Uttam Kumar Sarkar vs State of West Bengal

Aniruddha Bose, J.—The petitioner has been arrested on 3rd March 2014 in connection with alleged offences relating to use and possession of high quality fake Indian currency notes (FICN) from a location on National Highway No. 34 known as "Township Mor" in the district of Malda. His arrest has been made in course of investigation in S.T.F. P.S. Case No. 02 dated 25th February 2014. This case was started after detention of a co-accused from a shop in Burtolla Street, Kolkata, at the time he was alleged to have been using FICN while transacting business in the said shop.

Altogether, 110 pieces of F.I.C.N. of denomination of Rs.1,000/- each is alleged to have been recovered from the said accused. Learned Public Prosecutor submitted that the said accused, Md. Ismail had revealed the names of the petitioner, as also certain other persons as the source of those FICNs. The petitioner was named in the array of accused in the F.I.R. lodged in connection with that case, i.e. 25th February 2014. The petitioner was arrested in course of investigation in that case. As per seizure list appearing at Page 43 of the Case Diary, sixty pieces of FICN having denomination of Rs.1,000/-, which at the time of making the seizure appeared to be of high quality, were recovered from him. We find from the examination report of Bharatiya Reserve Bank Note Mudran (P) Ltd. appearing at page 56 of the Case Diary, these notes were sent for examination on 14th March 2014, and the examining agency found these notes to be High quality counterfeit Indian Currency Notes, satisfying the parameters specified in the Schedule to the 1967 Act. We must point out in this regard that pagination in the Case Diary has been done using a pencil, but we are referring to such pagination only in this order.

Charge-sheet had been submitted against the petitioner under Section 120B/489B/489C IPC on 21st May 2014. A supplementary Charge-sheet was submitted on 4th August 2014, including the Sections 16/17/18 of the 1967 Act. It is submitted on behalf of the investigating agency that during the interim period, the report of the examining body had been obtained which supported the investigating agency�s suspicion that the counterfeit notes were of high quality, permission was obtained by the Investigating Officer, an Assistant Commissioner of Police, Special Branch for applying Sections 16/17/18 of The Unlawful Activities (Prevention) Act, 1967, from the Superior Authority. Thereafter, on 9th/ 11/07/2014, sanction of the State Government was obtained in terms of Section 45(1) (ii) of the 1967 Act for prosecuting the petitioner and five other accused persons for allegedly committing offences punishable under Sections 16, 17 and 18 of the 1967 Act.

Our attention in this regard has been drawn to page 100 of the Case Diary.

Mr. Basu, learned Senior Counsel appearing for the petitioner has primarily argued against implicating of the petitioner under the 1967 Act on diverse procedural flaws. So far as provisions of the Indian Penal Code, with which the petitioner has been charged, Mr. Basu�s submission is that at the worst, the allegation against the petitioner is possession of FICNs, which is bailable offence, and there is no material that the petitioner was using or trafficking in counterfeit currency notes.

Mr. Basu has referred to the substantive provisions of the 1967 Act along with the provisions of the Third Schedule to the Act as also The Investigation of High Quality Counterfeit Indian Currency Offences Rules, 2013 (the 2013 Rules) to contend that the petitioner cannot be proceeded against under the 1967 Act and his continued detention is unlawful. It has been submitted on behalf of the petitioner that admittedly what has been seized from him is currency notes, the value of which falls below Rs.1,00,000/- and this quantity falls short of the required amount stipulated in Section 15 of the 1967 Act. In this regard our attention has been drawn to Clause 5 of the 2013 Rules, which stipulates:-

"Damage to the monetary stability of India.- Damage to the monetary stability of India, referred to in section 15 by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, shall be deemed to have been caused, if in addition to other considerations,-

(a) seizure is of high quality counterfeit Indian currency of face value of such threshold amount as may be decided by the Central Government from time to time, not being less than rupees one lakh: provided that the said threshold limit shall not apply when the counterfeit Indian currency has been intercepted at the international border, international airport or Immigration Check Post;

(b) the seized counterfeit currency includes any one of the three highest denominations issued by the Reserve Bank of India, and in circulation at such point of time."

(emphasis added by us)

The next point urged by him is that one must be a producer, smuggler or a person should be involved in circulating the counterfeit notes at the instance of a foreign country, entity, agency or person situated aboard to come within the ambit of the offence under Section 15(1) read with Section 16 of the 1967 Act and the Investigating Officer should obtain a report of the authorised forensic laboratory regarding the quality feature of the FICNs involved. According to Mr. Basu, preliminary steps could be taken for application of the aforesaid provisions of the 1967 Act but steps thereafter in connection with investigation could be taken only after receipt of a positive preliminary forensic report and the Superintendent of Police or such other Officer of equivalent or above is satisfied that the act amounts to an attempt to damage the monetary stability of India and he issues order to that effect. Submission of Mr. Basu is that in this case the Commissioner of Police alone had the authority to direct investigation in respect of the offence in terms of Section 15(1)(iii)(a) read with Section 16 of the Act, as also Clause 7 of the 2013 Rules. It is also brought to our notice in this case that the provisions of the 1967 Act was invoked or pressed into service on 25th February 2014 itself when the first accused in this case was arrested in Kolkata, and the aforesaid provision was specified in the F.I.R. He has also argued that Assistant Commissioner of Police (Special Task Force) was conferred authority by the Deputy Commissioner of Police without following the procedure laid down in 2013 Rules. The other point on which he has argued is on grant of sanction. We have already referred to the order by which sanction was granted to prosecute the petitioner. Contention of Mr. Basu on this point is that the Investigating Officer who conducts the investigation must be one who is empowered to investigate as per the 2013 Rules and sanction in terms of Section 45(2) of the 1967 Act ought to be given within the period stipulated therein, on the basis of the evidence gathered by the Investigating Officer.

Referring to Section 43A of the 1967 Act, Mr. Basu submitted that arrest was made in this case by an officer who was not properly empowered to make such arrest. On this point, he has argued is that the general provisions to arrest under the Code of Criminal Procedure ought not to apply when a person is being arrested.

In the petition for bail none of these points have been taken. Mr. Basu, however, has contended that it is permissible on the part of the petitioner to raise these points as these are purely legal in nature and based on statutory provisions as well as the materials already disclosed. Ordinarily, the Court exercising jurisdiction under Section 439 of the Code of Criminal Procedure, 1973 ought not to enter into detailed scrutiny of procedural compliance. We do not opine here that the High Court, while exercising jurisdiction under Section 439 of the Code of Criminal Procedure 1973 shall shut its eyes altogether to procedural flaws in making an arrest or continued detention of an accused, but such flaws would have to be ex-facie violative or the statutory provisions, and ought to be such dimension that the foundation of the case against the accused could be shaken because of such flaws.

In this case, as pointed out by the learned Public Prosecutor, the petitioner was arrested in course of investigation of a case involving use of FICN, on the basis of statements of a co-accused and there is charge of conspiracy against the petitioner. Moreover, there is allegation that the person who was using the FICN used to obtain it from the petitioner and certain other co-accused persons. It is revealed from the Case Diary, the total quantum of FICNs recovered from different accused persons to the said offence in the same case exceeds Rs.1,00,000/-.

We also find from the Case Diary that report from notified laboratory has been received which specifies that the counterfeit notes bear the characteristic of �High quality�. It is submitted by the learned Public Prosecutor that before charging the petitioner with the offences under the 1967 Act sanction was obtained from the State Government and prior to that, approval had been obtained from the appropriate authority by the Assistant Commissioner of Police Special Branch, Kolkata for applying the provisions of the 1967 Act against the petitioner and the other co-accused persons. Delay is alleged on the part of the investigating Officer in sending the FICN for laboratory analysis. The other point urged on behalf of the petitioner was that the decision of the State Government regarding granting sanction to prosecute must be in compliance with the mandate of the provisions of Article 166 of the Constitution of India. But as no specific challenge has been made to the order by which sanction was granted by the State Government, we do not think we ought to adjudicate that issue in this order. We proceed here on the presumption that a statutory authority has complied with the provisions of law while issuing the order of sanction, as no specific violation on this point has been brought to our notice.

In this perspective we are not inclined to embark on a detailed scrutiny as to whether every procedure prescribed under the Statute and the applicable Rules made thereunder have been followed or not while examining the petitioner�s prayer for bail. At this stage, we do not find any exfacie breach of statutory provisions which could persuade us to hold that so far as petitioner is concerned, the provisions of the 1967 Act do not apply. We, however, refrain from making any further comment on this point, as such comment may ultimately influence the Trial Court.

Questions are also likely to come up, if we enter into a detailed scrutiny on the aspect of procedural compliance, as to whether any specified procedure, the breach of which is complained of, is fatal to the prosecution case or not. it is a fact that in the F.I.R., certain provisions of the 1967 Act have been specified apart from the provisions of the Indian Penal Code, relating to offences alleged to have been committed by the petitioner and other accused persons. But prima facie it appears to us that the provisions of the 1967 Act and the 2013 Rules have been complied with. In our opinion, against prima facie, involvement of the petitioner has also been established in the offences alleged, from the materials disclosed in the Case Diary.

Two other co-accused in the same case, being Sk. Ekbal Ali @ Sk. Pappu Ali and Prasanna Kar have been refused bail by Coordinate Benches of this Court on 20th March, 2015 (in CRM 16682 of 2014) and 12th August 2014 (in CRM 839 of 2014). The petitioner has not been able to make out a case which for which we would follow a different course. Allegations against the petitioner are grave and serious in nature. We are also informed by the learned Public Prosecutor that the Trial has substantially progressed. The prayer of the petitioner for bail is accordingly rejected.

Urgent Photostat certified copy of this order be given to the parties expeditiously, if applied for.

Sankar Acharyya, J.—I agree