Tiku Sk. and Others vs State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against the judgment and order dated 29th September, 2012 passed by the learned Additional Sessions Jude, Fast Track 2nd Court, Malda convicting the appellants for commission of offence punishable under Section 489(C) of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 6,000/- each in default, to suffer rigorous imprisonment for six months more.

The prosecution case as alleged against the appellants is that one ASI Suman Kr. Singha of English Bazar police station (P.W. 1) on 5th March, 2012 around 17.00 hours in course of anti crime duty received an information from a reliable source that two persons were coming from Kaliachak side to Rathbari bus stand along with fake Indian Currency notes (FICN for short). On the basis of such information, he along with constable 672 Ashit Saha (P.W. 4) constable Upendra Nath Tewari (P.W. 7), NVF Rafiqul Islam went to Rathbari more at 17.30 hours and waited for the miscreants. They received information from the source that the suspect persons had got down from the bus at hospital more and after hearing the said information they rushed to the hospital more at 17.45 hours. The source pointed out the two suspects from a considerable distance. They detained the suspected persons in front of the hospital main gate and apprised the fact to two local persons namely Mithu Sk (P.W. 2) and Kanu Das and requested them to join search. Thereafter P.W. 1 along with his party interrogated the suspects and they disclosed their identity but were unable to explain why they had come there. Thereafter they searched the suspects in the presence of witnesses and recovered FICNs of denomination Rs. 500/- totalling Rs. 6,000/- from the pocket of the appellant and FICNs of denomination of Rs. 500/- totalling Rs. 5,000/- from Mrinal Debnath. Original Indian Currency of Rs. 150/- from the pockets of accused persons was also recovered. On further interrogation the accused persons disclosed that they had to Malda to tender FICNs to various shops as genuine. The FICNs were seized in the presence of witnesses under seizure list and were labelled. The accused persons were arrested and taken to police station along with the seized alamat.

P.W. 1 prepared the written complaint at the police station and on the basis of such written complaint, Englishbazar Police Station Case No. 157 of 2012 dated 05.03.2012 under Section 489(B)/489(C)/511 of the Indian Penal Code was registered for investigation. In conclusion of investigation charge-sheet under Section 489(B)/489(C)/511 of the Indian Penal Code was submitted before the learned Chief Judicial Magistrate, Malda. The case being sessions triable one was committed to the Court of sessions, Malda and was transferred to the learned Additional Sessions Judge, Fast Track 2nd Court, Malda for trial and disposal. Charge was framed against the appellants under Section 489(B)/489(C)/511 of the Indian Penal Code. The appellants pleaded "not guilty" and claimed to be tried. In the course of trial the prosecution examined eight witnesses and exhibited a number of documents including the expert opinion (Exhibit-6) that the 23 pieces of FICNs seized from the appellants were not genuine. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the Trial Judge by judgment and order dated 29.09.2012 convicted the appellants for commission of offence punishable under Section 489(C) of the Indian Penal Code. The appellants were however, acquitted under Section 489(B)/511 of the Indian Penal Code.

Such judgment and order has been assailed by the appellants in CRA No. 150 of 2013 and CRA 103 of 2014. As the appellant in CRA 103 of 2014 is unrepresented, Ms. Mukherjee, learned Counsel is requested to act as amicus curiae in the said appeal.

P.W. 1 is the de facto complainant in the instant case. He deposed that he was posted at Englishbazar Police Station as A.S.I. On 05.03.2012 he was on mobile anti crime patrol duty. At about 5p.m. he received information from his source that two unknown persons carrying FICNs were coming in a bus from Kaliachak to Malda. When he reached Rathbari bus stand he received further information that the suspects have alighted at district hospital more at Malda. He alongwith a constable Asit Saha (P.W. 4), constable Upendranath Tiwari (P.W. 7) reached the hospital more and the source identified two persons from a distance. He alongwith his force arrested two suspects. They interrogated them at hospital more whereupon the suspects disclosed their identities. The suspects, however, could not give any satisfactory reply as to why they had come there. In presence of the independent witnesses viz. Mithu Sk. and Kanu Das he conducted search of the two suspects. During search he recovered 500 Rupee denomination notes, suspected to be fake, from the pocket of the shirt of the appellant Tiku Sk. amounting to Rs. 6500/-. Similarly, he recovered 500 Rupees denomination notes, suspected to be fake, from the pockets of the shirt of the appellant, Mrinal Debnath amounting to Rs. 5,000/-. He also recovered Rs. 150 consisting denomination of Rs. 100 and Rs. 50 from the possession of the accused persons. 23 notes in all, suspected to be fake, were recovered from the appellants. The appellants stated that they wanted to circulate those fake notes to different shops. He prepared seizure list on the spot, labeled the suspected fake notes and arrested the appellants. He brought them to the police station. He proved the seizure list and his signature thereon. He also proved the labels on the suspected notes and the signatures of the witnesses and the appellants on the said labels. He came to the police station and produced a computer generated copy of the complaint which was treated as first information report. He has identified 23 pieces of fake notes which were produced in Court. In cross- examination, he stated that before leaving police station he had lodged General Diary. He did not give copy of the General Diary to the Investigating Officer. No signature of the witnesses or the appellants was obtained on the fake notes. He stated that he offered himself to be searched by the appellants but they refused to do so. P.W. 3, constable Ajit Kumar Kundu, P.W. 4, constable Asit Saha, P.W. 5 NVF Subodh Sarkar, PW. 6, Homeguard Nikhil Saha, and P.W. 7, constable Upendranath Tiwari were the members of the raiding party. They have deposed with regard to the search and seizure of the FICNs from the possession of the appellants at the place of occurrence. P.W. 2, the independent witness to the search, was declared hostile. He, however, admitted his signature on the labels as well as on the seizure list. P.W. 8 is the Investigating Officer of the case. He took steps for sending seized fake notes for expert opinion. He received the expert opinion which stated that the seized notes are fake. He exhibited the report as Exhibit-6. He filed the charge-sheet in the instant case. In cross-examination he stated that he did not seize the General Diary in the instant case. He did not reseize the FICNs from P.W. 1.

Mr. Arunabha Jana, learned Counsel appearing with Mr. Kazi M. Rahaman, learned Counsel, submitted that General Diary recorded by P.W. 1 at police station prior to leaving for patrol duty has not been exhibited. He further submitted that the police witness ought not to be believed as the independent witness has turned hostile. He further submitted that P.W. 3, in cross-examination, stated the paper work was done in police station. This throws serious doubt as to the genuineness of seizure of the FICN from the appellants. He further submitted that there is no note in the case diary that the seized fake notes were kept in police Malkhana between 05.03.2012 to 07.03.2012 prior to their despatch for expert opinion. He accordingly prays for acquittal of the appellants.

Ms. Mukherjee, learned counsel appearing as amicus curiae adopted the submissions of Mr. Jana. She submitted that the search and seizure has not been proved beyond doubt particularly when the independent witness has not supported the same. She also prayed for acquittal of the appellant.

Mr. Ghosh, learned junior standing counsel appearing for the State submitted that the prosecution evidence with regard to search and seizure is reliable and convincing. The police witnesses had remained unshaken in cross-examination. Even P.W. 2 had admitted his signature on the seizure list as well as on the labels. The labels bore the signature of the witnesses and appellants and were exhibited in Court. This improbabilises the theory of tampering with the seized notes. He accordingly prayed for dismissal of the appeal.

I find from the evidence of the police witnesses namely P.W. 1, P.Ws. 3 to 7 that the appellants had been apprehended at the hospital more on the basis of source information. It has been argued that P.W. 1 had left the police station after recording general diary. Such general diary has not been exhibited in the case. Mr. Jana and Ms. Mukherjee strenuously argued that non-production of the general diary is fatal for the prosecution case. I find from the evidence of P.W. 1 that he received source information while he was on patrol duty. Genesis of the case, is that after P.W. 1 had left the P.S. and was on mobile duty he received source information that two persons with FICNs were coming by bus from Kaliachak to Malda. Therefore, he received information the suspects had alighted at district hospital more. Therefore, source information was received by P.W. 1 in course of mobile duty after he had left the police station and the same could not have found in the general diary which he had lodged at the police station. Production of such general diary was, therefore, of little importance as to the unfolding of the prosecution case which originated on the basis of source information received by P.W. 1 when he had already gone out of the police station and was on mobile duty. Accordingly, I am unable to accede to the submission of the learned counsels that non-production of the general diary had caused a fatal blow to the prosecution case. It has been argued that the prosecution case ought not to be believed as the independent witness did not support the same. It has come on record that P.W. 1 requested local people to join search. P.W. 2 and another witness joined the search. P.W. 2 however, has not supported the case of the prosecution case. He admits his signature on the seizure list and the labels. Nothing has however, come on record by way of cross-examination which improbabilise the version of the police witness. Merely because independent witness does not support the police version, the same by itself ought not to be a ground to throw out the consistent evidence of the police witness lock, stock and barrel. The evidence of the police witnesses does not suffer from any patent improbability or inconsistency. Accordingly, I am inclined to accept the evidence of the police evidence as reliable and convincing in the instant case. I find that the FICNs were duly labelled and the witnesses and appellants signed on such labels. The labels containing signature of witnesses and the appellants have been proved during trial. It has been argued that P.W. 3 in cross-examination stated that paper work was done at the police station. I find that the expression ''paper work'' in the evidence of P.W. 3 is to be understood in the facts of the case to mean the preparation of the computer generated FIR and not the seizure list and other documents as the defence has argued. P.W. 1 in his deposition has categorically stated that after returning to police station with the seized alamats and the arrested persons has a computer generated complaint at the police station which was treated as First Information Report. Finally it has been argued that there is no explanation where the seized articles were kept prior to despatch for expert opinion. It appears that the seized articles were handed over by P.W. 1 to P.W. 8 Investigating Officer and kept in the police malkhana. The defence has sought to improbabilise such version by drawing my attention to the cross-examination of P.W. 8 who stated that such fact was not noted in the case diary. P.W. 8 has however, clarified such position by saying when the seized articles are kept in the malkhana, the same is entered in malkhana register. It is nobody''s case that such entry was not made in the malkhana register. I am unable to accept the submission of Mr. Jana that there is no evidence on record to show that the seized articles were kept in the malkhana prior to despatch for expert opinion. That apart, the seized articles were labelled at the place of occurrence. The labels were signed and such labels have been duly exhibited in the instant case. Twenty three numbers of notes have been seized from the possession of the appellant. Such large number of notes seized from the appellants patently rule out any chance of planting or false implication of the appellant at the behest of the police witness. Nothing has come on record that there is enmity between the police witness and the appellants in the instant case.

In view of the aforesaid discussion, I am of the view that prosecution has been able to prove its case beyond reasonable doubt.

Accordingly, I uphold the conviction and sentence imposed upon the appellants. The appeal is dismissed.

Copy of the judgment along with the lower court records be sent down to the trial Court at once.

I record my appreciation for the assistance rendered by Ms. Mukherjee as amicus curiae in disposing of the appeal.

Photostat certified copy of the order, if applied for, be given to the parties on priority basis.