JUDGMENT : Das, J. - Accused Panalal and Dhirendra Kumar Sarkar have filed this revision against the appellate judgment of the Sessions Judge, Mayurbhanj-Keonjhar, finding them guilty u/s 489-D, Indian Penal Code, and sentencing each of them to undergo Rule 1 for three years and to pay a fine of Rs. 500/- each, in default to undergo further imprisonment for six months. At the time of admitting this application, this Court and issued a notice to the Petitioners to show cause why the sentences should not be enhanced. 2 Mr. M.S. Rao. learned Counsel on behalf of the Petitioners argued the whole matter as if in appeal and showed cause against their conviction also. 3. The prosecution case was that on May 29, 1955, at village Kailpal in the sub-division of Keonjhar the Petitioners were found in possession of a suit-case (M.O. I) containing certain materials M.Os. H to XI, and were taken into custody. The whole case of the prosecution was that P.W. 1 a constable had been deputed to Mauza Madhukeshari to maintain peace, since there was an apprehension of communal trouble. P.W. 7 the Sarpanch of that Mauza came and informed him about the suspicious movement of the Petitioners. He had the information that when P. Ws. 1 and 3 along with certain other penons were sitting, Natabar Rout who was subsequently added as an accused, but since acquitted, came and informed them that the Petitioners were making notes and requested P.W. 7, if he could circulate them in the market. According to him the Petitioners had given him the assurance that they would take back the notes if they are not accepted by the people. P.W. 7 asked Natabar to meet him at 4 p.m. and accordingly the latter came and saw P.W. 7 in the presence of P.W. 2. By that time the Petitioners (sic) removed themselves from the village Madhukeshari to Kailapal to the house of P.W. 4. Eventually P.W. 7 informed, P.W. 1 the constable, and they proceeded to the house of P.W. 4. There they found the accused Panalal sleeping on a cot and accused Sarkar sleeping on the verandah with the suitcase (sic) head, with M. as. II to XIV. Certain other vilagers including P.W. 5 and 6 also gathered there and P.W. 8 the Choukidar had accompanied P. Ws. 1 and 7. There they found the accused Panalal sleeping on a cot and accused Sarkar sleeping on the verandah with the suitcase (sic) head, with M. as. II to XIV. Certain other vilagers including P.W. 5 and 6 also gathered there and P.W. 8 the Choukidar had accompanied P. Ws. 1 and 7. On their insistence the suit-case was opened and M.Os. II to XI were seized under Ext.2. This happened at about midnight of that day. On the next morning, P.W. 1 went with the Petitioners and the aforesaid material objects to the Police Station at Ramachandrapur where he lodged the first information on the basis of which the officer in-charge of the police station (P. W. 12) drew up the first information report (Ext. 5). Subsequently, investigation was conducted by.P. Ws. 9 and 11 and eventually the Appellants were charge-sheeted and they were committed to stand their trial. 4. The learned Assistant Session Judge of Keonjhar who tried the Petitioners at the first instance found them guilty u/s 489-D of the Indian Penal Code and sentenced them as stated above. On appeal, the learned Sessions Judge maintained the order of conviction and sentence as passed by the learned Assistant Sessions Judge and dismissed the appeal. It is against this judgment of the learned Sessions Judge that the present petition in revision was filed. 5. Mr. M.S. Rao, learned Counsel on behalf of the Petitioners contended that the evidence of the expert should not have been admitted u/s 33 of the Indian Evidence Act. If the evidence, of the expert is discarded as being inadmissible, there is no other evidence on record to convict the Petitioners. His second branch of argument was that even assuming the report to be admissible in evidence, the materials in possession of the Petitioners are not sufficient to counterfeit any note or even to double a note. Hence no conviction is warranted. Accordingly both the Courts misdirected themselves in convicting the Petitioners. 6. Before referring to the first contention of Mr. Rao, I would like to state what the evidence of the expert was. He was examined as P.W. 4 before the committing Court. According to hi evidence, he was an expert examiner of questioned currency and bank notes and was attached to the C.I.D. West Bengal. The materials found in possession of the Petitioners as stated above were M. as, II to XI. He was examined as P.W. 4 before the committing Court. According to hi evidence, he was an expert examiner of questioned currency and bank notes and was attached to the C.I.D. West Bengal. The materials found in possession of the Petitioners as stated above were M. as, II to XI. M.O. II is a phial containing (sic) brown liquid in which iodine was detected. M.O. III is another phial which contained also some liquid with some white suspended matter found to be lime water. M.O. IV is a cartoon containing four large and two small ampoules each containing some colorless liquid which on chemical analysis was found to be only distilled water. M.O. V consisting of four glass plates of which two were intact and two were broken. M.O. VI consist of ten rupee currency notes, and M.O. VII is a one-rupee currency note with a violet paper pasted on the number of it. M.O. VIII is a two rupee currency note. M. O. IX consist of fifty-two Radio Bond light blue papers and some white Radio Bond papers. According to the evidence of Shri Bankim Chandra Lahiri (P. W. 4 before the committing Magistrate) these articles meaning thereby, M. as. II to XI may be used in forging notes and in note-doubling confidence tricks. In his cross examination he stated that "no machinery is always necessary for counterfeiting notes. It depends on the method adopted. Sometimes instruments and machinery are used in some methods. In auto mechanical process, the printing process and all the appliances of process work are necessary. By autography they can be forged without machinery. Pen, paper and different colours are necessary in autography method. In forging the water-mark a pen-knife is necessary. No chemical is required in autography method. A lot of chemical is necessary in mechanical auto mechanical process. Colours of red, blue and yellow and combination of them and black are used in auto-mechanical process. The articles I examined are some of the articles necessary for forging notes and note-doubling trick. The papers which I received in this case serve well for the purpose of forging; so far as the colours in the papers are concerned, I have not examined them". He however admitted that forged notes cannot be prepared out of the M.as. I to XIV, meaning thereby a completely forged note. The papers which I received in this case serve well for the purpose of forging; so far as the colours in the papers are concerned, I have not examined them". He however admitted that forged notes cannot be prepared out of the M.as. I to XIV, meaning thereby a completely forged note. He further went on to say that the black cloth, M.O. XI, is necessary in auto-mechanical process. He did not examine the chemicals and ampules, which were examined by the Chemical Examiner. But in his opinion the M. as. may be used in autography and auto-mechanical processes. 7. Mr. Rao contended that this evidence should not have been admitted u/s 33 of the Indian Evidence Act at all, and for that purpose he relied upon certain decisions of the Calcutta High Court reported in Emperor Vs. C.A. Mathews S.C. Mitter Vs. The State Badri Prassad Missir and Anr. v. State AIR 1953 Cal. 395. His whole contention was that Section 33 of the evidence Act provides that evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the (sic) of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, w hen the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by tbe adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable: Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross examine; that the questions in issue were substantially the same in the first as in the second proceeding. An explanation was added to this section by which a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the (sic) of this section. Mr. Rao for purposes of his argument relied upon the second proviso to Section 33 that is, if the accused had the right and opportunity to cross-examine the expert in the first proceeding. I have referred to the evidence of P.W. 4 before the committing Magistrate. Mr. Rao for purposes of his argument relied upon the second proviso to Section 33 that is, if the accused had the right and opportunity to cross-examine the expert in the first proceeding. I have referred to the evidence of P.W. 4 before the committing Magistrate. The witness appears to have been cross-examined at great length. However, that does not determine the question. The question is whether the accused had the right and opportunity to cross examine him. The cases referred to by Mr. Rao are cases in relation to warrant cases. Chapter XVIII of the Code of Criminal Procedure relates to enquiry into cases triable by the Court of Session or High Court, whereas Chapter XXI relates to the procedure for the trial of Warrant Oases. Section 208 in Chapter XVIII as far as is relevant for our present purpose provides that the Magistrate shall when the accused appears or is brought before him, proceed to hear the complaint, if any, and take in manner here-in-after provided all such evidence as may be produced in support of the prosecution or on behalf of the accused as may be called for by the Magistrate. The accused shall be at liberty to cross-examine the witnesses for the prosecution and in such a case the prosecutor may re-examine him. The corresponding section in Chapter XXI after the amendment in Section 251A which provides that when in any case instituted on a police report the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy him self that the documents referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be furnished. Thus, under Sub-section (2) of Section 208 the accused has the right of cross-examining the witnesses for the prosecution. If the Magistrate refuses to allow the accused to cross-examine the prosecution witnesses during the enquiry, the commitment order cannot be said to be a power order. But this procedure differs from the procedure laid down in Chapter XXI relating to trial of warrant cases. If the Magistrate refuses to allow the accused to cross-examine the prosecution witnesses during the enquiry, the commitment order cannot be said to be a power order. But this procedure differs from the procedure laid down in Chapter XXI relating to trial of warrant cases. Under Chapter XXI cross-examination is allowed only after the framing of the charge, but in commitment proceedings the accused has the right to cross-examine the prosecution witnesses under Sub-section (2) of Section 208 before the proceeding has reached the stage in which it may be necessary to drop the charge. I am supported in this view of mine by a decision of the Patna High Court in Gauri Dutt v. D.K. Dowring AIR 934 Pat 43 wherein their Lordships of the Patna High Court held that Section 33 does not require it for a deposition to be admissible that the adverse party should have actually exercised his right to cross-examine the witness. It is enough if he had the opportunity to cross-examine on the occasion; and their Lordships referred to a decision of the Calcutta High Court reported in 8 O.W.N. 838. This Patna decision has been followed by a Division Bench of the Oudh Chief Court in the case of Tahawar Ali Khan v. Emperor AIR 1946 Oudh. 26. 8. The learned Sessions Judge found that presence of this witness could not be obtained without some amount of delay or expenses. Hence the learned Assistant Sessions Judge was right in admitting the evidence of the expert u/s 33 of the Indian Evidence Act. I have stated rather in some detail the evidence as has been given by the expert before the committing Court. From his evidence it is clear that he stated in unequivocal terms that most of these articles seized are (sic) used for forging currency notes That in my view is sufficient to convict the Petitioners. I have stated rather in some detail the evidence as has been given by the expert before the committing Court. From his evidence it is clear that he stated in unequivocal terms that most of these articles seized are (sic) used for forging currency notes That in my view is sufficient to convict the Petitioners. Section 489-D, I.P.C. provides that who ever makes or performs any part of the process of making or buys or sells or disposes of or has in his possession, any machinery, instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be (sic), for forging or counterfeiting any currency-note or bank-note, 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 (sic) to fine. Thus, in terms of the section, if the Petitioners were found to be in possession of the materials which are intended to be used for forging or counterfeiting any currency-notes or bank-notes or any portion thereof, they are clearly guilty under the section. In this connection, I may refer to P.Ws. 1, 2 and 3. P.W. 1 is the constable who receiver information from P.W. 2 that two Bengalees have come and were preparing forged notes and accordingly, they went to the house of P.W. 4 and found them to be in possession of the M. Os. in their suitcase, P.W. 2 Rangarlhar Pagal had stated that when he was sitting with Rangadhar Jena in the grain gola at about 5 P. M. on Sunday, (sic) came and told him about it. P.W. 7 corroborates P.W. 2. The accused Panalal in his statement before the committing Magistrate stated that the suitcase, M.O. 1. belongs to him and it contained medicines and M.Os. II and III. He had also admitted the presence of M.O. IV and M.Os. XIII and XIV besides certain other materials. At the trial he also admitted that he was the owner of the suit case. Accused Dhirendra Kumar Sarkar stated before the committing court that the suit-case was taken away from them. At the trial he only stated that the suit-case was not under his head at the time when it was seized. XIII and XIV besides certain other materials. At the trial he also admitted that he was the owner of the suit case. Accused Dhirendra Kumar Sarkar stated before the committing court that the suit-case was taken away from them. At the trial he only stated that the suit-case was not under his head at the time when it was seized. Therefore, it can safely be held that the suitcase belonged to both the accused persons and most of the contents of the suitcase have been admitted by the accused Panalal. 9. Mr. Rao then contended that the prosecution must prove that the accused intended to use these materials for the purpose of counterfeiting currency notes. The learned Sessions Judge on a careful consideration of the evidence on record came to the finding that this argument cannot stand for a moment. Because the very defence of the accused persons militates against this contention. Their defence was that they were going to Puri and on their way they got down at Jaipur and went to the village Madhupur from where they went to villages to ascertain from the people about the prevailing rate of paddy. Accordingly, the learned Sessions Judge found that when the prosecution has successfully proved that these material objects have been found from the possession of the Petitioners and according to the opinion of the expert some of them could be used for forging counterfeit currency notes, the necessary inference must be drawn from it. Mr. Rao in support of his argument relied upon a case of the Madras High Court reported in Abdul Rahaman v. Emperor 11 I.C. 241. Originally this case was heard by a Division Bench of the Madras High Court consisting of Abdur Rahimand Ayling, J.J. There having been a difference of opinion, the matter was referred to a third Judge, Sundar Aiyar, J. of that Court. Originally this case was heard by a Division Bench of the Madras High Court consisting of Abdur Rahimand Ayling, J.J. There having been a difference of opinion, the matter was referred to a third Judge, Sundar Aiyar, J. of that Court. Ayling, J. held that as it was not proved that the materials used were such as would be used for the purpose of counterfeiting, the conviction was bad in law and that the onus of proving the fitness of the materials for the purpose of the counterfeiting and the intention of the accused to use them for the said purpose lay on the Crown; whereas Abdur Rahim, J. held that in order to establish a charge u/s 189-D, Indian Penal Code, what the prosecution has to prove in the first place is that the machinery, instrument or materials found in the possession of the accused are such as would be used for production of a counterfeit note, and if that b proved, the next element which is to be proved is that the accused knew or intended that such articles would be used for the purpose of counterfeiting currency notes. It may be that in some cases a were inspection of the articles would satisfy the Court that they are capable of being used in the counter feiting of currency notes. But where that is not the case, it is the duty of the Crown to adduce evidence of a competent and qualified person who would be able to explain to the Court the process by which the instruments or materials in question could be used in making a counterfeit note. Sundara Aiyar, J. however, eventually held that the Crown should leave it to the Court to come to a judgment on the question of the adoptability of the materials for the purpose of counterfeiting by means of the knowledge possessed by the presiding Judge, nor should it ask the court to presume the purpose and intention of the accused from the nature of the instruments in his possession. Before the court could come to a conclusion that the accused had the objects in question for the purpose of counterfeiting, the Crown should establish that he had formed in his mind the purpose or intention of counterfeiting. Before the court could come to a conclusion that the accused had the objects in question for the purpose of counterfeiting, the Crown should establish that he had formed in his mind the purpose or intention of counterfeiting. There is no offence committed when all that is proved is that the accused was studying to acquire the art of counterfeiting and to equip himself with objects suitable for that purpose. A man may not be able to command all the articles required for the purpose of counterfeiting, but may be actually proved to be in possession only of some. That would not deter the Court from convicting him of an offence under the Statute. This case clearly militates against contention of Mr. Rao. In the instant case, the Court did not assume the function of an expert to himself, because to the naked eye the material objects are not such as would be found to be used for purposes of counterfeiting currency notes. That is the reason why an Apart was examined and in the opinion of the expert some of the M. Os. are objects which could be used for the purpose of counterfeiting currency notes. According to the decision of Mr. Justice Sundara Aiyar even if some of the Article 5 are in possession of the accused, that would not deter the Court from convicting the accused. This being the position in law, and in view of the evidence on record, I have no doubt that the two Petitioners were possess in these articles with the avowed object of counterfeiting currency notes. 10. The only other question that remains to be considered is the question of sentence. Learned Standing Counsel contended that this is a case which warrants higher sentence and this Court at the time of admission had issued notices for enhanceinent of the sentence. In my opinion the offence is rather serious in nature and anti-social in character apart from the question of loss of revenue. Hence this offences must be put down with a stern hand and the offenders must be dealt with adequately. Thus, in my opinion, the sentence passed by the learned Assistant Sessions Judge is rather too light and that was also the opinion of the learned Sessions Judge who heard the appeal. Hence this offences must be put down with a stern hand and the offenders must be dealt with adequately. Thus, in my opinion, the sentence passed by the learned Assistant Sessions Judge is rather too light and that was also the opinion of the learned Sessions Judge who heard the appeal. Accordingly, to meet the ends of justice, I would enhance the sentence of each of the Petitioners to five years R.I. while maintaining the sentence of (sic) with the alternative sentence as imposed by the learned Assistant Sessions Judge. In the result the rule is made absolute and the sentence is enhanced. Revision dismissed. Sentence enhanced. Final Result : Dismissed