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2017 DIGILAW 169 (CAL)

Md. Ashraful Hoque v. State of West Bengal

2017-02-14

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. 1. With the consent of the parties, the appeal is heard without preparation of paper books. 2. The appeal is directed against a judgment and order of conviction and sentence dated 29th June, 2016 passed by the learned Additional District & Sessions Judge, 4th Court, Malda in Sessions Trial No. 54(5)/15 corresponding to Sessions Case No. 219/2015 convicting the appellant for commission of offence punishable under Section 489C of the Indian Penal Code and directing him to suffer rigorous imprisonment for seven years as also to pay a fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for six months. 3. The prosecution case, as alleged, against the appellant is to the effect that on 30.12.2014 around 8.05 hrs. the complainant S.I. Tapas Rajak (PW 1) received a source information from reliable source that a deal of FICN would take place at Pripara more; he informed the matter to IC, Kaliachak, who directed him to work out on the source information; complainant diarized the information vide GD No. 724 dated 30.12.2014. Thereafter, he along with police personnel namely constable Ganesh Ghosh (PW 5) and Asit Dutta (PW 3) went to Pripara for working out such information. He also took two disinterested witnesses for such purpose. After reaching at the spot at around 8.45 hrs., P.W.1 contacted the source who identified the suspect and upon search hundred pieces of counterfeit notes of denomination Rs. 1000/-each were recovered from the possession of the suspect who disclosed his identity as the appellant. PW 1, thereafter, prepared the seizure list of seized counterfeit notes and labeled them in presence of the independent witnesses and the appellant. Upon return to the police station, he lodged written complaint resulting in Kaliachak PS Case No. 884/2014 under Section 489B/489C of the Indian Penal Code. Charge sheet was filed in conclusion of investigation and charge was framed under the aforesaid provisions by the trial Court. The appellant pleaded not guilty and claimed to be tried. Prosecution examined as many as eight witnesses and exhibited a number of documents. The defense of the appellant was one of innocence and false implication. In conclusion of trial, the trial Court by judgment and order 29.06.2016 while acquitting the appellant of the charge punishable under Section 489B of the Indian Penal Code convicted and sentenced the appellant, as aforesaid. 4. Mr. The defense of the appellant was one of innocence and false implication. In conclusion of trial, the trial Court by judgment and order 29.06.2016 while acquitting the appellant of the charge punishable under Section 489B of the Indian Penal Code convicted and sentenced the appellant, as aforesaid. 4. Mr. Sanyal, learned Senior Counsel appearing for the appellant submits that the prosecution case suffers from inherent infirmities. Seizure list was also not prepared at the spot and there are contradictions in the evidence of the prosecution witnesses as to the manner and course in which the raid was conducted. He, accordingly, prayed for acquittal. 5. Mr. Basu, learned Counsel for the State submits that the evidence of the official witnesses are convincing and remain unshaken in cross-examination. General diaries were proved to establish that the raid was conducted on the basis of source information and no evidence to the contrary is forthcoming to improbabilise the seizure of counterfeit currency notes from the possession of the appellant. The appeal is, therefore, liable to be dismissed. 6. PW 1 is the de facto complainant and leader of the raiding party. On 30.12.2014 he received telephonic information which he diarised as General Diary Entry No. 724 dated 30.12.2014 (Exbt.1) and left the police station along with constable Ganesh Ghosh (PW 5) and Asit Dutta (PW 3) to work out on the source information that a good number of FICNs would be dealt at Pirpara more. The raiding party reached at Pirpara more at 8.45 A.M. along with two other constables. As per the identification of the source they encircled the appellant and they offered themselves to be searched but he refused to do so. Thereafter they searched the appellants and recovered hundred pieces of counterfeit currency notes of denomination Rs. 1000/- each from the right pocket of the trouser wrapped in a handkerchief which were seized under a seizure list (Exbt.3). The appellant was arrested upon preparation of arrest memo. FIR was registered and general diary was also recorded being General Diary Entry No. 1389 dated 30.12.2014. The witness identified the seized counterfeit notes (Mat. Exbt.1) and the original General Diary Book (7 and 7/1). In cross-examination, he admitted that the General Diary entries No. 723 & 724 were written in separate ink and after 30.12.2014 there was no entry in the General Diary Book. The witness identified the seized counterfeit notes (Mat. Exbt.1) and the original General Diary Book (7 and 7/1). In cross-examination, he admitted that the General Diary entries No. 723 & 724 were written in separate ink and after 30.12.2014 there was no entry in the General Diary Book. ASI Shyamal Barman noted down all the General Diary Entries. There is no identification mark on the seized notes and no label on the seized counterfeit notes and on the packet. 7. PW 3 Asit Dutta deposed that he went to Pirpara more along with PW1 and upon reaching at the spot found 2/3 persons were standing. One person identified the appellant and the PW 1 searched the appellant in the presence of the witnesses and recovered counterfeit notes from his right pocket of the trouser which was wrapped in a handkerchief. The appellant was arrested and brought to the police station with the seized notes. 8. PW5 Ganesh Ghosh corroborated the evidence of PW 1 and 3. 9. PWs. 2 and 4 are the independent witnesses of the instant case. They did not support the prosecution case. Both the witnesses, however, admitted their signatures on the seizure list and stated that they had been called to the police station and made to sign on a blank piece of paper and as per the dictate of the police and they put their signatures on the seizure list. 10. PWs. 6 and 7 are the investigating officers in the instant case. PW 6 drew up formal FIR (Exbt.8). He visited the place of occurrence, prepared a draft sketch map along with index (Exbt.9 and 9/1). He recorded the statement of witnesses under Section 161 CrPC. 11. PW 7 took over the investigation from PW 6. He collected the report of FICNs (Exbt.10) and submitted charge sheet. 12. PW 8 is the Assistant General Manager of Salboni Mint. He prepared the expert report in the instant case. He also proved his signature on the examination report (Exbt.10/1 and 10/2). He explained typographical error in the examination report relating to the date of the said report. 13. From the aforesaid evidence on record it appears that on the basis of source information that a deal in FICNs would take place in Pirpara more, PW 1 recorded a General Diary and proceeded to the place along with PWs.3 and 5 to work out on such information. 13. From the aforesaid evidence on record it appears that on the basis of source information that a deal in FICNs would take place in Pirpara more, PW 1 recorded a General Diary and proceeded to the place along with PWs.3 and 5 to work out on such information. Appellant was apprehended at the spot as pointed out by the source. Upon search hundred pieces of counterfeit currency notes of denomination of Rs. 1000/- each were seized from his possession under a seizure list. It has been argued that there is some confusion as to the place where the seizure list was prepared. However, the oral evidence of the official witnesses with regard to the apprehension of the appellant and the recovery of hundred pieces of FICN from the possession of the appellant remains unshaken. It has also been argued that the General Diary Entries are in different ink but I find that the entries in the General Diary Book had been made in the ordinary course of official business and there is nothing on record to rebut the presumption as their genuineness. Exbt.10 has duly been proved by PW 8 to establish that the notes seized from the possession of the appellant was counterfeit notes. Hence, I am of the opinion that the oral version of the official witnesses with regard to the raid and recovery of the counterfeit currency notes from the possession of the appellant has been duly proved. The evidence of PWs.2-4, hostile witnesses, do not create any serious dent in the prosecution case. They have themselves admitted their signatures on the seizure list and in view of contradictions between their deposition in Court and their earlier statements recorded in the course of investigation before PW 6, no credence can be given to their version in the face of clear and convincing evidence of the other witnesses relating to recovery of counterfeit notes from the possession of the appellant. Hence, the prosecution case has been proved beyond reasonable doubt. Conviction of the appellant is upheld. 14. Coming to the issue of sentence it is submitted that the appellant does not have any criminal antecedents and had been acquitted of the charge under Section 489B of the Indian Penal Code. No appeal has been preferred on behalf of the State against such acquittal. That apart, maximum sentence has been imposed upon the appellant. 14. Coming to the issue of sentence it is submitted that the appellant does not have any criminal antecedents and had been acquitted of the charge under Section 489B of the Indian Penal Code. No appeal has been preferred on behalf of the State against such acquittal. That apart, maximum sentence has been imposed upon the appellant. In view of the fact that the appellant has no criminal antecedents and maximum sentence had been imposed upon him I am of the opinion that some concession in the matter of sentence may be extended to him. Accordingly, sentence imposed on the appellant is modified and he is directed to suffer rigorous imprisonment for 5 years as also to pay a fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for six months. 15. The appeal is allowed to the aforesaid extent. 16. The period of detention suffered by the appellant during investigation, enquiry or trial shall be set off against the substantive sentence imposed upon the appellants under Section 428 of the Code of Criminal Procedure. 17. Copy of the judgment along with LCR be sent down to the trial court at once for necessary action and execution of sentence in accordance with law. 18. Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.