Santi Bypari vs The State Of West Bengal
2021 Latest Caselaw 2625 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                            Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                          CRA 573 of 2018

                               With

            CRAN 1 of 2018 (Old CRAN 3130 of 2018)

                         Santi Bypari
                              Vs.
                    The State of West Bengal


For the Appellant     :     Mr. Debasis Kar
                            Mr. Husen Mustafi
                            Mr. Subhajit Chowdhury

For the State         :     Ms. Faria Hossain
                            Ms. Baisali Basu


Heard on        : 08.04.2021

Judgment On     : 08.04.2021




Bibek Chaudhuri, J.

This is an appeal under Section 374(2) of the Code of Criminal

Procedure assailing the judgment and order of conviction and

sentence dated 20th March, 2018 and 21st March, 2018 respectively

passed by the learned Additional Sessions Judge, 5 th Court, Malda in

Sessions Case No.62 of 2017 (Sessions Trial No.34 of 2017) thereby

convicting the appellant for committing offence punishable under

Section 489C of the Indian Penal Code and sentencing her to suffer

rigorous imprisonment for six years and also to pay fine of

Rs.10,000/-, in default, to suffer further rigorous imprisonment for six

months.

English Bazar P.S. Case No.887 of 2016 was registered under

Section 489(B)/489C/120B of the Indian Penal Code on the basis of a

suo motu complaint to the effect that on 20 th October, 2016 at about

14.25 hrs. police attached to the said P.S. conducted a raid to verify a

source information at Milky Bus Stand and apprehended a lady with a

bag in her hand. On search 100 pieces of Rs.500/- denomination and

50 pieces of Rs.1,000/- denomination were found from the possession

of the appellant. A.S.I. Ansarul Hoque seized the said fake currency

notes, levelled the same and arrested the accused. Then he lodged a

complaint against the appellant on the basis of which the above

mentioned police case was started. P.W.8 took up the case for

investigation and on completion of investigation submitted charge

sheet against the accused under Section 489B/489C /120B of the

Indian Penal Code.

The case was committed to trial to the Court of Sessions and

the trial was taken up by the learned Additional Sessions Judge, 5 th

Court at Malda. On conclusion of trial the learned trial Judge held the

accused/appellant guilty for committing offence under Section 489C of

the Indian Penal Code and convicted and sentenced her accordingly.

The said judgment and order of conviction and sentence is

under challenge in the instant appeal.

It is submitted by the learned advocate for the appellant that in

order to bring home the charge against the accused/appellant

prosecution examined as many as eight witnesses. Amongst them

two witnesses are independent witnesses and rest witnesses are

police personnel. It is further submitted by the learned advocate for

the appellant that there are glaring contradictions between the

evidence of the witnesses and the oral testimony of none of the

witnesses can be believed. In order to substantiate his contention he

first refers to the evidence of P.W.1 Sk. Muktar who is a constable of

police and on the relevant point of time was attached to Milky Outpost

under English Bazar P.S. From his evidence it is found that a raid-in-

party was present at the P.O. for about ten minutes, within which

period entire search and seizure was completed. On the contrary,

P.W. 3 Bablu Mandal who was a Home Guard and a member of the

raid-in-party stated that it took about one and half hours to complete

search and seizure.

P.W. 2, A.S.I. Ansarul Hoque led the raid on 20 th October, 2016.

In his cross-examination he stated that he received the information

over telephone but he could not state the telephone number over

which he received the source information. He also did not mention the

telephone number in the F.I.R. The names of persons who

accompanied P.W.2 in the raid were not also mentioned in the F.I.R.

Thus, it is submitted by the learned advocate for the appellant that

presence of the witnesses who claimed themselves to be the

members of the raid-in-party is doubtful and the learned trial Court

failed to consider the aspect in his judgment.

It is further pointed out by the learned advocate for the

appellant that according to the prosecution case 50 pieces of fake

currency notes of Rs.1,000/- denomination and 100 pieces of fake

currency notes of Rs.500/- denomination were allegedly recovered

from the appellant but P.W. 2 got the signature of P.W.5 who is an

independent witness. Therefore, it is doubtful as to whether remaining

fake currency notes were actually recovered from the appellant or

not.

Last but not the least it is urged by the learned advocate for the

appellant that the prosecution has failed to produce forensic report of

the seized currency notes and, therefore, it is not proved that the said

articles which were allegedly recovered from the appellant were

actually fake currency notes or not. In view of such circumstances, it

is submitted by the learned advocate for the appellant that the

impugned judgment of conviction and sentence cannot be sustained

and the same should be set aside.

It is also submitted by him that the appellant is in custody from

20th October, 2016. Thus, she is in custody for about four years and

six months. He invites the Court to consider such aspect also.

Learned P.P.-in-Charge, on the other hand, has supported the

judgment on the ground that the rule of evidence does not suggest

that the police witnesses cannot be believed. Evidence of police

officer cannot be discarded only because he belongs to the police

force. In the instant case, there is no enmity between the police

personnel and the accused. Therefore, the police officers had no

reason to give false evidence against the appellant. It is found from

the evidence of all the witnesses that huge number of fake Indian

currency notes were recovered from the possession of the

accused/appellant and the learned Court below rightly held her guilty

for committing offence under Section 489C of the Indian Penal Code.

Section 489C of the Indian Penal Code runs thus:-

[489C. Possession of forged or counterfeit currency-

notes or bank-notes. - Whoever has in his possession any

forged or counterfeit currency-note or bank-note, knowing or

having reason to believe the same to be forged or counterfeit

and intending to use the same as genuine or that it may be

used as genuine, shall be punished with imprisonment of either

description for a term which may extend to seven years, or with

fine, or with both.]".

Thus, possession of forged and counterfeit currency-note with

the intention to use the same as genuine as an offence under Section

489C of the Indian Penal Code. In order to prove the charge under

Section 489C it is the bounden duty of the prosecution to establish

that the articles that were seized from the possession of the appellant

were actually fake currency-notes. This evidence is only available

from forensic report. In the instant case though the seized articles

were sent to Forensic Science Laboratory but the prosecution did not

take any attempt to produce and prove the forensic report in respect

of the seized articles during trial of the case.

If we discard the contradictions as pointed out by the Learned

Advocate for the appellant in course of argument, non-production of

forensic test report of the seized articles will surely go against the

prosecution and without such report the Court cannot hold the

appellant guilty for committing offence under Section 489C of the

Indian Penal Code.

In view of the above discussion, I find that the impugned

Judgement and order of conviction and sentence passed by the

Learned Additional Sessions Judge, 5th Court at Malda in Sessions

Case No. 62 of 2017 is liable to be set aside.

Accordingly, the instant criminal appeal is allowed on contest,

however, without cost. The impugned judgement and order of

conviction is set aside. The accused be released at once if she is in

custody.

Let a plain copy of this order be sent to the Learned Additional

Sessions Judge, 5th Court at Malda for communication and issuance of

released order in favour of the appellant forthwith. The Learned

Advocate for the appellant is also at liberty to act upon the server

copy of this Judgement.

(Bibek Chaudhuri, J.)