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TMI Blog2024 (8) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of Rs.5,000/-, i.d. to suffer Rigorous Imprisonment for 3 months. Samsherganj Police Station case no. 351 of 2013 dated 17.10.2013 was registered for investigation under Sections 489B/489C of the Indian Penal Code on the basis of an information submitted by one Amit Bhakat, Sub-inspector of Police attached to Samsherganj police station with the Officer-in-charge, Samsherganj police station, Murshidabad. On 17.10.2013 at about 17.15 hrs. an information was received, that a person was suspiciously roaming at Dhuliyan Ferry Ghat area with Fake Indian Currency Notes and was attempting to use the same as genuine. So, an information was diarized vide Samsherganj Police Station GDE No. 788 dated 17.10.2013. A raiding team was constituted along with two constables namely, Sk. Yeasin Ali and Biswajit Purti along with Home Guard Tapas Das. The raiding team left the police station to work out the said information vide Samsherganj Police Station GDE No. 789 dated 17.10.2013 and M.C.C. No. 3320/13 dated 17.10.2013 with the police station vehicle bearing no. WB-58U/3214. At about 17.35 hrs. the raiding party reached at Dhuliyan Ferry Ghat and on being identified by the source found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were read over to the appellant to which he pleaded not guilty and claimed to be tried. The prosecution in order to prove its case relied upon 8 witnesses which included PW1, Tapas Das, Home Guard of Samsherganj Police Station and a member of the raiding team; PW2, Amit Bhakat, Sub-inspector of police and informant/complainant of the case; PW3, ASI Prabir Das of Samsherganj Police Station who filled up the formal FIR after receipt of the written complaint; PW4, Sk. Yeasin Ali, constable who was also member of the raiding team; PW5, Biswajit Purti, constable, who was also member of the raiding team; PW6, Lutu Sk., seizure list witness; PW7, Ashok Basak, seizure list witness and PW8, Santanu Mukherjee, Investigating Officer of the case. PW-1, Tapas Das, who was Home Guard of Samsherganj Police Station and a member of the raiding team, deposed that on 17.10.2013 he along with Amit Bhakat and constables Sk. Yeasin Ali and Biswajit Purti went to ferry ghat and after arrival found that a person started to flee away. However, he was apprehended. There was a gathering from whom two persons were called as witnesses. The person was searched in presence of the witnesses and 71 numbers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court in respect of the steps taken in course of investigation relating to preparation of rough sketch map with index, recording of the statements of the available witnesses under Section 161 of the Code of Criminal Procedure, sending the seized FICNs to Bharatiya Reserve Bank Note Mudran (P) Ltd., Salboni for obtaining expert's opinion. He identified the report which included four sheets and was admitted in evidence. He also deposed that he examined both the independent seizure list witnesses and on completion of investigation, he submitted charge-sheet before the jurisdictional court. Mr. Mukherjee, learned advocate for the appellant drew the attention of the court to the charges which were framed by the learned trial court on 15-01-2015 and submitted that the ingredients under Section 489B of the Indian Penal Code is missing in the present case and the same has seriously prejudiced the appellant. Learned advocate submitted that the learned trial court failed to appreciate the importance of charge and in a causal manner recorded the charge which did not enable the accused to know the case against him. It was also pointed out that two independent witnesses namely, PW-6, Lu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2018) as also in Turakka Nagaraju -vs- The State of West Bengal, (CRA 144 of 2016). Before proceeding further the relevant paragraphs so relied upon by the petitioner/appellant in respect of the judgments relied upon by him are required to be dealt with. In Maya Devi and Anr. (supra) it was observed: "26. On an appreciation of the settled position of law, keeping in mind the background of the present case which is presently an appeal against conviction for commission of offence under Section 489B and 489C of the IPC, the following issue emerge that whether the confessional statement of the accused persons can be made foundation of their guilt. Needless to state that it is only in the statements under Section 108 of the Customs Act of the three appellants it is found that one Rahul @ Ikram @Ikramul of village Mojumpur, P.O.- Harchi, P.S.- Kaliachak, District- Malda was the person who obtained the notes from Bangladesh and handed over the same in presence of Chhotelal to Umesh Sha and Maya Devi. 27. Throughout the evidence there is no corroboration by any prosecution witness in respect of such evidence and there is neither any other documentary evidence to substantiate the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any act which could lead to their circulation." 17. 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. 18. 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 vesels along a transportation route."" In order to substantiate his contention regarding the maintainability of the charges under Section 489B of the Indian Penal Code, learned advocate referred to a judgement of this Hon'ble Court in Hoda Sk. Vs. State of West Bengal (CRA 321 of 2015) and relied on the following paragraphs : "Analysis of the aforesaid section shows whoever sells, buys or receives from any other person or otherwise traffics in or uses as genuine any forged or counterfeit currency notes or bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the penal ambit of section 489B IPC. However, in the present case no charge of transportation of fake currency notes has been framed. On the other hand, charge framed under the head of section 489B of the Penal Code, 1860 is as follows:- "Firstly, that you on 10.10.2013 at about 11 : 05 am at Dhuliyan ferry Ghat under P.S. Samserganj, Dist. Murshidabad you were found possessing fake Indian currency notes of Rs. 4,00,000/- consisting of 400 pieces of such notes of denomination of Rs. 1,000/- and also found possessing 597 pieces of FICN of denomination of Rs. 500/- with knowledge that the said currency notes are fake Indian Currency Notes and thereby committed the offence punishable u/s 489B of I.P.C. and which is within the cognizance of this court of sessions." Hence, the appellant had not been called to answer a charge of "otherwise trafficking in" fake currency notes by transporting such notes through a public thoroughfare for commercial use. To convict the appellant on such score at the appellate stage without reframing the charge would cause prejudice to them and occasion failure of justice. In this factual backdrop, I am constrained to hold that the appellant is entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued on behalf of the appellant on the basis of the decision of the Apex Court in Parakh Foods Limited v. State of Andhra Pradesh (2008) 4 SCC 584 that the term "traffics" has to be read ejusdem generis with the phrases "sells to", "buys" and "receives from any other person" and that the junction of another person is necessary to accomplish such acts. It is here that use of the word "otherwise" gains critical importance. The word "otherwise" is used to indicate the opposite of, or contrast to, something already stated when used as part of a phrase as "or otherwise" (see Oxford Dictionary of English-3rd Edition). Even when the word "otherwise" is used not as part of a phrase as "or otherwise", but as an adverb or an adjective, such usages are also resorted to, to draw a contrast or distinction. The word "traffics" as well as the word "trafficking" and "trafficked" are used to describe the action of dealing or trading in something illegal. The activity or activities which would amount to "sells to", "buys" or "receives from" any other person, may require the participation of two persons to complete any such transaction. However, any activity which would fall within the phrase "otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic' 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. It would be convenient to quote the language of Section 489B of the IPC as is appearing in the statute : "489-B. Using as genuine, forged or counterfeit currency-notes or bank-notes.-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 479[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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. It is sufficient if the charge is in a language which enables the accused or the appellant to know as to what he is supposed to answer or in respect of which offence he is facing the trial. No prejudice has been caused to the accused in this case in respect of the language of the charge which has been used by the learned trial court while framing the charges under Section 489B IPC. Taking into account the contents of the charges relating to Section 489B and Section 489C IPC, I am of the view that the language which has been used by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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