Balai Saha vs State Of Tripura

Heard Mr. A. Acharjee, learned counsel appearing for the accused-appellant as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent.

The instant appeal has been filed under Section 374 of the Cr.P.C. against the impugned judgment of conviction and sentence dated 03.04.2019 passed by learned Sessions Judge, South Tripura, Belonia in case No.ST 43(TYPE-II) of 2016, whereby and whereunder, the accused-appellant has been convicted under Section 489(C) of IPC and sentenced to suffer R.I. for four years and to pay a fine of Rs.15,000/- with default stipulation.

The brief facts are that, on 24.01.2013 at around 08.25 hours, the informant S.I. Bimal Baidya along with P.S. staff laid an ambush on the road near Giridhari Palli on the basis of secret information that one person, namely, Balai Saha was proceeding towards Belonia with one bike carrying huge fake currency notes and likely to cross the road leading towards Giridhari Palli. At around 11.30 hours, the informant saw one blue colour Yamaha motorbike bearing No. TR-03- 9437 was proceeding towards Giridhari Palli. The informant and his staff stopped the bike and being enquired, the accused- person disclosed his name as Balai Saha. In the meantime, few nearby persons gathered there and in presence of them, the informant searched the accused-person and found 29 nos. of Indian currency notes which he suspected to be forged. The informant detained the accused-person although the accused tried to damage the said currency notes, but failed. Accordingly, the informant seized those currency notes and the motorbike and brought the accused-person to the police station.

A suo moto FIR was lodged being Belonia P.S. Case No.17/13 under Section 489C of IPC and it was registered. The investigation was carried out and after completion of the investigation, the investigating officer submitted the charge- sheet against the accused-appellant, Sri Balai Saha for the commission of offence punishable under Section 489C of IPC. On commitment of the case, charge was framed against the accused-appellant under Section 489C of IPC, to which, he pleaded not guilty.

During the course of trial, the prosecution examined 9(nine) witnesses. After the witnesses were examined, the accused-Balai Saha was examined under Section 313(1)(b) of Cr.P.C. However, he denied to adduce evidence in self-defence.

Having heard the arguments as advanced by the learned counsels appearing for the parties, the learned Sessions Judge held the accused-appellant guilty for commission of offence under Section 489C of IPC. Hence, the present appeal before this Court challenging the legality and propriety of the said judgment and order of conviction and sentence as aforestated.

Mr. A. Acharjee, learned counsel appearing for the appellant submits that the prosecution has failed to adduce any evidence about the seizure of the 'counterfeit currencies' and whether they were sealed. There is also no evidence to prove the chain of custody. Furthermore, the scientific expert deposing before the Court as P.W.8, Sri Amal Chandra Kalita has failed to give any explanation about the two currency notes which he received from the investigating officer out of 29 currency notes of the denomination of 500 each. According to Mr. Acharjee, learned counsel, learned Sessions Judge while imposing the punishment ought to have considered this material aspect that initially P.W.-8 returned 25 currency notes and subsequently the investigating officer received 2 currency notes. But, the investigating officer has categorically stated in his evidence as P.W.-7 that he did not receive the two currency notes from P.W.-8.

On the other hand, Mr. Ghosh, learned Addl. P.P. submits that the prosecution has been able to prove its case that the fake currency notes were recovered from the possession of the accused-appellant. Mr. Ghosh, learned Addl. P.P. further submits that the conduct of the accused is relevant to the fact that the accused knowing fully well that those notes were forged, tried to damage those currency notes and also tried to flee away from the spot.

The rival submissions of the learned counsels have led me to survey the evidence and materials brought on record. It is surfaced from the evidence of the investigating officer that having recovered the currency notes from the possession of the accused-appellant, a suo moto FIR was lodged by S.I. Bimal Baidya. S.I. Bimal Baidya deposing as P.W-5 before the Trial Court reiterated his statement made in his complaint. P.W.-1, Sri Bikash Datta is a constable who was a party to the ambush. P.W.-2, Sri Bhanu Biswas used to run a tea stall near Giridhari Ashram, Belonia and he saw that on 24.02.2013, police personnel apprehended the bike of the appellant. However, the rider of the bike was not known to him. P.W.-3, Sri Bhupal Chandra Dey also deposed in the same tune and according to him, the police informed him about the counterfeit currency notes which were found in possession of the accused-person. So, he is a hearsay witness.

P.W.-4, Sri Anup Kumar Das is the Officer-in-charge who received the written ejahar from S.I Sri Bimal Baidya (P.W.-5).

P.W.-6, Sri Biplab Biswas was also a constable who accompanied S.I. Bimal Baidya in the process of recovery of the 29 numbers of fake currencies of the denomination of 500 each from the possession of the accused-appellant.

P.W.7, Sri Alamgir Hossain is an investigating officer who deposed that he was entrusted with the case. He investigated the offence as allegedly committed by the accused-appellant. He received the case docket from P.W.-5, S.I. Bimal Baidya. After receipt of the case docket, he re-seized the 25 fake currency notes and one motorbike that was driven by the accused-appellant at the time of the commission of the offence. During his investigation, he visited the place of occurrence and prepared a hand-sketch map and he sent the fake currency notes to the State Forensic Science Laboratory and on being ordered, he handed over the case to S.P. (CID).

P.W.-8, Sri Amal Chandra Kalita is the Scientific Expert and is the most vital witness of the case. He deposed that he received 29 numbers of old fake currency notes of the denomination of 500 each in connection with Belonia Case No.70 of 2013 under Section 489C of IPC. The banknotes were stumped and marked as Q-1 to Q-29 under Magnifying lens, stereo microscope, VSC 5000, in its UV, IR, oblique and transmitted normal illumination which reveals that all the 29 banknotes were counter-fake banknotes. On the basis of his examination, P.W.-7 & 8 gave his opinion that the notes he examined were forged and fake. He identified his report (Exbt- 6). In his cross examination, he stated that he has not mentioned the serial number of banknotes in his report.

P.W.-9, Sri Sura Kr. Debbarma is the CID Officer, he deposed that during the course of his investigation, he interrogated the accused-appellant in Belonia P.S and collected the SFSL report from the police station. He further deposed that P.W.8, Sri Amal Chandra Kalita who examined the currency notes, submitted 25 numbers of currency notes with his report but two currency notes were kept with him for further examination. However, he collected those two notes on 25.06.2017. But, according to him, the SFSL expert did not submit any further report that those were fake currency notes. P.W.-9 further deposed that he mentioned in the report that he kept those two notes for academic purposes. Thereafter, being prima facie satisfied that the case was established, P.W.-9 submitted the charge-sheet against the accused person. The notes were identified by him as Exbt-MO(i) series. During his cross-examination, P.W.-9 stated that he did not examine any local people as witnesses.

On close scrutiny of the above evidence as adduced by the prosecution witnesses, it has come to light that the investigating officers starting from P.W.-5, P.W-7 & P.W-9 have not stated anywhere as to how those currencies were sealed and even there is no evidence as to the chain of custody. There is no explanation neither on behalf of the SFSL expert nor on behalf of the investigating officers about the consequence of keeping two currency notes out of 29 currency notes and the same is also not clear from the evidence of the investigating officers. From the evidence of SFSL expert, it is revealed that after examination, he returned 25 currency notes to the P.W.-9 and he kept two notes for further examination. But P.W.-9 has categorically stated that the SFSL expert did not submit any report about those two currency notes.

Another interesting feature, I find in the case, is that the prosecution has miserably failed to establish mens rea which is one of the essential ingredients to prove the charge under Section 489C of the IPC. There is no material to see that the appellant had any intention to use those notes as genuine or that those notes would be used as genuine. In my opinion, the following two points appear to be essential to prove the case.

(i) Whether there is adequate evidence to establish mens rea of the appellant?

(ii) Whether there is any proof of integrity of the seized material and the chain of custody?

On minute reading of the examination-in-chief of the P.W.-5, P.W-7 & P.W.-9, I find no material to come to a definite conclusion that there was any mens rea of the appellant to wrongfully gain any advantage out of those currency notes. Moreso, there is no evidence as to whether it was at all within the knowledge of the accused that those notes were fake.

Secondly, integrity of the seizure is in question in absence of any cogent material or evidence to establish the fact that after recovery and seizure of those currency notes, the same was seized in accordance with law and kept in proper custody. More so, it has also not been established that who had marked the currency notes.

It has become crystal clear from the evidence that the seized 'counterfeit currency notes' were not sealed in the packet in presence of witnesses, and till the packet was broken by the State Forensic Science Laboratory, nobody had access to those notes. The integrity of seized notes in such cases is highly improbable as the prosecution is to prove the chain of custody to establish that the integrity of the sample was never compromised. But in the present case, I find total absence of any evidence in relation to the chain of custody or the sample in order to preserve the integrity of the seized materials. There is no evidence other than the possession of the so-called 'counterfeit currencies'.

In the light of the above discussions, I am of the view that the prosecution, in the instant case, has failed to establish the charge framed against the appellant beyond reasonable doubt. In my opinion, the accused-appellant is entitled to get the benefit of doubt. Accordingly, the judgment and order of conviction and sentence dated 03.04.2019 passed by the learned Sessions Judge, South Tripura, Belonia in S.T. 43 (Type-II) of 2016 stands set aside. The appellant is acquitted on the benefit of doubt. Learned counsel for the appellant submits that the appellant is on bail. In view of his acquittal, the appellant is discharged from his bail bond, his surety also shall stand discharged.

In view of the above observation and direction, the instant appeal stands disposed of.