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TMI Blog2022 (2) TMI 1461X X X X Extracts X X X X X X X X Extracts X X X X ..... ere moving around in a public place with a large volume of FICNs, no charge of transportation/trafficking in currency notes was framed against them. They were never put on notice during trial that they were being accused of otherwise trafficking in counterfeit currency notes in addition to possession of such notes. Without re-framing the charge and giving the accused persons an opportunity to respond to it, to convict the accused persons on the score of trafficking of counterfeit notes clearly prejudiced them. Thus, it is opined that the conviction of the appellants for transportation/trafficking in counterfeit currency notes on the one hand while framing a charge for mere possession on the other hand has amounted to a mistrial and such failure of justice cannot be cured by reference to either Section 464 or Section 465 of the Code of Criminal Procedure. The conviction under Section 489C of the Indian Penal Code upheld and the conviction under Section 489B of the Indian Penal Code set aside. Sentencing to accused - HELD THAT:- The trial court had imposed a sentence of rigorous imprisonment for ten years and to pay a fine of Rs. 20,000/- each, in default to suffer simple imprisonmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pprehended them. Number of local people assembled at the spot. They requested the local people to participate in the search but the local people refused. Upon search of the apprehended persons, 55 pieces of Indian Currency Notes suspected to be fake in denomination of Rs. 1,000/- each wrapped in a plastic packet was recovered from the left side pocket of the trouser of Dolon Sk @ Tuhin along with some genuine cash; upon search of Mithu Sk, a poly bag containing 55 pieces of currency notes suspected to be fake in denomination of Rs. 1,000/- each was recovered from left waist wrapped in his lungi; 50 pieces of Indian Currency Notes suspected to be fake in denomination of Rs. 1,000/- wrapped in a plastic packet was recovered from the left waist in the lungi of Soni Sk. @ Titu and along with genuine cash and a plastic packet containing 69 pieces of suspected Indian Currency Notes out of which 29 pieces in denomination of Rs. 1,000/- each and 40 pieces in denomination of Rs. 500/- each was recovered from the left waist of the trouser of Abu Sufiyan Sk. along with genuine cash. The total amount of currency notes suspected to be fake was valued at Rs. 2,09,000/- and genuine cash of Rs. 89 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 489B of the Indian Penal Code have been established. P.W. 1 had requested independent witnesses to join the search but they refused to do so. Hence, non-examination of the independent witnesses has been duly explained and would not affect the credibility of the prosecution case. Accordingly, the appeal is liable to be dismissed. 7. P.W. 1, Indranil Mahanto is the informant and the leader of the raiding party. He deposed on the relevant day, he along with Constable Md. Sajahan Ali (P.W. 4), Harigopal Das (P.W. 2) and Arun Basak (P.W. 5) had gone out on special mobile duty after diarising such fact in the general diary register. They reached at Dhuliyan Ferry Ghat around 14.30 hours. They noticed that four persons were moving suspiciously and seeing the police party the miscreants tried to flee away. Police party chased the aforesaid persons and apprehended them. On interrogation they remained silent. P.W. 1 informed the matter to the Officer-in-charge over telephone and after getting permission proceeded with the enquiry. Many people assembled at the spot. He asked them to join the search but they refused to do so. At this stage, P.W. 1 offered the apprehended persons to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sherganj Police Station. On 21.11.2016, he went to Salboni and collected the expert opinion with regard to the seized alamats as per authorisation letter. The expert opinion has been proved as Exhibit 4. 10. P.W. 6, Md. Meser Ali is the Investigating Officer of the case. He deposed that he received the papers and alamats from the duty officer of the police station. He sent the seized FICNs to Reserve Bank Note Mudran Pvt. Ltd., Salboni for opinion through the A.C.J.M., Jangipur. He collected the expert opinion, Ext. 4. He also identified the seized alamats in Court. 11. From the evidence of the prosecution witnesses particularly P.Ws. 1, 2, 4 and 5, it appears that the appellants had been apprehended on 19.09.2016 around 14.30 hrs. at Dhuliyan Ferry Ghat with a large volume of FICNs valued over Rs. 20,000/-. Evidence of the prosecution witnesses in this regard are clear, cogent and convincing. Cross examination of the witnesses have not elicited any contradiction and/or inconsistency so as to render them untrustworthy. It has been argued that the evidence of the official witnesses are not corroborated by independent witness. Failure to adduce independent witness has been explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction under Section 489B of the Indian Penal Code is unfounded. It is true that the appellants were found loitering at Dhuliyan Ferry Ghat carrying large volume of FICNs. Conduct of the appellants in moving around in a public place with a large volume of counterfeit currency notes clearly establishes the fact that they were knowingly transporting FICNs. No explanation was forthcoming from the appellants with regard to the reason or circumstance in which they came into possession of the FICNs. However, the charge in the present case has not been framed with regard to trafficking of counterfeit currency notes. 15. For better appreciation, the charges framed in the instant case are set out as follows: Firstly, that you on 19.06.2016 after 14.30 hrs. at Dhuliyan Ferry Ghat under P.S. Samserganj, Dist. Murshidabad you were found possession fake Indian currency notes of Rs. 2,09,000/- consisting of 01 bundle containing 55 pieces of such notes of denomination of Rs. 1,000/- each possession by Dolon Sk and 01 bundle containing 55 pieces of such notes of denomination of Rs. 1,000/- each possessing by Mituhu Sk along with another bundle containing 50 pieces of such notes of denomination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving, using as genuine or otherwise trafficking in counterfeit currency notes culpable. When separate and distinct acts or illegal omissions independently constitutes a crime, it is incumbent on the Court to indicate which act or illegal omission the accused is charged of in the trial of the offence. In the present case, the accused has been charged merely of possession which by no stretch of imagination constitutes any of the aforesaid ingredients of Section 489B of the Indian Penal Code. Although the evidence on record may show that the accused persons were moving around in a public place with a large volume of FICNs, no charge of transportation/trafficking in currency notes was framed against them. They were never put on notice during trial that they were being accused of otherwise trafficking in counterfeit currency notes in addition to possession of such notes. 19. Under such circumstances, without re-framing the charge and giving the accused persons an opportunity to respond to it, to convict the accused persons on the score of trafficking of counterfeit notes clearly prejudiced them. Thus, I am of the opinion that the conviction of the appellants for transportation/trafficki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any act which could lead to their circulation. Expression otherwise traffics in when interpreted in the light of the aforesaid object would include any act undertaken by the accused which would lead to circulation of notes. In Black's Law Dictionary, 10th edition, p. 1725, the word 'traffic' is defined as follows:- traffic-1. Commerce; trade; the sale or exchange of such things as merchandise, bills, and money. 2. The passing or exchange of goods of commodities from one person to another for an equivalent in goods or money. 3. People or things being transported along a route. 4. The passing to and fro of people, animals, vehicles, and vessels along a transportation route. (emphasis supplied) Lexicographically the expression 'traffic' means transportation or movement of goods through a route or public road. Interpreting the expression otherwise traffics in in section 489B of the Indian Penal Code in that perspective, transportation of a large volume of fake currency notes with the knowledge or reasonable belief that such notes are forged would definitely fall within the penal ambit of section 489B IPC. However, in the present case no charge of transportation of ..... 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