while in the custody of the police is clearly ruled out.
Hence, I am of the view that the irregularities pointed out in the matter of custody of the FICNs or the fake stamp papers do not affect the live link between the articles seized from the possession of the appellants on the one hand to those examined by the expert on the other hand. It is, however, true that some of the stamp papers sent for examination were found to be genuine. It is also relevant to note that samples had been collected from the articles that were seized during investigation and such samples had been sent for examination. Hence, it is not possible to relate samples of stamp papers found to be forged to respective appellants. In other words, the specific identity of the appellant from whom the samples of stamp papers found to be forged cannot be established beyond reasonable doubt. However, it cannot be denied that most of the stamp papers were found to be fake as evident from Exhibit-70. The appellants were mutually aware and abetted each other as to the possession of such stamp papers by them.
Hence, in this backdrop, I am of the opinion that the appellants instead of being convicted under section 259 of I.P.C. may be held to be guilty of the offence punishable under section 259 read with section 120B of the I.P.C. However, with regard to the seized FICNs there is no such confusion. The seized FICNs bear the same serial number with the currency notes which were sent for examination at Nashik. FICNs produced in Court as material exhibits also endorse such fact. They also bear the signature of the seizing officer as well as the witnesses and the report of the expert Exhibits-95 and 95/1 unequivocally establishes that all the notes were fake. I do not find any illegality in the proof of the report of the expert witness which is admissible in evidence under section 292 Cr.P.C. No prayer for cross- examination of the said officer was made on behalf of the appellants during trial and the belated plea of prejudice on such score at the appellate stage is clearly an afterthought and without any substance.
In view of the aforesaid discussion, I hold that the appellants are guilty of offences punishable under sections 120B I.P.C., 259/120B I.P.C. and 489C I.P.C.
Coming to the issue of sentence, in view of the seizure of a large volume of incriminating articles from the possession of the appellants, namely, Bapi @ Akhtar Ali Sarkar, Md. Ishaq Biswas @ Iccha and Prabir Naskar and their prominent roles in the aforesaid crime, I do not wish to interfere with the sentences imposed upon them by the trial Court save and except directing that they shall suffer the same sentence for the offence punishable under sections 259/120B I.P.C. as they were awarded for the offence under section 259 I.P.C.
With regard to the sentences awarded to Sabir Ali Biswas, Reajul Mondal and Abdul Salam, I uphold the sentences imposed upon them by the trial Court for the offence punishable under section 120B I.P.C. However, in view of the fact that they appear to be mere foot soldiers in the commission of the crime, I modify the sentence imposed upon them for the offence punishable under sections 259/120B I.P.C. and direct them to suffer rigorous imprisonment for three years each and pay a fine of Rs.20,000/- each, in default to suffer rigorous imprisonment for six months more and to suffer rigorous imprisonment for five years each and to pay a fine of Rs.20,000/- each in default to suffer rigorous imprisonment for six months more for the commission of offence punishable under section 489C I.P.C. All the sentences are to run concurrently.
Period of detention undergone by the appellants during investigation, trial and inquiry shall be set off from the substantive sentences imposed upon them in terms of section 428 Cr.P.C.
The appeals are thus disposed of.
Bail bonds of the appellants are cancelled and they are directed to forthwith surrender before the trial Court and serve out the remainder of the sentences imposed on them, failing which the trial Court shall take necessary step to execute the sentences in accordance with law.
Copy of the judgment along with LCR be sent down to the trial Court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) PA to J. Bagchi, J.