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2012 DIGILAW 1318 (GAU)

Pradip Debnath v. State of Assam

2012-12-07

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. Heard Mr. D.C. Roy, learned amicus curiae as appointed by the Court for presenting the case of the appellant as well as Mr. A. Ghosh, learned Additional Public Prosecutor appearing for the State. This is an appeal filed under Section 374 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr PC) against the judgment of conviction and the order of sentence dated 09.12.2005 as passed by the Sessions Judge, South Tripura, Udaipur in Sessions Trial No. ST. 22(ST/A) of 2005 convicting the appellant for an offence punishable under Section 489(B) of the Indian Penal Code (hereinafter referred to as IPC) and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- (Rupees two thousand), in default of payment of fine to suffer further simple imprisonment for three months. 2. The Prosecution against the appellant was launched when a written ejahar was filed by the PW-11, namely, Kishan Lal Dhiman, alleging that on secret information at about 1500 hours the appellant was intercepted on 22.11.2002 and they found some fake Indian currencies amounting to Rs. 15,700/- while he was purchasing pig from the PW-4, namely, Sukumar Debbarrna. According to the said PW-11, on interrogation the appellant stated that he got those fake Indian currencies from one Chandan Ghosh. In the, course of time the currency notes were seized by the police on preparing a seizure list on 23.11.2002 at 1250 hours at Nutanbazar PS. 3. On investigation, the charge-sheet was filed against the appellant under Section 489(B) and 489(C) of the IPC. Having been committed to the Court of Sessions, South Tripura, Udaipur for trial, the following charges were framed against the appellant. Firstly, that you 22.11.2003 (sic. 2002) at about 1500 hours at Karbook Market under P.S. Natunbazar Dist. South Tripura, has in your possession counterfeit currency notes of Rs. 500/- 31 Nos.: and notes of Rs. 50/- 4 Nos. (Total Rs. 15,700/-) having reason to believe that the same to be forged and intending to use the same a genuine and you thereby committed an offence punishable under Section 489(C) of the IPC and within my cognizance. South Tripura, has in your possession counterfeit currency notes of Rs. 500/- 31 Nos.: and notes of Rs. 50/- 4 Nos. (Total Rs. 15,700/-) having reason to believe that the same to be forged and intending to use the same a genuine and you thereby committed an offence punishable under Section 489(C) of the IPC and within my cognizance. Secondly, that you on the same date, time and place, purchase pigs from the Karbook market by fake notes used the said notes as genuine a forged currency notes having or knowing reason to believe that the same to be forged and you have thereby committed an offence punishable under Section 489(B) of the IPC and within my cognizance. The appellant pleaded not guilty and claimed to be tried in accordance with law. 4. To substantiate the charge against the appellant, the prosecution examined as many as 12 witnesses including the informant (PW11). 5. The PW-1, namely, Bharat Jamatia, stated that one Sukumar Debbarrna came to Karbook market at about 3/3.30 p.m. to sell pig. He settled the sale at Rs. 6000/- with one Pradip Debnath. The seller had a doubt about the currency notes which the purchaser gave and there had been some altercations on that issue and the people around the market gathered there. At that time a few CRPF personnel and the SPOs also appeared. The purchaser was arrested. When he was searched some more fake currency notes amounting to Rs. 15,700/- (denomination of Rs. 500/- X 31, Rs. 50/- X 4) were found in the possession of the appellant. Even though the witness was not a seizure witness, he identified the said fake currency notes and accordingly those currency notes were admitted in the evidence and marked as Exbt. MO-1 and MO-2 series. In the cross-examination he denied the suggestions as advanced by the defence. One Champat Singh, a head constable of 20 Bn. CRPF, E. Coy was examined by the prosecution as the PW-2 who stated that on hearing heated exchange of words they rushed to the market and found that some fake notes were tendered by one Pradip Debnath who for purchasing pig from one Sukumar Debbarma (PW-4) gave those notes. In his possession fake notes amounting to Rs. 17,500/- were found. Inspector Roshan Lal, Assistant Commandant L.K. Dhiman, Jawan H/C Kartal Singh, Constable Gowas Lal were also there. In his possession fake notes amounting to Rs. 17,500/- were found. Inspector Roshan Lal, Assistant Commandant L.K. Dhiman, Jawan H/C Kartal Singh, Constable Gowas Lal were also there. The accused thereafter was taken to the police station. He also identified the fake currency notes. Another Head Constable, namely, Kartal Singh appeared in the Court and deposed as the PW-3 and narrated in the same way as was done by the PW 2. The PW-4, namely, Sukumar Debbarma, deposed in the Court that about two or two and half years back when he went to the Karbook market to sell a mature pig, he asked for Rs. 6,000/- as the cost for that pig. When the purchaser took the pig to a vehicle, he raised objection and asked him to pay him the money first. When he paid him the money he suspected those currency notes to be fake and he retained the pig. Some CRPF personnel along with others had appeared in the place and they checked the notes and on search they found fake currency notes of Rs. 15,700/- in possession of the appellant. He identified the Exbt. MO 1 and the MO 2 series but in the cross-examination he categorically admitted that he did not put any identifying mark or signature on the notes. The PW-5, namely, Ajoy Das, stated that about one and half years back police took the appellant in front of the gate of his house and searched the house of Chandan Ghosh but Chandan was not found. The PW-6, a constable working in the 20 Bn. CRPF, namely, Gwash Lal, stated that on or about 22.11.2002 he went to perform duty with the O/C of the PS at Jatanbari area. At about 3 p.m. they went to Jatanbari market and found a gathering around the appellant in the Karbook market. They were attracted by altercation on the genuineness of some currency notes. One Assistant Commandant Kishan Lal searched the person who was purchasing the pig and recovered 31 Nos. of Rs. 500/- and 4 Nos. of Rs. 50/- fake currency notes. He also identified the Exbt. MO-1 and MO-2 series even though he was not the witness in the seizure list. Identification of the Exbt. MO-1 and MO-2 series therefore has been shrouded for the reasons that those witnesses were not witnesses to seizure. of Rs. 500/- and 4 Nos. of Rs. 50/- fake currency notes. He also identified the Exbt. MO-1 and MO-2 series even though he was not the witness in the seizure list. Identification of the Exbt. MO-1 and MO-2 series therefore has been shrouded for the reasons that those witnesses were not witnesses to seizure. As such, precision that is required for identification of the questioned note cannot be expected of those witnesses. One Sub-Inspector of Police, namely, Swapan Dutta, was examined as the PW-7 who stated that he was given the charge of investigation on 23.11.2002 and thereafter he started investigation into the allegation and he prepared the seizure list (Exbt. 3) and obtained the signature of the accused Pradip Debnath. It appears that the signature of Pradip Debnath was taken at the police station below a certificate which runs as under: Signature of the a/p which recovered from his possession. He also admitted the hand sketch map as the Exbt. 4 in the evidence. It has been admitted in the cross examination that he had not noted in the seizure list about receipt of the face notes from the CRPF personnel. It is also pertinent to underlie that the PW-7 has stated that some fake notes were also handed over to him by the CRPF personnel stating that these were found in possession of the accused Pradip Debnath. The certificate given in the seizure list (Exbt. 4) is in contrast to the statement as made in the examination in chief by the PW-7. The PW-8 is another Sub-Inspector of Police, namely, Priyatosh Das who conducted the substantial part of the investigation and stated that he examined three more witnesses and recorded their statements and sent the seized money to the General Manager, Bank Note Press Dewas, Madhya Pradesh on 27.11.2003 on observance of the due process. Thereafter, he handed over the charge of investigation as per direction of the higher authority to one Amarjuit Debbarma. He denied the suggestions as made by the defence at the time of trial. The PW-9, namely, Amarjit Debbarma who was the investigating officer subsequent to the PW-8, stated that he collected the report from the expert and thereafter filed the charge-sheet against the appellant vide C/S No. 21/04 dated 11.10.04 under Section 489-B/489-C of the IPC. He denied the suggestions as made by the defence at the time of trial. The PW-9, namely, Amarjit Debbarma who was the investigating officer subsequent to the PW-8, stated that he collected the report from the expert and thereafter filed the charge-sheet against the appellant vide C/S No. 21/04 dated 11.10.04 under Section 489-B/489-C of the IPC. He categorically stated that he had not seen the original expert report as that was sent to the Court directly. The PW-10, a judicial officer namely T.C. Roy Bhowmik, who at the relevant point of time was posted as the SDJM, Amarpur stated that on the prayer of the IO he sent some currency notes for expert examination. He also marked the same as Exbt. MO-1 and MO-2 series. He however admitted that numbers of notes were not noted in the forwarding letter. The PW-11 is the informant, namely, Kishan Lal Dhirnan who narrated the episode. He reiterated what he described in the written ejahar and further stated that when the appellant paid money to the pig seller, he had doubts about the genuineness of those notes. There was a dispute between them. Some people arrived there in the mean time. 15 CRPF personnel were on duty around the place. Some were in the uniform and some were in the civil dress while doing their market duty. They cordoned the area. He was also there near the market. Finding the gathering, he rushed to that place and took title appellant to the DYFI Office near to the market. He conducted search and recovered the fake currency notes. He categorically stated that, "I searched him in presence of local people." He identified the written ejahar (Exbt. 1) and the fake currency notes, the Exbt. MO-1 and the MO-2 series. On the following morning he sent the accused, the seized money with the FIR to the OC, Natun Bazar PS. In the cross-examination, he also stated that on his interrogation accused stated that he got the money from one Chandan Ghosh of Bishalgarh. He also stated that the accused was arrested by him. But he did not disclose how he kept the custody of the accused person without transporting him to the nearby police station or under what authority he detained the appellant from 22.11.2002 to 23.11.2002. The PW-12, namely, Roshan Lal, a witness to the seizure and an Inspector working in the 20 Bn. But he did not disclose how he kept the custody of the accused person without transporting him to the nearby police station or under what authority he detained the appellant from 22.11.2002 to 23.11.2002. The PW-12, namely, Roshan Lal, a witness to the seizure and an Inspector working in the 20 Bn. CRPF, Karbook at the relevant point of time stated among other things that there was altercation between the parties and they rushed to that place and arrested the person with fake notes and thereafter the appellant was handed over to the Assistant Commandant who seized the money. The appellant was later on produced to the OC of the PS. It is to be emphasized at this point of time that the seizure at the first instance was caused by the PW-11 as stated by the PW-12. The said seizure list, however, (a part of Exbt. 1) does not contain the name of the witness nor the place from where the seizure was caused and also other particulars. 6. Mr. Roy, learned Amicus Curiae appearing for the appellant showing this discrepancy stated that from the report of the expert (Exbt. 5) the prosecution could establish that some of the currency notes as stated to have been recovered from the appellant were fake. He called the impugned judgment and order in question contending that there was no material to substantiate the charge and the entire investigation had gone haywire. As such, this Court is left with no other alternative but to interfere with the said judgment and order. 7. On the other hand, Mr. Ghosh, learned Addl. PP for the State submitted that from appreciation of the evidence, it would be apparent that PWs. 1, 2, 3, 4 and 6 were witnesses to the seizure but they did not sign any seizure list. Apart that, it is not in dispute by the learned counsel for the defence that the currency notes those were seized were counterfeit and the report that has been furnished in the record can always be admitted under Section 293 of the Cr. P.C. Therefore, without imposing the strict liability concept, this Court can accept the seizure of the counterfeit notes from the appellant as a valid piece of evidence. 8. P.C. Therefore, without imposing the strict liability concept, this Court can accept the seizure of the counterfeit notes from the appellant as a valid piece of evidence. 8. Before this Court embarks on the scrutiny of the rival contentions as well as the evidence, it may be beneficial to revisit the provisions of Section 489-B:- 489-B. 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. The sine qua non as such, is that it has to be proved that the accused in any transaction or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank notes having knowledge or reasons to believe the same to be forged or counterfeit. 9. Section 489-C provides as under:- 489-C. Possession of forged or counterfeit currency-notes or bank-notes – Whoever has in his possession any forged or counterfeit currency-note or bank-note, 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, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 10. The common thread that passes through all these penal sections is the knowledge of the currencies of being counterfeit. Unless mens rea is proved the offences under both the sections cannot be held to have been established in evidence. In this regard the Apex Court in Umashanker Vs. State of Chhattisgarh as reported in (2001) 9 SCC 642 has observed as under. 8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-B and 489-C is, "knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit". In this regard the Apex Court in Umashanker Vs. State of Chhattisgarh as reported in (2001) 9 SCC 642 has observed as under. 8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-B and 489-C is, "knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit". "Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-notes, is not enough to constitute offence under Section 489-B of I.P.C. So, also possessing or even intending to use any forged or counterfeit, currency-notes or bank-notes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW 2, PW 4 and PW 7 that they were able to make out that the currency note alleged to have been given to PW 4, was fake "presumed" such a mens rea. On the date of the incident, the appellant was said to be an 18 years old student. On the facts of this case the presumption drawn by the trial Court is not warranted under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency-notes being fake or counterfeit was put to the appellant in his examination under Section 313 of the Criminal Procedure Code. On these facts, we have no option but to hold that the charges framed under Sections 489B and 489C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489-B and 489-C I.P.C. and acquit him of the said charges [M. Mammutti Vs. State of Karnataka]. 11. The similar issue had fallen for consideration of the Apex Court in M. Mammutti Vs. State of Karnataka as reported in (1979) 4 SCC 723 as well which has been scantily referred in Umashanker (supra). State of Karnataka]. 11. The similar issue had fallen for consideration of the Apex Court in M. Mammutti Vs. State of Karnataka as reported in (1979) 4 SCC 723 as well which has been scantily referred in Umashanker (supra). From a close scrutiny it would also appear that no question has been put to the appellant whether he knowing that the notes were counterfeit tried to place the same as the genuine currency to the PW-4 but such question was never posed to the appellant. Apart that, from appreciation of the evidence recorded by the trial Court it is apparent that the question of possession of the counterfeit currency notes has not been cleansed by the prosecution. As it appears that the PW-11 who is the informant has claimed that he has seized the counterfeit currency notes from the appellant, but there is no witness who signed the seizure list at the time of seizing those purported counterfeit currencies. There is overwhelming evidence that at the time of alleged seizure of the counterfeit currency notes there had been a lot of witnesses including the witnesses whose depositions have been relied by Mr. Ghosh, learned Addl. PP for the State, but none of the witnesses has signed the seizure list as the witness to the seizure. But all on a sudden coming to the Court they had started identifying the currency notes without any mark on the currency notes. This kind of evidence can hardly be accepted in the evidence. Apart that, even from whom the police officer seized the currency notes are not found available in the second seizure list as is prepared by the police officer of the Nutanbazar PS. Only the informant (PW-11) and the PW 2 has signed on that seizure list and as discussed earlier the appellant was asked to sign a certificate appended at the bottom of the second seizure list that the currency notes were seized from him but the PW-11 and all other witnesses stated just opposite to that. All of them have stated in unison that the PW-11 had seized all the currency notes from the appellant. As such, these two pieces of evidence cannot be enjoined and are mutually destructive. 12. On the basis of such evidence it would be hardly safe for this Court to hold the findings of the conviction affirmed. All of them have stated in unison that the PW-11 had seized all the currency notes from the appellant. As such, these two pieces of evidence cannot be enjoined and are mutually destructive. 12. On the basis of such evidence it would be hardly safe for this Court to hold the findings of the conviction affirmed. Apart that, this Court is really in a quandary on what authority the PW-11 had got to cause search and seizure for the reason that under the statute except the police officer or the officers subordinate to that of the police station is authorized under Section 102 of the Cr. P.C to cause search and seizure in the manner as prescribed therein. The purported search and seizure as conducted by the PW 11 is absolutely unauthorized in the eye of law. The informant ought to have brought the accused with the counterfeit currency notes to the police station and handed him over to the police officer who is competent to cause investigation in accordance with law. 13. In total absence of mens rea in the evidence so led and the seizure of the counterfeit currency notes having not been proved/seized from the possession of the appellant in accordance with law, the findings of the conviction as returned by the trial Court is interfered with inasmuch as the PW-11 disclosed of his own to the Court that at the first instance the appellant had stated that he got the money from one Chandan Ghosh but the investigating agency did not interrogate or examine that Chandan Ghosh to verify the veracity of the statement that was made at the first instance by the appellant. As consequence thereof, the impugned judgment of conviction is set aside. For the reasons as discussed above, the appellant is acquitted from the charge on benefit of doubt and the appeal is accordingly allowed. The appellant be set at liberty forthwith. Send down the lower Court records forthwith. Mr. D.C. Roy, learned counsel shall be paid a sum of Rs. 5,000/- (Rupees five thousand) only for his appearance in this case as the Amicus Curiae. Appeal allowed.