Md. Tousif @ Gara @ Tinku vs State Of West Bengal
2022 Latest Caselaw 652 Cal

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

Present :
The Hon'ble Justice Bibek Chaudhuri

                           C.R.A. 163 of 2019

                    Md. Tousif @ Gara @ Tinku
                               Vs.
                      State of West Bengal


For Appellant          :       Mr.Arnab Chatterjee
                               Mr. Soumya Basu Roy Chowdhury

For the State          :       Mr. Saswata Gopal Mukherjee, ld. P.P.
                               Ms. Faria Hossain
                               Mr. Sandip Chakraborty
                               Mr. Anand Keshri



Heard on               : 17.02.2022, 18.02.2022


Judgment On            : 18.02.2022


Bibek Chaudhuri, J.

The judgment and order of conviction passed by the learned

Additional Sessions Judge, 1st Court at Howrah on 15th February, 2019

in Sessions Trial No.309/2016 thereby convicting the appellant for the

offence under Sections 489B/489C read with Section 120B of the

Indian Penal Code is under challenge in the instant appeal.

By passing the impugned order of conviction the

accused/appellant was convicted under Section 489B read with

Section 120B of the Indian Penal Code and directed to serve sentence

of rigorous imprisonment for five years with fine of Rs.5,000/-, in

default, further rigorous imprisonment for three months for

committing offence under Section 489B read with Section 120B of the

Indian Penal Code. The same punishment was passed for the offence

under Section 489C read with Section 120B of the Indian Penal Code

and it was directed that both the sentences will run concurrently.

The appellant faced trial in the above mentioned case under

charge of Section 489B read with Section 120B of the Indian Penal

Code and Section 489C read with Section 120B of the Indian Penal

Code on the allegation that he was in possession of fake Indian

currency notes (FICN for short) for the purpose of trafficking and

while possessing FICN he was arrested by the police attached to

Shibpur Police Station, Howrah on 12 th October, 2015 at about 21.10

hours.

The F.I.R. reveals that S.I. Sibayan Dey at Shibpur Police

Station received a secret information that the accused would come to

Fazir Bazar More on G.T. Road to deliver some FICN to his associates

namely Sultan Ali and Barbadi. Accordingly, they laid a trap in the

said area and apprehended the appellant at about 21.40 hours near

Howrah Jute Mills Gate. After apprehension, S.I. Sibayan Dey

conducted search observing all necessary formalities of the person of

the accused and recovered 11 (eleven) numbers of FICN in

denomination of Rs.1,000/- and Rs.500/- from the right side pocket of

his pant. Seizure was made in presence of two local witnesses. After

search, recovery of FICN and seizure of FICN the accused was

arrested and brought to the police station. Sub-Inspector lodged a

complaint before the Officer-in-Charge of Shibpur P.S. On the basis

of which Case No.503 of 2015 dated 12 th October, 2015 under Section

489B/489C/120B/34 of the Indian Penal Code was registered.

I have heard the learned advocate for the appellant and learned

Public Prosecutor, perused the entire materials on record and duly

considered the same. The learned advocate appearing for the

appellant has impeached the findings of the Court below that the

charge was framed under Section 489B and 489C read with Section

34 of the Indian Penal Code. A separate head of charge was also

framed under Section 120B read with Section 34 of the Indian Penal

Code. It is submitted by the learned advocate for the appellant that

there is no material in the evidence on record in support of the charge

under Section 120B of the Indian Penal Code. The written complaint

does not refer even a single word of criminal conspiracy committed by

the appellant. It is needless to say that in order to commit criminal

conspiracy, there must be more than one person. Conspiracy cannot

be made singularly. In view of such circumstances, the order of

conviction with the aid of Section 120B of the Indian Penal Code is

absolutely untenable.

It is further argued by the appellant that even assuming the

legal evidence on record inculpating the appellant that come only to

the extent of the charge against them under Section 489C and not

under Section 489B of the Indian Penal Code. There is absolutely no

evidence that the appellant illegally "sells to or buys or receives from

any other person, or otherwise traffics or uses as genuine any forged

or counter fake currency note or bank note....."

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

findings and the order of conviction and sentence handed down by the

Court below and argues that necessary ingredients of Sections 489B

and 489C have been established and hence the appeal be rejected.

It is the case of the prosecution that on the basis of source

information the de facto complainant, S.I. Sibayan Dey with force laid

trap in Fazir Bazar More within P.S. Shibpur. The complaint also

states that before leaving the P.S. S.I. Sibayan Dey diarized the

source information in the General Diary Book maintained in the Police

Station. However, during trial the said G.D. entry or the copy of the

same has not been produced. From the evidence of P.W.1 it is found

that after apprehension of the appellant the police party conducted

search of his person and found one black colour money purse in his

right side pant pocket and on search recovered FICN of Rs.500/- and

Rs.1,000/- denomination. Thereafter S.I. Sibayan Dey seized those

currency notes under a seizure list. The seized currency notes were

not sealed and labelled. It is further claimed by P.W. 1 that the

process of search and seizure of FICN was made in presence of

independent witnesses.

P.W. 2, Ali Akbar and P.W. 5, Md. Nasim are the so-called

independent witnesses in presence of whom the search and seizure was

made, prosecution claimed. However, from the evidence of P.W. 2 it is

ascertained that P.W. 2 was called in the Police Station on the date of

occurrence at night. He went to Shibpur Police Station. Police told him

to put a signature on a seizure list and he signed on the seizure list

under the instruction of Police. His signature on the seizure list was

marked as exhibit-1/1. P.W. 5, Md. Nasim is an employee of the shop of

P.W. 2. It is also found from his evidence that he accompanied P.W. 2 in

Shibpur Police Station and Police obtained is signature on the said

seizure list in the Police Station.

It is important to note that the said independent witnesses did not

support the prosecution case relating to their presence at the place of

occurrence when the accused person was searched and FICN was

recovered from his possession. The above-named witnesses were not

declared hostile by the prosecution. Therefore, it is safely concluded

that the said two witnesses were not present at the place of occurrence

at the time of search and seizure of FICN from the possession of the

appellant. Thus, the claim of the prosecution that search and seizure

was made in presence of independent witnesses appears to be false.

Apart from the above-named two witnesses, prosecution examined one

Sanjoy Mondal as P.W. 3 and Prabir Kumar Khan as P.W. 4. It is found

from their evidence that they could not say the number of seized FICN

from the possession of the appellant on 12 th October, 2015. From the

cross-examination of P.W. 4, it appears that he was examined by the

Investigating Officer at the spot immediately after seizure. It is

surprising to note that P.W. 4 was interrogated by the Investigating

Officer before initiation of any case against the accused.

The prosecution case has two parts involving two incidents. It is

the case of the prosecution that on 16 th October, 2015 while the accused

was in Police custody he made a statement admitting illegal possession

of more FICN and on the basis of such disclosure statement, Police

recovered twenty pieces of FICN of Rs.500/- denomination each from his

house. P.W. 6, Md. Azad and P.W. 7, Md. Sultan Khan were shown as

independent witnesses to the second seizure of FICN. However, they did

not support the prosecution case while P.W. 6, Md. Azad was declared

hostile by the prosecution. P.W. 7 was not even declared as such during

his examination.

It is not disputed that the seized FICNs are counterfeit currency

notes which would appear from the evidence of P.W. 8 who was the

Manager of Bharatiya Reserve Bank, Note Mudran (P) Ltd. at Salboni.

Learned Public Prosecutor-in-Charge refers to a decision of the

Division Bench of this Court in the case of Jubeda Chitrakar @ Jaba @

Zubeda Chitrakar & Ors. -Vs.- The State of West Bengal (CRA 562

of 2018 and CRA 592 of 2018, Judgment delivered on 22 nd November,

2019). The Hon'ble Division Bench held that illegal possession of huge

quantity of FICN cannot be treated "as those of mere dormant

possession but are of active transportation of fake currency notes which

would fall within the sweep of Section 489B of the Indian Penal Code. In

holding so, it was stated that when the accused person is found carrying

sizable quantity of fake currency notes on a public road, or otherwise, in

a concealed manner, it would amount to active transportation of such

currency note at the time when the accused person is apprehended. No

explanation being offered by the accused when questioned under Section

313 of the Code of Criminal Procedure regarding the possession of the

counterfeit currency, the burden of proof of facts within the knowledge

of such person was held as not discharged by that person in terms of

Section 106 of the Evidence Act. We completely agree with those

judicial precedents and follow them, they being applicable on the facts of

these appeals as we would elaborate hereunder".

It is needless to say that judicial precedent is applicable under the

facts and circumstances of a particular case. In the aforesaid decision

delivered by the Division Bench of this Court it was held that the

prosecution was able to prove the raid, interception and recovery of

FICN on the basis of secret information. The prosecution also was able

to prove the modality of the raid and recovered of huge quantity of FICN

by adducing satisfactory evidence which was accepted by the Division

Bench of this Court.

In other words, if the prosecution is able to prove search, seizure,

raid and recovery of FICN by adducing credible evidence in support of

the prosecution case, the judicial precedents to the fact that illegal

possession of huge quantity of FICN does not only attract Section 489C

of the Indian Penal Code but the offence under Section 489B is also held

to be proved.

Coming to the instant case it is ascertained that the prosecution

during trial failed to produce the relevant G.D. entry on the basis of

which they left the Police Station to work out the secret information.

The independent witnesses did not support the prosecution case. The

raiding party did not offer themselves for search by the accused.

Recovery of FICN on 16th October, 2015 has not been proved in view of

the fact that the prosecution failed miserably to produce the statement

of the accused while in Police custody leading to recovery of FICN from

his house.

Therefore, the prosecution has failed to prove the basic ingredients

of offence under Section 489C of the Indian Penal Code and accordingly,

the charge under Section 489B also fails. This Court further fails to

understand as to why and how a charge under Section 120B of the

Indian Penal Code was framed in the absence of any material of criminal

conspiracy against the accused. The allegation that the accused wanted

to hand over FICN to two other persons is not sufficient, there must be

certain prima facie evidence to frame charge under Section 120B of the

Indian Penal Code against the accused. The prosecution failed to

produce the minimum evidence in support of the said charge.

For the reasons stated above, this Court respectfully is of the view

that the precedent laid down in Jubeda Chitrakar @ Jaba @ Zubeda

Chitrakar & Ors. (supra) is not applicable under the facts and

circumstances of the case.

The instant appeal, therefore, is allowed. The order of conviction

and sentence passed by the learned Trial Judge in Sessions Trial No.

309/2016 and G. R. Case No. 7581/2015 arising out of Shibpur Police

Station Case No. 503/2015 dated 12.10.2015 is set aside.

The accused be released from the Correctional Home and the

accused is discharged from his bail bond.

Parties are at liberty to act on the server copy of this order.

(Bibek Chaudhuri, J.)