SALAM MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeals are directed against the judgment and order dated 15.02.2016 and 16.02.2016 passed by the learned Additional Sessions Judge, Fast Track, 8th Court, Alipore, South 24 Parganas, in connection with Sessions Trial No. 1(4)2011 convicting the appellant Zashim Mondal alias Jashim Mondal for commission of offence punishable under Section 489B and 489C of the Indian Penal Code and also under Section 14 of the Foreigners Act and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/- in default, to suffer rigorous imprisonment for six months more for commission of offence punishable under Section 489B of the Indian Penal Code, to suffer rigorous imprisonment for five years and also pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for three months more for commission of offence punishable under Section 489C of the Indian Penal Code and to suffer simple imprisonment for five years more and pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for three months for the offence punishable under Section 14 of the Foreigners Act and convicting the appellant Salam Mondal for commission of offences punishable under Sections 489B and 489C of the Indian Penal Code and sentencing him to suffer the same amounts of imprisonment and fine on the said courts as the co-appellant. All the sentences to run concurrently.

(2.) The prosecution case as alleged against the appellants is to the effect that on pursuant to prior permission obtained from superior officer of Special Task Force, P.W.1, Nazrul Hossan being accompanied by a team of officers of Special Task Force, Kolkata Police along with the source kept watch on 13.5.2010 at 14.45 hrs. in and around Five Star Market, 26, Karl Marx Sarani, Kidderpore, Kolkata-23. During the watch, at around 17.15 hrs. the source identified a person on the first floor of the market in front of a shop being no. 31A, as traffickers of FICNs. The said person was accompanied by another individual aged around 23 years and the shop keeper was loudly talking with them over the issue of payment of materials sold to them. The persons looked very restless and were trying to escape from the spot. Immediately they were intercepted and on being asked one of them disclosed his identity as Salam Mondal, s/o Munnaf Mondal of Village Ramnagar, P.O.-Kumari Ramnagar, P.S.- Hanskhali, District-Nadia. The other person disclosed his identity as Zashim Mondal, s/o of Hanif Mondal of Village-Jhiktipota, P.O-Zinnah Nagar, P.S.-Maheshpur, District-Jhinaidaha, Bangladesh. Zashim Mondal was unable to produce travel documents regarding his lawful entry into India. Md. Firoz, the shopkeeper of shop no. 31A stated the said persons had come to his shop at about 16.55 hrs. and had proposed to purchase four pieces of jeans trousers and six pieces of T-shirts. Accordingly, he raised a bill for Rs.5900/- and handed over it to Zashim Mondal. Thereafter, Zashim Mondal took out six pieces of notes of Rs.1000/- each to Md. Firoz which the latter suspected were fake and returned the said notes. Thereupon, Salam Mondal took out 12 pieces to Rs.500/- each of notes and handed them to Md. Firoz which was also returned by the shop keeper on similar ground. For this issue, an altercation ensued when the police team intervened. The police officials searched the aforesaid persons. From Zashim Mondal six notes of Rs.1,000/- and a bill of Rs.5,900/- raised by Md. Firoz and visiting card of the shop "Aseer Collection" shop no.31A(first floor), 26, Karl Marx Sarani, Kolkata-700 023 along with two notes of Rs.1,000/- each and four pieces of Rs.500/- each were recovered. On further search, two bundles of notes of Rs.1,000/- each, one bundle containing 100 pieces of Rs.1,000/- each and another containing 92 pieces of Rs.1,000/- was seized from a synthetic bag carried by Zashim Mondal. From the said synthetic bag, four more bundles of currency notes of Rs.500/- each, that is, three bundles containing 100 pieces of notes of Rs.500/- each and one bundle containing 96 pieces of notes of Rs.500/- i.e. Rs.4 lakhs in all were also recovered from the said bag. Upon searching Salam Mondal, the police team found 12 pieces of notes of Rs.500/- in his right hand and two bundles of currency notes of Rs.500/- each from his trouser pockets one of which containing 100 pieces of currency notes and the other contained 88 pieces of currency notes of Rs.500/- each i.e. Rs.1 lakh in all. All the aforesaid notes suspected to be fake were seized under seizure list. They were sealed, labelled and packed. Zashim Mondal and Salam Mondal were arrested and on the written complaint of P.W.1 Nazrul Hasan, First Information Report being Watgunge P. S. Case No.138 dated 13.5.2010 under Sections 120B/498b/498C of the Indian Penal Code and under Section 14 of the Foreigners Act was registered for investigation. The seized currency notes were sent for examination to Currency Note Press, Nasik Road, Maharashtra and upon receipt of report, charge sheet was filed. The case was committed to the Court of Sessions and charges were framed under Sections 120B/498B/489C of the Indian Penal Code against both the appellants and also under Section 14 of the Foreigners Act against the appellant Zashim Mondal. Both the appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined six witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by the impugned judgement and order dated 15th February and 16th February, 2016 convicted and sentenced the appellants, as aforesaid.

(3.) Learned Counsel appearing for the appellants submits that the prosecution has not been able to prove its case beyond reasonable doubt. Numbers of the currency notes were not reflected in the First Information Report but were subsequently introduced in the seizure list. It is argued that no independent witnesses including the owner of the shop Md. Firoz, the most vital witness, has been examined. Prosecution has solely relied on the version of police witnesses who were members of the raiding party and the evidence of P.W.4, purported employee of the shop, does not inspire confidence. Hence, the appellants are entitled to acquittal.