KANCHAN CHAKRABORTY,J - (1.) 1. THE challenge in this appeal is to the judgment dated 26.3.2010 passed by the learned Additional District and Sessions Judge, Fast Track Court No.2, Bichar Bhawan, Calcutta in Sessions Trial No.3 (8)/2005 thereby convicting the appellant for committing offences under Section 489B/489C of the I.P.C. and sentencing him to suffer R.I. for 7 years and to pay fine of Rs.2,000/- for both the offences which would run concurrently.
(2.) ON 11.12.2003 at about 16.30 hours, while Satya Prakash Upadhyay, a police official attached to Amherst Street Police Station was performing round duty in the area, received an information at about 16.50 hours from the police station regarding a disturbance occurred at premises No.1, Buddha Ostagar Lane, Calcutta-9. He then and there rush to that place with Constable B. B. Chakraborty and found some people assembled there. At Premises No.1, Buddha Ostagar Lane, Calcutta, Mohan Paper House, under the proprietorship of Bijoy Mohan Das was being run. He informed that one person came to his shop to purchase 1 / 2 rim, i.e., 240 pcs of marble papers price of which was Rs.110/-. That man gave him two notes of 100 rupee, which he suspected to be fake. He detained the person inside the shop and informed the local people as well as the Police Station. The local people assembled there and they also found that 100 rupee notes given by him to Bijoy Mohan Das were countefeit. The Police Officer Mr. Upadhyay then entered into the shop and found the appellant Md. Mukhtar sitting inside the room with two 100 rupee notes in his left hand. Those two 100 rupee notes were bearing same serial No.4TA-988989. The man was thoroughly searched in presence of others by Mr. Upadhyay, recovered from his left side pocket of trouser, 9 pieces of 100 rupee denomination note bearing same serial No.4TA-988989. Those 11 number of fake currency notes were seized under a seizure list in presence of Binoy Mohan Das and other witnesses. Mr. Upadhyay also recorded statement of Binoy Mohan Das which he signed and on the basis of which the Amherst Street Police Station Case No.292 of 2003 dated 11.12.2003 was registered. Md. Mukhtar was taken to Police Station and on the basis of his statement, 23 pieces of fake notes of 100 rupee were recovered from the premises at 77, Noor Mahamad Munsi Lane, Howrah-1 bearing same serial number. On the basis of statement of Md. Mukhtar, Amherst Street Police official with the help of Howrah Police Official had been to the house of one Tapan Bose and recovered blank rubber stamp, 12 number of rubber stamp of different office, gram panchayet, bank and institute etc., two number of blank ration cards, 7 blank transfer certificate, two blank birth certificate, one surrender certificate of ration card and 10 number of forged court fees stamp of Rs.10/- etc. from his possession. The matter was investigated into and charge sheet was filed against the appellant Md. Mukhtar for committing offence under Section 489B/489C of I.P.C. and against Tapan Bose under Section 259/473/474 of I.P.C. Md. Mukhtar, the sole appellant herein pleaded not guilty to the charge under Section 489B and 489C of the I.P.C. As a result, the trial commenced. In all, 15 witnesses were examined on behalf of the prosecution. The seizure list, F.I.R., report of the F.S.L., report of the India Security Press, Nashik, the statement of the appellant under Section 27 of the Evidence Act, signatures of the appellant and other papers were admitted into evidence and marked exhibits. The fake notes were also placed before the Court and marked material exhibits besides the label, cover, envelop etc. No witness was examined on behalf of the defence. Upon consideration of the evidence on record, oral and documentary, the learned Trial Court found that the prosecution able to bring home the charges against the appellant Md. Mukhtar and accordingly, recorded the order of conviction and sentence which is impugned in this appeal on the following grounds mainly:- a) that the learned Trial Court failed to appreciate the evidence on record in true and proper perspective; b) that the learned Trial Court failed to consider that presence of witnesses at the time of seizure was highly improbable; c) that the learned Trial Court failed to appreciate that independent witness P.Ws.12 and 13 were declared hostile and did not support the prosecution case in respect of seizure of 23 alleged fake notes bearing same serial number from the house at 77, Noor Mahamad Munsi Lane, Howrah-1; d) that the learned Trial Court was oblivious of the position of law that mere possession or using currency note does not attract the offences under Section 489B/4889C of the I.P.C. until and unless there was a mensrea or knowledge of the person possessing such a fake note that it was fake; e) that the statement made by the appellant to the police leading to the discovery of 23 pieces of fake currency notes is not admissible in evidence in view of Section 27 of the Evidence Act; f) that the judgment being otherwise bad in law, is liable to be set aside. Mr. Sanjoy Chakrborty, learned Counsel appearing on behalf of the appellant contended that presence of witnesses to the seizure is highly improbable. To be stated precisely, his submission is that the seizure of the 11 fake notes from the possession of said Mukhtar at No.1, Buddha Astagar Lane, Calcutta has not been established by sufficient and satisfactory evidence. He also contended that the seizure of 23 numbers of fake currency notes from 77, Noor Mahamad Munsi Lane, Howrah-1 has not also been established because independent witnesses being P.Ws12 and 13 did not support the prosecution case. That being the case, he contended, recovery of fake notes from the possession of the appellant and seizure of the same cannot be said to be established beyond doubt.
(3.) HE contended further that the statement of an accused can only be accepted and admitted into evidence under Section 27 of the Evidence Act when it leads to discovery of fact. In the instant case, the Ext.9, i.e., the statement of Md. Mukhtar cannot be accepted and admitted as evidence under Section 27 of the Evidence Act by segregating some portion of it. The last submission of Mr. Chakraborty was that mensrea being one of the main ingredients for the offences under Section 489B/489C of the I.P.C., simple recovery of fake currency notes and effort to use the same do not constitute any offence under Section 489B and 489C of the I.P.C. In support of his contention, he refers to a decision of the Hon'ble Apex Court in Umashanker Vs. State of Chhattisgarh, reported in 2001 Cri. L. J. 4696.;