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Azim Sk vs The State Of West Bengal on 2 March, 2020

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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:

The Hon’ble Justice Shivakant Prasad

C.R.A. 714 of 2016

Azim Sk.

Vs.

The State of West Bengal

For the appellant : Mr. Tapan Datta Gupta
Mr. Parvej Anam

For the state : Mr. Ranabir Roy Chowdhury
Mr. Binoy Panda
Mr. S. Bhakat

Heard on : 02.03.2020

Judgment on : 02.03.2020

Shivakant Prasad, J:‐

This is an appeal under Section 374(2) of the Code of Criminal Procedure

challenging the judgment and order of conviction dated 28.09.2016 passed by the learned

Additional District and Sessions Judge, 5th Court, Malda in Sessions Case

No.311/2015/Sessions Trial No.57 of 2015 sentencing the appellant to suffer rigorous

imprisonment for seven years and also to pay a fine of Rs.10,000/‐ in default, to suffer

rigorous imprisonment for six months more for the offence punishable under Section

489C of the Indian Penal Code.

The prosecution case leading to this appeal in brief is that on 29.12.2014 at 17.15

hrs. A.S.I. Sunirmal Singh the duty officer of E.B P.S received an information that one

person was carrying F.I.C.N. and moving suspiciously near Amriti Panchayat Office. He

accordingly informed the matter to I.C. E.B P.S and as per direction of I.C at 17.25 hrs. the

de facto complainant, A.S.I. Anup Kr. Singha along with A.S.I. Umar Faruque and

constable Jakirul Islam, Motiur Rahaman, Rejaul Karim, Ujjal Singha, Ratan Chakrabarty
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and Subir Singha went to the spot at 18.05 hrs. and contacted with the source. After some

time on being identified by the source they surrounded the suspected person and

requested local persons namely Phani Bhusan Manda, Sanjoy Routh and Subrata Subba to

witness the search process after disclosing their identity and the purpose of search. The

witnesses and the suspect were offered to search the raiding party but they denied. Then

in presence of the witnesses the suspect was searched and Rs.4,01,000/‐ fake Indian

Currency Notes were recovered from the possession of the suspect in a black plastic bag.

The suspect confesed that the notes were F.I.C.N and he had come to Malda town to use

the notes as genuine. The suspect disclosed his name as Ajim Sk. s/o Safiruddin Sk. of

Goduagram, P.S. Kaliachak, District Malda. The seuized notes were sealed and labeled

and the witnesses and the accused person had given their signature on the label. The

entire process was completed in between 18.15. hrs. to 20.10 hours. The suspect was

arrested and brought to the P.S along with the seized F.I.C.N and handed over.

On receiving the written complaint initially specific police case being E.B. PS Case

No.1078/14 dated 29.12.2014, under Section 489B/489C of IPC was started for investigation

and after completion of investigation, charge sheet was submitted under Section

489B/489C of IPC. Cognizance was taken and charge was framed against the accused

under Section 489B/489C of IPC. Charge was read over and explained to the accused

person, to which he had pleaded not guilty and claimed to be tried.

The prosecution examined as many as 9 witnesses to substantiate the charges and

after closure of the evidence, the accused was examined under Section 313 of the Criminal

Procedure Code to which he declined to adduce the defence evidence pleading innocence.

Now point for decision is as to whether the impugned judgment and appeal is

tenable in law and in fact.

It is submitted on behalf of the appellant that the learned Judge has failed to

consider the prosecution and did not produce the expert witness and intentionally

withheld and nowhere in the evidence of the prosecution witnesses it is revealed that the
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members of the police party had taken the consent to search the body of the appellant or

the appellant had given his consent for the purpose.

It is also submitted that the conviction is entirely based on the evidence of P.W.s

who are police personnel and that the Fake Indian Currency Notes seized from the

possession of the appellant have not been identified properly as the same were neither

properly labeled nor the police personnel put their signature on the said currency notes

for their proper identification. The prosecution witness no.3 and 4 are the public

witnesses who have been declared hostile by the prosecution and no amount of his

evidence can be relied upon and the learned Judge has committed error while passing the

order impugned of conviction and sentence under Section 489C of the Indian Penal Code

in absence of any mens rea. Accordingly, the appellant has prayed for setting aside the

judgment impugned as bad in law and in fact.

It is revealed from LCR that the accused was produced under arrest on 30.12.2014

before the learned CJM, Malda. Charge‐sheet No. 164/15 dated 27.3.2015 under Sections

498A/498C IPC was submitted on 27.3.2015. The accused was admitted on bail by learned

Sessions Judge, Malda vide his order dated 07.4.2015 passed in Misc. Case No. 952/15

under Section 439 IPC after the submission of charge sheet and the learned CJM

committed the case to the Court of Sessions but on conclusion of the trial, vide the

impugned judgment of conviction, the appellant was taken in custody on 28.09.2016 and

since then he is serving sentence for almost four years. I find that 401 nos. of Fake Indian

Currency Notes of total value of Rs.401,000/‐ in denomination of Rs.1000/‐ each were

seized from the possession of the appellant in connection with English Bazaar Police

Station Case No.1078/14 dated 29.12.2014 under Sections 489B/489C of the Indian Penal

Code. A.S.I., Anup Kumar Singha of English Bazaar Police Station who has categorically

proved the complaint Exhibit -2 in his deposition which finds corroboration to the

prosecution case that the appellant, Ajim Sk. was arrested along with Fake Indian

Currency Notes of denomination of Rs.1000/‐ 401 pieces and the detailed description of
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the F.I.C.N. has been noted in the seizure list. On 29.12.2014 at 17.15 hrs. A.S.I. Sunirmal

Singh, the Duty Officer of English Bazaar Police Station had received source information

that one person carrying the F.I.C.N. was found moving suspiciously near Amriti

Panchayat Office and the said source information was worked out and ultimately the

accused‐appellant was surrounded and apprehended and thereafter arrested with a

possession of the said huge quantity of Fake Indian Currency Notes. The same were

seized under the seizure list after due formalities which is reflected from the Seizure List,

Exhibit – I in presence of local witnesses and police witnesses. On the basis of the

complaint, formal F.I.R. Exhibit – 3 was drawn up and in the course of investigation, I.O.

prepared Rough Sketch Map of the place of occurrence with explanatory index Exhibit – 4

and Exhibit – 4a. The F.I.C.N. were sent to Bharatiya Reserve Bank at Salboni, Paschim

Medinipur, West Bengal for expert examination and after examination, the report of the

Manager Exhibit – 5 was submitted with a conclusion that 401 notes are counterfeit notes.

The said report was admitted in evidence after formal proof being dispensed with, under

the provisions of Section 292 of the Code of Criminal Procedure as the report is self‐

explanatory.

To substantiate the charge under Section 489B IPC, prosecution is obliged to prove

the mens rea. The ‘mens rea’ of offence under Section 489B and 489C of the Indian Penal

Code is that knowing or having reason to believe Fake Currency Notes or bank notes are

forged or counterfeit without mens rea of selling, buying or receiving from another person

or otherwise trafficking in or using as genuine. The possession of forged or counterfeit

currency notes or bank notes, is not enough to constitute offence under Section 489B of the

IPC. When mens rea is conspicuously absent, mere possession of any forged or

counterfeit currency notes or bank notes cannot attract the provisions of Section 489B.

The essential ingredient of the said offence being that the person who receives has reason

to believe that the said notes are forged or counterfeit. The burden of proof beyond all

reasonable doubt that the accused had knowledge or reason to believe that the currency
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notes which were put to use by him were counterfeit or Fake Indian Currency Notes is on

the prosecution. It is also settled principle of law that mere possession of the currency

notes is not punishable under the law and it must be established by the prosecution that

possession was with the knowledge that the said currency notes are fake or counterfeit.

In such circumstances, in absence of any evidence brought on record by the

prosecution to demonstrate that the possession of the appellant of the alleged currency

notes which was within the knowledge that the same was counterfeit.

To bring home the charge under Section 489B of the Indian Penal Code, the

prosecution is to prove that i. the note in question is currency notes or bank notes; ii. such

currency notes was forged or counterfeited; iii. the accused sold to or bought from, or

received it from any person, iv. the accused knew or had reason to believe it to be forged

or counterfeited. So in order to sustain conviction of the accused for the charge under

Section 489B IPC, the prosecution has not only to prove that he was in possession of the

counterfeit notes but also to prove the circumstances which lead clearly an intention to

use the notes on the public.

Similarly, to bring home the charge under Section 489C of the Indian Penal Code,

the prosecution has to establish firstly, that notes in question are currency notes or bank

notes; secondly, that notes were forged or counterfeited; thirdly, that the accused was in

conscious possession of the currency notes or bank notes; fourthly, the accused intended

to use the same as genuine; and fifthly, the accused knew or had reason to believe the

notes to be forged.

The learned Judge, after appraising the evidence, was rightly of the view that the

charge under Section 489B was not substantiated in absence of mens rea or any evidence

to the effect that the accused appellant was found involved in selling or receiving

counterfeit notes but was of clear view that the evidence established that the accused‐

appellant was in possession of the huge quantity of the counterfeit notes and he could not

explain the justification for his possession of such fake Indian Currency Notes. The fact of
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possession of such huge number of fake currency notes suggests that the appellant had

reason to believe that the currency notes in his possession were counterfeited intended to

be used as genuine.

The appellant was found guilty of offence punishable under Section 489C of the

Indian Penal Code but he was acquitted of the charge under Section 489B of the Indian

Penal Code. After giving an opportunity of being heard on question of sentence, the

learned Judge awarded the sentence to suffer Rigorous Imprisonment for seven years and

to pay fine of Rs.10,000/‐ in default Rigorous Imprisonment for six months more for the

offence under Section 489C of the Indian Penal Code.

It is submitted on behalf of the appellant that the sentence may be altered to a

period of five years as there is no antecedents as against the appellant. In consideration of

the huge quantity of Fake Indian Currency Notes in possession of the appellant, this Court

does not find any mitigating circumstance to modify the term of sentence of rigorous

imprisonment for seven years, to a period of five years.

I find no merit in the appeal warranting interference into the judgment impugned

so far as the conviction under Section 489C IPC and so also in respect of the sentence

imposed upon the appellant, because of the fact that the huge quantity of Fake Indian

Currency Notes were found in possession of the appellant which were found to be

counterfeited.

In the context above, the appeal fails and accordingly the judgment and conviction

dated 28.09.2016 passed by the Trial Court is hereby affirmed.

The appeal being, C.R.A. 714 of 2016 is, thus dismissed.

A copy of this judgment together with LCR be sent down to the learned Trial court

forthwith for necessary note in the Sessions Trial Register and for doing the needful. An

extract of this judgment be also sent to the Superintendent, concerned Correctional Home

for his information and for needful action.

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Urgent Photostat certified copy of this order, if applied for, be supplied to the

parties upon completion of all necessary formalities.

(Shivakant Prasad, J.)

KS

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