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The State Vs. Anil Ranjan Dutta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Ref. No. 7 of 1951
Judge
Reported inAIR1952Cal534
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 103, 154, 288, 307, 423 and 537; ; Evidence Act, 1872 - Sections 114 and 133
AppellantThe State
RespondentAnil Ranjan Dutta and anr.
Appellant AdvocateAmaresh Chandra Roy, Adv.
Respondent AdvocateNalin Chandra Banerjee and ; Debabrata Mukherjee, Advs.
DispositionPetition rejected
Excerpt:
- chakravartti, j.1. this is a reference under section 307 of the code of criminal procedure by the learned additional sessions judge, 3rd court, 24-parganas, upon a disagreement with a verdict of the jury who found two accused persons guilty of various offences concerning forged pakistani notes. one of the accused, anil ranjan dutta 'alias' moni, was unanimously found guilty of charges under section 120b, read with sections 489b and 489c of the indian penal code. he was also found guilty of specific charges under sections 489b and 489c of the same code. the other accused person, rajendra nath jain, was found guilty of the same conspiracy charge and also of a charge under section 489b. in his case also the verdict of the jury was unanimous. the learned judge, however, was of opinion that.....
Judgment:

Chakravartti, J.

1. This is a reference under Section 307 of the Code of Criminal Procedure by the learned Additional Sessions Judge, 3rd Court, 24-Parganas, upon a disagreement with a verdict of the jury who found two accused persons guilty of various offences concerning forged Pakistani notes. One of the accused, Anil Ranjan Dutta 'alias' Moni, was unanimously found guilty of charges under Section 120B, read with Sections 489B and 489C of the Indian Penal Code. He was also found guilty of specific charges under Sections 489B and 489C of the same Code. The other accused person, Rajendra Nath Jain, was found guilty of the same conspiracy charge and also of a charge under Section 489B. In his case also the verdict of the jury was unanimous. The learned Judge, however, was of opinion that the verdict was 'unreasonable, unwarranted, perverse and against the weight of evidence', and accordingly he referred the case to this Court with the recommendation that the accused might be acquitted of all the charges framed against them.

2. The prosecution case, in brief, was that on receipt of certain information from a secret agent that the accused Anil Ranjan Dutta was concerned in trafficking in forged Pakistani notes, the police arranged for a meeting with him through that secret agent. On the 31st December, 1950, a raid was organised and a party of policemen consisting of Amulya Ratan Dutta Ardhendu Sarkar and Puspa Pal, together with the secret agent and some constables, went to Vivekananda Road, where the accused Anil Ranjan was to be contacted at a shop situated at premises No. 224A on the said Road. The owner of that shop is the accused Rajendra. The prosecution case further is that Amulya Ratan posed as a purchaser of forged Pakistani notes and was introduced by the secret agent to Anil Ranjan as an immigrant from Dacca who wanted to make a purchase.

After introducing Amulya to Anil Ranjan, the agent left the shop and thereafter negotiations proceeded between those two, Rajendra occasionally taking part. It is said that Amulya Ratan offered to buy forged Pakistani notes on payment of half their face value in Indian notes & that offer being accepted, Anil Ranjan suggested that Amulya Ratan should make a cash payment of at least Rs. 100/-. It was farther suggested that Amulya Ratan should accompany Anil Ranjan to some place near Ganesh Talkies where the forged notes were to be supplied. Amulya Ratan was not Pre pared to take the risk of going to an unknown place and, on his intimating his disinclination some whispered conversation took place between Rajendra and Anil Ranjan whereafter Anil Ranjan left the shop and said that he would return after some time with the notes. Amulya Ratan waited till 5-30 but as Anil Ranjan did not still return, Rajendra told him to come next day in the morning and thereupon Amulya Ratan left the shop.

3. On the next day, the same party of policemen went to the locality, but the secret agent did not accompany them this time and on having gone to the shop, Amulya Ratan again met Anil Ranjan. Anil Ranjan is said to have told Amulya that he had two bundles of forged Pakistani notes one of Rs. 1200/- and another of Rs. 200/- worth of notes and, therefore, he could give Amulya only the smaller bundle. On Amulva having agreed to buy the smaller bundle Anil, it is alleged, drew out the bundle from his coat pocket whereupon Amulya move-ed his wrapper, as had been previously arranged as a signal to the other members of the police party to rush in. In the meantime, the bundle of forged notes was, placed on the 'Gadi' in front of Rajendra. The police party, on seeing the signal given by Amulya, rushed in and they arrested both Anil and Rajendra. Thereafter, two search witnesses were called in and the shop was searched, but nothing incriminating was found in addition to the bundle of 200 forged Pakistani notes.

4. The further case of the prosecution is that subsequently Anil led the police party to a room he was occupying at Rani Harshamukhi Road and there, from that room, the police recovered 11 more forged Pakistani notes of the value of Rs. 5/- each. It was on the basis of these facts that the charges, which I have already mentioned, were framed against the two accused persons.

5. In order to prove the prosecution case, the State examined the three police officers the two search witnesses, and also certain Currency Notes experts. The jury, as I have already said, returned a unanimous verdict of guilty on all the counts charged against both the accused persons. The learned Judge, however, thought, as I have already said, that the verdict was unreasonable and perverse.

6. Before us, only Rajendra has been represented by Mr. Banerjee. We invited him to make any submissions he liked as to the case of Anil as well, because the two cases seemed to us to be inextricably inter-connected. Mr. Banerjee, however, submitted to us that there was little he could say in favour of Anil inasmuch as in his opinion the evidence against that accused person was sufficient. As Mr. Banerjee was not representing Anil, we shall take no notice of the concession made by him.

7. I feel bound to say that the letter of reference by which the learned Judge has forwarded the case to us is a most extra-ordinary document. One does not know whether the learned Judge was sitting on appeal on the verdict of the Jury or whether he was making a reference under Section 307 of the Code.

8. The true scope of Section 307 has now been: authoritatively explained by their Lordships of the Judicial Committee in the well-known case of 'RAMANUGRAH SINGH v. EMPEROR', 50 Cal W N 906 (P C). In course of their judgment in that case, their Lordships after giving a brief review of the sections leading up to Section 307, express themselves thus on the true import of that section. In their Lordships' view:

'the paramount consideration in the High Court must be whether the ends of justice require that the verdict of the jury should be set aside. In general, if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken of it by the trial Court, and if the jury take one view of the evidence and the Judge thinks that they should have taken the other, the view of the Jury must, prevail, since they are the Judges of fact. In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury. If, however, the High Court considers that, Upon the evidence, no reasonable body of men could have reached the conclusion arrived at by the jury, then the reference was justified and the ends of justice require that the verdict be disregarded.'

Their Lordships explained their meaning further in the following passage:

'Their Lordships have been referred to many-Indian cases on the construction of Section 307. In some of them the view has prevailed that in dealing with a reference under Section 307, the High Court will only interfere with the verdict of the jury if it finds the verdict 'perverse, in the sense of being unreasonable', 'manifestly wrong' or 'against the weight of evidence * * * *

On the other hand, in other cases the view has been taken that the High Court, on a reference, must act upon its own view of the facts and is not bound to accept the opinion of the jury, even if not shown to be unreasonable. * * * *

For the reasons already given their Lordships agree in substance with the reasoning in the former line of cases, but they would emphasise that the requirements of the ends of justice must be the determining factor both for the Sessions Judge in making a reference and for the High Court in disposing of it.'

9. These passages make it abundantly clear that in considering whether a reference should or should not be made under Section 307, the trial Judge ought to consider not what the true and legitimate effect of the evidence in his view is, but whether on the evidence, as led in the case, the verdict of the jury was a possible verdict. If the verdict was a possible verdict which a body of reasonable men could legitimately take, then a reference under Section 307 would not be justified, although the trial Judge might himself favour a different conclusion and although a different conclusion might appear to be the better conclusion to another mind.

10. It appears to me that in the letter of reference under examination the learned Judge has committed exactly the error which the Judicial Committee condemned in the case to which I have already referred. He has given a number of reasons, more or less of a speculative character, which, according to him, would be good reasons for coming to a different conclusion to that arrived at by the jury, but never for one moment did he consider whether the verdict of the jury was a possible or a justifiable verdict. It would be wearisome to deal in this judgment in detail with all the reasons which the learned Judge has advanced in favour of his recommendation and I shall confine myself only to a few.

But one general observation I might make. Again and again has the learned Judge referred to the evidence of a particular witness before the Committing Magistrate and has commented on the discrepancy between that evidence and the evidence given before him. In doing so, he has, at times, overlooked the fact altogether that the evidence before the Committing Magistrate to which he was referring had not been put in under Section 288 of the Criminal Procedure Code at all, as for example, in the case of the witness Ardhendu Sarkar. In other cases, where the evidence before the Committing Magistrate had been put in under Section 288, the learned Judge overlooked the fact that the discrepancies on which he was relying had not been put to the witness concerned during his cross-examination.

If the evidence of a witness before the Committing Magistrate has not been put in under Section 288 or even if put in, if the contradictions between that evidence and the evidence before the Sessions Court have not been put to the witness during cross-examination, the discrepant evidence before the Committing Magistrate has not become evidence be-force the Sessions Court at all, and the learned Judge was plainly wrong in holding the verdict of the jury to be unreasonable on the ground that those discrepancies had not been taken into consideration. One or two examples of this will suffice. I have already pointed out that the learned Judge has referred to the evidence of Ardhendu Sarkar before the Committing Magistrate, although that evidence was not put in under Section 288.

The evidence of P. W. 1 Amulya Ratan Dutta before the Committing Magistrate was put in but he was not asked any question as to whether in the lower Court he had stated that on the 31st December, 1950, Ardhendu Sarkar had given him a bundle of papers cut to the size of ten rupee notes, or whether he had stated that all such papers had been covered with a genuine ten Rupee Indian Note or whether he had stated that any non-policeman had gone with the police party on the 31st December. Yet the learned Judge is relying upon all these supposed discrepancies and condemning the verdict of the Jury as unreasonable on the ground that they failed to give due weight to them.

11. As regards considerations of a more positive character on which the learned Judge relied, I shall give two examples. He says at one place in his letter of reference that if, as the prosecution case is Anil took a forged ten-rupee note from Rajendra on the 31st December, 1950 and showed it to Amulya during his visit to the shop on that date, it was incredible that Amulya should not have-given the pre-arranged signal then and there and effect an arrest of Anil and Rajendra on the 31st. The learned Judge overlooked a consideration which might well have weighed with the jury, namely, it would not be safe for the police to rely upon a single forged note for if they did so, Rajendra, who was a shopkeeper, might very plausibly say that that single note had been passed on him by some customer.

He says again, referring to the search of Anil's room at Rani Harshamukhi Road, that although the members of the police party offered themselves to be searched, in fact they were not searched by Anil or anyone n his behalf and, therefore, the jury ought to have considered and borne in mind the possibility that the 11 five rupee notes alleged to have been found in Anil's room might have been planted by the policemen. It seems to me strange to a degree to hold that where the members of a search party offer their persons to be searched, but the individual whose house or room is being searched declines to search them, it can still be perverse for the jury not to hold or at 'east bear in mind that in the absence of a search the articles alleged to have been found might have, in reality, been planted by ' the search party.

Of the same quality is the learned Judge's comment that the members of the police party which claimed to have seized the forged notes in Rajendra's shop, did not get themselves searched. It seems to have escaped him altogether that the party was a raiding party. It could not hold a demonstration in front of the shop, for to do so would frustrate the whole object of the raid and if it got a search of its members made elsewhere, it would still remain exposed to criticism by the learned Judge that the notes might have been taken along from some place between the place of the search and the site of the shop. The police officers might be believed or disbelieved, but for obvious reasons they could not have got themselves searched and it could not be a point of criticism against them that they omitted to do so.

It is unnecessary for me to multiply illustrations. The reasons relied upon by the learned Judge are of the most trivial or fanciful' character and for every reason, whatever, to suppose that the jury did not bear these considerations in mind or that the obvious explanations which would suggest themselves to anybody were not present to the mind of the jury and that they did not accept them. The impression created by the letter of reference is that the learned Judge considered it to be his duty to review the evidence himself and to see whether the verdict of the jury accorded with the conclusion which he himself would derive from it and that if did not, he considered it necessary in the ends of justice to make a reference to this Court.

12. In my opinion, the learned Judge totally misconceived his powers and his duties and he has no justification for substituting his own opinion of the evidence for that of the verdict of the jury in the name of making a reference in the ends of justice. The verdict of the jury does not become unreasonable or perverse simply because the learned Judge chose to call it so. The verdict must be judged by the evidence on which it was formed and if on that evidence the verdict could legitimately be arrived at by a body of reasonable men, the learned Judge had no jurisdiction to make a reference, although the verdict might not commend itself to his own mind.

13. We have gone through the evidence in this case with great care and have been taken through the relevant portions by Mr. Banerjee who appears on behalf of Rajendra. Having done so, we find it wholly impossible to say that the verdict returned by the jury has so little of a basis in the evidence that it must be pronounced to be unreasonable. In our opinion, the evidence was direct and clear and if the jury believed that evidence, as they apparently did, the verdict which they returned was the only possible verdict.

14. Coming now to the case of Rajendra in particular, who was represented before us by a lawyer, I have to deal in brief, with the arguments advanced by Mr. Banerjee. He gave a number of reasons as to why the verdict of the jury, so far at least as it was a verdict against Rajendra, was unreasonable.

15. The first reason he gave is a rather curious one. He contended that the fact that Amulya allowed Anil to place the forged notes on the 'Gadi' of Rajendra and did not grasp Anil by the hand immediately he brought out the notes was a circumstance which threw considerable doubt on the truth of the prosecution story. I cannot see why Amulya would require to seize the hand of Anil physically or why the jury should have thought that his failure to do so discredited his evidence.

16. The second reason given was that in his evidence in Court Amulya said that on the 31st December, Rajendra whispered something to Anil after Amulya had said that he was not prepared to go to the neighbourhood of Ganesh Talkies in order to collect the forged notes and that thereupon Anil left the shop, apparently to bring the notes. It was pointed out that no whispered conversation was mentioned in the first information report. Ordinarily speaking, a first information report can be used for corroborating or contradicting the person who actually makes it and not a different person. In certain cases, it has been regarded as a part of the 'res jestae' and the evidence of witnesses other than the person who lodged the first information report has also been sought to be corroborated or contradicted by it. In the present case, the first information was a written report made, not by Amulya but by Ar-dhendu Sarkar. But leaving aside that fact, it appears that there are two reasons why Mr. Banerjee's argument must be held to be one of no weight. In the first place, although a whispered conversation was not mentioned in the first information report some conversation was mentioned and in the second place, no specific question on this point was put to Amulya during his cross-examination.

17. The third contention urged by Mr. Banerjee was that in the first information report no part was assigned to Rajendra and the suggestion was that his client had been implicated by means of improvements made upon the prosecution story during its progress through the Court of the Committing Magistrate and the Court of Session. In my opinion, there is no foundation for that criticism. As I have already pointed out, the first information report does mention that even on the 31st December, Amulya held some conversation both with Anil and Rajendra. Besides, Mr. Banerjee was constrained to admit that if the prosecution case regarding Anil was true, and if in that small cloth shop owned by Rajendra that transaction regarding forged Pakistani notes, did, in fact, take place between Anil and Amulya, it was incredible that all that should have happened without Rajendra being a party to it or that he should have simply looked on as a mere spectator.

As I have pointed out, the first information report does not leave Rajendra untouched and further it appears to me that unless the prosecution case regarding Anil and all that took place between Anil and Amulya in the shop of Rajendra can be displaced, it is impossible to hold that a verdict to the effect that Rajendra also was in the affair cannot be said to be perverse or unreasonable.

18. The next contention of Mr. Banerjee' was that Exhibit 22, the search list, which showed the recovery of the bundle of Pakistani notes from Rajendra's shop had not been sent to a Magistrate under Section 165 of the Criminal Procedure Code, as was evident from the absence of any signature or seal on it. We pointed out to Mr. Banerjee that no question was asked to the police officer as to whether the search list, had, in fact, been sent to a Magistrate for it might well be that although the search list was actually sent, the clerks in the Magistrate's office omitted to put any seal upon it. But even apart from that, it appears to us that Mr. Banerjee could not possibly make any point out of this omission ?even if it did take place for his case must be that the bundle of Pakistani notes was not recovered from Rajendra's shop at all, as falsely alleged.

It must be remembered, however, that the prosecution case is that these notes were recovered from that shop and whether the police men planted the notes there or not, they staged a search of the same and at least made a pretence of recovering them from the shop. The search-list showing no more than that the notes were recovered from that shop would, therefore, come into existence in any event and the real point was not whether these notes were recovered or shown to the search witnesses as having been recovered from the shop, but whether they had previously been planted. On that point the omission to send the search list to a Magistrate, even if such omission took place, would have no bearing at all and Mr. Banerjee ultimately ?conceded that that was so.

19. The last point urged by Mr. Banerjee with some force was that according to the decision of the Federal Court in the case of 'HECTOR THOMAS HUNTLEY v. EMPEROR', 48 Cal W N (FR) 109, a person playing the part that Amulya played in this case would be an accomplice and his evidence could not be accepted or acted upon, unless it was corroborated in material particulars by independent evidence. Mr. Banerjee complained that the learned Judge did not explain this infirmity of Amulya's evidence before the Jury and his client had been materially prejudiced by the learned Judge's failure to do so. Before us Mr. Banerjee contended that we should, on our part, look for corroboration of Amulya's evidence and since in Mr. Banerjee's submission there was none, we ought to hold the charges to have not been proved against his client Rajendra. It seems to me that even assuming that the evidence of Amulya should be treated as accomplice evidence, there is, in the circumstances of the present case, ample eorroboration on which it is safe to act.

It is trite knowledge and only commonsense that the evidence of an accomplice, although it may require corroboration, need not be corroborated in regard to every small detail, for if there be such corroboration, the evidence of the accomplice would be totally unnecessary. The case might well stand on the other evidence alone. Corroboration, as the grammatical meaning of the word itself implies, means only support, or in other words, an assurance of truth which is lent to the evidence of the accomplice by other evidence. It does not mean that the whole evidence given by the accomplice must be repeated wholly or in parts by witnesses other than the accomplice.

In the present case, there is the evidence of the find of the forged Pakistani notes in the Shop of Rajendra. There is the further broad fact that the meeting place of Anil and Amulya was Rajendra's shop from which it is reasonable to infer that that shop was used by Anil as the base of his operations. There is also the fact, to which I have already referred, that if a transaction of that kind took place in a small shop like that owned by Rajendra, it is utterly incredible that he should not have been a party to the transaction and the very fact, which is proved by other evidence, that he was present at the time when the transaction took place indicates, to my mind, that the evidence of Amulya is true and in my opinion, that is corroborated by the circumstances I have enumerated.

20. In any event, it is not illegal to base a conviction on the evidence of an accomplice alone, nor is a Court required to set aside a verdict merely on the ground that it is based upon the uncorroborated testimony of an accomplice, unless it is clear that by the omission to require corroboration, a failure of justice has, in fact, occurred. That would be the position under Section 537 of the Code, even if the learned Judge's failure to direct the jury that the evidence of Amulya was accomplice evidence was a non-direction, amounting to misdirection and this was an appeal.

21. Having examined the evidence in detail and with care, I am entirely unable to hold that the verdict of the jury as regards Rajendra was, in any way, improper or unreasonable.

22. For the reasons given above, I feel bound to hold that the reference made by the learned Judge is unjustified and misconceived and that it cannot be accepted. In my opinion, this is a case where the verdict returned by the jury was clearly a possible and therefore, a proper verdict and it cannot be interfered with.

23. Since we are to dispose of the case finally, it remains for us to pass sentences on the convicted persons. In all the circumstances of the case, We think that the ends of justice will be met if we sentence, which we hereby do, Anil Ranjan Dutta 'alias' Moni to rigorous imprisonment for three years on the charge under Section 489B of the Indian Penal Code. We do not consider it necessary to pass any separate sentence under the remaining counts.

24. Since Rajendra Nath Jain has not been proved to have taken any actual part in the transaction, we consider that in his case a less severe sentence is called for. Accordingly, we sentence Rajendra Nath Jain to rigorous imprisonment for two years on the charge under Section 489B of the Indian Penal Code. In his case also we do not consider it necessary to pass a separate sentence under the other count, namely, Section 120B read with Sections 489B' and 489C of the Code.

25. The reference is rejected.

26. The accused persons will now surrender to their bail bonds and serve out the sentences imposed on them.

27. Since the learned Judge will hold other sessions trials I consider it necessary to draw his attention to the decision of the Judicial Committee as regards the true scope of Section 307 of the Criminal Procedure Code in the case of 'RAMANUGRAH STNGH v. EMPEROR,' 50 Cal W N 906 (PC) and to the recent decision of the Supreme Court as regards the correct manner of applying Section 288 of the Criminal Procedure Code in the case of 'TARA SINGH v. STATE', 1951 SCR 729.

Sinha, J.

28. I agree. I do not think that after the decision of the Judicial Committee in 'RAMANUGRAH SINGH v. EMPEROR', 50 Cal W N 906 (PC), there should be any further doubts as to the proper interpretation of Section 307 of the Criminal Procedure Code. Our attention was drawn to the provisions of sub-section 3 of Section 307 which runs as follows:

'(3) In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight, to the opinion of the Sessions Judge and the Jury, acquit or convict (such accused) of any offence of which the Jury could, have convicted him upon the charge framed and placed before it, and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.'

It is argued that the High Court's power under Section 307 is unfettered since it can exercise any power which it can exercise on an appeal. In an appeal, it is pointed out, we can go into the entire evidence and if we find the verdict of the Jury erroneous and the view of the trying Judge more acceptable, there is nothing to prevent us from accepting the latter and giving effect to it. This argument entirely overlooks the provisions of sub-section 1, which lays down that before the trying Judge could proceed to submit a case to the High Court, he must be satisfied that it was necessary to dp so 'for the ends of justice'. This expression has a special meaning which was elucidated by Sir John Beaumont as follows:

'Under sub-section (1) two conditions are required to justify a reference. The first that the judge must disagree with the verdict of the Jury calls for no comment, since it is obviously the foundation for any reference. The second that the Judge must be 'clearly of opinion that it is necessary for the ends of justice to submit the case' is important, and in their Lordships' opinion provides a key to the interpretation of the section. The legislature no doubt realised that the introduction of trial by Jury in the Mofussil would be experimental and might lead to a miscarriage of justice through Jurors, in their ignorance and inexperience returning erroneous verdicts.

Their Lordships think that the section was intended to guard against this danger, and not to enable the Sessions Judge and the High Court to deprive Jurors acting properly within their powers of the right to determine the facts conferred upon them by the Code. If the Jury have reached a conclusion which a reasonable body of men might reach, it is not necessary for the ends of justice that the Sessions Judge should refer the case to the High Court merely because he himself would have reached a different conclusion upon the facts, since he is not the tribunal to determine the facts. He must go further than that and be of opinion that the verdict is one which no reasonable body of men could have reached upon the evidence.

The powers of the High Court in dealing with the reference are contained in subsection (3). It may exercise any of the powers which it might exercise upon an appeal.......... In their Lordships' view the paramount consideration in the High Court must be whether the ends of justice require that the verdict of the jury should be set aside. In general, if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken by the trial Court, and if the Jury take one view of the evidence and the Judge thinks that they should have taken the other, the view of the jury must prevail, since they are the Judges of fact. In such a case a reference is not justified....... If however, the High Court considers that upon the evidence no reasonable body of men could have reached the conclusion arrived at by the Jury, then the reference was justified and the ends of justice require that the verdict be disregarded.'

In these words lie the quintessence of the section, and the fallacy in the present argument lies in ignoring the expression 'Necessary for the ends of justice', appearing in sub-section (1) of Section 307.

29. Applying the tests outlined by the Judicial Committee, can it be said that it was quite impossible for the Jury as a body of reasonable men, to come to the conclusion that the accused were guilty? Unless we can arrive at that conclusion, it is not necessary for the ends of justice, that the learned Sessions Judge should make a reference to us or that we should interfere. I agree with my lord that we can come to no such conclusion. The accused Anil Ranjan Dutta was apprehended almost red-handed. He led the police party to a place where further forged Pakistani notes were discovered and the circumstance remains that the two other accused were operating from the shop belonging to Rajendra Nath Jain, a man hailing from up-country and carrying on a cloth shop.

If the Jury thought that upon this evidence there should be a verdict of guilty, it is impossible to hold that they acted, not as reasonable men but perversely. Under Section 489B of the Indian Penal Code, the very selling or buying of forged or counterfeit currency or Bank Notes, knowing or having reason to believe them to be forged or counterfeit, is a punishable offence. The use of it as genuine is not necessary but constitutes an offence by itself. In other words, although it is clear that Amulya was purchasing the notes knowing them to be forged and there was at that stage no question of the notes being used as genuine, still an offence was committed under Section 489B. From this point of view, the marginal note appended to Section 489B is incomplete.

30. So far as the points of difference adumbrated by the learned Additional Sessions Judge are concerned, I must say that some of the points are quite startling. For example, the learned Judge is of the opinion that Amulya, before entering the shop, as also the other police officers, should have been searched. Searched by whom and in whose presence? Supposing they searched one another or even if all of them were searched in front of witnesses, would that be a valid search? The very suggestion of a search previous to a surprise raid, is quite a novel suggestion, and in my opinion would render the whole thing farcical to a degree. Then again, the learned Judge opines that Amulya not being an expert in' detecting forgeries, could not possibly decide whether a note shown to him on the first occasion was a forgery or not.

31. The learned Judge forgets that the note shown to Amulya upon that occasion as also other notes offered, were proposed to be sold at 50 per cent, less than their denominations. It was not necessary therefore for Amulya to be an expert in the detection of forgeries to conclude that forged notes were being attempted to be sold. The suggestion that the Police should have rushed in, as soon as the first forged note was brought out, is also most impractical. I am glad that the Police knew their job and did nothing of the kind.

32. I regret to say that the whole approach of the learned Judge to the case is erroneous, and concur with my lord that the reference should be rejected.


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