The conflicting interpretations of 'possession' and 'otherwise traffics in' in different judgments led the court to refer the issues to a Larger Bench for decision.

JUDGMENT

Tirthankar Ghosh, J. - The four appeals relate to cases registered under the provisions of Section 489B and 489C of the Indian Penal Code. In course of hearing of these appeals the interpretation of the term 'otherwise traffics in' used in Section 489B of IPC vis-a-vis the word 'possession' used in Section 489C of IPC fell for consideration and as such all the four appeals were taken up together. The facts of each appeal are briefly set out initially and thereafter the issues raised by the appellants and the State have been considered.

In Re: CRA 123/2019 with CRA 37 of 2019.

2. The facts of the case relate to Suti Police Station case no. 431/17 dated 08.08.2017 under Sections 489B/489C of the Indian Penal Code which was initiated on the basis of a complaint lodged with the Officer-in-charge, Suti Police Station by Ram Prasad Haldar, Inspector of Police attached to the same police station. It has been alleged that on 08.08.2017 at 15.45 hrs., a secret information was received that three persons are loitering at Chander More at the side of NH 34 for exchanging huge amount of forged currency notes. The said information was diarized and a team was formed which arrived at about 16.15 hrs. The three persons were intercepted and were searched. On search from the three persons fake Indian currency notes were recovered which were as follows:

i) From the possession of Anikul Islam - 46 number of fake Indian currency of Rs.2,000/- denomination,

ii) From the possession of Rafikul Islam - 30 number of fake Indian currency of Rs.2,000/- denomination,

iii) From the possession of Maharom Mandal - 24 number of fake Indian currency of Rs. 2,000/- denomination were recovered.

3. The learned trial Court on completion of investigation of the case and after hearing the final argument was pleased to convict the three appellants under Section 489B/489C of the Indian Penal Code and sentenced them to suffer five years rigorous imprisonment and fine of Rs.10,000/- in default rigorous imprisonment for 6 months for the offence under Section 489B of the Indian Penal Code and rigorous imprisonment for three years and fine of Rs.5,000/- in default rigorous imprisonment for three months for the offence under Section 489C of the Indian Penal Code.

4. Mr. Sourav Chatterjee learned Advocate appeared for the appellant in CRA 37 of 2019 and Mr. Tapan Dutta Gupta learned Advocate appeared for the appellants in CRA 123 of 2019. Both the learned Advocates contended in the same tune regarding the non-applicability of the provisions of Section 489B and 489C of the Indian Penal Code.

5. Mr. Chatterjee learned advocate filed written notes of argument in order to buttress the contention of the State (which will be dealt with later) relating to the applicability of Section 489B of the Indian Penal Code and drew the attention of the Court to the following factual circumstances:

(a) The complainant, Sub-Inspector of police Ram Prasad Halder during his examination-in-chief could not recollect the name of the 2nd independent witness available at the time of recovery.

(b) The two independent witnesses of search and seizure being the prosecution witness no.4 and 5 could not recollect the name of the accused and also could not identify the appellant in Court.

(c) The Expert (PW10) who examined the FICN and produced his report being Ext.27 during trial, in his deposition was completely silent regarding what was examined by him, the nature and extent of examination and the process followed in respect thereof. The opinion of the Expert is cryptic, sketchy and as such unreliable.

(d) The ingredients of the offence punishable under Section 489B and 489C of the Indian Penal Code were not proved beyond reasonable doubt.

6. The precedents in support of acquittal relied upon by the appellants are:

Jiban Sasmal -Vs. - State of West Bengal 1987 SCC OnLine Cal 114;

Sarvesh Pathak @ Kallu -Vs. - Sate of West Bengal, 2014 SCC OnLine Cal 18497;

Chhotelal Thakur -Vs. - Union of India, 2020 SCC OnLine C