Md. Saddam Hossain vs The State Of West Bengal
2022 Latest Caselaw 3121 Cal

                IN THE HIGH COURT AT CALCUTTA
               CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                          IA No: CRAN/3/2021
                                   In
                           C.R.A 461 of 2019

                          Md. Saddam Hossain
                                  Vs.
                      The State of West Bengal

     For the appellant:            Ms. Sreyashee Biswas, Adv.,
                                   Mr. Benajir Hasna, Adv.

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


                               CRA 479 of 2019

                                  Rubel Sk
                                     Vs.
                          The State of West Bengal


     For the appellant:            Mr. Subrata Karmakar, Adv.,

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

Heard on: 15 February, 2022.
Judgment on: 09 June, 2022.
                                     2



BIBEK CHAUDHURI, J. : -
1.

Criminal Appeal No.461 of 2019 has been filed by Md. Saddam

Hossain assailing the judgment and order of conviction passed by the

learned Additional Sessions Judge, Fast Track 2nd Court at Jangipur in

Sessions Trial No.2(2)/2018 arising out of Sessions Case No.133 of 2017

thereby convicting the appellant for committing offence under Section

489B and 489C of the Indian Penal Code as well as Section 14 of the

Foreigners Act and sentencing him to suffer rigorous imprisonment for

seven years with fine and default clause for the offence punishable under

Section 489B of the IPC. The above named appellant was also sentenced

to suffer rigorous imprisonment for five years with fine and default clause

for the offence punishable under Section 489C of the IPC. The appellant

was also sentenced to suffer rigorous imprisonment for three years with a

fine and default clause for the offence punishable under Section 14 of the

Foreigners Act.

2. The jail appeal filed by Rubel Seikh assailing the judgment and

order of conviction and sentence passed by the court below in the above

mentioned case, is registered as Criminal Appeal No.479 of 2019. It is the

case of the prosecution that on 29th July, 2017, a police party attached to

Samsherganj P.S conducted raid at a place near Dhuliyan Ferry Ghat to

work out on a source information. At about 4.30 pm they apprehended

two persons on suspicion. A search was conducted and S.I Md. Meser Ali

recovered two bundles of Fake Indian Currency Notes (FICN) containing

25 numbers of notes in each bundle of Rs.2000/- denomination from

each of the said two apprehended persons. Both of them disclosed their

names and identity as Md. Saddam Hossain and Rubel Sk. The Sub-

Inspector of Police seized the FICN under proper seizure list in presence of

the witnesses at the spot. The seized FICN were labeled and sealed at the

spot. It is also learnt that Rubel Sk is a Bangladesh National and he

entered Indian territory without any valid passport or visa. The above

named accused persons were arrested and brought to the police station.

S.I Md. Meser Ali Submitted a written complaint before the Officer-in-

Charge of the jurisdictional police station and a case was registered

against the above named appellants in Samsherganj P.S Case No.251 of

2017 under Section 489B/489C of the IPC and Section 14 of the

Foreigners Act.

3. Subsequently, police submitted charge sheet against both the

appellants under Section 489B/489C and Section 14 of the Foreigners

Act.

4. The case was transferred to the court of the learned Additional

Sessions Judge, Fast Track 2nd Court at Jangipur for trial. The learned

trial judge on consideration of the charge sheet and other materials on

record framed charge against both the accused persons under Section

489B/489C of the IPC and Section 14 of the Foreigners Act. Be it mention

here that while accused Rubel Sk was charged for illegal entry into the

territory of the Indian republic from Bangladesh without valid passport

and visa, charge under Section 14 of the Foreigners Act was also framed

against the accused Saddam Hossain for abating the offence of illegal

entry by accused Rubel Sk.

5. In order to prove the charge against the appellants, prosecution

examined six witnesses. Amongst them PW1 Sk. Yiasin Ali and PW5

Ananda Debansi are the constable of police attached to Samsherganj

Police Station at the relevant point of time. PW3 Tapas Kumar Das is a

home guard attached to Samsherganj P.S. PW4 SI Md. Meser Ali

conducted raid, search and seizer in respect of FICNs and arrested the

accused persons. He also submitted written complaint against the

accused persons before the Officer-in-Charge of Samsherganj Police

Station. PW2 Biswajit Ghoshal was posted as Sub-Inspector of Police at

Samsherganj P.S on 29th July, 2017. He received the complaint from PW4.

PW6 SI Srimanta Kumar Dutta is the Investigating Officer of this case.

6. Series of documents, viz., written complaint, seizer list label, formal

FIR etc were marked exhibits. The seized FICNs were marked material

exhibits during trial of the case.

7. After examination of the witnesses on behalf of the prosecution, the

accused persons were examined under Section 313 of the Cr.P.C. Defence

case has disclosed from the trend of cross examination of the witnesses

on behalf of the prosecution and examination of the accused persons

under Section 313 of the Cr.P.C appears to be complete denial of the

prosecution case. The accused persons pleaded their innocence during

trial of the case. The learned trial judge on due consideration of the

evidence on record held both the accused persons guilty for committing

offence under Section 489B/489C of the IPC and Section 14 of the

Foreigners Act. They were convicted and sentenced accordingly.

8. Learned Advocate for the appellants has assailed the judgment

passed by the court below on the ground that PW4 Md. Meser Ali under

whose leadership alleged search and seizure was conducted failed to

conduct search of the accused persons in presence of the independent

witnesses of the locality. In the instant case all the witnesses are police

personnel. Though PW1, PW2 and PW5 claimed that they were in the

raiding party along with PW4 SI Md. Meser Ali, their evidence suffers from

serious contradictions and discrepancies raising a suspicion as to

whether they actually conducted raid or the appellants were implicated in

a false case. It is also submitted by the learned Advocate for the

appellants that expert who examined the seized FICNs and submitted a

report to the effect that the seized currency notes are fake currency notes,

was not examined during trial of the case. Expert opinion was marked

exhibits through the Investigating Officer of this case, though he had no

knowledge about the authenticity of the report.

9. The learned Advocate on behalf of the appellant impeached the

findings of the trial court on the ground that even assuming that the legal

evidence on record inculpate the appellant, that could be only to the

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

Section 489B of the IPC. The decision of the trial court on the basis of

which conviction of the accused was recorded on both the charges is

contrary to law and the reasons stated by the trial court to note down

such order of conviction is unsustainable, it is argued.

10. The learned P.P-in-Charge, on the other hand, has supported the

judgment passed by the court below. It is submitted by him that the rule

nowhere states that the evidence of the police officers shall be discarded

altogether. The police officer who conducted raid and arrested the accused

left the police station after recording a GD entry. They conducted search

and finally apprehended the accused with huge amount of fake Indian

currency notes. Possession of huge number of fake Indian currency notes

prima facie establishes not only charge under Section 489C but also

charge under Section 489B of the IPC. The materials on record shows that

on the basis of secret source information received by PW4 SI Md. Meser

Ali, he made requisite diary entry vide Samserganj P.S GD Entry No.1098

dated 29th July, 2017. Then under the instruction of Officer-in-Charge of

Samserganj Police Station he along with the numbers of police force who

deposed in this case as PW1, PW2, PW3 and PW5 went to Dhuliyan

Ferryghat commonly named as "Bhatoghat" at 3.30 pm. It also appears

from his evidence that in course of raid the raiding party found two

persons coming towards Dhuliyan Ferryghat from Malda side. They

apprehended the said two persons at about 4.25 pm and recovered 25

pieces of FICN of denomination of Rs.2,000/- each from the left side west

concealing inside the lungi from the possession of the appellant. They also

recovered 25 pieces of FICN from the possession of accused Rubel Seikh.

11. The material evidence on record in the form of deposition regarding

the raid, search and seizure and the documentary evidence as well as

recovered articles are proved through cogent evidence. They correlate and

connect the materials particulars regarding commission of the crime.

Seizure of FICN, labelling, sealing and other due process for proper

preservation without being tampered in any manner are proved by the

witnesses. There is no reason to denounce the evidentiary value of the

witnesses only because they are police personnel. The seized fake

currency notes were examined by the expert and he submitted a report

stating, inter alia, that the said articles recovered from the possession of

the appellant are fake Indian currency notes.

12. It is true that the prosecution failed to examine any independent

witnesses in the locality. From the evidence of the witnesses on behalf of

the prosecution it is ascertained that the place of seizure is a crowded

place having shops and other establishments. It is also stated by the

witnesses that at the time of apprehension of the accused persons and

during search and seizure number of persons of the said locality

surrounded the place of occurrence. The learned Advocate for the

appellant has raised question as to why during search and seizure any

two of such local persons were not called for to be the witnesses of such

procedure. From the evidence of PW4 it is found that in spite of his

request none of the persons who assembled at the PO agreed to be the

witnesses of search and seizure. It is not uncommon that the numbers of

general public do not want to involve themselves in a criminal trial by

being a witness on behalf of the prosecution. In such case a reasonable

question arose as to whether in the absence of search and seizure in

presence of the local witnesses to lend cooperation to the evidence of the

witnesses on behalf of the prosecution the evidence of the raiding party

shall be discarded altogether or not.

13. During cross examination of the witnesses on behalf of the defence,

no question was put challenging reliability of the witnesses who deposes

in this case on behalf of the prosecution. It is not the law that in all cases

the evidence of police officer shall be discarded on the ground of failure on

the part of the prosecution to examine any independent witnesses. In

such cases, the courts have to adopt a greater degree of care while

scrutinizing the testimonies of the police officers. If they are found

reliable, they can form the basis of conviction. PW4 who was the leader of

the raiding party stated in his evidence that he requested the person who

assembled at the place of occurrence to be the witnesses of search and

seizure but nobody agreed. Under such circumstances, police authority

had no other alternative but to seize the contraband article in presence of

the members of the police force and arrest the accused. Viewing the entire

incident under the circumstances stated above, I do not find any legal

infirmity or error in appreciation of evidence by the court below in that

regard.

14. The accused persons did not plead absence of mens rea while huge

quantities of FICNs were recovered from them. Non-examination of any

defence witnesses and fact that no specific averment was made by the

appellant when questioned under Section 313 of the Cr.P.C, were factors

which wade with the court below to hold that the accused persons,

including the appellant possessed the FICNs being aware of the fact that

they were no genuine. In CRA 562 of 2018 (Jubeda Chitrakar @ Jaba

Chitrakar vs. The State of West Bengal) the Division Bench of this

Court presided over by the Hon'ble Chief Justice Thottathil B.

Radhakrishnan as His Lordship then was held that the component of

mens rea for offence falling under Section 489B and/or 489C is the

knowledge or having reason to believe that the currency note or bank note

is forged or counterfeit, coupled with the intention to use the same as

genuine or the knowledge that it may be used as genuine. In the aforesaid

judgment the Division Bench of this Court had dealt with the question as

to whether conscious possession of huge quantity of fake currency notes

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 attracts the offences under Section 489C of the IPC.

15. Section 489B uses the phrase "or otherwise traffics in or uses as

genuine." The Division Bench of this Court was pleased to hold that the

above phrase in Section 489B assumes importance in the context of the

fact that the term "traffics" is not defined for the purpose of Section

489B or for the IPC generally. The phrase "or otherwise traffics in or uses

as genuine" is added on to a string of phrases which results in the

sentence that delineates the ingredients of the offence as defined

in Section 489B. The activities which would amount to an offence

punishable under Section 489B of the IPC are firstly, selling, buying or

receiving. The second limb of the offence is "or otherwise traffics in or

uses as genuine." This phrase ought to be treated differently from selling,

buying or receiving and the term traffics have to read ejusdem generis

falls for consideration at this stage. In Parakh Foods Limited vs. State

of Andhra Pradesh & Anr. reported in (2008) 4 SCC 584, the Apex Court

held that the term "traffics" has to be read ejusdem generis with the

phrases "sells to", "buys" and "receives from any other person" and that

the junction of another person is necessary to accomplish such acts. It is

here that use of the word "otherwise" gains critical importance. The word

"otherwise" is used to indicate the opposite of, or contrast to, something

already stated when used as part of a phrase as "or otherwise" (see Oxford

Dictionary of English-3rd Edition). Even when the word "otherwise" is

used not as part of a phrase as "or otherwise", but as an adverb or an

adjective, such usages are also resorted to, to draw a contrast or

distinction. The word "traffics" as well as the word "trafficking" and

"trafficked" are used to describe the action of dealing or trading in

something illegal. The activity or activities which would amount to "sells

to", "buys" or "receives from" any other person, may require the

participation of two persons to complete any such transaction. However,

any activity which would fall within the phrase "otherwise traffics in" does

not indispensably require active participation of more than one person if

noticeably seizable quantity of FICN is found to be in the possession of

that person and such concealed possession cannot be treated as dormant

possession. That the above reason the Division Bench of this Court in the

aforementioned case held that the word "traffics" and the phrase "or

otherwise traffics in" in Section 489B of the IPC are not to be read

ejusdem generis with the words "sells", "buys" or "receives" from any other

person.

16. Finally the Division Bench of this Court relying on the decision of

the Gujarat High Court in Rayab Jusab Sama vs. State of Gujarat,

reported in 1998 Cri LJ 942, as well as the decision of High Court of

Madhya Pradesh (Jabalpur Bench) in Shabbir Sheikh vs. The State of

Madhya Pradesh (Crl. Appl. Nos.162, 452 and 453/2015 decided on

10.02.2018 was pleased to hold that conscious possession of huge

number of fake currency notes also conscience the penal provision under

Section 498B of the IPC.

17. This Court does not find any contrary reason on the facts and

circumstances to hold otherwise than what has been decided by the

Division Bench of this Court.

18. For the reasons stated above, the learned trial judge correctly hold

the accused guilty for committing offence under Section 489B and 489C

of the IPC.

19. Therefore, I do not find any reason to interfere with the impugned

judgment and order of conviction and sentence passed by this Court.

20. The appeal is accordingly dismissed on contest and the judgment

and order of conviction and sentence passed by learned Additional

Sessions Judge, Fast Track 2nd Court at Jangipur in Sessions Trial

No.2(2)/2018 arising out of Sessions Case No.133 of 2017 is affirmed.

(Bibek Chaudhuri, J.)