Lakshman Sarkar vs State of West Bengal

Indrajit Chatterjee, J.—This court is hearing this appeal as against the judgment and order of conviction dated 30-06-2014 passed by the then learned Additional Sessions Judge, Fast Track Court No. II at Bangaon, District-North 24-Parganas in Sessions Trial No. 04(6) 2009 arising out of Sessions Case No. 08(11) 2008 wherein the appellant was found guilty in respect of the charge punishable under Sections 489C of the Indian Penal Code and was convicted and sentenced to suffer simple imprisonment for four years to pay fine of Rs. 1000/- i.d., to suffer simple imprisonment for one month. That Sessions Trial arose out of Bagda P.S. Case No. 246 of 2006 under Sections 489A , 489B and 489C of the Indian Penal Code. The accused was however acquitted in respect of the charge punishable under Sections 489A , 489B of the Indian Penal Code.

The case as unfold at the time of trial can be stated in brief thus:-

That on 18-11-2006 at about 16-00 hours, BSF personnel were on border patrol duty and at that time, the BSF constable No. 94009563 Sheik Babavali and another constable No. 94003318 Lohora Oraon of Chowhatia border outpost No. 56/3-S were on routine patrol duty. They found a farmer with 66 numbers of Rs. 100/- denominations. The said miscreants tried to flee away by pushing the constable but he could be apprehended and arrested. Thereafter, the BSF personnel took the victim to the nearest BSF camp and the BSF men seized the said currency notes as per seizure list prepared through superior their Mr. K.K. Singh who also lodged the FIR with the Bagda Police Station, District - North 24-Parganas (Ext. 3). On receipt of the said FIR Bagda P.S. Case No. 246 dated 19-11-2005 was started under Sections 489A , 489B and 489C of the Indian Penal Code. The investigation was taken up by one S.I. Rabindra Nath De (not examined). The case ended in charge sheet. The case was committed to the court of sessions and the aforesaid Sessions Case was registered and the case was transferred to the trial court and S.T. No. 04(6) 2009 was registered.

Charge was framed against the accused for the offences punishable under Sections 489A , 489B and 489C of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried. Before the learned trial court on behalf of the prosecution as many as five witnesses were examined. P.W. 1, P.W. 2 and P.W. 4 are all BSF men whereas P.W. 3 and P.W. 5 are two independent witnesses.

It may be noted that the seized notes were forwarded to the expert and the expert reported that all the notes were fake Indian Currency Notes (hereinafter called as FICNs).

On behalf of the prosecution, several documents were marked as Exhibits. Ext. 2/1 is the signature of Chaina Roy (PW 5) on the seizure list prepared by the BSF and Ext. 2 is the said seizure list itself. The signature of Milon Haider (PW 3) appearing on the said seizure list was not marked as Exhibit. Ext. 1 is the signature of P.W. 2 on the seizure list which was prepared at Bagda police station. Ext. 3 is the FIR, Ext. 4 is the report of the expert and Ext. 4/1 is the list of exhibits sent for examination through the Additional Chief Judicial Magistrate, Bangaon.

On behalf of the defence, no witness was examined and no documentary evidence was also marked as Ext. The positive case of the defence as came out from different suggestions put to the prosecution witnesses and the answers given by the accused under Section 313 of Cr.P.C. is that nothing was seized from the possession of this accused and he has been falsely implicated in this case.

It was argued on behalf of the defence by Ms. Mala Banerjee, learned Advocate, that in the present case, if the evidence is scrutinized, then, the court will come to the conclusion that even the BSF personnel varied regarding the distance of the B.O.P. from the place of occurrence, that no public witness, i.e. P.W. 3 and P.W. 5 did not see the seizure, that there was no mens rea on the part of the accused which would be evident from the fact that the accused was apprehended from the border area where routine search by the BSF is a daily affair, that there was non-compliance of a vital section like Section 100(5) of the Cr.P.C. as both the private witnesses candidly deposed that nothing was seized from the accused in their presence and that no label was put on the seized articles. She further submitted that the I.O. of this case did not face the dock and as such, the benefit must go to the defence. She further submitted that the accused has been falsely implicated in this case and that nothing was seized from him.

The argument submitted by Ms. Banerjee can be reduced below:

1) that the seizure list is defective as Section 100(5) of the Cr.P.C. was not followed;

2) that the public witnesses have not supported the prosecution story;

3) that the BSF men are interested witnesses and they cannot be relied upon;

4) that the accused had no knowledge or mens rea that he was in possession of counterfeit notes;

5) if the accused was aware that the BSF were in routine search of that area then, why the accused would carry those FICNs having fear of being apprehended; and

6) regarding the variance of the P.O., i.e. 700 mts. as claimed by P.W. 4 and 100 mts. as claimed by P.W. 2.

In counter to all these, Mr. Anand Keshari, learned Advocate appearing on behalf of the State, submitted

(1) by taking me to the seizure list that the numbers of the notes were as such:

1) 2 UP 665391 - 17 notes,

2) 2 UP 665392 - 23 notes,

3) 2 UP 665394 - 14 notes,

4) 2 UP 665395 - 12 notes,

and if those numbers are considered by this Court then, the Court must answer that the accused had the knowledge that those notes were fake as in respect of the same numbers being 2 UP 665391 there cannot be 17 notes of the same number and so on

(2) That the conduct of the accused that when he was being apprehended that the accused tried to flee away and he could be apprehended after a long chase by P.Ws. 1 and 2 only after the accused was struck with a tree will speak heavily against him.

(3) That the accused did not explain how the notes came to his possession either when the witnesses were examined or when he was examined under Section 313 of Cr.P.C.

(4) Thus, Mr. Keshari submitted that the accused only took up this defence that he was falsely implicated but the foundation for such false implication was not taken by the accused.

(5) That simply because the BSF men conducted the raid and apprehended the accused with such FICNs, those witnesses cannot be said to be interested witnesses. He further submitted that there is no reason to disbelieve the version of the BSF personnel, i.e. P.Ws., 1, 2 and 4 who has duly withstood the test of cross-examination and deposed the truth.

(6) That the offence was detected in 2006 when 500 rupee notes was not that much in circulation in those days and at that point of time Rs. 6600 had a good value at least four times as per present valuation.

(7) That it is true that the two public witnesses, i.e. P.Ws. 3 and 5 have not supported the prosecution case but there is nothing unusual in this day the public witnesses are not interested in supporting the prosecution case as they cannot gain anything from that except incurring worth of the accused. He submitted that both P.Ws. 3 and 5 are political persons and naturally they were more interested to save their co-villagers.

(8) That as per report of the expert all the notes were counterfeit notes and,

(9) That the non-examination of the I.O., what may be reason, cannot take away the horse from the sale of the prosecution board in such a case.

I have gone through the evidence on record meticulously. P.Ws. 1 and 2 are the witnesses of the BSF who apprehended the accused at the spot with such currency notes about which I have already told while noting the argument of Mr. Keshari.

On scrutiny on their evidence, I fail to get any vital contradictions in between their evidence to brand these witnesses as not worthy of credit.

P.W. 2 came to depose from Haryana on 04-08-2012, that is, after a gap of six years from the incident and naturally, his memory on the place of occurrence faded in the meantime. Thus, the contradiction as regards the distance of the P.O. to BOP about which these witnesses contradicted, that is, as per the version of P.W. 2 it was 100 meters and as per evidence of P.W. 4 it was 700 meters is not enough to discard the evidence of both the witnesses. This Court is not unmindful of the fact that the P.W. 4 who wrote the FIR that the distance between P.O. and BOP was 700 meters. Thus, this Court is not convinced with the argument of Ms. Banerjee that this contradiction may be regarded as vital contradiction.

Now, the question is whether the evidence of these witnesses can be believed. It is true that they are all policemen. The Apex Court in series of decisions starting from 1956 to 2012 have categorically held that simply because such a witness is one policeman, that is, not enough to brand him as interested witness or to throw away the evidence of such witness. This Court can rely upon the decision of the Apex Court as reported in Aher Raja Khima Vs. The State of Saurashtra, , Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another, , in Pramod Kumar Vs. State (GNCT) of Delhi, and in Govindaraju @ Govinda Vs. State by Sriramapuram P.S. and Another, . Myself cannot resists my lips from saying what the Apex Court held in this case. The Apex Court held that it cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case which will depend upon fact of a given case - if testimony of such a witness is reliable, trustworthy, cogent, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. The Apex Court proceeded to say further that only when his interest in success of case is motivated by over zealousness to an extent of his involving innocent people, then, no credibility can be attached to his statement.

It was argued by the learned Advocate of the defence that there were other villagers who were not examined by the prosecution and the two public witnesses, i.e. P.Ws. 3 and 5 have not supported the prosecution story as regards the details of the seizure.

I have gone through the evidence of P.W. 3, who was the member of Gram Panchayat at that point of time. It is true that he did not support the prosecution case in toto but some portions of his evidence is no doubt relevant:

"Personnel called me and accordingly I had been to the PO of this case. Going to the PO, I saw the accused present there. The B.S.F. Personnel told me that some articles including some currencies were recovered from the accused. Police also told me that they had arrested the accused person present in the court today and asked me to put my signature in a paper. Accordingly I signed the said paper. This is the said paper upon which I put my signature at the request of the B.S.F. Personnel at the PO of this case and this is my signature therein on 18-11-2006".

Thus, it is clear from his evidence in chief that he was aware as to the extent as told by the BSF and that he signed on the seizure list at the P.O. of this case and this witness duly identified his signature on the seizure list (though not marked as Ext.) and this witness also identified the accused on dock as the person who was apprehended by the BSF. It is true that P.W. 5 who was also a member of a Gram Panchayat of the nearby locality did not support the prosecution story at all. In these days the public witnesses have developed apathy to support the investigating agency or the prosecuting agency, as they are not interested in the result of the litigation.

In the decision of Promod (supra) the Apex Court held that non-examination of public witness is not automatically fatal to the prosecution case. Thus, simply because P.Ws. 3 and 5 did not support the prosecution case in toto that cannot be a ground to say that the incident did not take place.

Now, the question is whether the accused was aware or that he was in conscious possession of the FICNs. Much were argued by the defence that this accused was not at all conscious that such notes were fake.

I am at one with the argument of Mr. Keshari by cross checking the seizure list to say that a person who was in possession of such currency notes of 66 numbers having only four series numbers, i.e. 2 UP 665391 to 2 UP 665395. It is needless to say that there cannot be 17 or 24 or 13 or 12 such notes having the same serial numbers as noted in the seizure list. The accused did not come up with a plea as to where from he got those FICNs. His only claimed was that he was falsely implicated in this case. It is very easy to say whenever one accused is apprehended that he was falsely implicated in this case. The person who is going to establish a case of false implication must establish the foundation of it. I get support of my observation from the decision of the Apex Court as reported in Ruli Ram and Another Vs. State of Haryana, .

This court is not unmindful of the decision of the Apex Court as regards the conscious possession of the FICNs as decided by the Apex Court in the cases set forth below:-

1) M. Mammutti Vs. State of Karnataka, .

2) Umashanker Vs. State of Chhattisgarh, and the Division Bench decision of this Court as reported in Roney Dubey Vs. State of West Bengal, but unfortunately those cases cannot match with the present case before this court. In those cases, number of notes varied from 2 rupee notes, 14 five rupee notes, one fifty rupee note etc. but in the case before us, the seized FICNs were such that everyone will say that the accused had mens rea to possess those notes I repeat that the readers will follow my earlier observation regarding the number of the notes as noted in the seizure list.

It is true that the accused was acquitted in respect of the charge punishable under Section 489B of the Indian Penal Code and the State did not file any appeal against the order of acquittal. This court can say that what was divulged before the trial court was that the accused was actually engaged in circulating such FICNs and he could have been also convicted in respect of the charge punishable under Section 489B of the Indian Penal Code. Be that as it may, it is my observation regarding the fact of this case which may be taken into consideration in any other cases before the trial court. The difference between 489B and 489C of the Indian Penal Code is that one deals with possession of FICNs whereas the other deals with not only possession but also ''otherwise trafficking etc.''. The case before the trial court was a perfect case of trafficking. For trafficking it need not be proved that one must go to a shop to use the FICNs as genuine. Trafficking is a big word and several circumstances may be framed under the caption of this word ''trafficking''.

It was argued by the defence that seizure was defective as Section 100 of the Code of Criminal Procedure was not complied with. I am sorry to say that in the instance case before this court the B.S.F. personnel called two important witnesses of the locality being Panchayat members of that area to cover rigours of Section 100 of the Code of Criminal Procedure. One must know the main ingredient of Section 100 of the Code of Criminal Procedure. This Section has cast a duty on the public servant in charge of seizure and a duty has been cast on such officer that while making search, two or more independent and respectable inhabitants of the locality be asked to attend and witness the search and that the search shall be made in their presence and the list must be prepared in their presence also. Here, on the seizure list prepared by the BSF men marked as Ext. 2 both P.W. 2 and P.W. 5 signed as witnesses. It is true that they did not support the prosecution case in toto but it cannot be said that Section 100 the Code of Criminal Procedure was not complied with. The legislature in its wisdom while enacting Section 100 of the Code of Criminal Procedure also enacted in Clause 4 of that Section that the witnesses must be in the locality available and that they will be willing to be a witness to the search. These are the two vital clauses in favour of the seizing authority. Thus, the argument of the defence on this point is also not acceptable to this court.

The report of the expert goes to show that the seized notes were Fake Indian Currency Notes.

Regarding the argument of the defence that it is the system in that area that the BSF personnel regularly checks the villagers in the border area and knowing this practice how the accused could dare to go to that area with such FICNs, I am of the view that the intention of the accused cannot be gathered from such circumstances. What prompted the accused to come to the area knowing about the existing system of search by the BSF is anybody''s guess. It may be that the accused was such daredevil or had the capacity to undertake extra risks. Thus, simply because that such system was prevalent, this interception of the accused at the place of occurrence cannot be disbelieved. This argument of the defence cannot carry any weight.

It is true that the Investigating Officer of this case did not face the dock but that cannot be a ground to set aside the order of conviction passed by the learned trial court. Nothing has been shown by the defence that due to non-examination of the Investigating Officer the accused was seriously prejudiced. I have gone through the evidence on record, not a single contradiction was taken from the statement of the witnesses to make the examination of the Investigating Officer a necessity.

The report of the expert which has been marked under Section 292 of the Code of Criminal Procedure shows that all the notes were fake Indian Currency Notes.

Thus, considering the evidence on record, both oral and documentary and on hearing the argument put forward by the learned lawyers of the parties and on scrutiny of the judgment passed by the learned trial court, this court is of the opinion that the learned trial court rightly convicted the accused in respect of the charge under Section 489C of the Indian Penal Code. This court has some reservation regarding the order of acquittal passed by the learned trial court in respect of the charge under Section 489B of the Indian Penal Code about which I have already stated but in the given circumstances, this court cannot re-open the matter. This court wonders how a man aged less than 45 years was asked to serve simple imprisonment only instead of rigorous imprisonment.

Thus, I find no merit in this appeal. The appeal must fail and it fails.

However, there will be no order as to costs.

This court appreciates the observation of the learned trial court while sentencing the accused as I get it in page 22 of the paper book (internal page 7 of the judgment). Taken from the said judgment of the learned trial court, this court reiterates that the evil shadow of money exchange initiates fake currency racket in the border area of Indian and Bangladesh and it is destroying not only the Indian economy but it is a threat to our sovereignty. It is now known to all that to destroy our economy, the fake currency notes are being sent by the kingpin of that business through the villagers of the bordering districts. Such villagers of the border areas are the soft targets in spreading the fake currency notes through various outlets. In these days, a parallel market of such fake currency notes is running in such areas. It is a shame that one Indian citizen is reluctant to accept easily one five hundred rupee note or one thousand rupee note from a stranger unless it is verified properly. In some cases, the persons who are depositing such notes even in schools and colleges for fees, the number of such notes are noted in a separate sheet and the signature of the students or guardians are taken on such sheet as a special precaution. Thus, such an offender cannot get any lenient view from this court. To stop this menace, the accused appellant must serve the remaining portion of the sentence.

The accused appellant is on bail as granted by this court in CRAN 3875 of 2011 as per the order dated 15-12-2014 to the satisfaction of the Chief Judicial Magistrate, North 24-Parganas. The bail so granted is hereby cancelled. The accused appellant must surrender before the learned trial court within one month from the service of notice communicating the ordering portion of this court by the Officer in Charge of Bagda police station.

The trial court is directed to take up the matter with the said Officer-in-Charge. The accused after surrender must serve out the remaining portion of the sentence. Failure on the part of the accused appellant to surrender before the learned trial court within the stipulated time will entitle the learned trial court to issue warrant of arrest against the said accused appellant and to direct the Chief Judicial Magistrate, North 24-Parganas, Barasat to start proceeding against the sureties under Section 446 of the Code of Criminal Procedure. If such proceeding is started, the entire bond amount will be imposed as penalty both on the local surety as well as on the registered surety.

After the period of appeal is over, the counterfeit notes shall be handed over to the Inspector in Charge, Bagda Police Station, District - North 24-Parganas on proper receipt as per Rule 222(2) of the Criminal Rules and Order for sending the same to the Issue Department of the Reserve Bank of India, Kolkata with a brief report of this case.

Department is directed to transmit the Lower Court Records to the learned trial court at once.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.