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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 ..... hence, Section 34, IPC is applicable. On such basis, they were found guilty of having committed offences punishable under Section 489-B/489-C read with Section 34 of the IPC and were convicted. They were sentenced to undergo rigorous imprisonment for 8 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by appropriate preservation, labelling, sealing and other due processes which enabled the recovered articles being preserved tamper-proof and made available for examination by expert. Such examination led to Exhibit B12 report of the expert, which has been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 489-C: Possession of forged or counterfeit 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 importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise traffics in" does not indispensably require active participation of more than one person if noticeably sizable quantity of FICN is found to be in the possession of that person and such concealed possession cannot be treated as dormant possession. It is active transportation which amounts to trafficking. Any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 106 of the Evidence Act enjoins that when any fact is especially within the knowledge of any person, 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 cour ..... 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