Subir Dutta VsState of Tripura

S.C. Das, J.—This appeal u/s 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence dated 29.11.2008, passed by learned Additional Sessions Judge (Fast Track Court), Kailashahar in Sessions Trial No. 12(NT/K)/08 wherein the learned Additional Sessions Judge found the accused appellant guilty of committing offence punishable u/s 489C of IPC and sentenced him to suffer RI for three years and to pay a fine of Rs. 3,000/- (rupees three thousand), in default of payment of fine to suffer further S.I. for three months. Heard learned counsel, Mr. N. Das for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondents.

Prosecution case, in short is that on 30.12.2006, the informant Gouranga Sukla Baidya (P.W. 1), a Home Guard, along with another Assistant SPO Indramani Singha were performing law and order duty at Kailashahar Paschim Bazar and at that time Manik Miah and Niranjan Majumder, both staff of the Special Branch of Police of Kailashahar informed them that they found a tall boy wearing red shirt with curly hair was trying to change some five hundred rupee currency notes to smaller dimension of the currency notes and the currency notes were perhaps fake. On that information all of them started looking for that person and found him in the vegetable market and on seeing them he tried to flee away but they caught him. At the time of scuffling, two five hundred currency notes fell on the ground and those were suspected to be fake notes. Thereafter, they took the apprehended person to Kailashahar PS who disclosed his name as Subir Chandra Datta, son of Late Sam Kishore Datta of Chantail. At PS on search of his body, another 14 numbers of five hundred fake currency notes were seized from the possession of the apprehended person, Subir Chandra Datta. On interrogation he told the names of Goutam Debnath and Rahmat Ali and informed that Rahmat Ali supplied those notes to him. Handing over the accused, Subir Chandra Datta in custody of the In-charge O/C. of the PS, P.W. 1 Gouranga Sukla Baidya, Home Guard No. 922183 lodged the F.I.R. and accordingly Kailashahar PS Case No. 189 of 2006 under Sections 489B read with Section 34 of IPC was registered and S.I. S.P. Das was entrusted with the charge of investigation. In course of investigation by preparing a seizure list those fake currency notes were seized by the I.O. and those notes were sent to the State Forensic Science Laboratory (SFSL) for examination and report. Material witnesses were examined and thereafter charge sheet was filed against the accused for commission of offence punishable under Sections 489B , 489C read with Section 34 of IPC.

Cognizance was taken on the basis of the police report and on commitment of the case to the Court of Sessions Judge, trial was taken up in the Fast Track Court of learned Additional Sessions Judge, Kailashahar who framed charge against the accused appellant, Subir Chandra Datta for commission of offence punishable u/s 489C of IPC to which the accused appellant pleaded not guilty and claimed to berried.

In course of trial, prosecution examined 11 (eleven) witnesses.

Out of the prosecution witnesses P.W. 1 was the Home Guard of Kailashahar PS who lodged the F.I.R. P.Ws. 4 and 5 were the staff of Special Branch of Police who along P.W. 1 apprehended the accused from Paschim Bazar of Kailashahar. P.Ws. 2 and 3 were vegetable sellers of Paschim Bazar and P.W. 7 was the shopkeeper of that bazar. P.W. 8 was the In-charge O/C. of the PS on the date of occurrence and he registered the case. P.W. 11 was the first I.O. of the case and P.Ws. 9 and 10 were the subsequent IOs of CID of police.

After closure of the prosecution evidence accused was examined u/s 313 of Cr.P.C. and thereafter the accused declined to adduce any defence evidence. Defence case so far ascertained from the trend of cross-examination of the prosecution witnesses as well as from the statement of the accused made at the time of his examination u/s 313 of Cr.P.C. is that the SB staff of Kailashahar police unnecessarily arrested the accused from the market while he was selling vegetables and that he had no fake notes in his possession at the time of his apprehension.

Learned Additional Sessions Judge of the Fast Track Court considering the evidence on record found the accused appellant guilty and sentenced him as stated hereinbefore. Hence this appeal.

Learned counsel, Mr. Das appearing for the accused appellant assailed the judgment and order of conviction and sentence on the ground that no seizure list was prepared on the spot at Paschim bazaar, Kailashahar where the accused appellant was apprehended by the Home Guard and SB staff of police. No independent witness was present when the accused was searched by the police in the PS and so the allegation of search and seizure should not have been relied by the trial Court. He has also contended that except Tapan Kumar Roy no such permanent shopkeeper of Paschim Bazar, Kailashahar was examined by the prosecution to prove the fact that the accused was actually caught by the SB staff and the Home Guard from the market. It is further contended by Mr. Das, learned counsel that no expert opinion was brought on record that the currency notes alleged to have seized from the possession of the accused appellant were fake, and, under such circumstances the trial Court wrongly convicted the accused of the charge framed against him and, therefore, the appellant is entitled to get an order of acquittal.

Countering the submission of learned counsel, Mr. Das, learned Addl. P.P., Mr. Debnath has submitted that there is nothing in law that a police personal cannot be a witness of a fact. While the Home Guard and SB staff detained the accused appellant with the fake currency notes, they were natural witnesses of the occurrence and there is nothing to disbelieve their testimony in the given facts and circumstances of the case. He has also contended that the accused was already detained by the police personnel and was taken to Kailashahar PS and on search of his body total 14 numbers of fake currency notes were seized. Since the search was made at the PS there was no scope of any independent person being present at the time of the search and recovery of 14 numbers of fake currency notes, and therefore the search and seizure which has been otherwise proved cannot be leveled with unnecessary doubt to throw the prosecution case at bay. It is also contended by Mr. Debnath that the I.O. in course of investigation sent those currency notes to the SFSL for examination and opinion and the report of the SFSL was collected which shows that all those seized currency notes were fake. Defence did not challenge that report and the report may be considered u/s 293 of Cr.P.C. since it is a report of Government scientific experts. All the ingredients of offence punishable u/s 489C of IPC have been proved with sufficient evidence, and hence the judgment and order of conviction and sentence shall be maintained.

Let us first have a glimpse to the evidence on record.

9.1. P.Ws. 1, 4 and 5 are the witnesses, who alleged to have apprehended the accused at Kailashahar Paschim bazaar (market). P.W. 1 stated that he and another Assistant SPO Indramohan Singha were deputed by O/C. of the Kailashahar PS to perform law and order duty at Paschim Bazar. In support of this they exhibited a command certificate issued by the authority in their names. P.Ws. 4 and 5 stated that they were at the relevant time working as the staff of Special Branch of police, and that they were on duty in the market in civil dress to perform watch duty in the market. P.W. 4 stated that he got a secret information that a tall figure young man with curly hair, wearing red shirt was trying to change some five hundred rupee notes to smaller dimension and those were fake notes. P.Ws. 4 and 5 communicated the fact to P.W. 1 and his companion and all of them thereafter had started looking for that person and found him in the market on seeing them the accused first tried to flee away but they caught him. At the time of scuffling two five hundred currency notes fell on the ground and the witnesses suspected that those might be fake currency notes. In their deposition the witnesses stated that the market people gathered there and they were about to physically assault the accused but they hurriedly shifted the accused to Kailashahar PS. At Kailashahar PS on search another 14 numbers of five hundred rupee fake currency notes were found in the possession of the accused and the accused stated that he collected those notes for using in the market area. The other two accused are namely Goutam Debnath and Rahmat Ali

9.2. The evidence of P.Ws. 1, 4 and 5 have not been shaken in cross-examination in any manner. They are found to be cogent, consistent and reliable. They have no animosity with the accused to implicate him with a false allegation. There is no legal compulsion that their evidence should be rejected at the threshold simply because they are police personnel.

Let us now see the other evidence on record.

10.1 P.Ws. 2 and 3 are the vegetables sellers of the market. They knew the accused very well. P.W. 2 stated that on that day he was selling vegetables in the market and at that time he saw one person was caught by two other persons and was taken to the PS and after about two hours he could learn that Subir of Chantail was arrested by the police of intelligent branch in connection with fake currency notes. He had seen Subir (accused) sometimes in the market to sell vegetables. He identified the accused in the dock.

10.2. This material part of his statement has not been shattered in the cross-examination. There is only statement in the cross-examination that he has not seen any police personnel in uniform when the accused has been apprehended.

10.3. P.W. 3 also stated that he has seen two civil dressed police personnel caught one person and brought him to the PS. The other part of his statement was hearsay.

10.4. P.W. 7 stated that he was in his shop at about 6.00/6.30 p.m. and accused Subir was near to his shop. He had seen so many persons gathered and there was a scuffling between SB staff and the accused and the SB staff detained him.

10.5. So the evidence of P.Ws. 2, 3 and 7 substantially corroborated the evidence of P.Ws. 1, 4 and 5.

10.6. The accused in his examination u/s 313 of Cr.P.C. in reply to question Nos. 6 to 15 made a clear statement that it was a market day and he was selling vegetable in the market at that relevant point of time and all of a sudden, SB staff Manik Utllah and Niranjan Majumder apprehended him alleging that he had fake currency notes and thereafter they forcefully took him to the PS and implicated him in a false case.

The evidence of P.Ws. 1, 4 and 5 supported by the evidence of P.Ws. 2, 3 and 7 coupled with the statement of the accused made while examination u/s 313 of Cr.P.C. makes it abundantly clear that the accused was caught in the market of Paschim Bazar, Kailashahar by the SB staff. P.W. 8 stated that there was a scuffling between the accused and the SB staff. The witness stated that at the time of scuffling two five hundred rupee currency notes fell on the ground from the hand of the accused and those were collected by the witnesses and they suspected those to be fake notes. The market people gathered at large and according to P.Ws. 1, 4 and 5 the market people were about to assault the accused and therefore they hurriedly shifted the accused to Kailashahar PS. P.Ws. 1, 4, 5 and 8 made consistent statements that at PS on search of the accused from his pocket another 14 numbers five hundred fake currency notes were recovered and all those currency notes mentioned in the F.I.R. lodged by P.W. 1. It is true that at the time of the search and seizure, P.W. 8 who was the In-charge of the PS would call some independent witnesses from the locality to remain present during search and preparation of seizure list but that has not been done. For that reason alone, I think throwing the prosecution case at bay in the given facts and circumstances may not be proper since two fake currency notes were seized form the possession of the accused from the market itself in presence of independent people which is supported by P.Ws. 2, 3 and 7.

A police personal does not become an interested witness and should not be leveled as a witness of distrust always simply because he is a police personal. Besides, being a police personal, he is also a person of the society. He simply performs his duties as a police personal in a given facts and circumstances of a case and his evidence should be considered and evaluated taking into account the facts and circumstances of the given case. It is not proper to distrust the police personal only because they belong to police force.

We may gainfully refer here the case of

Girdhari Lal Gupta Vs. D.N. Mehta, Assistant Collector of Customs reported in (1970) 2 SCC 530

, a case under the Foreign Exchange Regulation Act, 1947, wherein the Apex Court has observed that the evidence of an investigating officer who conducted search may be relied on even without corroboration and it all depends on the facts in each case.

It is not proper to distrust a police personal without grounds therefore. A police witness, in each and every case cannot be regarded as an interested witness. At least, there is no such rule of law. In the given facts of this case, there is nothing on record that P.Ws. 1, 4 and 5 had any sort of animosity with the accused. It is only suggested that at the instance of the police officer they made false statement. There is nothing, not even a suggestion, what was the reason for the police officer to instruct P.Ws. 1, 4 and 5 to implicate the accused falsely in the case. I cannot agree with the submission of learned counsel, Mr. Das that P.Ws. 1, 4 and 5 should be disbelieved at the threshold for the reasons that they are police personnel. The accused himself admitted in his examination u/s 313 of Cr.P.C. that he was apprehended by the SB staff in the market. He simply denied the possession of fake currency notes and seizure thereof. In the given facts and circumstances of the case so far the witnesses stated that the market people was about to assault the accused and so he was immediately shifted to the PS and on search those fake currency notes were seized from his possession and that was done so hurriedly that calling of an independent person, though was legally required, but was not possible and for that reason I find no justification to throw the entire case of the prosecution overboard.

P.Ws. 4 and 7 are the witnesses to the search and seizure. They made consistent statement about the search and seizure. P.W. 11, the I.O. of the case prepared the search/seizure list marked as Exbt. 6. Signature of P.Ws. 4 and 7 marked as Exbt. 2 and 2/1 respectively. No question was put to I.O. as to whether any independent witness was called at the time of search and seizure of false/counterfeit notes. In the given facts and circumstances of the case we may refer the observation of the Apex Court in the case of

Sunil Clifford Daniel Vs. State of Punjab reported in (2012) 11 SCC 205

, wherein in paras. 47 to 49, the Court observed thus--

When the Appellant herein made a disclosure statement, a panchnama was prepared and recovery panchnamas were also made. The evidence on record revealed that the same were duly signed by two police officials, and one independent panch witness, namely, Randhir Singh Jat, who was admittedly not examined. Therefore, a question arose regarding the effect of non-examination of the said panch witness, and also the sanctity of the evidence, in respect of recovery made only by two police officials.

The issue was considered at length by this Court in

State (Govt. of NCT of Delhi) v. Sunil (2001) 1 SCC 652

wherein this Court held as under:(SCC p. 662, paras 20-21)

20..........But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust.........At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police helve been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

One Randhir Singh Jat had been the Panch witness for the disclosure panchnama and recovery panchnama. He has not been examined by the prosecution. No question was put to the Investigating Officer (P.W. 14), in his cross-examination, as to why the prosecution had withheld the said witness. The IO was the only competent person to answer the query. It is quite possible that the witness was not alive or traceable.

We may follow the ratio of this decision in the given facts and circumstances of this case.

It is proved with sufficient evidence that 16 numbers of currency notes were seized from the possession of the accused on the alleged date and time. It is also on record that those currency notes were sent to the SFSL for examination and report and the LC record shows that Director of the SFSL forwarded the examination report of those 16 currency notes stating that those were not genuine and those were counterfeit currency notes. That report has not been exhibited at the time of trial. It was the duty of the Public Prosecutor as well as the trial Judge to bring on record as an exhibited document. The learned trial Judge in para. 10 of the judgment considered the report and observed that the report has not been challenged by the defence stating that since the alleged notes were not recovered from the possession of the accused, so the question as to whether it was fake or not was immaterial for the accused. Since that report was not challenged by the defence before the trial Court, for not exhibiting the same formerly, find nothing to throw doubt on the prosecution case.

Section 293 of Cr.P.C. prescribes provision in respect of acceptance of Government Scientific Experts reports. Sub-Section (4) of Section 293 prescribes that report submitted by Director of SFSL can be accepted as an expert evidence even without examination of the scientific experts. The report dated 07.07.2007 which is found on record has been submitted by the Director, SFSL and that report even if it was not formerly exhibited, the court can take note of it as an evidence for decision of a case. Since those 16 currency notes seized from the possession of the accused were fake and the accused failed to make any explanation in support of his possession of those notes, in the given facts and circumstances of the case, there shall be only inference may be drawn that the accused, knowing and/or having reason to believe those notes as fake or counterfeit, kept those notes in his possession and was moving in the market.

The object of the legislature in enacting the provisions of Sections 489A to 489E is not only to protect the economy of the country but also to provide adequate protection to currency, notes and bank-notes. The manifest purpose of the provision is to protect people from being deceived or cheated by ensuring that a person accepting a currency-note is given a genuine currency which can be exchanged for goods or services and not a worthless piece of paper which will bring him nothing in return, it being a counterfeit or a forged currency-note.

So far the evidence on record is Concerned the accused was moving in the market with those fake currency notes. There is no evidence of any independent witness that the accused was trying to transact the same but the possession itself is an offence if the accused had the knowledge or having reason to believe that those were forged or counterfeit currency notes. The accused simply denied the seizure from his possession but did not come out with an explanation that he got those notes in course of any transaction and that he had no idea or knowledge that it was counterfeited or a forged currency notes. Under such circumstances the ingredients of offence punishable u/s 489C of IPC was clearly available in the evidence on record and I find no reason at all to arrive at a contrary conclusion than that of what is arrived at by the learned trial Judge.

Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers from some infirmity when projected through human processes. The benefit of doubt is available only when a reasonable case is made out to draw such an inference. A benefit of doubt does not mean a doubt begotten by sympathy out of reluctance to convict a person. While the case has been proved with all its ingredients the Court has nothing but to give adequate punishment to the offender as otherwise the law will loose its effectiveness. I therefore find no substance in the submission made by learned counsel, Mr. Das to arrive at a conclusion that the accused is entitled to get the benefit of doubt.

Regarding punishment, as I find the learned trial Judge sentenced him to suffer RI for three years and to pay a fine of Rs. 3,000/-. There is no previous conviction of the accused. In my considered opinion, learned trial Judge rightly refused to give the accused the benefit of Section 360 of Cr.P.C. or Section 4 of the Probation of Offenders Act, since the offence is an economic offence. There is no evidence that the accused is involved with trading of fake currency notes though the case is investigated by CID. No such evidence is brought on record. Might be out of greed the accused took in his possession fake currency notes knowing or having reason to believe that those were fake currency notes. Under such circumstances, I think imprisonment for a period of two years and six months and a fine of Rs. 5,000/- (rupees five thousand) may be adequate punishment for the offence committed by the accused.

Accordingly, the sentence is modified. The accused appellant Subir Chandra Datta shall suffer RI for two years and shall pay a fine of Rs. 5,000/- (rupees five thousand) in default of payment shall suffer further S.I. for six months.

With the above modification of sentence the criminal appeal stands dismissed. Send back the L.C. record along with a copy of the judgment.