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2018 DIGILAW 128 (CAL)

Soukat Ali v. State of West Bengal

2018-01-17

DEBI PROSAD DEY

body2018
JUDGMENT : DEBI PROSAD DEY, J. 1. This appeal is directed against the judgment and order of conviction dated 10th December, 2014 and 11th December, 2014 delivered by the learned Additional Sessions Judge 1st Fast Track Court, Jangipur in Sessions Trial No. 9 (8)13 arising out of Sessions Case No. 257 of 2013 whereby and whereunder the learned Judge has convicted the appellant for the offence punishable under Section 489 C of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 6 years and to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for 6 months. 2. Being aggrieved by and dissatisfied with the such order of conviction and sentence the appellant has preferred this appeal on amongst other grounds that the learned Trial Court could not appreciate the evidence on record in its true spirit and learned trial Court has erroneously decided the matter against the appellant and thereby convicted the appellant for the offence under Section 489 C of the Indian Penal Code when the trial Court did not find any evidence against the appellant for the offence under Section 489 (B) of the Indian Penal Code. 3. Learned Advocate appearing on behalf of the appellant contended that exclusive possession of such fake Indian currency notes in respect of the appellant is the sine quo non to bring home the charge under Section 489 C of the Indian Penal Code but the prosecution has failed to bring home the charge and could not produce any reliable and trustworthy witness to prove that such fake Indian currency notes were recovered from the exclusive possession of the appellant. Chance of planting of such fake Indian currency notes with the appellant, in that view of this matter, cannot be ruled out. It is further submitted on behalf of the appellant that the prosecution also could not produce any evidence of the place of occurrence about recovery of such fake Indian currency notes from the possession of the appellant and that the factum of seizure ought to be discarded for non-compliance of the mandatory provision of Section 100 (4) of the Code of Criminal Procedure. In other words, the mandatory provision of Section 100 (4) of the Criminal Procedure Code has been given a complete go bye at the time of alleged seizure of such articles/fake Indian currency notes from the possession of the appellant. In other words, the mandatory provision of Section 100 (4) of the Criminal Procedure Code has been given a complete go bye at the time of alleged seizure of such articles/fake Indian currency notes from the possession of the appellant. 4. Learned Advocate appearing on behalf of the appellant further contended that the independent witnesses did not support the case of the prosecution and only the police personnel, who were interested in the prosecution of the appellant, have supported the case of the prosecution and accordingly suspicion should have been cropped up in the mind of the trial Court about implication of the appellant for the alleged offence. Learned Advocate for the appellant drew the attention of the Court that the learned trial Court was satisfied that no evidence under Section 489 B of the Indian Penal Code was made out against the appellant and as such learned trial Court ought to have acquitted the appellant under Section 489C of the Indian Penal Code for the reasons stated hereinabove. 5. Mr. Ayan Bose learned Advocate appearing on behalf of the State on the contrary contended that the evidence on record clearly established that the appellant was intercepted and apprehended near Dhulian Railway Station beside a mango garden and accordingly there was absolutely no opportunity on the part of the raiding team to call for the local people from that orchard of mango. It is further submitted on behalf of the State that compliance of Section 100 (4) of the Code of Criminal Procedure is not mandatory but the said provision has been enacted in the Criminal Procedure Code to check the arbitrary seizure of any document/article by the police. Mr. Basu being ably assisted by Mr. Sengupta contended that chance of planting of such Indian currency notes may safely be ruled out in view of the fact that the appellant himself elucidated in the cross-examination of the investigating officer that such fake Indian currency notes were handed over to the appellant by one Kalimuddin Shek. Mr. Mr. Basu being ably assisted by Mr. Sengupta contended that chance of planting of such Indian currency notes may safely be ruled out in view of the fact that the appellant himself elucidated in the cross-examination of the investigating officer that such fake Indian currency notes were handed over to the appellant by one Kalimuddin Shek. Mr. Basu contended that mere denial by the independent witness with regard to the seizure of such fake Indian currency notes from the possession of the appellant would not be sufficient to discard the entire factum of seizure for the reason that the independent witnesses might have very many reasons not to support the case of the prosecution but a good number of witnesses have also supported such factum of seizure. 6. It would not be out of place to mention in brief the case of the prosecution as well as witnesses examined on behalf of the prosecution in order to appreciate the case of the appellant. On the basis of a tip off from a secret source, the Officer in Charge of Samserganj Police Station Lodged GD Entry being No. 668 dated 14.12.2012 and thereafter ambushed near a mango garden situated near Gazinagar Station Road along with police personnel. Being identified by the source they apprehended the appellant along with one Mustafijur Rahaman aged about 16 years. The appellant was carrying on his left shoulder a black-coloured side bag with a classic logo imprinted on that side bag when the raiding team requested them to search the police officer but they refused to do so. Thereafter on search of such bag of the appellant 20 bundles of denomination of Rs. 500/- fake Indian currency notes wrapped with a black plastic carry bag were recovered from the possession of the appellant. 10 bundles of Rs. 500/- denomination of fake Indian currency notes wrapped with a black plastic bag were recovered from the possession of Mustafijur Rahaman who is juvenile conflicting with law. The Officer in Charge of Samserganj Police Station Utpal Kumar Das counted such notes and seized the same under proper seizure list. Rs. 435/- of Indian currency was also recovered from the possession of the appellant. On return to the Police Station the Officer-in-Charge started Samsherganj Police Station Case No. 279/12 dated 14.12.2012 under Section 489 B and 489 C of the Indian Penal Code against the appellant and Mustafijur Rahaman. Rs. 435/- of Indian currency was also recovered from the possession of the appellant. On return to the Police Station the Officer-in-Charge started Samsherganj Police Station Case No. 279/12 dated 14.12.2012 under Section 489 B and 489 C of the Indian Penal Code against the appellant and Mustafijur Rahaman. The case of Mustafijur Rahaman was however, sent to the Juvenile Justice Board since Mustafijur Rahaman is a juvenile. After completion of investigation charge sheet was submitted against the appellant for the offence under Section 489 B and 489 C of the Indian Penal Code against the appellant. The contents of charge were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 7. Sub Inspector Utpal Das has been examined as prosecution witness No. 1. He has stated in details about the factum of seizure of such fake Indian currency notes from the possession of the appellant. Admittedly the GD Entry No. 668 dated 14.12.2012 was not produced before the trial Court by the prosecution. Learned trial Court has correctly observed that mere non-production of that GD being No. 668 dated 14.12.2012 is not sufficient to discard the entire case of the prosecution. The prosecution witness No. 1 being a responsible Police Officer and in Charge of Samsherganj Police Station obtained prior permission of the Sub-Divisional Police Officer of the Jangipur and the Circle Inspector Jangipur about such raid and thereafter proceeded with to execute the source information being accompanied by Sub-Inspector, Partha Sarathi Dey, ASI Sunil Sarkar, ASI Prabir Das, ASI Abhiram Mondal, constable Biswajit Purti, Constable Joydeb Mondal and Home Guard Tapas Das. Therefore, non-production of such GD Entry is not sufficient to discard the entire case of the prosecution. It is therefore, apparent from such evidence of prosecution witness No. 1 that fake Indian Currency notes were seized from the possession of the appellant. There was absolutely no scope on the part of the raiding team to call for the local people to stand as seizure witness and that is why prosecution witness No. 1 requested the 3 passers by to be the witnesses of search and seizure and accordingly they had put their signatures on the seizure list. 8. On careful consideration of the entire evidence of prosecution witness No 1. 8. On careful consideration of the entire evidence of prosecution witness No 1. I find that some technical questions have been raised by the appellant in the cross examination of the prosecution witness No. 1. The core testimony of prosecution witness No. 1 regarding seizure of such fake Indian currency notes from the possession of the appellant remained unshaken. This witness had no acquaintance with the appellant before such occurrence and there is absolutely nothing in the cross examination of this witness to show that he had any sort of enmity with the appellant. On the contrary it is evident that the witness in due discharge of his official duties intercepted the persons and recovered huge number of fake Indian currency notes from their possession. Witness No. 2 accompanied prosecution witness No. 1 and he has materially corroborated the evidence of prosecution witness No. 1. The cross examination of prosecution witness No. 2 also does not reveal anything to believe that the appellant has been falsely impleaded in connection with this case. 9. Prosecution witness No. 3 ASI Sunil Sakar also accompanied prosecution witness No. 1 at the that relevant date and time and he has materially corroborated the case of the prosecution in minute detail. On careful consideration of the evidence of the aforesaid witnesses I find that they materially corroborated the evidence of prosecution witness No. 1 in order to establish that in fact such fake Indian currency notes were recovered from the possession of the appellant as well as Mustafijur Rahaman on the fateful date and thereafter they were arrested. The factum of seizure of such fake Indian currency notes has also been corroborated by all such witnesses. Except some technical question there is absolutely nothing in the cross examination of the aforesaid witnesses to discard the case of the prosecution. 10. The Prosecution witness No. 5 was driving the police vehicle at that point of time and he was not present at the time of recovery of such fake Indian currency notes from the possession of the appellant. It may safely be said that driver was entrusted with the duty of driving the vehicle and though he had identified the appellant as the person from whom such fake Indian currency notes were recovered yet he was inside the vehicle when the actual recovery of such fake Indian currency notes took place. It may safely be said that driver was entrusted with the duty of driving the vehicle and though he had identified the appellant as the person from whom such fake Indian currency notes were recovered yet he was inside the vehicle when the actual recovery of such fake Indian currency notes took place. Therefore, on the basis of the evidence of prosecution witness No. 5 the appellant could not get any mileage with regard to his innocence. 11. Prosecution witness No. 6 Krishna Mukherjee a Constable of Samsherganj Police Station took the sealed packet to the Bharatiya Rserve Bank Note Mudran Pvt. Salbani, Paschim Medinapur and thereafter he obtained the expert opinion from Bharatiya Rserve Bank Note Mudran Pvt. Salbani, Paschim Medinapur. He is a formal witness and he has proved his signature on the authorizing letter vide exhibit 6/1. 12. Prosecution witness No. 7 Lutu Sk. signed on the seizure list and labels at the time of recovery of such fake Indian currency notes valued at Rs. 10,00.000 from the possession of this appellant and he has proved his signatures vide exhibit 3/2, exhibit A, exhibit B, exhibit 4/2, exhibit 5/2. He has also proved his signatures on the fake Indian currency notes said to have been recovered from the possession of the appellant vide Mat exhibit 1/1 and custody memo marked as exhibit 7/1. In his cross examination he has stated that the incident took place within 50/60 cubits away from Dhulian Railway Station and since he was passing near the said place of occurrence that is why he was called by the Police. On earlier occasion he has also disposed in a case at Jangipur Court. However on consideration of the entire evidence of Lutu it transpires that he has proved his signatures on the relevant documents including the fake Indian currency notes. Therefore, the presence of Lutu Sk at the time of such occurrence and at the time of seizure of such articles cannot be doubted in any view of the matter. 13. Prosecution witness No. 8 Bani Israil has also deposed in the same fashion and he did not deny his presence at the time of such seizure of fake Indian currency notes from the possession of the appellant. 13. Prosecution witness No. 8 Bani Israil has also deposed in the same fashion and he did not deny his presence at the time of such seizure of fake Indian currency notes from the possession of the appellant. He has also proved his signatures on the labels of seizure list being fake Indian currency notes which have been marked as exhibit 3/3, exhibit 4/3, exhibit 5/3 Mat exhibit 1/2 and mat exhibit 7/2. 14. The prosecution witness No. 9 Md. Morselim Sk. has proved his signatures on such documents including the fake Indian currency notes but nothing has been elicited in his cross examination. On the contrary he has stated in his cross examination that the police took his signatures on blank papers. Such cross examination of prosecution witness No. 9 is not sufficient to discard the entire factum of seizure and the signatures appearing on such relevant documents of the prosecution witness No. 9. Police had no occasion to obtain the signatures of this witness on blank papers and presumably in order to avoid the rigours of cross examination this witness has stated so in the cross examination without even realizing the impact of his statement since this witness has proved his own signatures at the time of his examination-in-chief. Such stray cross examination of witness No. 9 is not sufficient to discard the entire evidence of witness no. 9. 15. Prosecution witness No. 12 Constable Manik Kumar Das is a formal witness who had typed the written compliant at the dictation of the prosecution witness No. 1. 16. Prosecution witness No. 15 Constable Biswajit Purti another constable, accompanied the raiding party, and has also supported the case of the prosecution in minute details and he has proved his signature on the seizure list vide exhibit 3/6 on the label vide exhibit 4/5. The cross examination of prosecution witness no. 15 does not reveal anything so as to disbelieve such evidence. On the contrary prosecution witness No. 15 has totally supported the evidence of other police personnel. 17. Prosecution Witness No. 14 SI Amit Bhakat investigated the case and after obtaining the expert opinion, he submitted charge sheet against the appellant. On careful consideration of the cross examination of this witness I am really astonished to know that the entire case of the prosecution has been admitted by the appellant in the cross examination of this witness. 17. Prosecution Witness No. 14 SI Amit Bhakat investigated the case and after obtaining the expert opinion, he submitted charge sheet against the appellant. On careful consideration of the cross examination of this witness I am really astonished to know that the entire case of the prosecution has been admitted by the appellant in the cross examination of this witness. The relevant portion of the cross examination may be reproduced below. “It is a fact that Soukat Ali confessed during interrogation that fake currency notes were supplied by Kalimuddin Sk. Kalimuddin Sk. Has not been made accused in this.” 18. It is therefore, apparent from such cross examination that Soukat Ali the appellant took such counterfeit Indian currency notes from one Kalimuddin Sk though Kalimuddin Sk has not been arrayed as an accused in connection with this case since the investigating officer could not arrest him. This sort of cross examination has nailed the defence case and has established that Soukat Ali the appellant was carrying the business of fake Indian currency notes through one Kalimuddin Sk. Learned trial Court has acquitted the appellant for the offence under Section 489 B of the Indian Penal Code. Since prosecution could not produce any legally permissible evidence on record to suggest that the accused was selling, receiving or trafficking the fake Indian currency notes. I have no hesitation to hold that trial Court was not at all justified in acquitting the appellant for the offence under Section 489 B of the Indian Penal Code since possession of such huge fake Indian currency notes would automatically attract the intention and knowledge of the appellant and he could have been found guilty for the offence of trafficking the fake Indian currency notes. The cross examination of witness No. 14, I feel would give fillip to the case of the prosecution in respect of the offence under Section 489 B of the Indian Penal Code. However in absence of any prayer or appeal on behalf of the State I cannot convict him at this stage for such offence under Section 489 B of the Indian Penal Code. On the other hand, the learned trial Court was perfectly justified in convicting the appellant for the offence under Section 489 C and sentencing the appellant to suffer rigorous imprisonment for 6 years and to pay a fine of Rs. On the other hand, the learned trial Court was perfectly justified in convicting the appellant for the offence under Section 489 C and sentencing the appellant to suffer rigorous imprisonment for 6 years and to pay a fine of Rs. 10,000/- in default to suffer rigorous imprisonment for 6 months. 19. In any view of this case and in view of the discussions made hereinabove I find sufficient justification to uphold the order of conviction and sentence against the appellant. The appeal stands dismissed. 20. A copy of this judgment along with the lower Court Records be sent to the Court below as expeditiously as possible with a direction upon the Court below to take all possible steps to apprehend the appellant so that the remaining portion of sentence be served out by the appellant. The Superintendent of Police (Malda) and the Superintendent of Police (Murshidabad) are thus directed to take all possible coercive steps in order to apprehend the appellant Soukat Ali and to produce him before the trial Court for serving out the remaining portion of his sentence. The extract of the operative part of this judgment be accordingly sent to the concerned both the Superintendents of Police for information and expeditious compliance of this judgment. 21. Parties will be at liberty to get photostat copies of this judgment upon compliance of all necessary formalities.