Sankar Acharyya, J@mdashThis appeal has been preferred by the sole appellant Naidu Sk challenging the judgment and orders of conviction and sentence passed by learned Additional District and Sessions Judge, Fast Track, 2nd Court, Malda in Sessions Trial No. 40 of 2011 arising out of Sessions Case No. 313 of 2011 convicting the appellant under Sections 489B/489C of the Indian Penal Code and sentencing him to suffer a rigorous imprisonment for ten years and to pay a fine of Rs. 6000 in default, further rigorous imprisonment for six months for the offence punishable under section 489B, Indian Penal Code and also sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 4000 in default, further rigorous imprisonment for four months for the offence punishable under Section 489C, Indian Penal Code. According to the impugned judgment both the sentences would run concurrently. Said judgment of conviction and sentence has been passed on 24.1.2012.
2. State respondent being prosecution in the Trial Court adduced oral evidence of 11 witnesses and documentary evidence such as-seizure list dated 9.5.2011 (exhibit-1), label of seized articles dated 9.5.2011 (exhibit-2), a written complaint dated 9.5.2011 (exhibit-3). Copy of G.D. Entry No. 545 dated 9.5.2011 of English Bazar Police Station of District Malda (exhibit-4), formal FIR (exhibit-5), a true copy of Government Notification No. 4282-PL dated 23.12.2009 vesting power on A.S.I. for police investigation (exhibit-6), a rough sketch map showing location of the place of occurrence (exhibit-7), the index of exhibit-7 (exhibit-7/1), opinion of expert (exhibit-8) and xerox certified copy of property register of English Bazar Police Station (exhibit-9). During trial prosecution also produced 100 pieces of currency notes of Rs. 1000 denomination as Fake Indian Currency Notes (hereinafter called as FICNs in this judgment) as material exhibit-I collectively.
3. The case was initiated at English Bazar Police Station on 9.5.2011 against two persons namely Saddam Ali and the present appellant Naidu SK under Section 489B/489C of the Indian Penal Code as English Bazar Police Station Case No. 268 of 2011 dated 9.5.2011 on the basis of exhibit-3. Although the case was started against two accused persons at P.S. but subsequently, the case of Saddam Ali has been splitted up for hearing of his case before Juvenile Justice Board and the present appellant was tried before the learned Additional Sessions Judge, Fast Track, 2nd Court, Malda.
4. Prosecution case is that the PW 1 A.S.I. Anup Kumar Singha received a source information at English Bazar Police Station on 9.5.2011 at 8:15 P.M. that a deal of huge amount of FICN would take place at Gourbanga near Mohan Dhaba Hotel on NH 34. Instantly, PW 1 informed that matter to Inspector in charge (hereinafter called as I.C.) of English Bazar Police Station for further direction. Under order of that I.C., PW 1 along with A.S.I. Ranjit Das (PW 11), A.S.I. Kamalesh Joardar (PW 3), Constable Delwar Hosein (PW 2) and H.G.O. Abdul Barek (PW 9) left the P.S. to work out the information vide G.D. Entry No. 546 dated 9.5.2011, they reached at Gourbanga area and made contact with two disinterested witnesses requesting them to assist them during operation of the source information and taking them with the police team, they noticed two suspects were moving in front of Mohan Dhaba at Gourbanga in a suspicious manner. On identification by the source the members of police team surrounded the suspects on NH 34 near Mohan Dhaba at Gourbanga. On interrogation by police said two suspects disclosed their identity and police personnels also expressed their identity before the said suspects. PW 1 informed the suspects to search the members of the police party but the suspects refused. Then the police personnel searched the suspects and on search material exhibit-1 (bundle of FICN of Rs. 1000 denominations) was found from the pocket of the appellant (mentioned in exhibit-3 as Saddam Ali) and it was seized by PW 1 in presence of the said independent witnesses namely Sibu Ghosh (PW 4) and Sankar Roy (PW 5) in that night between 21:55 hours to 22:30 hours. Bundle of FICN was seized by PW 1 under a seizure list (exhibit-1) and the present appellant was arrested as accused in that night. During interrogation the accused confessed that all the seized notes are FICN and the same was procured from Indo-Bangladesh Border Area of Shashani under P.S. Baishnabnagar with a view to dispose of the same at Malda town area knowing that the notes are counterfeit Indian Currency Notes. The case was investigated by PW 12 A.S.I. Ranjit Das. After completion of investigation, he submitted charge sheet under Sections 489B/489C of the Indian Penal Code against this appellant as accused. Said material exhibit-I was examined at Currency Notes Press, Nashik Road, Maharashtra and it has been opined that the suspected notes are counterfeit notes as observed with the help of modern scientific instruments which has been mentioned in the report (exhibit-8).
5. Charges under Sections 489B/489C of the Indian Penal Code (I.P.C.) were framed against the appellant as accused. Said charges were read over and explained to appellant by the learned Trial Judge to which he pleaded not guilty and on his claim the case was tried before the learned Additional District and Sessions Judge, Fast Track, 2nd Court, Malda. Said trial concluded by the impugned judgment of conviction and sentence against the present appellant.
6. The impugned judgment of conviction and sentence has been challenged alleging that the said judgment suffers various infirmities and the same is based on conjecture and surmise. Contending inter alia, appellant has contended that the learned Trial Judge failed to consider evidence of the witnesses drawing attention of this Court of Appeal that so called disinterested public witnesses have been declared hostile by the prosecution and that the alleged search and seizure have not been proved beyond reasonable doubt. Appellant has prayed for setting aside the impugned judgment of conviction and sentence and has prayed for his acquittal of the charges levelled against him.
7. In this appeal we are concerned with the allegations brought and evidence adduced in the Trial Court against the present appellant only and we are not concerned with any matter pending before the Juvenile Justice Board.
"Points for decision:
(1) Is the appellant guilty of the charge under Section 489B of the Indian Penal Code as held by learned Trial Judge?
(2) Is the appellant guilty of the charge under section 489C as held by learned Trial Judge?
(3) Is the impugned judgment of conviction and sentence require to be set aside as claimed by appellant?"
DECISION WITH REASONS:
8. Point No. 1:-- In the impugned judgment learned Judge in the Trial Court has convicted and sentenced the present appellant of the charge under Section 489B, I.P.C.
9. Section 489B of the Indian Penal Code reads as follows:--
"Section 489B:-- "Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency note or bank note, knowing or having reason 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". Let us see first whether the state respondent was able to bring sufficient materials before the Trial Court for fulfilment of the ingredients to punish the appellant-accused under Section 489B, I.P.C. In our view, for proving a charge under Section 489B, Indian Penal Code it is the bounden duty of the prosecution to prove beyond reasonable doubt that on 9.5.2011 in between 21:55 hours to 22:30 hours in the night at Gourbanga near Mohan Dhaba on NH 34 knowingly and consciously the appellant brought from any other person Material Exhibit-I FICN from Indo Bangladesh Border Area of Shashani under P.S. Baishnabnagar District Malda for using the same as genuine at Malda town area, or he used the same as genuine in any manner."
10. In course of trial, excepting the statement in FIR (First Information Report) about confession before the raiding party by accused and evidence of raiding police witnesses, no evidence has been adduced by prosecution that this appellant accused really procured the Material Exhibit-1 FICN from any person of Indo-Bangladesh Border area of Shashani under P.S. Baishnabnagar with a view to dispose of the FICN at Malda town area knowing that the notes are counterfeit Indian Currency Notes. Significantly, on the following day (10.05.2011) the accused (appellant herein) was produced, but there was no prayer, before learned Chief Judicial Magistrate, Malda for recording any confession of the accused under Section 164 of the Code of Criminal Procedure. There is no iota of evidence of prosecution that the appellant used any FICN as genuine at any time of occurrence.
11. Alleged confession before police by the accused cannot be said as proved as per provisions under Section 25 of the Evidence Act and such confession, if any, cannot be used against the accused. In the instant case, excepting such alleged confession, there is no material in favour of the prosecution to bring home the charge under Section 489B, Indian Penal Code against the accused appellant. During examination of accused under Section 313, Cr. P.C. the accused has claimed such statement of witness of prosecution as false.
12. In our view, learned Judge in the Trial Court has failed to appreciate the legal position discussed above and has convicted the appellant under Section 489B, Indian Penal Code erroneously. On that score, miscarriage of justice has been caused in convicting and sentencing the accused appellant under Section 489B of the Indian Penal Code. Accordingly, Point No. 1 is disposed of in favour of appellant.
13. Point No. 2:-- The appellant has also been convicted and sentenced under Section 489C of the Indian Penal Code (shortly, I.P.C.).
14. Section 489C, I.P.C. reads as follows:--
"Section 489C. 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."
15. Thus, in the instant case, prime ingredients to attract this section are conscious possession of Material exhibit- I of the accused appellant before arresting him by Police and said Material exhibit- I was a bundle of FICN and it was the intention of accused-appellant to use the same as genuine. Such ingredients are required to be proved beyond reasonable doubt by the prosecution in order to bring home the charge under Section 489C, I.P.C. against the accused. Learned Judge in the impugned judgment has been satisfied with the discharge of burden of prosecution and accordingly, awarded punishment to the accused. We are to consider as to whether any miscarriage of justice has been caused thereby.
16. At the time of hearing this appeal, learned Advocate for the appellant has drawn our attention to the fact that out of eleven witnesses four witnesses Sibu Ghosh (PW 4), Shankar Roy (PW 5), Ashutosh Mondal (PW 6) and Arabinda Bhagat (PW 8) have been declared as hostile witnesses at the instance of prosecution and that none of them identified the accused and that they do not support the prosecution case of apprehending the accused and alleged search and seizure of anything from the possession of accused. He has advanced his arguments that there is no other independent witness of prosecution to support the story of FIR lodged on 9.5.2011. Further arguments of learned Advocate for the appellant is that alleged search of the appellant and seizure of Material exhibit- I from the possession of appellant is illegal for non-compliance of the provisions under Section 102 of the Cr.P.C. as the informant did not inform the Inspector-in-charge of the English Bazar Police Station forthwith about the factum of seizure. He has also argued that there is anomaly in the evidence regarding total number of FICN as mentioned in the oral evidence of Police witness PW 1 and FIR and seizure list. His further arguments is that signature of appellant accused was not obtained on each note which creates a doubt whether these notes were seized and whether one hundred notes are in the bundle as the FIR speaks the total number of notes is much more than one hundred according to serial numbers mentioned in FIR.
17. Learned Advocate for the state respondent has argued that search and seizure was done by PW 9 in presence of raiding Police personnels and PW 4, PW 5, PW6 and PW 8 lawfully. Seizure list (exhibit- 1) and label (exhibit- 2) for the seized articles where the accused signed as token mark of his presence and conscious knowledge were prepared by PW 9. He has also drawn our attention to the evidence of PW 4 and PW 5 who signed on exhibit- 1 as independent witnesses of seizure giving emphasis to the answers of those witnesses against questions put by the Trial Court exercising power under Section 165 of the Evidence Act. Regarding some statements made by PW 1 during cross-examination Mr. Banerjee, learned Advocate (Additional Public Prosecutor) for the State has argued that such statements regarding total number of seized FICNs are his misstatements against true state of affairs. According to him, truly one hundred pieces of FICN in a bundle of denomination of Rs. 1000/- was seized from the appellant according to his own counting as per statements of FIR and seizure list. His further arguments is that Section 102 of the Code of Criminal Procedure does not speak of giving information to Officer-in-charge of Police station by his subordinate Police Officer about seizure in writing separately in addition to lodging of written FIR at P.S. after working out an information under direction of Officer-in-charge that is Inspector-in-charge of the English Bazar Police Station as mentioned in FIR and stated by PW 1. He has replied to the arguments of learned Advocate for the appellant that when signatures of accused on seizure list and label have been taken then taking of his signature on each FICN is not required.
18. Hearing the arguments of both sides in order to remove any doubt we felt it necessary to count the seized currency notes of the denomination of Rs. 1000/- each which have been collectively marked Mat. Exhibit- I in open Court in presence of learned Advocates of both sides. Accordingly, we directed the trial Court for production of Mat. Exhibit- I. In compliance of our direction said alleged FICNs of denomination of Rs. 1000/- in sealed cover under proper escort were produced which were inspected and checked by the learned Advocates for the parties. Thereafter, the seal was broken in open Court and the number of notes of Mat. Exhibit- I were physically counted by Court Officers in presence of learned Advocates. The total number tallied the number of seized FICNs as mentioned in FIR and seizure list and also the number of FICNs counted by expert of Currency Note Press, Nashik Road, Maharashtra. Total number of FICNs was found one hundred and amount of said FICNs is Rs. 100000 as said to have been seized from accused appellant as a bundle of one hundred FICNs of denomination of Rs. 1000/- each.
19. Regarding factum of seizure we find much force in the arguments advanced by learned Additional Public Prosecutor for the State than the arguments advanced by learned Counsel for the appellant.
20. Here, Police witnesses have deposed beyond major discrepancy in a chorus voice to prove that Mat. exhibit - I (FICN) was properly seized under a seizure list from the possession of the appellant. Excepting denial there is no explanation of the appellant about his possession of such bulk quantum of FICN under his possession. Local witnesses of seizure list have proved their signatures on seizure list but they have not admitted the fact of seizure in their presence. Normal presumption is that when their signature on seizure list as witnesses is proved beyond shadow of doubt certainly they put their signature knowing the cause of their putting such signatures. There is no material to believe that before coming to the witness-box any of the two hostile witnesses PW 4 and PW 5 complained before anybody about any circumstance, against the contents of the seizure list, of putting his signature on exhibit- 1.
21. Prosecution has declared PW 4, PW 5, PW 6 and PW 8 as hostile witnesses. We like to note the depositions of said four witnesses recorded by the learned Judge in the trial Court as follows:--
"PW 4 - "I am a owner of a tea stall. My tea stall is situated at Jamtala.
Five months back police came to my shop and told me to sign in a white paper and accordingly I signed in that paper.
(To court - If I am handed over a blank paper for putting my signature I will not put my signature unless the same is filled up. I never in my life signed in a blank and white paper.)
This is my signature appearing in the seizure list dated 09.05.2011. The signature of PW 4 appearing in the seizure list dated 9.5.2011 is marked as ext. 1/2.
This is my signature appearing in the label dated 9.5.2011. The signature of PW 4 appearing in the label is marked as ext. 2/2. I was not examined by the police.
(At this stage ld. P.P. in charge files a petition praying for declaring the witness as hostile and prays for his cross-examination. Ld. P.P. in charge is permitted to cross-examine the witness.)
Cross examination by the side of Prosecution:
Not a fact that I have stated before the IO that on 9.5.2011 at about 9 pm I along with my staff Shankar were proceeding towards my shop by a bicycle and at that time I saw the police officers of the Englishbazar police station were waiting near Mohan dabha and that we were asked to stop and to accompany them. Not a fact that I have stated to the IO that after few minutes we saw two persons roaming near the PO in a suspicious manner and police personnel cordoned the said two persons and interrogated them and during the time of interrogation one of them told his name as Saddam Ali and the other as Naidu Sk.
Not a fact that I have stated to the police that the police personnel conducted search operation on the bodies of those persons and recovered fake currency notes from their possession.
Not a fact that I have stated to the IO that those persons stated that they brought those fake currencies from Sasani Indo-Bangladesh border and a person from Malda will be coming to collect those fake currencies.
Not a fact that I have stated to the IO that the police officer prepared a seizure lists and labels in our presence and obtained the signatures of the accused persons and myself and thereafter police seized the said fake currencies and thereafter the police officer left the PO with the accd. Persons and seized articles. I can not identify the person in court from whom fake currency were recovered.
Not a fact that I have deposed falsely this day in connivance with the accused persons from being prosecuted in this case.
Cross examination of the witness by the side of the defence:
I am an illiterate person and I can not read and write but I can only sign. Police came to dhaba and told me to sign in the blank paper and I signed in the said paper out of fear."
PW 5:-- "I am a cook in a hotel named and styled as ''Ghosh dabha'' which is situated at Jamtala in between Reliance petrol pump and Gourbanga railway station.
The owner of the said hotel is Hari Ghosh and Sibu Ghosh is his son in law. Sibu Ghosh looks after the said hotel during day hours and Hari Ghosh look after the said hotel during night. Food items namely Tarka, rooti, dal etc are sold in the said hotel. Mohan hotel is situated near Gourbanga railway station.
Three/four months back I signed in a blank paper which was produced by a police officer.
(To court - I will not sign in any blank paper or N.J. Stamp paper if it is produced before me. If I sign in a blank and white paper it will go against me.)
I am a Hindi speaking person. I sign in Hindi alphabet. This is my signature appearing in the seizure list dated 9.5.2011 which is marked as ext. 1/3.
This is my signature appearing in the label dated 9.5.2011 which is marked as ext. 2/3.
I was not examined by the IO. I can not identify the accused person.
(At this state ld. P.P. in-charge files a petition praying for declaring the witness as hostile and prays for his cross-examination. Ld. P.P. in charge is permitted to cross-examine the witness.)
Cross examination by the side of Prosecution:
The police officer who came to me did not give any threat for instituting any case against me at the time of obtaining my signature in the papers. I was not put into fear by the said police officer.
Not a fact that I have stated before the IO that on 9.5.2011 at about 9 pm I along with my owner Sibu Ghosh were proceeding towards the hotel by a bicycle and at that time I saw the police officers of the Englishbazar police station were waiting near Mohan dabha and that we were asked to stop and to accompany them. Not a fact that I have stated to the IO that after few minutes we saw two persons roaming near the PO in a suspicious manner and police personnel cordoned the said two persons and interrogated them and during the time of interrogation one of them told his name as Saddam Ali and the other as Naidu Sk.
Not a fact that I have stated to the police that the police personnel conducted search operation on the bodies of those persons and recovered fake currency notes from their possession.
Not a fact that I have stated to the IO that those persons stated that they brought those fake currencies from Sasani Indo-Bangladesh border and a person from Malda will be coming to collect those fake currency.
Not a fact that I have stated to the IO that the police officer prepared seizure lists and labels in our presence and obtained the signatures of the accused persons and myself and thereafter police seized the said fake currencies and thereafter the police officer left the PO with the accd. Persons and seized articles.
Not a fact that I have deposed falsely this day in connivance with the accused persons from being prosecuted in this case.
Cross examination of the witness by the side of the defence:
I put my signature in the blank papers out of respect to the police officer.
I can not read and write but I can only sign in Hindi alphabet.
The distance in between our hotel and gourbanga railway station is less than one kilometre and it takes 10/15 minutes by walking to reach the station.
PW 6:-- "I have my own tea stall cum pan, biri shop near Gourbanga railway station beside NH34.
I open my shop at 7 am and close the same at 5 pm. I do not know any incident which took place 5/6 months back. I have come to this court in connection with a case relating to fake currency. Mohan hotel is situated just in front of my shop.
I was not examined by the police.
(At this stage ld. P.P. in-charge files a petition praying for declaring the witness as hostile and prays for his cross-examination. Ld. P.P. in charge is permitted to cross examine the witness.)
Cross examination by the side of Prosecution:
Not a fact that I was examined by the IO of this case. Not a fact that I have stated to the IO that on 9.5.2011 at about 9 pm I was sitting in my shop and at that time I saw some persons gathered near Mohan hotel and I went to the PO and saw that the police officers of Englishbazar police station were questioning two persons.
Not a fact that I have stated to the IO that the police officers offered themselves to conduct search of their bodies by those persons but they refused to do so.
Not a fact that I have stated to the IO that the police officers recovered one bundle of one thousand rupees notes from a person and two bundles of five hundred rupees notes from another person.
Not a fact that I have stated to the IO that on perusal of those currency notes we apprehended the same to be fake currencies and the accused persons also admitted the same fact.
Not a fact that I have stated to the IO that the police officer seized those currencies notes and prepared seizure lists and obtained the signatures of the accused persons and thereafter the police officer left the PO with the accd. Persons and the seized articles.
Not a fact that I have stated to the IO that later on I came to know the that the names of the two persons were Naidu Sk and Saddam Ali.
I can not identify the accused person.
Not a fact that I have deposed falsely this day in connivance with the accused person from being prosecuted in this case.
Cross examination of the witness by the side of the defence:
After obtaining notice I came to know about the present case.
It is fact that I have no knowledge about any case relating to the fake currency.
PW 8:-- "I am the son of the owner of Mohan dabha. The said dabha is situated on the left side of NH 34 near Gourbang railway station.
Our hotel remains open day and night on each and every day. All the dabhas situated in and around NH 34 remains open day and night on each and every day.
I have come here to depose after receiving notice form the PS regarding fake currency. I also came yesterday in the court premises but I could not adduce evidence.
I do not know anything about the incident.
(To court - two years back I can recall that an incident of theft of a black and white TV had occurred at my dabha. The thieves assaulted my self and my parents and took away Rs. 1,200/- (rupees one thousand and two hundred) from our cash for which my father lodged a GDE before the PS.)
I was not examined by the I.O.
(At this stage ld. P.P. in-charge files a petition praying for declaring the witness as hostile and prays for his cross-examination. Ld. P.P. in-charge is permitted to cross-examine the witness.)
Cross examination by the side of Prosecution
I sell country liquor in my dabha. I have no licence to sell the country liquor. Selling country liquor without licence is illegal and I am involved in this illegal business.
Not a fact that I have stated to the IO that on 9.5.11 at about 9 pm. when I was serving food to the customers at that time I saw few people gathered beside my dabha and I went to the spot and saw that few people of the locality along with the police personnel surrounded two persons.
Not a fact that I have stated to the IO that the police officers offered themselves to conduct search of their bodies by those persons but they refused to do so.
Not a fact that I have stated to the IO that the police officers recovered one bundle of one thousand rupees notes from a person and two bundles of five hundred rupees notes from another person.
Not a fact that I have stated to the IO that on perusal of those currency notes we apprehended the same to be fake currencies and the accused persons also admitted the same fact.
Not a fact that I have stated to the IO that the said two persons told us that they brought those fake notes from Sasani-Indo Bangladesh border for delivery of the same to a person who was supposed to come from Malda.
Not a fact that I have stated to the IO that the police officer seized those currencies notes and prepared seizure lists and obtained the signatures of the accused persons and thereafter the police officer left the PO with the accd. Persons and the seized articles.
Not a fact that I have stated to the IO that later on I came to know the that the names of the two persons were Naidu Sk and Saddam Ali.
I can not identify the accused person.
Not a fact that I have deposed falsely this day in connivance with the accused person from being prosecuted in this case.
Cross examination of the witness by the side of the defence :
Declined."
22. About the said four hostile witnesses we like to follow the principles discussed in a decision of the Hon''ble Supreme Court of India in the case of
23. Admittedly PW 4 and PW 5 signed on the seizure list and label. Both of them stated that they signed on blank paper. PW 4 has stated that he signed out of fear and PW 5 has stated that he signed out of respect to the Police Officer. Learned Judge who recorded evidence of PW 4 and PW 5 in the Trial Court asked questions to PW 4 and PW 5. On interrogation by Court PW 4 stated that if a blank paper be handed over to him for putting his signature he would not sign it unless the paper is filled up and in his life he never signed on blank white paper and PW 5 stated that he would not sign on any blank paper or N.J. Stamp paper if it be produced before him and if he signed it would go against him. As such, we find and hold that PW 4 and PW 5 both signed on written seizure list and label consciously knowing well about the contents and effect of those documents but for any reason, telling a lie during trial, they pretended that out of fear the PW 4 and out of respect to Police Officer PW 5 without being threatened or put in fear by Police as stated by PW 5 put their signatures on blank white papers. This oral evidence tinctured with circumstances strongly supports the factum of seizure of FICNs and labelling the same on the spot as claimed by the raiding police personnels. In this connection we appreciate the evidence recording Judge who instead of recording evidence like tape-recorder also exercised his power under Section 165 of the Evidence Act and under Section 311 of the Code of Criminal Procedure.
24. PW 6 and PW 8 have not stated about their knowledge regarding police raid, search, seizure and labelling on the seized FICNs but each of them stated the purpose of their attending Court is a case relating to FICNs. Strangely, the PW 8 is so daring that on oath in open Court he stated during his cross-examination by prosecution that he sells country-liquor in his dhaba and he has no licence to sell country liquor consciously knowing that he is engaged in that illegal business. This PW 8 is son of the owner of Mohan Dhaba. We do not know whether any legal action has yet been taken by Police to stop such illegal business in the interest of law and order situation of the State. Be that as it may, we cannot shut our eyes to the said evidence in the interest of administration of criminal justice in the State. Exercising our power vested under Section 482 of the Code of Criminal Procedure we like to give a direction upon the Superintendent of Police, Malda and Excise Commissioner under the Bengal Excise Act for taking appropriate steps forthwith to stop any such illegal business of liquor within their respective territorial jurisdiction and to take legal action against the businessmen engaged in such illegal business.
25. Exhibit- 8 proves beyond reasonable doubt that Mat exhibit- I is a bundle of one hundred fake Indian Currency Notes of denomination of Rs. 1000/- each. We are satisfied that exhibit- 8 has been lawfully admitted in evidence without examining the signatory of exhibit- 8 as a witness in view of the provisions of Section 293 of the Code of Criminal Procedure, 1973.
26. In summing up the facts, circumstances and evidence on record we believe it true that the Material exhibit- I FICNs were found under unlawful possession of the appellant and the same was recovered and seized by police of Englishbazar Police Station. As a result we find and hold that the appellant has been rightly convicted of the charge under Section 489C of the Indian Penal Code and we also find that considering the gravity of the offence adequate sentence for that offence has been awarded to him by the Trial Court.
27. Accordingly, we concur with the decision of Trial Court relating to the charge under Section 489C of the Indian Penal Code although we differ with the observation of Trial Court relating to the decision in respect of the charge under Section 489B of the Indian Penal Code. Consequently, the impugned judgment is modified and this appeal is allowed in part. We uphold the conviction and sentence of the appellant of the charge under section 489C of the Indian Penal Code and we set aside his conviction and sentence of the charge under Section 489B of the Indian Penal Code.
28. Before concluding this judgment, by exercising our power under Section 482 of the Code of Criminal Procedure we direct the learned Judge of the Trial Court to hold a preliminary enquiry and giving opportunity to PW 4 and PW 5 of being heard if satisfied, to lodge a complaint before learned Chief Judicial Magistrate, Malda against the PW 4 - Sibu Ghosh son of Bhakti Ghosh and PW 5 Shankar Roy son of Ramabatar Roy, with allegation of their giving false evidence in Court taking oath, after observing all legal formalities. We also direct the Superintendent of Police, Malda and Excise Commissioner under the Bengal Excise Act for taking steps forthwith to stop any illegal business of liquor within their respective territorial jurisdiction and to take legal action against the businessmen engaged in illegal business of liquor. The Superintendent of Police shall intimate the steps and action taken by him to the learned Chief Judicial Magistrate, Malda within one month from the date of communication of this judgment in his office.
29. A copy of this judgment alongwith L.C.R. be sent to the Trial Court for information and compliance. Copies of this judgment be also sent to Superintendent of Police, Malda and to Excise Commissioner under the Bengal Excise Act and to learned Chief Judicial Magistrate, Malda for information and necessary action.
30. Certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
Aniruddha Bose, J.
I agree.
