2024 (8) TMI 1321 - HC - Indian Laws

Seizure of huge quantity of fake Indian currency notes of Rs. 500/- denomination and the nature of the currency notes - ingredients under Section 489B of the Indian Penal Code present or not - HELD THAT - In the case of HODA SK. VERSUS STATE OF WEST BENGAL 2020 (1) TMI 1695 - CALCUTTA HIGH COURT the Hon ble Division Bench of this court on an interpretation of the facts of the case in the background of the word possessing as used in the charge framed under Section 489B by the learned trial Court was displeased with the language as used in the charge and as such decided to acquit the appellant under Section 489B of the IPC. Although it upheld the conviction under Section 489C of the IPC. In the case of DOLON SK. AND ORS. VERSUS STATE OF WEST BENGAL 2022 (2) TMI 1461 - CALCUTTA HIGH COURT the Hon ble Division Bench took into account the words traffic and otherwise trafficking in and compared the same with the charges which were framed therein thereby acquitting the appellant under Section 489B of the IPC and sentenced him to suffer imprisonment for the offence under Section 489C of the IPC. Here it would be apposite to rely upon the findings of the Hon ble Division Bench in the judgment of JUBEDA CHITRAKAR VERSUS STATE OF WEST BENGAL 2019 (11) TMI 1836 - CALCUTTA HIGH COURT wherein while interpreting Section 489B of the IPC relying upon the judgment of Gujrat High Court as well as the Madhya Pradesh High Court it was held that when an accused person is carrying sizeable quantity of fake currency notes on a public road or otherwise in a concealed manner it would amount to active transportation of such currency notes at the time when the accused person is apprehended. As such while no explanation is offered by the accused when questioned under Section 313 of the Code of Criminal Procedure. regarding the possession of the fake currency note the burden of proof of facts within the knowledge of the person which is to be discharged in terms of Section 106 of the Evidence Act calls for an explanation. It is found from the factual circumstances that the appellant was at a public place being Dhuliyan Ferry Ghat where he was found to be in possession of 71 pieces of FICN of Rs. 500/- denomination which were recovered from his waist. The burden of proof at this stage is upon the appellant to divulge regarding his personal knowledge or information relating to the manner he at least received the FICN. The concept of trafficking is not the only concept under Section 489B IPC. There are other terms which are also embedded in the said Section being sells to or buys or receives from any other person - As such the appellant had ample scope to explain as to how he obtained the FICN. The learned trial court in the charge has used the term you brought and for circulating . The said two phrases is enough to cover the meaning and interpretation as also the spirit incorporated under Section 489B IPC as there is no hard and fast rule that in the contents of charge the specific words of the Section is to be used. Having considered that the incident is of the year 2013 and the appellant has already suffered almost 12 months in custody during the stage of investigation trial and during the pendency of the appeal the sentence of seven years so imposed in respect of the offence charged under Section 489B of the Indian Penal Code be reduced to five years of rigorous imprisonment and fine of Rs.10, 000/-. The sentence in respect of Section 489C of the Indian Penal Code is also modified to a period of three years with fine of Rs.5000/-. The appellant is on bail. As such his bail bonds are cancelled. The appellant is directed to surrender before the learned trial court immediately - Appeal allowed in part by modifying the sentence without interfering with the order of conviction.

Summary

Issues Involved:
1. Validity of charges under Sections 489B and 489C of the Indian Penal Code (IPC).
2. Reliability of evidence, particularly the testimony of hostile witnesses.
3. Interpretation and application of Section 489B IPC.
4. Adequacy of the language used in framing charges.
5. Determination of appropriate sentence.

Issue-wise Detailed Analysis:

1. Validity of Charges under Sections 489B and 489C IPC:
The appellant was convicted under Sections 489B and 489C of the IPC for possessing and intending to use Fake Indian Currency Notes (FICN). The defense argued that the charges under Section 489B were not adequately framed, leading to prejudice against the appellant. The prosecution, however, maintained that the appellant was aware of the nature of the charges and had ample opportunity to defend himself. The court found that the language used in the charges was sufficient for the appellant to understand the case against him, thus validating the charges under both sections.

2. Reliability of Evidence, Particularly the Testimony of Hostile Witnesses:
The prosecution relied on eight witnesses, including members of the raiding team and independent witnesses. Two of the independent witnesses, PW-6 and PW-7, turned hostile, stating they signed the seizure list under police instructions. The defense argued that the remaining witnesses, being police officers, had vested interests. The court, however, found the testimonies of the police witnesses credible and consistent, thereby upholding the reliability of the evidence.

3. Interpretation and Application of Section 489B IPC:
The defense contended that the ingredients of Section 489B IPC, which involves trafficking or using counterfeit currency as genuine, were not met. They cited judgments emphasizing the need for active trafficking or commercial use of counterfeit notes. The court, however, interpreted "otherwise traffics in" to include possession of a sizeable quantity of counterfeit notes in a public place, indicating active transportation. The court held that the appellant's possession of 71 counterfeit notes at a ferry ghat constituted trafficking under Section 489B IPC.

4. Adequacy of the Language Used in Framing Charges:
The defense argued that the charges did not explicitly mention "otherwise trafficking in" as required under Section 489B IPC. The court found that the language used in the charges ("you brought and for circulating") sufficiently conveyed the nature of the offense. The court emphasized that the appellant was aware of the charges and had not raised any issue regarding the language during the trial, thus no prejudice was caused.

5. Determination of Appropriate Sentence:
The court considered the appellant's prior custody period and the nature of the offense. While upholding the conviction, the court reduced the sentence for the offense under Section 489B IPC from seven years to five years of rigorous imprisonment and maintained the fine of Rs.10,000/-. For the offense under Section 489C IPC, the sentence was reduced to three years with a fine of Rs.5,000/-. The default sentences for non-payment of fines were also adjusted. The sentences were ordered to run concurrently.

Conclusion:
The court upheld the conviction under Sections 489B and 489C IPC but modified the sentences, taking into account the appellant's prior custody and the specifics of the case. The appellant was directed to surrender immediately, and the bail bonds were canceled. The court's decision reflects a balanced approach, considering both the legal principles and the individual circumstances of the case.