- (1.) This appeal is directed against judgment and order dated February 22, 2016 passed by learned Additional Sessions Judge, 4th Court, Malda in Sessions Trial no.57(06) of 2015 corresponding to Sessions Case no.237 of 2015 arising out of Baishnabnagar Police Station Case no.517 of 2014 dated 30.12.2014 under Sections 489B/489C/120B of the Indian Penal Code convicting the appellant for commission of offence punishable under Section 489C of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default to suffer imprisonment six months more. Prosecution case against the appellant is that on 30.12.2014 at about 11.10 hours SI Dhananjay Kumar Tiwari, P.W.1 of 20 Battalion BSF , 17 Mile, Malda Baisnabnagar P.S. received a source information that dealing of FICN will take place at 18 Mile, NH-34 and as per information he along with ASI P. Babu (P.W.2), Constable Rakhal Das, (P.W.3) and Constable Driver Vikash Kumar came to the Link Road near brick field connecting border area to 18 Mile and laid in ambush at the spot. When two persons came down the road in a black coloured motorcycle they apprehend them in presence of local persons. The suspects disclosed their names as Rahul Sk and Jamirul Sk and upon search Rs.2,97,000/-, i.e., 199 pieces of FICNs of denomination Rs.1,000/- each and 196 pieces FICNs of denomination Rs.500/- each were recovered from the possession of Rahul Sk and Jamirul Sk. Three mobile phones and Rs.350/- Indian currency notes were also recovered. The complainant seized the said FICNs along with other articles in presence of two independent witnesses on the spot and labelled them. The accused persons admitted that the seized notes were fake and they were planning to deliver the same to Jharkhand. Thereafter P.W.1 handed over the accused persons along with the seized notes to the Police Officer attached to Baishnabnagar Police Station (P.W.7) and on the written complaint of P.W.1 Baishnabnagar Police Station Case no.517 of 2014 dated 30.12.2014 under Section 489B/489C/120B of the Indian Penal Code was registered against the appellant namely, Rahul Sk. and Jamirul Sk. Jamirul Sk. being a juvenile his case was separated and sent to Juvenile Justice Board for enquiry. Upon investigation chargesheet was filed against Rahul Sk. and Jamirul Sk for the offence under Section 489B/489C/120B of the Indian Penal Code and the case against the appellant was committed to the Court of Sessions. Charge was framed under Section 489B/489C of the Indian Penal Code against the appellant who pleaded not guilty and claimed to be tried. Prosecution examined as many as seven witnesses and exhibited a number of documents. Defence of the appellant was that nothing had been seized from their possession and they have been falsely implicated in this case. In conclusion of trial, the trial judge by the judgment and order convicted and sentenced the appellant, as aforesaid. However, by the selfsame judgment and order the trial court acquitted the appellant of the charge levelled under Section 489B of the Indian Penal Code. Mr. Deep Chaim Kabir, learned counsel appearing for the appellant submitted that seizure of FICNs from the possession of the appellant has not been proved beyond reasonable doubt. Although the witnesses spoke of seizure list being prepared at the place of occurrence, P.W.1 in cross-examination stated that the seizure list was prepared before the superior at the BSF office. It is further submitted that there is no evidence that FICNs and other seized articles were put in envelopes although the police officer, P.W.7 claimed that he reseized the FICNs kept in envelopes. It is strenuously argued that there is snap in the live link between the seized articles and the articles sent for forensic examination as the malkhana register or general diary with regard to the custody of the seized notes have been produced in the instant case. There is also considerable delay in despatch of the seized notes for forensic examination. He, accordingly, prayed for acquittal of the appellant in the instant case.
(2.) Mr. Imran Ali, learned counsel for the State submitted that the evidence of the prosecute witnesses with regard to seizure of FICNs from the appellant is consistent and, therefore, ought not to be discarded. He submitted that at the time of preparation of seizure list numbers and their particulars relating to the seized FICNs were recorded in the seizure list and the selfsame notes were sent for forensic examination as would be evident from the report itself. There is no snap in the live link between the seized articles and those which was subjected to forensic examination in the instant case.
(3.) Accordingly, he prayed for dismissal of the appeal. P.W. 1 to 4 are the B.S.F. officials who were present at the time of search and seizure resulting in the recovery of 199 pieces of FICNs of denomination Rs.1,000/-, that is, Rs.1,99,000/- from the possession of the appellant. P.W.1 deposed that on 30.12.2014 he received source information that two persons were coming down Link Road with FICNs by riding a motor cycle. He along with three other BSF personnel, namely, ASI Prabhakar Babu, Constable Rakhal Das and one constable driver went to 18 Mile Link Road and they waited there for sometime and found one motorcycle with two persons coming down the road and on suspicion they detained the said persons. On interrogation they disclosed their identities and a large quantity of FICNs., that is, Rs.2,97,000/- comprising of 199 pieces of denomination Rs.1,000/- each and 196 pieces of denomination Rs.500/- each were recovered from the appellant and the other accused person. Three mobile phones and Rs.350/- of Indian currency notes were also recovered. Two local witnesses were called. Recovery was effected in presence of the local witnesses and after search seizure list was prepared. Witnesses signed on the seizure list. He proved the seizure list (exhibit 1). The accused persons were arrested and brought to the police station. He lodged the written complaint and it bears his seal and signature. It was typed in his office (exhibit 2). He went to the police station and lodged the complaint. He handed over the label, seized notes and the accused persons to the local police station. He prepared the label (exhibits 3 and 3/1). Sealed envelope containing the seized fake currency notes was opened in Court in presence of the witnesses. He identified FICNs of denomination Rs.1,000/- MAT Exbt 1 and FICNs of denomination of Rs.500/- MAT Exbt II, three mobile phones as MAT Exbt III and Indian currency notes of Rs.350 MAT Exbt IV. In cross-examination, he stated that he did everything as per instruction of the Commander and the Commander knew of the said raid. He deposed that after arresting the accused persons they were brought to the superior and prepared seizure list. He did not take signature of the superior in the seizure list. The place where they arrested the accused is not border area where they used to patrol. The local police station is looking after the law and order situation. P.Ws.2, 3 and 4 are members of the ruling party. They have corroborated the evidence of P.W.1. They have also proved their signatures on the seizure list. P.Ws. 5 and 6 are independent witnesses. In examination in chief, they stated that they signed the seizure list while they were going to 18 Mile Link Road.;