Calcutta High Court (Appellete Side)

Madhab Barman vs State Of West Bengal on 16 December, 2022

                    IN THE HIGH COURT AT CALCUTTA

                     (Criminal Appellate Jurisdiction)

                            APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                            CRA 685 of 2016

                             Madhab Barman

                                    Vs

                           State of West Bengal




For the Appellant                  : Mrs. C. Alam.



For the SLSA                       : Mr. A. Sen,
                                     Mr. R. Sen,
                                     Mr. S. Bhattacharrya,
                                     Mr. R. Gupta.
For the State
                                   : Mr. S. Banerjee,
                                     Ms. Puspita Saha.

Heard on                           : 05.12.2022

Judgment on                        : 16.12.2022
                                    2


Shampa Dutt (Paul), J.:



       This appeal has been preferred against the judgment and order

dated 26.09.2016 and 28.09.2016 passed by the learned Additional

Sessions Judge, Coochbehar in Sessions Trial No. 2(05)/2015 and

Sessions Case (MTB) No. 10 of 2014, convicting the appellant under

Section 489B of the Indian Penal Code and sentencing him to suffer

simple imprisonment of 7 years and to pay a fine of Rs. 10,000/- in

default to suffer simple imprisonment for    6 months and also under

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

simple imprisonment of 5 years and to pay a fine of Rs. 5,000/- in

default to suffer simple imprisonment for 3 months.


       All the sentences were to run concurrently.


       The appellant/convict's case is that the prosecution case before

the Trial Court was to the effect that on 12.01.2013 at about 15.30

hours BSF personnel of BOP Mahishmuri and BOP Gautam acting on

specific information nabbed one Indian national Madhab Barman

(appellant) who was moving around suspiciously near IBBR under

Mahishmuri BOP. The BSF personnel apprehended him and on search

being conducted, 62 Fake Indian Currency Notes amounting to Rs.

50,000/- out of which 38 notes were of Rs. 1000/- denomination and

24 notes were of Rs. 500/- denomination, were recovered from his
                                       3


possession.   Sitalkuchi    Police   Station   Case   No.   11/2013   dated

12.01.2013

under Sections 489B/489C of the Indian Penal Code was

registered. Upon conclusion of the investigation the investigating agency

submitted charge sheet under Section 489B/489C of the Indian Penal

Code against the present appellant. Charge was framed. The appellant

pleaded not guilty and claimed for trial. On completion of trial the

appellant was sentenced as above.

Hence this appeal.

Mrs. Chandreyi Alam, learned Legal Aid Counsel for the

appellant has submitted that the learned Judge failed to appreciate

that out of the 10 witnesses examined on behalf of the prosecution, only

3 of them were independent witnesses. The learned Judge failed to

appreciate that while PW 1 being an independent witnesses to the

prosecution case had categorically deposed to the effect that on search

being conducted nothing was recovered from the possession of the

appellant. PW 2 on the other hand had failed to throw any light on the

factum of seizure. The learned Judge failed to appreciate that there are

clear contradictions in the evidences of the witnesses regarding the

actual place of apprehension of the appellant. The seizure lists would

bring to light that the same do not bear the signature of any

independent local witness.

The currency notes were sent for examination only on

04.02.2013, long after seizure, which was not in accordance with law. It

is the case of the prosecution that the appellant had allegedly procured

the fake currency notes from one Jalal Mia of Bangladesh. In fact even

formal charges against the appellant had been framed on the alleged

factum of having had procured the fake notes from Jalal. However,

there had been no investigation to that effect by the prosecuting agency

for reasons best known to them. The said Jalal Mia was never

apprehended or even made a charge sheet accused during the course of

the trial.

The ingredients required to constitute the offence alleged were

not proved by the prosecution. The total trial being not in accordance

with law, the judgment and order of conviction under appeal being

erroneous, is thus liable to be set aside and the appellant should be

acquitted of all charges.

Mr. Swapan Banerjee, learned Counsel for the State submits

that the judgment and order under appeal is in accordance with law

and that the prosecution before the Trial Judge was able to prove was

charged against the accused person beyond all reasonable doubt. The

evidence on record was sufficient to justify the conviction and sentence

of the appellant and as such the appeal is liable to be dismissed.

Evidence on record

Ten witnesses were examined by the prosecution.

Prosecution witness no. 1 Bisadu Barman is a co-villager and

he saw the BSF personnel apprehending the appellant. He said nothing

was seized from the appellant though later he heard that the appellant

was arrested for possession of fake currency notes.

Prosecution witness no. 2 Namita Shil saw the incident.

Prosecution witness no. 3 Raghuveer Meena Company

Commander of G. Company 88 BN BSF in the defacto complainant.

He has proved the FIR and seizure.

Prosecution witness no. 4 Indrashan Singh is a constable in

the BSF.

Prosecution witness no. 6 Aswini Pradhan, prosecution

witness no. 7 Raju Baidya, prosecution witness no. 8 Chottu Yadav

are also with BSF. They have corroborated the case including the

seizure.

Prosecution witness no. 9 Sudhir Shil is an independent

witness. He saw the incident.

Prosecution witness no. 10 S.I. Subhash Chandra Roy is the

Investigating Officer.


Documentary evidence



  Exhibit                   Description

Exhibit 1        Seizure list (in two sheets) dated

                 12.01.2013.

Exhibit 2        Written complaint.

Exhibit 2/1      Endorsement      on   the   written

                 complaint.

Exhibit 3        Signature of PW3 on seizure list

                 dated 12.01.2013.

Exhibit 3/1      Signature of PW 4 on seizure list

                 dated 12.01.2013.

Exhibit 3/2      Signature of PW 5 on seizure list

                 dated 12.01.2013.

Exhibit 3/3      Seizure list dated 12.01.2013.

Exhibit 4        Formal FIR.

Exhibit     5    Rough sketch map with index.
(collectively)
Exhibit     6    Analysis report of FICN.
(collectively)
Material         Thirty   eight   numbers    of   Rs.
Exhibit     A
                 1000/- (38xRs.1000) FICN.
(collectively)
Material         Twenty four      numbers    of   Rs.
Exhibit     B
                 500/- (24xRs. 500) FICN.
(collectively)





Analysis of evidence

The evidence of PW 3, 4, 5, 6 and 7 are corroborative and have

proved the prosecution case including the search and seizure (Exhibit 1

and 3 series) beyond reasonable doubt.

Exhibit 6 is the report of FICN. Exhibit A and B are the FICN. (38

x Rs. 1000) and (24x Rs. 500). Which all support the prosecution case.

The findings of the learned Sessions Judge is also on proper

appreciation of evidence and materials on record and is thus is in

accordance with law and needs no interference by this Court.

During hearing the counsel for the appellant has submitted that

the appellant/convict has already under gone the period of sentence

and lower court records were sent down on the prayer of the appellant

so that he can avail of his liberty on deposit of requisite fine as imposed