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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 ..... or the offence punishable under Section 489B. No separate sentence was imposed on the offence under Section 489C of the Indian Penal Code. 3. Prosecution case as alleged against the appellants is to the effect that on 19.09.2016 at around 14.30 hours S.I. Indranil Mahanto (P.W. 1) along with P.Ws. 2, 4 and 5 went out of the police station on special mobile duty at Dhuliyan Ferry Ghat area where they found four persons were loitering suspiciously. They chased the miscreants and apprehended 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 packe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been established. Hence, the appellants may be acquitted of the charges levelled against them. 6. In reply, Mr. Ahmed, learned Additional Public Prosecutor argued that the appellants were apprehended with a large volume of FICNs totalling to over Rs. 2,00,000/-. They were in conscious possession of the FICNs and were carrying the said counterfeit notes through a public place in the market. Hence, they were trafficking/circulating the counterfeit notes and the ingredients 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 notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, was unable to identify the accused persons in Court. He identified the FICNs in Court as Material Exhibits 1, 2, 3 and 4. He also identified the sealed packets and the labels prepared by him to keep the FICNs. 8. P.W. 2, Hari Gopal Das, P.W. 4, Md. Sajahan Ali and P.W. 5, Arun Kumar Basak were members of the raiding party. They have corroborated the evidence of P.W. 1. They also proved their signatures on the seizure list. 9. P.W. 3, Swagata Das is a Constable attached to Samsherganj 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 apprehende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem to Reserve Bank Note Mudran Pvt. Ltd., Salboni through A.C.J.M., Jangipur. P.W. 3 collected the report of the expert under authorisation letter. Report of the expert has been exhibited as Exhibit 4 which shows that the seized currency notes were fake. Thus, the link between the seized alamats and the articles which were examined at Reserve Bank Note Mudran Pvt. Ltd., Salboni has been duly established. 14. There is, however, some substance in the argument of the appellants that the conviction 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 foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transportation or trafficking of currency notes without re-framing the charge. 17. I am conscious that the saving provision, namely, Sections 464/465 of the Code of Criminal Procedure which, inter alia, provides no finding, sentence or order ought to be interfered with due to failure to frame or error or omission in charge until and unless the same has occasioned failure of justice. 18. Section 489B of the Indian Penal Code inter alia makes any one of the following acts viz., selling, buying, receiving, 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 fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat would the expression "otherwise traffics in" mean in the context of aforesaid offence? In K. Hasim Vs. State of Tamil Nadu, AIR 2005 SC 128, the Apex Court interpreted the object of section 489B of the Indian Penal Code as follows:- "42. Similarly Section 489B relates to using as genuine forged or counterfeited currency notes or bank notes. The object of Legislature in enacting this section is to stop the circulation of forged notes by punishing all persons who knowing or having reason to believe the same to be forged do 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Code. Be that as it may, as the trial Court has imposed a higher sentence in respect of the graver offence of which I am of the view that the appellants are not guilty, imposition of a lesser sentence by this Court for the minor offence would not prejudice the appellants and no independent rule for imposition of sentence on the score of Section 489C of the Indian Penal Code is necessary. 23. In the light of the aforesaid discussion, I modify the sentence imposed upon the appellants and direct that they shall suffer rigorous imprisonment for seven years each and to pay a fine of Rs. 20,000/- each, in default to suffer simple imprisonment for two years more for the offence punishable under Section 489C of the Indian Penal Code. 24. The appeal is accordingly disposed of. 25. In view of the disposal of the appeal, all connected applications are also disposed of. 26. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon the appellants in terms of Section 428 of the Code of Criminal Procedure. 27. Copy of the judgment along with LCR be sent down to the trial Court at once. 28. Urgent phot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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