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2014 DIGILAW 345 (TRI)

Rashel Mia v. State of Tripura

2014-10-29

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Mr. S. Bhattacharjee, learned counsel appearing for the appellant as well as Mr. R.C. Debnath, learned Additional Public Prosecutor appearing for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 04.05.2010 passed by the Sessions Judge, North Tripura, Kailashahar in ST 41(NT/K) of 2009. By the said judgment the appellant has been convicted under Section 489C of the Indian Penal Code and sentenced to suffer five years rigorous imprisonment. 3. The prosecution against the appellant has its genesis in a secret information received by one Inspector of Police namely Bidhu Bhushan Das, PW-10, leading to search and seizure of 20 fake currency notes, each of denomination of Rs. 500/- allegedly from the bed room of the appellant. After such search and seizure in presence of 'public witnesses' and on arrest of the appellant, PW-10 suo motu lodged a complaint on 23.07.2008 in the Kailashahar Police Station. Having received such complaint, Kailashahar PS Case No. 137 of 2008 under Sections 489A, 489B and 489C of the IPC was registered and taken up for investigation initially by Shri Bhabatosh Talukder, PW-11 and thereafter by Shri Shyamaprasad Das, PW-12 when the case was endorsed to the Crime Investigation Department. 4. On culmination of the investigation, the final police form, chargesheeting the appellant, was filed having prima facie materials of his involvement and committing the offences punishable under Sections 489B and 489C of the IPC. Since those offences cannot be tried by a Magistrate, the case was committed to the Court of the Sessions Judge, North Tripura, Kailashahar after taking due cognizance. On appreciating the police report along with the materials, the Sessions Judge framed the charge against the appellant under Section 489B and 489C of the IPC to which the appellant pleaded total innocence and claimed to face the trial. 5. In order to prove the charge, prosecution adduced as many as 12 witnesses including the complainant namely Shri Bidhu Bhushan Das, PW-10, the Investigating Officer namely Shri Bhabatosh Talukder, PW-11 and Shri Shyamaprasad Das, PW-12. Two public witnesses namely Md. Hachib Ali, PW-4 and Md. Ambar Ali, PW-5 were also examined by the prosecution along with one of the constables of police namely Smti. Madhabi Das, PW-2 who claimed to have accompanied PW-10 during the said search and seizure. 6. Two public witnesses namely Md. Hachib Ali, PW-4 and Md. Ambar Ali, PW-5 were also examined by the prosecution along with one of the constables of police namely Smti. Madhabi Das, PW-2 who claimed to have accompanied PW-10 during the said search and seizure. 6. On evaluation of the evidence the appellant was convicted under Section 489C of the IPC for having fake currency notes in his possession. Being aggrieved by that judgment of conviction in particular this appeal has been filed for interference by this Court. 7. Mr. Bhattacharjee, learned counsel for the appellant has taken this Court through the evidence on record and submitted that the public witnesses did not support the case of search and seizure in their presence. However, one constable of police namely Smti. Madhabi Das, PW-2, who has claimed to accompany PW-10 during the search and seizure has supported the prosecution case. Mr. Bhattacharjee, learned counsel has further asserted that clearly two versions have surfaced in the prosecution case. While one version speaks of the seizure of 20 Nos. of the fake currency notes from below the pillow of the appellant in his bed room the other version speaks of arrest of the appellant from the front of a mosque. Mr. Bhattacharjee, learned counsel for the appellant has expressed surprise by saying that when PW-5 namely Md. Ambar Ali was not declared hostile, how the prosecution can deny the veracity of his statement. He has drawn the attention of the Court towards the explanation given by the appellant while he was examined under Section 313 of the Cr.P.C. To rebut the finding of the trial court that the appellant did not give any explanation as to the possession of the fake currency notes, Mr. Bhattacharjee has referred to the statement made by the appellant when he was examined under Section 313 of the Cr.P.C. Mr. Bhattacharjee, learned counsel has referred a decision in Umashanker vs. State of Chhattisgarh reported in (2001) 9 SCC 642 where the apex court has enunciated the law in the following terms. "A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489B and 489C is, "knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit". "A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489B and 489C 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 489B 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 489C 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 P.W. 2, P.W. 4 and P.W. 7 that they were able to make out that currency note alleged to have been given to P.W. 4, was fake "presumed" such a mens rea. On the date of the incident the appellant was said to be 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-noted being fake on counterfeit was put to the appellant in his examination under Section 313 of 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 489B and 489C of I.P.C. and acquit him of the said charges." 8. Following that decision of the apex court, this High Court has decided in the same manner in Pradip Debnath vs. State of Tripura reported in (2013) 1 TLR 888 and in Sambhu Chakraborty vs. State of Tripura reported in 2014 Crl.L.J. 87. 9. From the other side, Mr. Debnath, learned Addl. PP has submitted that it is eminently conspicuous from the record that the fake currency notes were found from below the pillow of the bed of the appellant and the search and seizure have been established by PW-2, Smti. 9. From the other side, Mr. Debnath, learned Addl. PP has submitted that it is eminently conspicuous from the record that the fake currency notes were found from below the pillow of the bed of the appellant and the search and seizure have been established by PW-2, Smti. Madhabi Das and PW-3, Shri Bhanupada Chakraborty who were also present at that time. That apart, Mr. Debnath, learned Addl. PP has submitted that how the fake currency notes came to the bed room of the appellant has never been explained by the appellant during his examination under Section 313 of the Cr.P.C. As such, the presumption as drawn by the trial court is not infirm or required to be interfered with else the menace of destroying the country's economy by pumping into fake currencies cannot be combated. 10. For appreciation of the rival submissions made by the learned counsel, it is apposite to consider two aspects: (1) Whether possession of the fake currency notes by the appellant has been established and (2) Whether unwary possessor or user can be punished for mere possession of the fake currency notes or not. Shri Bidhu Bhushan Das who had conducted the seizure and filed the suo motu complaint against the appellant was examined in the trial as PW-10. In no uncertain terms he has stated that he conducted the search in the house of the appellant on the basis of the secret information and he found 20 Nos. of counterfeit currency notes in the room of the appellant. When the appellant was asked about the said fake currency notes he could not satisfactorily reply. In the cross examination, he has stated that the independent witnesses namely Md. Hachib Ali and Md. Ambar Ali were present at the time of search and seizure but he did not speak of the presence of PW-2, Smti. Madhabi Das, a constable of police. Curiously we find that in the seizure list there are two sets of witnesses; one set of witnesses for search and another set of witnesses for seizure and no place for seizure is mentioned in the search and seizure list, whereas the place of search has been mentioned. Md. Hachib Ali and Md. Ambar Ali had signed both as the search witnesses and seizure witnesses but Smti. Madhabi Das had only signed as the seizure witness. Md. Hachib Ali and Md. Ambar Ali had signed both as the search witnesses and seizure witnesses but Smti. Madhabi Das had only signed as the seizure witness. If this document is read in conjunction with the oral testimony of PW-2 the cardinal principle of assessing the evidence would compel this Court not to believe the oral testimony of PW-2 for two reasons. PW-10 did not mention her name and her name has not found place as the search witness. Thus, her statement that she was present at the time of search cannot be relied. Moreover, this witness appears interested. She has submitted that the appellant told that he bought those notes for sale but from a close scrutiny of the testimony of PW-10 who had questioned the appellant it would not be found that the appellant did not make any response/reply by saying those words. PW-10 has only mentioned that the appellant could not give any satisfactory reply. PW-10 has also categorically stated in his cross examination that he got the information that the business of sale of fake currency notes going on in Arabindanagar area. On such information he went to Irani Out Post and the O.C. of that Out Post accompanied him. Hence, there was no definite information as to the appellant's involvement in sale of fake currency notes. For the appellant Mr. Bhattacharjee, learned counsel did not make any endeavour to dispute the forensic report, Exbt. P/3 or the opinion as recorded therein. Even Mr. Debnath, learned Addl. PP did not contend that the prosecution has placed materials to show that the appellant was involved in the business of selling counterfeit currency notes. His contention is limited for drawing presumption of mens rea to the extent that the appellant was possessing those fake currency notes having knowledge that those are the fake currency notes and with object to sell or circulate them as genuine. 11. Having circumstanced similarly of that of Umashanker, the principles as enunciated by the apex court, of unwary possession, would be applicable in the present context. Moreover, in the considered opinion of this Court since PW-4, Md. Hachib Ali turned hostile to the prosecution case and PW-5, Md. Ambar Ali was not declared hostile the prosecution cannot exclude his statement from the evidence by questioning his credence. PW-5, Md. Moreover, in the considered opinion of this Court since PW-4, Md. Hachib Ali turned hostile to the prosecution case and PW-5, Md. Ambar Ali was not declared hostile the prosecution cannot exclude his statement from the evidence by questioning his credence. PW-5, Md. Ambar Ali has categorically stated that when he came out from the mosque on the road he saw the police officer searching Rashel Mia and found nothing in his possession. He was asked to sign a blank paper. Thereafter, Rashel Mia was taken to his house. He denied his presence in the Rashel's house during the search. Thus, both the search witnesses did not support the prosecution case and accordingly the seizure, out of the search, of the fake currency notes from the possession of the appellant could not be established by the prosecution beyond the shred of reasonable doubt. 12. Having held so, this Court is persuaded to interfere with the impugned judgment and order of conviction and sentence and accordingly those are interfered with and set aside. The appellant is acquitted from the charge for committing offence punishable under Section 489C of the IPC on benefit of doubt. Since the appellant is on bail, the sureties are discharged from their respective liabilities. 13. In the result, the appeal stands allowed. Send down the lower Court records forthwith.