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Tripura High Court · body

2015 DIGILAW 173 (TRI)

Md. Ghulam Asghar v. State of Tripura

2015-04-17

S.TALAPATRA

body2015
ORDER 1. Heard Mr D.R. Choudhury, learned counsel along with Mr. D. Deb, learned counsel and Mr. S. Choudhury, learned counsel appearing for the appellant as well as Mr. A. Ghosh, learned Public Prosecutor for the State. 2. This is an appeal under section 374(2) of the Cr. P.C. against the judgment dated 16.06.2014 delivered in Sessions Trial No. 216 of 2012 by the Additional Sessions Judge, West Tripura, Agartala, No.2 convicting the appellant for commission of offence punishable under Sections 489 (B) and 489(C) of the I.P.C. As consequence of that conviction, the appellant has been sentenced to suffer 5(five) years rigorous imprisonment along with a fine of Rs.5,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 6(six) months. 3. The genesis of the prosecution is rooted in the Ejahar filed by the Deputy Manager of Punjab National Bank, Agartala Branch on 16.03.2012 (Exbts.1 & 5) disclosing that two of the depositors namely, Sarwar Hossain and Md. Ghulam Asghar came to deposit Rs.40,000/- (Rupees forty thousand) at about 11:30 am on that day in the name of Ghulam Asghar in the Account No. 4934001500000974. Out of this amount, the accused persons sought to deposit Rs.17,000/- by counterfeit notes and the numbers of those notes have been given in the said Ejahar. Based there on, West Agartala Police Station Case No. 67 of 2012 under Sections 489(B) and 489(C) of the IPC was registered and taken up for investigation. Having completed the investigation, the Investigating Officer namely, Shri Dipak Das (PW10) filed the final police report charge-chargesheeting the accused persons. Since the offences are exclusively triable by court of Sessions, those were committed to the court of Sessions Judge and thereafter, it was transferred to the court of the Additional Sessions Judge, West Tripura, Agartala for conducting trial. The charge was against both the accused persons, namely Sarwar Hossain and Md. Ghulam Asghar under Section 489(B) and 489(C) of the IPC to which the accused persons pleaded total innocence and claimed to face the trial. 4. To substantiate the charge, the prosecution adduced as many as 10 witnesses including the informant, the cashier of the bank namely, Abraham Bongcher (PW7), the investigating officer (PW10) and the Forensic Scientist (PW4) and introduced 5(five) documentary evidence in the evidence (Exbts.1 to 5). 4. To substantiate the charge, the prosecution adduced as many as 10 witnesses including the informant, the cashier of the bank namely, Abraham Bongcher (PW7), the investigating officer (PW10) and the Forensic Scientist (PW4) and introduced 5(five) documentary evidence in the evidence (Exbts.1 to 5). It is to be noted here that the written ejahar has been marked twice under No. Exbts. 1 & 5. 5. PW1, namely, Shri Arunava Das, the informant has stated categorically in the trial that on 16.03.2012, two persons, namely Sarwar Hossain and Ghulam Asghar came to deposit Rs.40,000/- in the bank but when the cashier of the said branch was checking the currencies, he found that there were some counterfeit notes. Then the police were immediately called in the bank. The police seized the fake notes along with the deposit slips preparing a seizure list in his absence but he could not identify the accused persons during the trial. But he identified the fake currency notes as Exbt.M.O.2 series and the deposits slips as Exbt.M.O.3 series. In the crossexamination, he has admitted that: “It is also not mentioned in my complaint how and by whom the notes were detected as fake notes at the time of incident. No arrangement is made in our branch for searching the Cashier before occupying the chair in the Cash Section for service. I submitted my complaint against the accused persons on the basis of the information received by me from my Cashier namely Abraham Bongcher.” 6. P.W.2, namely, Shri Nani Gopal Singha was working as the armed guard in the said bank. He has stated that on 16.03.2012, two young boys entered in the bank speaking in Hindi for depositing some amount and out of the total amount of Rs.40,000/-, eighteen numbers of five hundred rupee notes and eight numbers of one thousand rupee notes were fake. On the information given by the Deputy Manager (PW.1), the police came to their bank and seized the fake notes preparing seizure list in their presence. He identified the seizure list as Exbt.2. From the cross-examination nothing could be elicited of material importance by the defence. 7. PW3, Shri Manash Choudhury was posted as the police constable in the West Agartala Police Station on 18.03.2012. He identified the seizure list as Exbt.2. From the cross-examination nothing could be elicited of material importance by the defence. 7. PW3, Shri Manash Choudhury was posted as the police constable in the West Agartala Police Station on 18.03.2012. On that day, one officer of the CID seized eighteen numbers of five hundreds rupee denomination Indian currency notes and eight numbers of one thousand rupee denomination of Indian currency notes and one deposit slip on preparing a seizure list. He identified that seizure list dated 18.03.2012, Exbt.3. He also identified the reseized currency notes and deposit slip as Exbts.M.O.1 & M.O.2 series. But he could not say in connection with which CID case the currency notes were reseized. 8. PW4, namely Dr. Ajitesh Pal is a Forensic Scientist, who submitted that he received eighteen numbers of Indian currency notes of denomination of Rs.500/- each, marked as Exbts. E1 to E18 and eight numbers of Indian currency notes of denomination of Rs.1,000/- which were marked as Extbs.E19 to E26 from the SP, CID in connection with West Agartala P.S. case No.67 of 2012. After examination of the various marks and the security thread he came to the conclusion that those were the counterfeit notes. The Superintendent of Police, CID was not examined who marked the currency notes as mentioned by PW.4. It appears to this Court that at the time of seizure and reseizure, the currency notes were not preserved to maintain their integrity. Those were not sealed, marked or kept under any security protection so that those cannot be changed or altered by any means. Even when the currency notes were marked, this Court is unable to find that there was any witness to vouch that those were the currency notes seized from the bank and from the police station. 9. PW5, namely Gautam Paul, was posted as the Sub-Inspector of Police in the CID. He reseized the said currency notes in connection with West Agartala Police Station Case No. 67 o 2012. He has admitted the said reseizure list in the evidence as Extb. 3. He submitted the charge-sheet. It is needless to say that he completed the latter part of the investigation whereas PW10 conducted the investigation at the beginning. 10. He reseized the said currency notes in connection with West Agartala Police Station Case No. 67 o 2012. He has admitted the said reseizure list in the evidence as Extb. 3. He submitted the charge-sheet. It is needless to say that he completed the latter part of the investigation whereas PW10 conducted the investigation at the beginning. 10. PW6, Rabindranath Chakraborty, who was serving as the Single Window Operator on 16.03.2012 has categorically stated that Abraham Bongcher was the cashier of their branch and on 16.03.2012 at about 11:30 when he entered the Branch after completing his works outside the branch, he saw that the police personnel in their branch and that time, the Deputy Manager (PW1) told him that some fake notes in total Rs.17,000/- were found ‘in possession of two persons’ who came to the bank to deposit the same but he could not identify those persons also. 11. PW7, Sri Abraham Bongcher, cashier of the bank is a vital witness in this case. He has categorically stated that on 16.03.2012 when he was discharging the duties as the cashier in the Punjab National Bank, Agartala Branch, Mantirbari Road, Agartala at about 1130 am on that day, two persons came to deposit an amount of Rs.40,000/- and accordingly, they tendered the notes to him over the cash counter. While he was sorting the notes, he found eight numbers of one thousand rupee denomination counterfeit Indian currency notes and eighteen numbers of five hundred rupee denomination counterfeit Indian currency notes. Immediately, he reported the matter to PW1. He identified the counterfeit notes under Exbt.1 series and Ext. M.O.2 series but he has not stated anything how those currency notes were seized by the police, even though he has admitted of his possession of those notes. 12. PW8, namely Shri Subir Kr. Deb is another constable of police, who was posted at West Agartala Police Station on 18.02.2012 during the reseizure of the currency notes. He indentified his signature as Exbt.3/3, on the reseizure list. 13. PW9, namely Ratan Poddar was the manager of a local hotel where the accused persons were staying. He has categorically stated that the police searched their room but could not get anything illegal from that room. However, he identified those two persons in the dock. 14. He indentified his signature as Exbt.3/3, on the reseizure list. 13. PW9, namely Ratan Poddar was the manager of a local hotel where the accused persons were staying. He has categorically stated that the police searched their room but could not get anything illegal from that room. However, he identified those two persons in the dock. 14. PW10, namely Shri Dipak Das who seized the alleged counterfeit currency notes from the bank on preparing the seizure list, Exbt.2 in presence of the witnesses namely, PW1 and PW2, has categorically stated that the bank handed over those two persons with the counterfeit currency notes to him. He identified the seizure list, Extb.2, dated 16.03.2012. He has further submitted that he had taken up the investigation at the instance of the Officer-in-Charge of the West Agartala Police Station. He has stated in the cross-examination: “I seized the fake currency along with the along with the deposit slip from the possession of the accused persons.” But he did not provide any explanation how those came again in the possession of the accused. While this Court was reading into the content of the Exbt.2, it has surfaced that PW10 has inserted a note below the seizure list, which reads as under: “Seized by me on produce (sic) by the Dy. Manager, Punjab National Bank, 4, Mantribari Road, Agartala, Tripura (W).” Nowhere this apparent contradiction has been taken care of. He has not stated that after seizure he has sealed the counterfeit notes or he had given any mark on the individual counterfeit notes. The place of seizure has been shown to be the Punjab National Bank and nowhere has it been stated that these notes were seized from the possession of the accused persons. However, the signature of two persons, namely Sarwar Hossain and Ghulam Asghar as the signature of the possessor was taken. The entire exercise has made the seizure murky and untrustworthy. Time and again, this Court has held that when counterfeit notes are seized from anywhere or from any person, those are to be sealed with a security mark so that there cannot be any suspicion regarding their integrity till those are examined and evaluated by the trial court. Again in this case, it is found that there was no mark in the counterfeit notes, even those were not sealed with security mark for forensic examination. Again in this case, it is found that there was no mark in the counterfeit notes, even those were not sealed with security mark for forensic examination. It is surprising that the Superintendent of Police, CID has taken up on himself, in absence of any seizure witness to mark those notes before sending those to the State Forensic Science laboratory for forensic examination. The process that has been followed by the investigating agency has destroyed the integrity of the evidence and those cannot be relied for purpose of sending someone behind the bars. Apart that, what has surfaced is that the identification of the accused persons has not been duly established. Except the cashier and the investigating officer, none could identify those persons properly even in the trial. The identification of the police officer does not have any importance at all. But the cashier has identified them by face only. Such identification without further corroboration cannot also be fully relied by the court. However, this Court would not go into all those details as the integrity of the seized materials is under serious suspicion. This Court is of the considered opinion that based on such seized materials, therefore, the finding of conviction should not have been returned by the trial court. Accordingly, the impugned judgment and order are interfered with and set aside. The appellant is acquitted from the charge on benefit of doubt. Since the appellant is on bail, the sureties are discharged from their obligation. To place on the record, the trial court has acquitted the other accused person, namely Sarwar Hossain from the charge. In the result, the appeal stands allowed. Send down the LCRs forthwith.