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TMI Blog2019 (11) TMI 1836X X X X Extracts X X X X X X X X Extracts X X X X ..... ther accused persons who are not amongst the appellants. They were also convicted. The appellants did not offer any explanation when questioned under Section 313 Cr.P.C. regarding the possession of FICN. Nor was any evidence adduced in defense to explain the possession of FICN. The possession of FICN of such quantity is trafficking, and, therefore, falling under the incriminating activity which made the accused/appellants offenders punishable under Section 489-B as well, apart from the liability for committing offences punishable under Section 489-C. For the afore-said reasons the conviction of the appellants under Sections 489-B as well as 489-C stands - the finding of guilt and the conviction of the appellants by the court below affirmed. Sentence imposed - court below has imposed rigorous imprisonment of eight years and fine of Rs. 8,000/- in default rigorous imprisonment for three months under Section 489-B of the IPC and rigorous imprisonment of six years with a fine of Rs. 5,000/- in default rigorous imprisonment for two months under Section 489-C of the IPC - HELD THAT:- The offences which are described and punishment prescribed in the sections which are grouped under the He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years and to pay a fine of Rs. 8,000/- with default sentence of rigorous imprisonment for 3 months, for the offence found to be punishable under Section 489-B of the IPC. They were sentenced to rigorous imprisonment for 6 years for offence found to be punishable under Section 489-C of the IPC and to pay fine of Rs. 5,000/- with default sentence of rigorous imprisonment for 2 months. The sentences were ordered to run concurrently. 3. Heard the Learned Advocate appearing for the appellant in CRA 562 of 2018 and the Learned Advocate appearing for the appellant in CRA 592 of 2018. We have also heard the Learned Public Prosecutor and the Learned Additional Public Prosecutor. 4. The learned advocates appearing for the appellants impeached the findings of the court below on appreciation of evidence and resultant findings as to guilt. They further argued that, even assuming that the legal evidence on record inculpate the appellants, that could be only to the extent of the charge against them under Section 489-C and not under Section 489-B of the IPC. The conclusion of the court below leading to the conviction of the accused persons on both the counts are contrary to law and the reasons sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted in evidence and its contents believed and acted upon, on due examination by the court below. There is no reason to denounce the evidentiary value of the expert's report. In so far as the material witnesses are concerned, there is adequate corroboration and there is no contradiction worthy enough to dislodge the credibility of the testimony of the witnesses. Not only that, the police officials who were involved in the process are not shown to have had any particular interest, hostile to the accused persons. It is only the call of duty that prompted the police officials to raid, search and seize the materials which were brought on record after ensuring then-due scientific examination by the expert. The testimony of the witnesses correlate and connect the material particulars regarding the raid, search and seizure as well as the arrest of the accused persons and recovery and preservation of the recovered articles in terms of law. We do not find any legal infirmity or error in the appreciation of the evidence by the court below in that regard. 8. The court below held that this is not a case where the accused persons could plead that they did not have the mens rea to commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... currency-notes or bank-notes-Whoever has in his possession any forged or counterfeit currency note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Those provisions were brought in simultaneously and punishments, which can be differentiated in terms of types and terms have been prescribed under those two sections. That being so, clear distinction has to be maintained regarding the ingredients of the offence which is to be treated as a larger count and it has to be decided whether an accused has committed such offence, to inculpate that person with such higher offence. 11. Section 489-B uses the phrase or otherwise traffics in or uses as genuine . This phrase assumes importance in the context of the fact that the term traffics is not defined for the purpose of Section 489-B or for the IPC generally. The phrase or otherwise traffics in or uses as genuine is added on to a string of phrases which results in the sentence that delineates the ingred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other mode of interpreting the phrase or otherwise traffics would dilute the rigour of law. A strict and literal interpretation of the penal provision contained in Section 489-B of the IPC does not lead us to any other conclusion. Thus, the phrase or otherwise traffics in Section 489-B of the IPC would take within its sweep, the action of dealing or trading in forged counterfeit currency note or bank note even otherwise than by selling, buying (purchase) or receiving. Therefore, the word traffics and the phrase or otherwise traffics in in Section 489-B of the IPC are not to be read ejusdem generis with the words sells , buys or receives ; but ought to be read to understand that activities other than selling, buying or receiving would also fall into the basket of the incriminating factors which constitute the ingredients of the acts and omissions which is an offence as per that Section. 12. The Division Bench of the Gujarat High Court in Rayab Jusab Sama v. State of Gujarat, reported at 1998 Cri.L.J. 942, held the possession of large number of fake currency notes to be a case of active transportation of such notes. That precedent was followed by the High Court of Madhya Pradesh (J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden of proving the fact is upon him. In terms of Section 106 of the Evidence Act the burden of proof of facts within the knowledge of the appellants regarding the nature of possession of FICN was not discharged. Hence, the possession of such large quantity of FICN in concealed manner is not dormant possession but active transportation amounting to trafficking. It amounts to commission of offences punishable under Section 489-B of the IPC. The possession of FICN of such quantity is trafficking, and, therefore, falling under the incriminating activity which made the accused/appellants offenders punishable under Section 489-B as well, apart from the liability for committing offences punishable under Section 489-C. For the afore-said reasons the conviction of the appellants under Sections 489-B as well as 489-C stands. We approve the findings of the court below on the issue that the accused persons are liable to be convicted under Sections 489-B and 489-C of the IPC. Accordingly, we affirm the finding of guilt and the conviction of the appellants by the court below. 14. Now, we come to the question of sentence. The court below has imposed rigorous imprisonment of eight years an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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