Dolon Sk. @ Tuhin & Ors vs State Of West Bengal
2022 Latest Caselaw 356 Cal

Item No.08




                 IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Rabindranath Samanta


                                C.R.A. 571 of 2018
                                            +
                       CRAN 1 of 2018 (Old CRAN 3636 of 2018)
                                          +
                       CRAN 2 of 2020 (Old CRAN 698 of 2020)
                                          +
                       CRAN 3 of 2020 (Old CRAN 3995 of 2020)

                             Dolon Sk. @ Tuhin & Ors.
                                       -Vs-
                              State of West Bengal.

For the Appellant No.1          :     Mr.   Dilip Kr. Samanta, Advocate,
                                      Mr.   Biswajit Hazra, Advocate,
                                      Mr.   Debapriya Samanta, Advocate,
                                      Mr.   Samrat Ghosh, Advocate
                                      Mr.   Archisman Sain, Advocate
                                      Mr.   Arit Mohammad Khan, Advocate

For the Appellant Nos. 2 & 3 :        Mr. Baidurya Ghosal, Advocate

For the Appellant No. 4         :     Mr. Subrata Karmakar, Advocate

For the State                   :     Md. Neguive Ahmed, A.P.P.
                                      Ms. Zareen N. Khan, Advocate
                                      Ms. Trina Mitra, Advocate.

Heard on                        :     8th February, 2022

Judgment on                     :     8th February, 2022

Joymalya Bagchi, J. :-

       With the consent of the parties, the appeal is taken up for hearing.

       Appeal is directed against the judgement and order dated 6th

September, 2018 and 7th September, 2018 passed by Learned Additional
                                        2




Sessions Judge, 1st Court, Jangipur, Murshidabad in Sessions Case No. 14 of

2017 and Sessions Trial No.        04(2) 2007 convicting the appellants for

commission of offence punishable under Section 489B/489C of the Indian

Penal Code and sentencing them to suffer rigorous imprisonment for ten

years each and to pay a fine of Rs. 20,000/-, in default to suffer simple

imprisonment for two years more for the offence punishable under Section

489B. No separate sentence was imposed on the offence under Section 489C

of the Indian Penal Code.

      Prosecution case as alleged against the appellants is to the effect that

on 19.09.2016 at around 14.30 hours S.I. Indranil Mahanto (P.W.1) along

with P.Ws. 2, 4 and 5 went out of the police station on special mobile duty at

Dhuliyan Ferry Ghat area where they found four persons were loitering

suspiciously. They chased the miscreants and apprehended them. Number of

local people assembled at the spot. They requested the local people to

participate in the search but the local people refused. Upon search of the

apprehended persons, 55 pieces of Indian Currency Notes suspected to be

fake in denomination of Rs. 1000/- each wrapped in a plastic packet was

recovered from the left side pocket of the trouser of Dolon Sk @ Tuhin along

with some genuine cash; upon search of Mithu Sk, a poly bag containing 55

pieces of currency notes suspected to be fake in denomination of Rs. 1000/-

each was recovered from left waist wrapped in his lungi; 50 pieces of Indian

Currency Notes suspected to be fake in denomination of Rs. 1000/- wrapped

in a plastic packet was recovered from the left waist in the lungi of Soni Sk. @

Titu and along with genuine cash and a plastic packet containing 69 pieces
                                        3




of suspected Indian Currency Notes out of which 29 pieces in denomination

of Rs. 1000/- each and 40 pieces in denomination of Rs. 500/- each was

recovered from the left waist of the trouser of Abu Sufiyan Sk. along with

genuine cash. The total amount of currency notes suspected to be fake was

valued at Rs. 2,09,000/- and genuine cash of Rs. 890/- was also recovered.

Upon questioning, they failed to explain the illicit possession of the currency

notes suspected to be fake. Subsequently, they made confession that they

had gathered for circulating the FICNs in the market as genuine with the

help of others. Upon seizure of the aforesaid counterfeit notes, they were

properly labelled and sealed. Appellants being Dolan Sk @ Tuhin, Mithu Sk,

Sony Sk. @ Titu and Abu Sufiyan Sk were arrested and brought to the

Samsherganj Police Station where P.W. 1 lodged written complaint resulting

in registration of Samsherganj Police Station Case No. 363 of 2016 dated

19.09.2016

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

In the course of investigation, the seized counterfeit notes were sent for

examination and upon receipt of report that the same were fake, charge sheet

was filed. Charges were framed under Sections 489B/489C of the Indian

Penal Code against the appellants. Appellants pleaded not guilty and claimed

to be tried. In the course of trial, prosecution examined six witnesses and

exhibited a number of documents. Defence of the appellants was one of

innocence and false implication. On conclusion of trial, the trial Judge by the

impugned judgment and order dated 6 th September, 2018 and 7th September,

2018 convicted and sentenced the appellants, as aforesaid.

Learned Counsels appearing for the appellants argued that the

ingredients of the offence punishable under Section 489B of the Indian Penal

Code have not been proved. No evidence of selling, receiving or use of

counterfeit notes as genuine has been established in the instant case. Trial

Judge erred in law in coming to a finding that the appellants were guilty

under Section 489B of the Indian Penal Code. It is further submitted that the

seizure of the alleged counterfeit notes were not supported by independent

witnesses and the chain of custody of the counterfeit notes have not been

established. Hence, the appellants may be acquitted of the charges levelled

against them.

In reply, Mr. Ahmed, learned Additional Public Prosecutor argued that

the appellants were apprehended with a large volume of FICNs totalling to

over Rs. 2,00,000/-. They were in conscious possession of the FICNs and

were carrying the said counterfeit notes through a public place in the market.

Hence, they were trafficking/circulating the counterfeit notes and the

ingredients of Section 489B of the Indian Penal Code have been established.

P.W. 1 had requested independent witnesses to join the search but they

refused to do so. Hence, non-examination of the independent witnesses has

been duly explained and would not affect the credibility of the prosecution

case. Accordingly, the appeal is liable to be dismissed.

P.W. 1, Indranil Mahanto is the informant and the leader of the raiding

party. He deposed on the relevant day, he along with Constable Md. Sajahan

Ali (P.W. 4), Harigopal Das (P.W. 2) and Arun Basak (P.W. 5) had gone out on

special mobile duty after diarising such fact in the general diary register.

They reached at Dhuliyan Ferry Ghat around 14.30 hours. They noticed that

four persons were moving suspiciously and seeing the police party the

miscreants tried to flee away. Police party chased the aforesaid persons and

apprehended them. On interrogation they remained silent. P.W. 1 informed

the matter to the Officer-in-charge over telephone and after getting

permission proceeded with the enquiry. Many people assembled at the spot.

He asked them to join the search but they refused to do so. At this stage,

P.W. 1 offered the apprehended persons to search the police officers but they

declined. Thereupon, the apprehended persons who disclosed their identities

as Dolan Sk @ Tuhin, Mithu Sk, Sony Sk. @ Titu and Abu Sufiyan Sk were

searched. Upon search, 55 pieces of FICNs in denomination of Rs. 1000/-

each, amounting to Rs. 55,000/-, wrapped in a packet were recovered from

the left pocket of the trouser of Dolon Sk. @ Tuhin along with some cash from

his shirt pocket. Upon search of Mithu Sk, a similar bundle wrapped in poly

bag containing 55 pieces of currency notes suspected to be fake in

denomination of Rs. 1000/- each, amounting to Rs. 55,000/-, was recovered

from the left waist wrapped in his lungi. Similarly, 50 pieces of currency

notes suspected to be fake in denomination of Rs. 1,000/- each, amounting

to Rs. 50,000/-, was recovered in a poly bag from the left waist of Sony Sk. @

Titu. Upon search of Abu Sufian Sk., a packet containing 69 pieces out of

which 29 pieces of currency notes suspected to be fake in denomination of

Rs. 1,000/- each and 40 pieces of currency notes suspected to be fake in

denomination of Rs. 500/- each, totalling Rs. 49,000/- was recovered. The

total value of the currency notes suspected to be counterfeit was to the tune

of Rs. 2,09,000/-. The said currency notes were seized under a seizure list

which was prepared by him, Exhibit 1. He sealed, labelled the bundles and

marked them separately as A, B, C and D vis-a-vis the recoveries made from

Dolan Sk @ Tuhin, Mithu Sk, Sony Sk. @ Titu and Abu Sufiyan Sk

respectively. Upon interrogation, the accused persons admitted their guilt

and stated that they were dealing in fake Indian currency notes. P.W. 1

arrested them. Upon return to the police station along with the arrested

accused persons and seized articles, he prepared the written complaint and

the same was lodged at the police station resulting in registration of the

instant criminal case. He, however, was unable to identify the accused

persons in Court. He identified the FICNs in Court as Material Exhibits 1, 2,

3 and 4. He also identified the sealed packets and the labels prepared by him

to keep the FICNs.

P.W. 2, Hari Gopal Das, P.W. 4, Md. Sajahan Ali and P.W. 5, Arun

Kumar Basak were members of the raiding party. They have corroborated the

evidence of P.W. 1. They also proved their signatures on the seizure list.

P.W. 3, Swagata Das is a Constable attached to Samsherganj Police

Station. On 21.11.2016, he went to Salboni and collected the expert opinion

with regard to the seized alamats as per authorisation letter. The expert

opinion has been proved as Exhibit 4.

P.W.6, Md. Meser Ali is the Investigating Officer of the case. He

deposed that he received the papers and alamats from the duty officer of the

police station. He sent the seized FICNs to Reserve Bank Note Mudran Pvt.

Ltd., Salboni for opinion through the A.C.J.M., Jangipur. He collected the

expert opinion, Ext.4. He also identified the seized alamats in Court.

From the evidence of the prosecution witnesses particularly P.Ws.1, 2,

4 and 5, it appears that the appellants had been apprehended on 19.09.2016

around 14.30 hrs. at Dhuliyan Ferry Ghat with a large volume of FICNs

valued over Rs.2,0,000/-. Evidence of the prosecution witnesses in this

regard are clear, cogent and convincing. Cross examination of the witnesses

have not elicited any contradiction and/or inconsistency so as to render

them untrustworthy. It has been argued that the evidence of the official

witnesses are not corroborated by independent witness. Failure to adduce

independent witness has been explained by P.W.1. He deposed a number of

people had assembled at the place of occurrence when they undertook the

search. However, upon request none of them agreed to participate in the

search. When the evidence of official witnesses are clear, cogent and

convincing and plausible explanation for non-availability of independent

witness has been given, the prosecution case cannot be thrown out on the

mere ground that the official witnesses did not receive corroboration from

independent source. That apart, the ocular version of the official witnesses

viz., P.Ws. 1, 2, 4 and 5 are supported by the contemporaneous documents

prepared in discharge of official duty viz., seizure list and the envelopes

wherein the seized counterfeit notes were kept and the labels parted thereon.

All these documents have been duly exhibited and do not show any sign of

tampering.

It is argued that the appellants could not be identified in Court by the

official witnesses. Identification of the persons has not been seriously

disputed during trial. That apart, P.Ws. 4 and 5 have identified the accused

persons in Court. Oral and documentary evidence with regard to the

apprehension at the place of occurrence have also been proved beyond doubt.

Hence, failure of P.Ws. 1 and 2 to identify the appellants in Court does not

sound a death knell in the prosecution case particularly when the other

members of the raiding party viz., P.Ws. 4 and 5 had duly identified the

appellants in Court.

Chain of custody of the seized articles have also been proved. The

counterfeit currency notes seized from the appellants were kept in separate

envelops and marked A, B, C and D respectively. The envelops were labelled

and sealed in presence of the accused persons and upon seizure, the articles

were handed over at the police station by P.W.1. P.W.5, Investigating Officer

collected the seized alamats from duty officer and sent them to Reserve Bank

Note Mudran Pvt. Ltd., Salboni through A.C.J.M., Jangipur. P.W. 3 collected

the report of the expert under authorisation letter. Report of the expert has

been exhibited as Exhibit 4 which shows that the seized currency notes were

fake. Thus, the link between the seized alamats and the articles which were

examined at Reserve Bank Note Mudran Pvt. Ltd., Salboni has been duly

established.

There is, however, some substance in the argument of the appellants

that the conviction under Section 489B of the Indian Penal Code is

unfounded. It is true that the appellants were found loitering at Dhuliyan

Ferry Ghat carrying large volume of FICNs. Conduct of the appellants in

moving around in a public place with a large volume of counterfeit currency

notes clearly establishes the fact that they were knowingly transporting

FICNs. No explanation was forthcoming from the appellants with regard to

the reason or circumstance in which they came into possession of the FICNs.

However, the charge in the present case has not been framed with regard to

trafficking of counterfeit currency notes.

For better appreciation, the charges framed in the instant case are set

out as follows:

"Firstly, that you on 19.06.2016 after 14.30 hrs. at Dhuliyan Ferry Ghat under P.S. Samserganj, Dist. Murshidabad you were found possession fake Indian currency notes of Rs.2,09,000/- consisting of 01 bundle containing 55 pieces of such notes of denomination of Rs.1000/- each possession by Dolon Sk and 01 bundle containing 55 pieces of such notes of denomination of Rs.1000/- each possessing by Mituhu Sk along with another bundle containing 50 pieces of such notes of denomination of Rs.1000/- each possessing by Soni Sk and another bundle containing 29 pieces of such notes of denomination of Rs.1000/- each possesson by Abu Sufian Sk with knowledge that the said currency notes are fake Indian Currency Notes and thereby committed the offence punishable u/s. 489B of I.P.C. and which is within the cognizance of this court of sessions.

Secondly, that you on the same date, time and place you were in possession of fake Indian currency notes of Rs.2,09,000/- consisting of 01 bundle containing 55 pieces of such notes of denomination of Rs.1000/- each possesson by Dolon Sk and 01 bundle containing 55 pieces of such notes of denomination of Rs.1000/- each possesson by Mithu Sk along with another bundle containing 50 pieces of such notes of denomination of Rs.1000/- each possessing by Soni Sk and another bundle containing 29 pieces of such notes of denomination of Rs.1000/- each possessing by Abu Sufian Sk and you were trying to use the same as genuine knowing it fully well that the said currency notes are fake Indian currency notes and thereby you committed the offence punishable u/s 489C of I.P.C. and which is within the cognizance of this court of sessions."

A plain reading of the aforesaid charges would show that the

appellants were charged merely for possession of currency notes and nothing

more. When the appellants had not been called upon to answer a charge with

regard to trafficking or transportation of currency notes, in my estimation, it

would prejudice them and defeat the ends of justice in the event the

conviction is recorded on such score. To record conviction of such score, it

was incumbent on the part of the trial judge to reframe the charges and give

an opportunity to the appellants to answer the same in accordance with law.

Trial court singularly failed to discharge this duty and proceeded to convict

the appellants for transportation or trafficking of currency notes without re-

framing the charge.

I am conscious that the saving provision, namely, Sections 464/465 of

the Code of Criminal Procedure which, inter alia, provides no finding,

sentence or order ought to be interfered with due to failure to frame or error

or omission in charge until and unless the same has occasioned failure of

justice.

Section 489B of the Indian Penal Code inter alia makes any one of the

following acts viz., selling, buying, receiving, using as genuine or otherwise

trafficking in counterfeit currency notes culpable. When separate and distinct

acts or illegal omissions independently constitutes a crime, it is incumbent

on the Court to indicate which act or illegal omission the accused is charged

of in the trial of the offence. In the present case, the accused has been

charged merely of "possession" which by no stretch of imagination

constitutes any of the aforesaid ingredients of Section 489B of the Indian

Penal Code. Although the evidence on record may show that the accused

persons were moving around in a public place with a large volume of FICNs,

no charge of transportation/trafficking in currency notes was framed against

them. They were never put on notice during trial that they were being

accused of "otherwise trafficking in" counterfeit currency notes in addition to

"possession" of such notes.

Under such circumstances, without re-framing the charge and giving

the accused persons an opportunity to respond to it, to convict the accused

persons on the score of trafficking of counterfeit notes clearly prejudiced

them. Thus, I am of the opinion that the conviction of the appellants for

transportation/trafficking in counterfeit currency notes on the one hand

while framing a charge for mere possession on the other hand has amounted

to a mistrial and such failure of justice cannot be cured by reference to either

Section 464 or Section 465 of the Code of Criminal Procedure.

In this regard, it may be apposite to mention that under similar

circumstances, this Court in Hoda Sk. Vs. State of West Bengal1 held as

follows:

"Section 489B of the Indian Penal Code reads as follows:-

"S.489B. Using as genuine, forged or counterfeit currency- notes or bank notes. - Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

2020 SCC OnLine Cal 1478

Analysis of the aforesaid section shows whoever sells, buys or

receives from any other person or otherwise traffics in or uses as

genuine any forged or counterfeit currency notes or bank notes with the

knowledge or reasonable belief that the said notes are forged or

counterfeit is said to have committed the offence. Hence, sale, purchase

or receipt from any person, or otherwise trafficking in counterfeit

currency notes as genuine is a sine qua non of such offence. There is no

evidence that the appellants had sold, received or used any counterfeit

notes. However, it has been argued on behalf of the prosecution that the

appellant was "otherwise trafficking in" counterfeit notes by knowingly

transporting a large volume of forged currency notes in a bag through a

public road and had reached the ferry ghat when they were

apprehended. Hence, he had committed the offence under section 489B

of the Indian Penal Code.

What would the expression "otherwise traffics in" mean in the

context of aforesaid offence?

In K. Hasim Vs. State of Tamil Nadu, AIR 2005 SC 128, the

Apex Court interpreted the object of section 489B of the Indian Penal

Code as follows:-

"42. Similarly Section 489B relates to using as genuine forged or counterfeited currency notes or bank notes. The object of Legislature in enacting this section is to stop the circulation of forged notes by punishing all persons who knowing or having reason to believe the same to be forged do any act which could lead to their circulation."

Expression "otherwise traffics in" when interpreted in the light of

the aforesaid object would include any act undertaken by the accused

which would lead to circulation of notes.

In Black's Law Dictionary, 10th edition, p. 1725, the word

'traffic' is defined as follows:-

"traffic- 1. Commerce; trade; the sale or exchange of such things as merchandise, bills, and money. 2. The passing or exchange of goods of commodities from one person to another for an equivalent in goods or money.

3. People or things being transported along a route. 4. The passing to and fro of people, animals, vehicles, and vesels along a transportation route." (emphasis supplied)

Lexicographically the expression 'traffic' means transportation or

movement of goods through a route or public road. Interpreting the

expression "otherwise traffics in" in section 489B of the Indian Penal

Code in that perspective, transportation of a large volume of fake

currency notes with the knowledge or reasonable belief that such notes

are forged would definitely fall within the penal ambit of section 489B

IPC. However, in the present case no charge of transportation of fake

currency notes has been framed. On the other hand, charge framed

under the head of section 489B of the Indian Penal Code is as follows:-

"Firstly, that you on 10.10.2013 at about 11:05 am at Dhuliyan ferry Ghat under P.S. Samserganj, Dist. Murshidabad you were found possessing fake Indian currency notes of Rs.4,00,000/- consisting of 400 pieces of such notes of denomination of Rs.1,000/- and also found possessing 597 pieces of FICN of denomination of Rs.500/- with knowledge that the said currency notes are fake Indian Currency Notes and thereby committed the offence punishable u/s 489B of I.P.C. and which is within the cognizance of this court of sessions."

Hence, the appellant had not been called to answer a charge of

"otherwise trafficking in" fake currency notes by transporting such notes

through a public thoroughfare for commercial use. To convict the

appellant on such score at the appellate stage without reframing the

charge would cause prejudice to them and occasion failure of justice. In

this factual backdrop, I am constrained to hold that the appellant is

entitled to an order of acquittal under section 489B of the IPC in the

present case."

In the light of the aforesaid discussion, I uphold the conviction under

Section 489C of the Indian Penal Code and set aside the conviction under

Section 489B of the Indian Penal Code.

Coming to the issue of sentence, I note that the trial court had imposed

a sentence of rigorous imprisonment for ten years and to pay a fine of Rs.

20,000/- each, in default to suffer simple imprisonment for two years more

for the offence punishable under Section 489B of the Indian Penal Code,

while no sentence was awarded for the offence punishable under Section

489C of the Indian Penal Code on the plea that the said offence is included in

Section 489B of the Indian Penal Code. Be that as it may, as the trial Court

has imposed a higher sentence in respect of the graver offence of which I am

of the view that the appellants are not guilty, imposition of a lesser sentence

by this Court for the minor offence would not prejudice the appellants and no

independent rule for imposition of sentence on the score of Section 489C of

the Indian Penal Code is necessary.

In the light of the aforesaid discussion, I modify the sentence imposed

upon the appellants and direct that they shall suffer rigorous imprisonment

for seven years each and to pay a fine of Rs. 20,000/- each, in default to

suffer simple imprisonment for two years more for the offence punishable

under Section 489C of the Indian Penal Code.

The appeal is accordingly disposed of.

In view of the disposal of the appeal, all connected applications are also

disposed of.

Period of detention suffered by the appellants during investigation,

enquiry and trial shall be set off from the substantive sentence imposed upon

the appellants in terms of Section 428 of the Code of Criminal Procedure.

Copy of the judgment along with LCR be sent down to the trial Court at

once.

Urgent photostat certified copy of this judgment, if applied for, shall be

given to the parties, as expeditiously as possible on compliance of all

necessary formalities.

I agree.

(Rabindranath Samanta, J.) (Joymalya Bagchi, J.)

cm/as/akd/PA