Dungarmall Sarewalla Jain And  vs Rukma Kumar Jalal [CHC]-3/10/1969

THE CALCUTTA HIGH COURT

Dungarmall Sarewalla Jain And  vs Rukma Kumar Jalal

Dated:  3 October, 1969

ACT: Sec 5 and 12 of Limitation Act

Author: S K Dutta

Bench: S Chakravarti, S Dutta

JUDGMENT- Salil Kumar Dutta, J.

1. This rule arises out of an application under Section 5 of the Limitation Act, 1963, (Act XXXVI of 1963), for condoning the delay in filing the appeal. The appeal was filed on January 6, 1969, and according to the Stamp Reporter, the appeal would be in time if filed on January 3, 1969, but was out of time for 3 days. The memorandum of appeal was returned to the learned Advocate for the appellants on February 20, 1969, and the application on which this rule has been issued was filed on February 21, 1969.

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Jyotsna Roy -VS- State of West Bengal & Ors [CHC] 15/11/2019

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

SL-3 15.11.2019
Court No.1
KB/G.S.D

Calcutta High Court
In the Circuit Bench at Jalpaiguri
WPA 201 of 2019

CAN 1 of 2019

Jyotsna Roy -VS- State of West Bengal & Ors.

Appearance: 

Mr. Arjun Chowdhury
… for the petitioner

Mr. Subir Kr. Saha
Mr. Bikramaditya Ghosh
… For the State

Mr. Samir Pal

    … For the Respondent Nos. 2 and 6

Party/Parties is/are represented in the order/orders of their name/names as printed above in the cause title.

Abundant documents are placed on behalf of both the petitioner and the Investigating Officer, i.e. the State respondents, connected to the alleged cause of death of the writ petitioner.

This Court also notices the order of the Hon’ble Single Bench dated September 11, 2019 directing, inter alia, the Investigating Agency to file a complete Report on the investigation on November 5, 2019 before the Hon’ble Bench.

Today, Mr. Chowdhury, Learned Advocate, appears for the petitioner and assails the Report of the Investigating Officer of the Siliguri (T), GRP dated September 9, 2019 as filed before Court.

However, Mr. Ghosh, Learned State Counsel, points out that the Report dated September 9, 2019 has since been superseded by filing a Final Report under the Code of Criminal Procedure dated 14th November, 2019 again by the self-same Investigating Officer, without being able to draw a conclusion with regard to the investigation. This Court has also heard Mr. Pal, Learned Counsel, appearing for the RPF.

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

For the above reasons, the parties and, particularly the petitioner, is permitted to revert to the Court with appropriate instructions on the next date.

Let this matter appear before the next available Circuit Bench, subject to its convenience, along with the connected application.

(SUBRATA TALUKDAR  J. )

15.11.2019


Original order :

Jyotsna Roy -VS- State of West Bengal & Ors.[PDF]

Calcutta High Court ordered for verifiable independent expert opinion on Police Investigation Report-15/11/2019

Facts: A person who was employed as an officer in the Sashatra Seema Bal ( under Ministry of Home Affairs) and was heading the intelligence wing of the department was murdered on 17.04.2018 while on duty. He was posted in Panitanki (Indo- Nepal Border) and mainly entrusted with the job of collecting intelligence reports relating to cross border trafficking, smuggling of narcotics etc. Being in the Intelligence department, he was in possession of several vital information relating to smugglers operating in that area and probably due to that reason he was murdered by the miscreants. His corpse was found near a railway track in the Panitanki area. An U/D case by GRPS was initiated. After 30 days, an FIR was registered u/s 304 stating that the death was due to a railway accident. Police never entertained the grievance of the deceased’s family members and were hell-bent from the beginning to show the death as accidental and not homicidal. The Post mortem report clearly stated that the death was due to sudden hit with sharp weapons and the death was certainly not accidental. Further, the injuries were ante-mortem in nature.

Family members prayed for the addition of Section 302 before the ACJM, Siliguri and upon order of the ACJM, 302 was added. There was no progress in the investigation till then.

A writ petition was filed praying for transfer of investigation to the CBI or any other independent agency of similar stature. On different occasions before the high court, the IO prayed for time to file a progress report. On the last occasion, Justice Moushumi Bhattacharya directed to file a completion report of investigation in 4 weeks. Yesterday,the matter was moved before justice Subrata Talukder. Meanwhile, the IO submitted a final report stating the incident as accidental and also filed that report before the High Court yesterday. Justice Talukder passed an order that an independent 3rd party opinion relating to the investigation done by police so far, is required to ascertain whether the investigation was tainted or not and directed me to give name of any independent agency to which the records can be transferred to test the authenticity/quality of investigation done by police so far. Only after the expert opinion is obtained, the court will decide whether a further investigation by any other investigating authority is required or not.

Such kind of direction seems quite unusual.


The text of the Order as below :

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

Jyotsna Roy -VS- State of West Bengal & Ors.

 

SL-3 15.11.2019
Court No.1
KB/G.S.D

Calcutta High Court
In the Circuit Bench at Jalpaiguri
WPA 201 of 2019

CAN 1 of 2019

Jyotsna Roy -VS- State of West Bengal & Ors.

Appearance: 

Mr. Arjun Chowdhury
… for the petitioner

Mr. Subir Kr. Saha
Mr. Bikramaditya Ghosh
… For the State

Mr. Samir Pal

    … For the Respondent Nos. 2 and 6

Party/Parties is/are represented in the order/orders of their name/names as printed above in the cause title.

Abundant documents are placed on behalf of both the petitioner and the Investigating Officer, i.e. the State respondents, connected to the alleged cause of death of the writ petitioner.

This Court also notices the order of the Hon’ble Single Bench dated September 11, 2019 directing, inter alia, the Investigating Agency to file a complete Report on the investigation on November 5, 2019 before the Hon’ble Bench.

Today, Mr. Chowdhury, Learned Advocate, appears for the petitioner and assails the Report of the Investigating Officer of the Siliguri (T), GRP dated September 9, 2019 as filed before Court.

However, Mr. Ghosh, Learned State Counsel, points out that the Report dated September 9, 2019 has since been superseded by filing a Final Report under the Code of Criminal Procedure dated 14th November, 2019 again by the self-same Investigating Officer, without being able to draw a conclusion with regard to the investigation. This Court has also heard Mr. Pal, Learned Counsel, appearing for the RPF.

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

For the above reasons, the parties and, particularly the petitioner, is permitted to revert to the Court with appropriate instructions on the next date.

Let this matter appear before the next available Circuit Bench, subject to its convenience, along with the connected application.

(SUBRATA TALUKDAR  J. )

15.11.2019


Original order :

Jyotsna Roy -VS- State of West Bengal & Ors.[PDF]

RATHIN MAJUMDAR Vs. UTPAL GHOSH AND ANOTHER [CHC]-04/09/2000

In the instant case court at least could have allowed the defendant/ O/P/ No. 1 to cross-examine the P.W. 1 particularly when the ex parte order was not delivered and the same was adjourned to a different date without allowing the defendant to relegate the suit to an earlier stage. It is clear that the learned trial Judge did not pass an order under Order 8 Rule 10 treating the plaintiffs claim as admitted but passed an ex parte decree by recording ex parte evidence and for setting aside such a decree an application under Order 9 Rule 13 CPC is maintainable.

105 CalWN 64

CALCUTTA HIGH COURT

SINGLE BENCH

( Before : S.N. Bhattacharjee, J )

RATHIN MAJUMDAR — Appellant

Vs.

UTPAL GHOSH AND ANOTHER — Respondent

C.O. No. 2664 of 1995

Decided on : 04-09-2000

Civil Procedure Code, 1908 (CPC) – Order 8 Rule 10, Order 9 Rule 13, Section 115
Cases Referred

A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, AIR 1988 Ker 304
M. Manick Peter and Others Vs. K. Surendranathan, AIR 1988 Ker 161
Counsel for Appearing Parties

Suchit Kumar Banerjee and Narayan Chandra Das, for the Appellant;

Jyotirmoy Bhattacharjee, for the Respondent

JUDGMENT

S.N. Bhattacharjee, J.—This application u/s 115 of CPC has been preferred against the Order No. 63 dated 28.8.95 passed by the learned Assistant District Judge, 2nd Court, Howrah in Misc. Case No. 3 of 1994. The petitioner herein filed Money Suit No. 2 of 1989 before the learned court below for recovery of Rs. 82,110/- against the Opposite Party Nos. 1 and 2. The O.Ps./defendants did not file written statement in spite of repeated adjournments granted in their favour. The learned trial Judge proceeded with the ex parte hearing of the suit rejecting the application of the defendants for adjournment. After recording ex parte evidence of P.W.1, the learned Trial Judge fixed 15.12.93 for ex parte order. On 15.12.93 as the business of the court did not permit 17.1.94 was fixed for order. On 14.1.94 the defendants filed three petitioners and the record was put up. The learned court dismissed the three petitions which are filed for vacating the order of ex parte hearing, for accepting written statement and for allowing the defendant No. 1 to cross-examine the plaintiff. By an order No. 45 dated 17.1.94 the ex parte decree was passed. Although the ordering portion runs thus:

That the instant suit be and the same is hereby decreed on contest and in the circumstances with cost. The plaintiff is found entitled to realise the sum of Rs. 82,110/- as per schedule of claim stated in the plaint. The defendants are directed to pay the said amount within 60 days from the date of this order in default the plaintiff is at liberty to have the same realised as per law.

2. On 10.2.94 the defendant No. 1 filed a Misc, Case No. 3 of 1994 under Order 9 Rule 13 CPC. The learned court below after having considered the previous orders passed by the court and the conduct of the defendant allowed the Misc. Case by its order No. 63 dated 28.8.95. This revisional application has been filed against this order.

3. It has been argued by the learned counsel for the petitioner that the learned court below in allowing the application for restoration of the suit acted illegally and with material irregularity having failed to consider that the suit was decreed on contest under Order 8 Rule 10 CPC and as such the provision under Order 9 Rule 13 has no application in the present case. He has further argued that the learned court below failed to appreciate that more than hundred adjournments were given to the O.P. of the defendant for filing written statement but the O.P. did not file the same even on the date of ex parte hearing. The learned counsel further submitted that as the O.P. No. 1 intended to file written statement and cross-examined the P.W. 1 after expiry of the ex parte proceedings the trial court was justified in rejecting the application and in proceeding with the hearing of the suit ex parte the learned court below ought not to have set aside ex parte decree. The learned counsel for the O.P. while supporting the order passed by the learned court in setting aside the decree has contended that the learned court below wrongly used the word ‘contested’ although at the beginning of the impugned order he proceeded with the suit ex parte. The learned counsel has further argued that this court in exercising revisional jurisdiction should not interfere with the impugned order whereby the O.P. has only been given an opportunity of hearing in the suit in the interest of justice and that there has not been any failure of justice.

4. It is a fact that the opposite party No. 1 did not file written statement despite numerous opportunities given to him by the learned court below and even on the date of ex parte hearing only a petition for adjournment of the ex parte hearing was filed. If the learned court by reason of the defendant’s failure to file written statement treated the claims of the plaintiff as admitted and pronounced judgment even then a petition under Order 9 Rule 13 would lie for setting aside the decree passed under Order 8 Rule 10 instead of preferring appeal. There is, however, difference in opinion among some High Courts as to whether decree passed under Order 8 Rule 10 CPC can be treated as an ex parte decree for setting aside which an application under Order 9 Rule 13 CPC shall lie. According to Delhi High Court a decree which is passed by the Court against the defendant who appears but fails or neglects to file written statement within the time granted by the court cannot be said to be an ex parte decree and cannot be set aside under Order 9 Rule 13 CPC. (Traders Bank Ltd. vs. Avtar Singh reported in AIR 1988 Del, 55). In Ramesh vs. Corporation reported in AIR 1987 Calcutta 111 it was held that if written statement was not filed within time, the trial court could accept it even at the stage when ex parte hearing is concluded and the matter is adjourned for delivery of judgment.

5. In M/s. Kuvarp Industries vs. State Bank of Mysore reported in AIR 1985 Kar 77 it has been held that the insertion of the word ‘decree’ in Rule 10 is meant to give an alternate relief under Order 9 Rule 13 CPC instead of driving the party to a regular appeal.

6. In A.K.P. Haridas Vs. V.A. Madhavi Amma and Others, it has been observed that there is nothing to indicate that the need to write a speaking and reasoned judgment is dispensed with. There is no indication that a decree passed under this Rule cannot be ex parte.

7. In M. Manick Peter and Others Vs. K. Surendranathan, it has been held that a petition under Order 9 Rule 13 is maintainable against the decree passed under Order 8 Rule 10.

8. In the instant case court at least could have allowed the defendant/ O/P/ No. 1 to cross-examine the P.W. 1 particularly when the ex parte order was not delivered and the same was adjourned to a different date without allowing the defendant to relegate the suit to an earlier stage. It is clear that the learned trial Judge did not pass an order under Order 8 Rule 10 treating the plaintiffs claim as admitted but passed an ex parte decree by recording ex parte evidence and for setting aside such a decree an application under Order 9 Rule 13 CPC is maintainable. The learned court below while setting aside the ex parte decree took note of all the facts and in order to render the substantial justice set aside the ex parte decree by stating cogent reasons. The learned court found that when the application of the defendant/O.P. praying for adjournment of ex parte hearing was rejected by the erstwhile Presiding Officer of the court the O.P. had sufficient reason for non-appearance on the date of ex parte hearing. Thus in arriving at this decision by assigning cogent reasons the learned court below did not commit any jurisdictional error and this court sitting in revisional jurisdiction does not see any justification to interfere with the same. I am also of the opinion that by setting aside the ex parte decree the learned court below did not act with any material irregularity. The order impugned, therefore, does not call for any interference. The revisional application is without any merit and accordingly it is dismissed without any order as to costs. Let xerox certified copy of this order be given to the Id. Advocates for courts parties.

Final Result : Dismissed

Rajeev Kumar -Vs CBI, SP, Economic Offences –IV, CGO Complex-CHC 01/10/2019

Calcutta High Court Grants Anticipatory Bail to IPS Rajeev Kumar

The status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

ACTS :Section 438 of the Code of Criminal Procedure

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Before :

The Hon’ble Justice SAHIDULLAH MUNSHI

And

The Hon’ble Justice SUBHASIS DASGUPTA

C.R.M. No. 9230 Of 2019

Rajeev Kumar -Versus CBI, SP, Economic Offences –IV, CGO Complex,

Mr. Sekhar Kumar Basu,

Mr. Debasis Roy,
Mr. Gopal Haldar,
Mr. Rudradipta Nandy,
Mr. Rajib Kumar Jha.

… for the petitioner.

Mr. Y. J. Dastur,

Mr. K.C. Mishra,
Mr. Anirban Mitra,
Mr. Samrat Goswami.
… for the CBI

Heard on :. 26.09.2019 & 30.09.2019

Judgment on : October 1 , 2019

Sahidullah Munshi, J.: This is an application under Section 438 of the Code of Criminal Procedure, filed by the petitioner apprehending arrest in connection with case no. R.C.- 04 (S) of 2014 under Section 120B read with Sections 420/406/409 of Indian Penal Code and Section 4 / 6 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978.

It is the petitioner’s case that he has never been entangled in any criminal offences, or has been rendered to be guilty of any misconduct, while he was serving as the Commissioner of Police, Bidhannagar City Police. At the relevant time, he was entrusted to look after the day to day functioning of the SIT, formed by the Government of West Bengal, Home Department, which was notified under Police Gazette on 26th April, 2013. The SIT was headed by the Director General and IGP, West Bengal, who were supposed to be assisted from time to time by the Additional Director General, CID, West Bengal. This petitioner had the role to look after day to day functioning of SIT as a member thereof.

In this application the petitioner has disclosed that although, he rendered his all cooperation during the tenure of his office from January, 2012 to February, 2015, as Commissioner of Bidhannagar Police Commissionerate, and consequently no allegation was made against him, but recently the investigating agency sought for examination of the petitioner for the progress of investigation.

Investigating Authority, has, however, complained repeatedly before this Court in different proceedings including the proceeding of contempt, now pending before the Hon’ble Apex Court, that the petitioner is not cooperating with the investigation process.

The background, which we get of this case arises from one writ petition, being no. W.P. (C) 413 of 2013, which was filed before the Hon’ble Supreme Court with other writ petitions and the Hon’ble Apex Court by a judgment and order dated 9th May, 2014 directed transfer of the investigation from the State Agency to the Central Bureau of Investigation (CBI) under Delhi Police Establishment Act, after having considered the magnitude of the offence, interstate ramification, plight of investors, and the need for swift and efficient investigation.

The application for anticipatory bail discloses that the petitioner all throughout was under protective order of the Hon’ble Apex Court, but because of intervention of certain untoward incident, occurred on 3rd February, 2019, against which the contempt petition was moved by the CBI before the Hon’ble Apex Court, the protective cover was sought to be withdrawn on the prayer of CBI. The protective cover granted on 05.02.2019 was withdrawn by the Apex Court on 17.05.2019. While passing this order the Hon’ble Apex Court observed as follows:

“Therefore, in the given facts, we would withdraw the protection given to Mr. Mr. Rajeev Kumar, former Commissioner of Police, Kolkata, vide our order dated

February 05, 2019 restraining the CBI from arresting him and thereby, leave it open to the CBI to act in accordance with the law. At the same time, we direct that the interim order dated February 05, 2019 would continue for a period of seven days from the date of pronouncement of this order to enable Mr. Rajeev Kumar to approach competent Court for relief, if so advised. The aforesaid directions would be in consonance with the decision in A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602, which mandates that the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person. We clarify that we have not made any comments on the merits of the contentions and the reasons recorded in the present order would not be a ground to accept or reject the request of custodial interrogation or grant of protection, if any such application/petition is moved.”

We have been given to understand by the parties before us that the said Contempt petition is still pending before the Hon’ble Apex Court. There was a controversy regarding the power and function between the State Police and the CBI. The conflict regarding calling upon the State Police Officials to CBI and the CBI Officials to State assumed a critical dimension. When by order dated 05.02.2019 the Apex Court observed “However, we make it clear that no coercive steps including arrest shall be taken against the Commissioner of Police. To avoid all unnecessary controversy we direct the Commissioner of police

to appear before the Investigating agency in Shillong, Meghalaya on such date as may be fixed.”

The controversy regarding non-cooperation continued even after the petitioner subjected himself for questioning session in Shillong, which continued from 09.02.2019 to 13.02.2019 consuming a period of 40 hours (approx).

It may not be out of place to mention that the Hon’ble Apex Court also passed an order on 16th July, 2018 regarding certain things, which are important to be taken note of while considering this application of the petitioner under Section 438 of the Code of Criminal Procedure. “It is not happy state of affairs that CBI Officers should be called by the State Police; they have to work in tandem with each other is the exception of the Court as per investigation of the Criminal Case is required; however, in the main case since this Court had confined itself to the investigation to be made by the CBI, there are certain other matters with respect to investigation which equipments like laptop, mobile phones etc. are required for this Court to go into. It is not the object of this Court to adjudicate upon such issues on the first instance. Since the investigation is pending it would be open for the CBI, in case any obstructions is faced by its officers, similarly, in case the State machinery had no objection, they are free to approach the High Court at Calcutta.

It was submitted that under the guise of an order of 23rd October

2017 the State Police had asked for certain details from the CBI in case

CBI agreed by the said order we are gave liberty by filing appropriate petition in accordance with law within a period of six weeks in the High Court.”

In consonance of this direction, nothing is brought to our notice that the liberty granted to either of the parties was ever exercised having understood the purport of the order conveyed therein. After the interrogation in Shillong, spanning over a period of 40 hours, this petitioner in compliance of the order passed by the Hon’ble Apex Court, offered himself to be interrogated further by the CBI on 17.06.2019 in connection with this case in Calcutta, which, however, continued covering another session of four hours (approx).

Mr. Dastur, appearing for the opposite party, CBI, has pointed out before this Court by filing certain documents in compilation, being the relevant extract from the Case Diary together with an index in front containing 9 serials with pages from 1 to 138, adverting to seizure list dated 17th April, 2013, on the apparent time discrepancies, shown in the seizure and that of the relevant G.D. Entry of the P.S. recorded for the purpose. Referring to this anomaly in the Case Diary and the seizure list, Mr. Dastur further submits that this is a serious contradiction amongst others, for which petitioner’s role is to be found out by custodial interrogation confronting with the materials already collected, irrespective of the repeated questioning sessions, held earlier.

We, however, do not justify custodial interrogation merely on this score as submitted by Mr. Dastur in the absence of some other convincing materials. According to our considered view, such discrepancy could be appropriately decided at the time of trial.

The prime allegation against the petitioner, as submitted by Mr. Dastur learned Senior Advocate appearing for the CBI is that the petitioner deliberately showed his non-cooperation with the ongoing investigation, questioning the notice since beginning, alleging biasness in the investigation, wrongly interpreting the text of the notice, thereby exposed his arrogancy, obstinancy and defying attitude to obey the terms of the notice, upon advancing frivolous excuses on innumerable counts, and further deliberately tampered and doctorred the CDRs with a delay of about four years, after it was requisitioned, with sole intention of destroying and damaging the material evidence, extending his hands in glove with some other men of potentiality including political dignitaries, so as to give a go by to the allegations levelled against him, and to gloss over some other designed personalities. He has also pointed out to the notices served upon the petitioner and his attitude to evade those notices by taking shelter under the law. It may not be out of place to mention that after such notices under Section 160 of the Code of Criminal Procedure was served upon the petitioner by the investigating agency to examine him, he filed an application under Section 482 of the Code of Criminal Procedure being CRR no. 1308 of 2009, in which the petitioner challenged the proceeding itself and prayed for quashing of the same.

The said CRR 1308 of 2019 was, ultimately, held to be not maintainable at the instance of a third party meaning thereby, the petitioner had no locus standi to pray for quashing of instant criminal proceeding, when apparently a notice under Section 160 of Cr.P.C. was served upon the petitioner calling upon his co-operation to unearth the prosecution.

Mr. Roy, appearing for the petitioner submits that, however, the petitioner was not appropriately advised and wrong forum was chosen by him. Protection which was granted initially in CRR 1308 of 2019 passed by the Single Bench of our High Court, ultimately, stood vacated by the final decision, given on 13th September, 2019.

It is the contention of Mr. Dastur, that after the said CRR was finally disposed of and having lost the protective cover, the petitioner even did not appear before the investigating agency, pursuant to the notice being served afresh upon him requiring his presence on subsequent dates, as mentioned in the notices, found in the compilation, placed before us by the CBI for consideration.

Mr. Roy, however, attempted to justify that the petitioner was on leave till 25th September, 2019 with due intimation to CBI and the instant application for anticipatory bail was taken up for hearing on urgent basis on 26th September, 2019.

Mr. Dastur, further submits that if this application under Section 438 is allowed giving the petitioner protection against

custodial interrogation the investigation which reached certain stage would be grossly hampered.

Mr. Roy in support of his submission has placed reliance on two decisions:

• Siddharam Satlingappa Mhetre –Vs. – State of Maharashtra reported in (2011) 1 SCC 694 &

• Santosh s/o Dwarkadas Fafat –Vs. – State of Maharashtra reported in (2017) 9 SCC 714.

Mr. Dastur appearing for the CBI has relied on three decisions:

• State represented by the CBI –Vs. – Anil Sharma reported in (1997) 7 SCC 187;

• Sudhir –Vs. – State of Maharashtra & Anr. reported in

(2016) 1 SCC 146 &

P. Chidambaram –Vs. – Directorate of Enforcement Published in 2019 SCC online SC 1143

In order to correctly assess the prayer for pre-arrest bail, and the ratio decided by the Hon’ble Apex Court, we deem it appropriate to first consider the decision, which have been relied on by Mr. Dastur.

The first decision delivered in State represented by CBI (supra), relied on by Mr. Dastur, is on the issue of custodial interrogation for eliciting more useful information and material from the interrogatee. Mr. Dastur has drawn our attention to paragraphs 4, 6 and 7. This decision is, however, distinguishable not only from the facts, but also conspicuously differentiable from the judgment, delivered by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre (supra), which basically concerned the personal liberty of a person available under Article 21 of the Constitution of India in context with the decision of the Apex Court, delivered in the case of Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565. In the case referred above by Mr. Dastur there was allegation levelled by CBI that the respondent amassed wealth far in excess of his known sources of income rendering him to be subjected to a prosecution under Section 13(2) of the Prevention and Corruption Act, 1988. The court at the first instance granted pre-arrest bail, which was cancelled by the concerned High Court and cancellation was however, affirmed by the Hon’ble Apex Court observing therein that the respondent having held a high office, the chance of exercising his influence would create a great handicap to the investigating agency, while interrogating a person, already armed with an order of anticipatory bail, because the custodial interrogation being qualititably more elicitation oriented and that questioning a suspect who is well protected with a favourable order under Section 438 of the Code would render the questioning a mere ritual. The petitioner herein involved in this case not only once, but in all twice subjected himself for questioning purpose covering a period of 44 hours (approx) meaning thereby he had consciously offered himself to be interrogated in the interest of ongoing investigation.

The next decision relied on by Mr. Dastur in Sudhir (supra) relates to case where allegations are of serious nature including corruption and mis-appropriation of public fund requiring custodial interrogation. The appeal before the Hon’ble Apex Court was against the order of cancellation of bail granted by the High Court. The case is distinguishable on fact, that in the cited decision the two First Information Reports were registered against the accused/appellants against themselves with serious allegations of criminal mis-appropriation of funds, released for implementation of scheme of drinking water in the villages, in the context with which, the Apex Court felt the necessity of custodial interrogation for the conduct of the appellants causing the investigation to hold up for sometimes, and upon consideration of such conduct, the anticipatory bail was cancelled observing therein that the investigation could not be proceeded in the event of the appellants being armed with an anticipatory bail. The gist of the materials being extract of the case diary, placed before us in the form of compilation, as mentioned hereinabove, do not conspicuously transpire anything that at the instance of the petitioner the investigation got halted for his active contribution, because investigation has extensively dealt with to reveal the scam examining several persons not only from the police but also from the side of the State.

In context of that fact, the Hon’ble Apex Court considering the ratio of the decision in Gurbaksh Singh Sibbia (supra) has held that the relief of anticipatory bail cannot be said to be barred merely for

the reasons that the allegations relate to economic offences or corruption and clarified that where the allegations are mala fide, prayer for anticipatory bail can be accepted.

Considering the ratio of Siddharam Satlingappa Mhetre (supra) the Hon’ble Apex Court discussed in paragraph 112 thereof, which stated “While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.”

In the case of P. Chidambaram (supra), unlike the case in hand, there is no allegation of money laundering proceeds of the crime as against the present petitioner seeking pre-arrest bail. The significant aspect to be kept in mind is that petitioner has come before the Court with a prayer for anticipatory bail even after subjecting himself for interrogation/ questioning not only once in Shillong, but also here in Kolkata to facilitate investigation. It is thus, not the position that petitioner purposefully kept himself concealed avoiding the desired questioning by CBI. This case is also distinguishable against the petitioner, who was subjected to repeated interrogation, as pointed out earlier, alleging to have made concealment of the materials, yet to be collected. The purpose of custodial interrogation being to elicit materials which may lead to recovery of relevant information, in our considered perception, needs to be critically appreciated in context with the peculiarity of the circumstances involved in this case, wherein petitioner offered himself for interrogation on repeated occasions, when investigating agency was left with sufficient opportunity to collect and/or derive relevant information in the interest of unearthing the prosecution.

We have considered the submissions of Mr. Roy and the principles laid down in the decisions on which he placed reliance. The case of Siddharam Satlingappa Mhetre (supra) has been cited by Mr. Roy, to enlighten the Court for the consideration of the parameters, laid down by the Supreme Court. In the said decision, the Hon’ble Apex Court observed that in the earlier Constitution Bench decision in Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565 it was held that a person seeking anticipatory bail is still free man, entitled to the presumption of innocence, and the person seeking anticipatory bail, submit himself to the restraint and conditions on his freedom, by accepting the conditions which the Court may deem fit to impose any consideration of the assurance that if he is arrested, he shall be enlarged on bail. We also find that the Hon’ble Apex Court observed that the appropriate course of action ought to be that after evaluating averments and accusation available on record, if the Court is inclined to grant anticipatory bail then an interim bail, can be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the Court may either reject the bail application, or confirm initial order of granting bail. The Court would certainly be entitled to impose conditions for grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modifying the conditions of bail any time, if liberty granted by the Court is misused.

Therefore, the bail granted by the Court should ordinarily continue till trial of the case. The provisions of Section 438 of the Code of Criminal Procedure is not an unfettered power granted in favour of the accused rather the same is very restricted and subject to reasonable restrictions.

Section 438 Cr.P.C. itself supplied the conditions which the Court can impose at the time of granting bail to the petitioner. Even the Court can impose such other condition, if it thinks fit and proper. Considering the application for anticipatory bail the appropriate Court while dealing with a regular application for anticipatory bail should come to an independent conclusion whether under the facts and circumstances and the available materials, the prayer for anticipatory bail should be allowed or not.

In the aforesaid decision of Siddharam Satlingappa Mhetre (supra) the principles and parameters have been laid down in paragraphs 109 and112 respectively and the same are set out below:

“Para 109: A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia’s case was correctly understood, appreciated and applied. This Court in the Sibbia’s case laid down the following principles with regard to anticipatory bail:

a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in section 437 cannot be read into section 438.

e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in the light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

Para 112: The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused’s likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

In paragraph 113, however, the Supreme Court more specifically stated that “arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

The ratio of the decision arising out of Siddaram Mahtre (supra), being basically founded upon Gurbaksh Singh Sibbia (supra), the same was reinforced in the case of Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr, reported in (2016) 1 SCC 152 which has, however, not been cited by either of the parties fighting over the issue before us.

When the apex Court granted protection to the petitioner, by an order dated 05.02.2019 prohibiting CBI from arresting the petitioner, the interrogation/investigation in respect of CDRs with insufficient particulars being sent on 28.06.2018, is expected to have been directed towards securing explanation from the petitioner as regards the alleged delay caused in sending the CDRs together with the alleged suppression, and also for causing disappearance of material evidence in connivance with some designed persons. No new material was, however, sent to CBI at the instance of the petitioner subsequent to 28.06.2018 creating a confusion, or a further mismatch with the materials pertaining to the CDRs already sent. For the alleged discrepancies in the CDRs, the CBI had already collected the relevant information from the service providers, applicable to the case and compared the same with that of the CDRs with insufficient particulars. In paragraph 7 of the additional affidavit, dated 18th February, 2019, filed on behalf of the CBI in connection with the contempt petition pending before the Apex Court, the CBI had specifically contended that the CDRs of the accused, when analysed by the CBI were found to be tampered/doctorred and the material evidence had been destroyed. It was also contended therein that comparison of the doctorred/tampered CDRs, given by petitioner and the CDRs obtained by the CBI from the service providers left no manner of doubt that the CDRs handed over by the petitioner on 28.06.2018 were tampered and doctored. That being the position, relying upon such assertion of the CBI, made in paragraph 7 of such affidavit, referred above, the scope of requirement of any extensive investigation taking the petitioner into custody has been minimised. As has been brought to our attention by the learned advocate for the CBI that the petitioner always attempted to obfuscate the investigation revealing his strong sense of avoidance to the notices and in doing so, the order dated 06.12.2018 and 18.12.2018 passed in CRR 2456 of 2018 has been wrongly interpreted upon misconstruction of such orders in as much as such orders had no reasonable nexus with the instant case. Rightly attention of the Court has been drawn by the learned Senior Advocate for the CBI to the communication issued to petitioner on the basis of misconstruction of the orders dated 06.12.2018 and 18.12.2018 rendering the petitioner to become hostile to the terms of the notice. True it is that the petitioner is the top cop of the State, and at the same time it is also true that he has to rely upon the communication, made to him legally from the State authorities, responsible to make communication. If there be any irregularities in the matter of misconstruction of such orders, pursuant to the valid legal communication being made to the petitioner, the petitioner cannot be made to suffer the consequence, that arose beyond his control.

Notice under Section 160 of the Cr.P.C. describing the petitioner to be a witness was served on innumerable occasions. Learned advocate for both the parties are ad idem to the stand that so long the proceeding pending before the High Court in connection with CRR 1308 of 2019 before a learned Single Judge of this Court, the status of the petitioner was not above the witness. The situation turned a dramatic turn, when the CBI prayed for issuance of a warrant of arrest before the learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, which was rejected, accepting the petitioner to be an accused involved in this case. It is, therefore, quite relevant to take note that till 13.09.2019, the petitioner, whose status remained as witness suddenly transformed into the category of accused, presumably with the collection of startling/clinching materials, that have been collected in the meantime against the petitioner requiring custodial interrogation, is conspicuously absent. The words “any person” appearing in Sections 160 and 161 Cr. P.C. are wide enough to include the person, who subsequently becomes an accused in course of investigation, and such proposition came to be decided in the case of Mahabir Mandal And Others –Vs. – State Of Bihar reported in AIR 1972 SC 1331.

Therefore, the status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

Much has been emphasized by the learned advocate for the petitioner regarding the antecedent of petitioner for his avoidance to the notice on innumerable occasions, and even after making a breach of the conditions while enjoying interim protection in connection with CRR 1308 of 2019 limiting his movement and further confining him to his residence, but uptil now there is nothing produced before us to challenge the order passed in CRR 1308 of 2019, which paves the way for us to conclude that disputing with the conditions and even for a violation of the conditions of the interim protection, the CBI had never challenged taking out an appropriate application, in spite of the liberty being granted to that effect, and that apart in pursuance of liberty being granted by the Apex Court, while withdrawing interim protection against the petitioner to take appropriate steps, the CBI has only moved before the concerned Magistrate with a prayer for issuance of non-bailable warrant.

Antecedent, if isolatedly viewed of recent past of a person, without looking into the entire tenure of the petitioner, when he continued to discharge his police function, proper reflection of antecedent cannot be perfectly ascertained.

In order to unfurl the larger conspiracy to prevent unearthing money, there has been extensive repeated questioning session as regards the petitioner and several persons were also subjected to interrogation for their respective role in the scam, and upon consideration of the materials produced before us being the relevant extract of the Case Diary, shown in the compilation referred above, we have hardly any scope to assume that it is the petitioner only clogging the investigation and without which the investigation is supposed to face the undesirable consequence.

Before this judgment is delivered, we ourselves made threadbare discussion over all the pros and cons of the matter relating to the scope of grant or refusal of the prayer for anticipatory bail. At the commencement of the hearing, we pointed out to the learned advocates for both the sides requesting them to make their precise argument only on the scope of Section 438. While passing the judgment we have persuaded ourselves to confine within the statutory limit of Section 438 of the Code of Criminal Procedure. We have reached a consensus in passing this judgment having equal contribution.

Having considered the rival contentions of the parties and the materials placed before us, in our honest effort while ensuring to strike a balance between the individual’s right to personal freedom and the right of the investigation agency to interrogate the petitioner as to the materials so far collected, we are of the considered view that this is not an appropriate case, when custodial interrogation would be justified.

Consequently, the custodial interrogation, as sought to be enforced by the CBI in the given set of circumstances, is not encouraging one, as it does not inspire confidence of this Court to justify custodial interrogation of the petitioner in this case, when he has rendered his cooperation substantially in the interest of investigation.

Accordingly, we direct that in the event of his arrest the petitioner shall be released on bail upon furnishing a bond of Rs.50,000/- with two sureties of like amount each, one of whom must be local having landed property within the jurisdiction of Kolkata, and he shall comply with the conditions as laid down in Section 438(2) of the Code of Criminal Procedure, and on further condition that he will render cooperation to the investigating officer by physically presenting himself for interrogation before the CBI at Kolkata, as and when demanded, but at least upon 48 hours prior notice being served upon him.

We make it clear that non-observance of the conditions so imposed, apart from the conditions imbeded in Section 438(2) Cr. P.C., as imposed hereinabove, would enable the CBI to seek cancellation of the bail here in granted without making any reference to the Court and the learned Court below would be at his liberty to go for cancellation on a proven breach of the condition without making reference to this Court.

The application for anticipatory bail stands allowed.

CRM no. 9230 of 21019 is thus, disposed of.

The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.

I agree.

(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)

Rajeev Kumar Vs Central Bureau of Investigation (CBI) & Anr. -13/09/2019

Interrogation of a witness or a suspect under Section 161 of the Code of Criminal Procedure is the part of investigation. If during interrogation the Investigating Officer is satisfied that the person concerned has committed a cognizable offence, then the law permits the Investigating Officer to arrest that person subject to the provisions as contained in the Code of Criminal Procedure. Prior to interrogation or investigation, it cannot be said whether the person who is served notice under Section 160 of the Code of Criminal Procedure would come in the category of a witness or an accused. When a witness becomes an accused, he is entitled to the rights available to the accused. If commission of a cognizable offence by a person is detected in course of interrogation then the law permits the Investigating Officer to arrest that person without warrant and without leave of the Court.

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

C.R.R. 1308 of 2019

With

CRAN 2331 of 2019

Present: The Hon’ble Justice Madhumati Mitra

Rajeev Kumar

-Versus-

Central Bureau of Investigation (CBI) & Anr.

Advocate for the Petitioner

: Mr. Milon Mukherjee,

Mr. Debasish Roy,
Mr. Rudradipta Nandy,
Mr. Rajiv Kumar Jha,
Ms. Munmun Basu,
Mr. Santanu Talukdar.

Advocate for the C.B.I.

: Mr.Y.J.Dastoor,

Mr. Anirban Mitra,
Mr. Samrat Goswami,

Mr. Amit Halder.

Heard on :

17.07.2019,18.07.2019,19.07.2019,

22.07.2019,23.07.2019,25.07.2019,
26.07.2019,29.07.2019,01.08.2019,
06.08.2019,07.08.2019,08.08.2019,
09.08.2019,27.08.2019,28.08.2019,
29.08.2019,30.08.2019,02.09.2019,
03.09.2019,04.09.2019,05.09.2019,
06.09.2019,09.09.2019 and 11.09.2019.

Judgment on : 13.09.2019

Madhumati Mitra, J. :

The petitioner is Additional Director General of Police, C.I.D., West Bengal. He has approached this Court with a prayer to invoke the inherent power as envisaged in Section 482 of the Code of Criminal Procedure to
have the proceedings of Case No.RC-04(S)2014 under Section 120B/420/406/409 of the Indian Penal Code and Sections 416 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978, pending before the Court of Learned Judge Special Court, C.B.I., Barasat, North 24 Parganas, quashed so far he is concerned. (Qua Petitioner).

The factual matrix therefore, would thus be relevant in the matter of assessment of the situation as to whether the relief/reliefs sought for by the petitioner is/are available under the provisions contained in Section 482 of the Code of Criminal Procedure.

In Writ Petition (C)No.401 of 2013 with No.402 of 2013 and T.P.(C) No.445 of 2014 on 09.05.2014, the Apex Court directed the transfer of all cases registered in different police stations of the State against Sarada Group of Companies including Crime No.102 registered in Bidhannagar Police Station, Kolkata (North) on 06.05.2013 for the offences punishable under Section 406/409/120B I.P.C. and all cases in which the investigation is yet to be completed, registered against any other company up to the date of the order of Apex Court, from the State Police Agency to the Central Bureau Of Investigation (C.B.I.).

In the said order the Hon’ble Apex Court made it clear that C.B.I. shall be free to conduct further investigation in terms of Section 173(8)Cr.P.C in relation to any cases where a charge-sheet has already been presented before the jurisdictional Court against the companies involved in any chit fund scam.

In the said judgment the Hon’ble Supreme Court has specifically mentioned that transfer of investigation to the Central Bureau of Investigation (C.B.I.) in terms of the order shall not, however, affect the proceedings pending before the commission of enquiry established by the State Government or any action that is legally permissible for recovery of the amount for payment to the depositors. At the same time the Apex Court has also given direction to the State Police Agencies to provide the fullest co-operation to C.B.I. including assistance in terms of men and material to enable the latter to conduct and complete the investigation expeditiously.

The reasons for transferring the investigation from State Police Agencies to Central Bureau of Investigation would appear in paragraph 35 of the said judgment as under:-

“35. The factual narrative given in the foregoing paragraphs clearly establishes the following:

35.1. That financial scam nicknamed chit fund scam that has hit the States of West Bengal, Tripura, Assam and Odisha involves collection of nearly Rs 10,000 crores (approx.) from the general public, especially the weaker sections of the society which have fallen prey to the temptations of handsome returns on such deposits extended by the companies involved in the scam.

35.2. That investigation so far conducted suggests that the collection of money from the depositors was neither legally permissible nor were such collections/deposits invested in any meaningful business activity that could generate the high returns/promised to the depositors.

35.3. That more than 25 lakh claims have so far been received by the Commissions of Enquiries set up in the States of Odisha and West Bengal which is indicative of the magnitude of scam in terms of number of citizens that have been defrauded by the Ponzi companies.

35.4. That the companies which indulge in Ponzi schemes have their tentacles in different States giving the scam inter-State ramifications. That such huge collections could have international money laundering dimensions cannot be ruled out and needs to be effectively investigated.

35.5. That investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence.

35.6. That the role of regulators like SEBI, authorities under the Companies Act and Reserve Bank of India is also under investigation by the State Police Agency which may have to be taken to its logical conclusion by an effective and independent investigation.”

It has been stated by the petitioner in his application that in the year 2013, several cases were registered across the State of West Bengal including Bidhannagar Commissionerate. The State of West Bengal constituted a four member Judicial Inquiry Commission, headed by Justice (Retd.) Shyamal Sen, to prove the scam.

On 26.04.2013, the State of West Bengal constituted a Special Investigation Team (S.I.T.) to investigate into the companies. That Special Investigation Team was headed by the Director General of Police and the Inspector General of Police, West Bengal, who was in charge of overall Superintendence of the cases. During the course of the investigation by Special Investigation Team, the Additional Director General (A.D.G.), C.I.D. was to assist the Director General of Police and the Inspector General of Police, West Bengal and for this reason all the communications were made by the Office of the A.D.G., C.I.D. with the various units and other investigating agencies including the various District Superintendent of Police in the State. It has been submitted by the petitioner that the State Police Authorities have rendered all kinds of assistance to the Central Bureau of Investigation in compliance with the directions of the Hon’ble Supreme Court dated 09.05.2014.

It is the specific contention of the petitioner that the State Police had handed over all the investigations/documents/records to the Central Bureau of Investigation in the year 2014, in compliance with the directions of Hon’ble Apex Court dated 09.05.2014. Petitioner has contended that he is not named in any of the F.I.R. or in any charge-sheet filed by either of the Police or by the Central Bureau of Investigation. Petitioner has stated that he received three notices in total till 03.02.2019 under Section 160 of the Code of Criminal Procedure and he responded to the said three notices dated 18.10.2017, 23.10.2017 and 08.12.2018.

The Central Bureau of Investigation moved before the Supreme Court vide M.A.No.1720 of 2017, in Writ Petition(C)No.401 of 2013, citing Hostile Environment in the State and alleging non-cooperation by the officials of the State. That application was contested by the State of West Bengal. After hearing both sides, the Hon’ble Court was pleased to direct both the investigating agencies to work in tandem.

In his application the petitioner has further contended that on 03.02.2019, a large number of persons claiming to be from Central Bureau of Investigation arrived at the residence of petitioner. Such persons were informed that the petitioner was in his Office at Lalbazar, but they insisted on entering his residence. When those persons were asked to show search warrant, they failed to show the same. The petitioner has stated that the C.B.I. on 03.02.2019 visited the residence of the petitioner with mala fide intention to harass, humiliate and tarnish his reputation.

The Central Bureau of Investigation thereafter filed a contempt petition(C)No.166 of 2019 against the Chief Secretary, Director General of Police and the present petitioner alleging contempt of orders dated 09.05.2014, 15.12.2015, 05.12.2017 and 16.07.2018 passed by the Supreme Court in Writ Petition(C) No.401 of 2013 and ancillary proceedings therein. The Central Bureau of Investigation also preferred an application seeking directions, being M.A.No.302 of 2019, in W.P.(C)No.401 of 2013. Vide order dated 05.02.2019, the Hon’ble Supreme Court granted protection to the petitioner against coercive steps and the petitioner was also directed to appear for interrogation at Shillong. The petitioner appeared at Shillong for interrogation by the Central Bureau of Investigation and he was subjected to questioning for about 39 hours 45 minutes from 09.02.2019 to 13.02.2019. Petitioner has claimed that he responded to each query truthfully and to his best knowledge, despite the questions being repetitive in nature. The entire interrogation was video-graphed. The Central Bureau of Investigation moved an application being I.A.No.58327 of 2019, in contempt petition(C)No.166 of 2019 seeking vacation of interim order dated 05.02.2019 and custodial interrogation of the petitioner. The Hon’ble Supreme Court on 17.05.2019 withdrew the protection granted to the petitioner on 05.02.2019 with direction that the said interim order dated 05.02.2019 would continue for a period of seven days from the date of pronouncement of this order to enable the petitioner to approach competent Court for relief, if so advised.

The Investigating Officer of the Central Bureau of Investigation once again issued a notice under Section 160 of the Code of Criminal Procedure dated 26.05.2019, directing the petitioner to appear before Investigating Officer on 27.05.2019 at 12:00 hours and the petitioner has stated that at the relevant point of time he was on sanctioned leave and sent a reply seeking time. Petitioner has stated that he came to know from media reports that even before issuance of notice under Section 160 of the Code of Criminal Procedure, a look out circular has been issued against the petitioner to prevent any foreign travel by him.

It has been categorically contended by the petitioner that the present opposite party, the Central Bureau of Investigation with mala fide and for collateral purposes issued notices under Section 160 of the Code of Criminal Procedure for interrogation in connection with impugned proceedings though he was thoroughly interrogated by the Investigating Agency. Petitioner has apprehended that he would be taken under custody on the flimsy ground of necessity for custodial interrogation. It is also the contention of the petitioner that till date he has not been implicated as an accused in connection with the impugned proceedings. It has also been stated by the petitioner that he has been served notices under Section 160 of the Code of Criminal Procedure for interrogation to record his statement under Section 161 of the Code of Criminal Procedure and there is no such power of the Investigating Authority to interrogate a witness under custody. Petitioner has alleged that continuance of the impugned proceedings is vexatious, mala fide and has been initiated with an oblique motive to harass and humiliate the petitioner. Petitioner has also stated that he had acted in discharge of his official duties as Commissioner of Police, Bidhannagar as well as members of Special Investigation Team and as such he is covered under Protection under Section 45(2) of the Code of Criminal Procedure.

The factual score depicts that the opposite party/the Central Bureau of Investigation while praying for recall of interim protection granted to the petitioner Mr. Rajeev Kumar, submitted before the Hon’ble Supreme Court

vide application for appropriate directions dated 05.04.2019, that the petitioner has not cooperated during the interrogation. He gave evasive replies, tried to shift the blame or responsibility either on to his subordinates or on his Superior Officers. He claimed his innocence about his role in the larger criminal conspiracy in the investigation of the money trail. He also claimed innocence with regards to giving clean chit to all influential people stating that they never influenced the investigation. He denied trying to shield some body and he did not provide any clues for recovering the case property, involvement of the persons, place of concealment of case properties, etc. In the said application the C.B.I. has submitted before the Apex Court that in order to recover the material evidence and to investigate into the acts of commission and omission on the part of Bidhannagar Police Commissionerate and the SIT in causing concealment or causing disappearance of evidence that was collected by them during their investigation and to investigate into the larger conspiracy aspect, the petitioner and other Police Officers are required for custodial interrogation.

From the order dated 17.05.2019 passed in connection with M.A.No.302 of 2019 in W.P.(C)No.401 of 2013 and Anr. it appears that the Hon’ble Court has been pleased to pass the following order:-

“Therefore, in the given facts, we would withdraw the protection given to Mr. Rajeev Kumar, Former Commissioner of Police, Kolkata, vide our order dated February 05th ,2019 restraining the C.B.I. from arresting him and thereby, leave it open to the C.B.I. to act in accordance with law. At the same time, we direct that the interim order dated February 05th,2019 would continue for a period of seven days from the date of pronouncement of this order to enable Mr.Rajeev Kumar to approach Competent Court for relief, if so advised. The aforesaid directions would be in consonance with the decisions in A.R.Antulay V. R.S.Nayak and Another reported in (1988)2 SCC 602, which mandates that the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person.

We clarify that we have not made any comments on the merits of the contentions and the reasons recorded in the present order would not be a ground to accept or reject the request of custodial interrogation or grant of protection, if any such application/petition is moved.”

On 30.05.2019, Vacation Bench of this Court passed an interim order in connection with the present C.R.R. 1308 of 2019 for a period of one month from the date of reopening of the Court or until further order, whichever is earlier, the petitioner shall not be subjected to coercive process or be arrested on certain conditions as mentioned in the said order.

Learned Senior Counsel Mr. Milon Mukherjee appearing for the petitioner has forcefully contended that the question of taking the petitioner in custody for interrogation does not arise at all as opposite party issued notices to the petitioner under the provision of Section 160 of the Code of Criminal Procedure which is meant for the witnesses only. He has further contended that there is no such provision in the Code of Criminal Procedure to take a witness in custody for the purpose of interrogation. In support of his contention Learned Counsel has invited the attention of the Court to Article 21 of the Constitution of India and Sections 160 and 161 of the Code. It has been vigorously submitted by the Learned Counsel that no person shall be deprived of his life or personal liberty except according to procedure established by law. Again he has contended that in view of provision contained in Article 20(3) of the Constitution of India no accused of any offence shall be compelled to be a witness against himself. It is the specific contention of the Learned Counsel for the petitioner that the name of the petitioner has not been mentioned in any of the First Information Reports nor he has been charge-sheeted in connection with any case in relation to chit fund scam. The petitioner is in a better position than an accused. Learned Counsel has expressed the apprehension of the petitioner that unless the petitioner is granted a protective order from the Court against taking coercive step by the Investigating Officer then there is every chance to take him custody by converting his status from a witness into an accused. In that case, the petitioner would be deprived of his right to approach before the Court for anticipatory bail.

Learned Counsel for the petitioner has also submitted that SIT was headed by D.G., West Bengal Police and he was assisted by A.D.G., C.I.D.

According to his contention the function of SIT was expanded and many other Officers were co-opted as members of SIT. It is the specific contention of the Learned Counsel for the petitioner that the petitioner has been targeted and singled out. It has been argued by the Learned Counsel for the petitioner that no police official of Jammu and Kashmir has been examined by C.B.I., though the initial seizure and arrest was done by them. He has also submitted that the opposite party C.B.I. is trying to cover up its own laches and is selectively targeting him. He has also argued that no new evidence or material or money trail or larger conspiracy unearthed by C.B.I. till date despite passage of more than 5 years.

Learned Senior Counsel appearing for the petitioner has submitted that C.B.I. issued summons to the petitioner after more than three years of taking over charge of investigation in May 2014. For the last five years, the progress of investigation is not at all satisfactory. It has been also contended by the Learned Counsel for the petitioner that Mr.Kumar wrote several letters to Director of C.B.I. for joint discussion over the issues regarding investigation between the State Police Officials and the C.B.I., but C.B.I. did not response. It has been forcefully contended by the Learned Advocate for the petitioner that West Bengal Police including SIT had already handed over all the seized papers and articles to the C.B.I. as per the direction of the Apex Court dated 09.05.2014. It has been specifically contended on behalf of the petitioner that the mobile phones and laptop were handed over to Shri Supriyo Sen and Smt.Debjani Mukherjee as per the direction of the Learned Magistrate. In the name of interrogation C.B.I., intends to malign the petitioner and to tarnish his reputation.

In support of his contention, the Learned Counsel has placed his reliance on several decisions. The decisions so cited by him as under:-

1) Siddharam Satlingappa Mhetre Vs. State of Maharashtra reported in (2011)1 SCC 694,
2) Karan Singh Vs. State of Haryana & Anr. reported in (2013)12 SCC 529,

3) A.K. Gopalan Vs. State of Maharashtra reported in AIR 1950 SC 27,
4) Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597,

5) Smt. Selvi & Ors. Vs. State Of Karnataka & Anr reported in AIR 2010 SC 1974,

6) Madhav Hayawadarao Hoskot Vs. State Of Maharashtra reported in 1978(3) SCC 544,
7) State of Bihar Vs. Lal Krishna Advani reported in 2003(8) SCC 361,

8) Mehmood Nayyar Azam Vs. State of Chattisgarh & Ors. reported in (2012)3 SCC (Cri) 733,

9) Kishore Samrite Vs. State of U.P. reported in (2013)2 SCC 398,

10) Kiran Bedi Vs. Committee of Inquiry reported in (1989)1 SCC 494,

11) Om Prakash Chautala Vs. Kanwar Bhan & Ors. reported in (2014)5 SCC 417,

12) Board of Trustees of the Port of Bombay -Vs-Dilip Kumar Raghavendranath Nadkarni & Ors. reported in (1983)1 SCC 124,

13) District Registrar & Collector, Hyderabad & Anr. Vs. Canara Bank & Ors. reported in (2005)1 SCC 496,

14) State of W.B. & Ors. Vs. Swapan Kr. Guha & Ors. reported in AIR 1982 SC 949,

15) Suresh Nanda Vs. C.B.I. reported in (2008)3 SCC 674,

16) Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr. reported in Criminal Appeal No.1165 of 2019 (@SLP (Cri)No.2712 of 2019),

17) A.R. Antulay Vs. R.S. Nayak & Anr. reported in (1988)2 SCC 602,

18) Ratilal Bhanji Mithani Vs. Asst Controller of Customs, Bombay reported in (1967)3 SCR 926,
19) State of Haryana And Ors Vs. Bhajanlal reported in 1992 Supp (1) SCC 335,

20) Pepsi Foods Ltd & Anr. Vs. Spl Judicial Magistrate & Ors. reported in (1998)5 SCC 749.

On the other hand, Learned Counsel for the C.B.I. has invited the attention of the Court to the entries in the case diary and contended that from the very beginning the petitioner is avoiding interrogation and even during interrogation at Shillong, he did not co-operate. He has submitted that few days back, the petitioner was issued notice by C.B.I. to meet with the Investigating Officer in connection with another case relating to chit fund scam and though the interim order passed in connection with this proceedings has been relaxed to enable the petitioner to meet with the Investigating Officer, he avoided the interrogation on the ground that he was busy with law and order after abolition of Article 370 of the Constitution of India in Jammu and Kashmir. In each and every occasion, whenever any notice was served on him, the petitioner sought for time on the grounds of Durga Puja, Chhot Puja, etc. and afterwards he never informed the C.B.I. regarding his availability to meet with the Investigating Officer. Sometimes, he took up the matter with Director of C.B.I. or other authorities of C.B.I. giving suggestion in respect of investigation. At the end of August this year C.B.I. received eight trunks of documents from State Police.

Mr.Dastoor, Learned Counsel for the C.B.I. has submitted that the claim of the petitioner that the State Police handed over all seized documents to the C.B.I. in 2014 was totally false. C.B.I. was compelled to write to the D.C.D.D. on 01.07.2016, 01.02.2017. On 05.07.2018 Inspector in charge of Electronic Complex Police Station wrote to C.B.I. requesting them to hold inspection of the seized items and Investigating Officer of the case produced seized items at C.B.I. Office at the CGO Complex, Salt Lake on 29.05.2019, 30.05.2019 and 31.05.2019. Learned Counsel has drawn the attention of the Court to seizure lists and submitted that no laptop, C.P.U. were seized during investigation by the State Police.

He has forcefully argued that Mr. Kumar has adopted delaying tactics to avoid interrogation.

Mr. Dastoor, the Learned Senior Counsel appearing for the opposite party, the Central Bureau of Investigation has countered the allegations and aspersions made by the petitioner. He has stated that the allegation of the petitioner that he has been singled out or targeted is baseless. He has contended that in course of investigation they issued notices under Section 160 of the Code of Criminal Procedure to several witnesses including persons who are superior in rank to the present petitioner. They were examined by the C.B.I. and many of them also co-operated with Investigating Agencies. He has also contended that C.B.I. was directed by the Hon’ble Apex Court to find out the money trial and to investigate the larger conspiracy. The petitioner was a member of the SIT formed by the State Government for investigation of the chit fund scam. From the very beginning he did not co-operate with the Investigating Officer and tried to avoid the interrogation. Learned Counsel has tried to impress upon the Court by drawing the attention of the Court to the replies given by the petitioner in response to the notices issued to him by the C.B.I. C.B.I. is investigating the case to find out the money trail under the direction of the Hon’ble Apex Court. He has further contended that instead of co-operating the C.B.I. the petitioner from the very beginning was avoiding the interrogation on various flimsy grounds. It is the specific contention of the C.B.I. that during interrogation at Shillong the petitioner did not co-operate with the Investigating Agencies.

The Learned Counsel for the C.B.I. has further submitted that the constitutional provision as contained in Article 20(3) is applicable to an accused and not to a witness. He has also stated that Article 21 of the Constitution speaks about personal liberty and that liberty cannot be curtailed without procedure established by law. He has contended that the C.B.I. is investigating the case in accordance with law and interrogation is a part of investigation.

Learned Counsel for the opposite party, C.B.I. has challenged the maintainability of the present application. He has contended that the relief sought for by the petitioner is not tenable in law as the Court cannot pass an order giving blanket protection to any person. He has urged that the Investigating Officer can examine any person under Section 160 of the Code of Criminal Procedure and such person may be an accused or a witness or a suspect, and custodial interrogation is qualitatively more elicination-oriented than questioning a suspect who is well ensconced with a protective order.

Learned Counsel for C.B.I. has cited the following decisions:

1) State of Gujarat Vs. Mohanlal Jitamalji Porwal & Anr. reported in (1987)2 SCC 364,

2) M/s Central Wines, Hyderabad Vs. Special Commercial Tax Officer, M/s Artos Breweries Ltd. Vs. Commercial Tax Officer reported in (1987) 2 SCC 371,

3) State of Maharashtra Vs. Mohd. Rashid And Another reported in (2005) 7 SCC 56,

4) State Vs. Anil Sharma reported in (1997) 7 SCC 187, 18

5) State of Maharashtra Vs. Embee Corporation, Bombay reported in (1997) 7 SCC 190,

6) Balasaheb Alias Ramesh Laxman Deshmukh Vs. State of Maharashtra And Another reported in (2011) 1 SCC 364,

7) Election Commission of India Vs. Telangana Rastra Samithi and Another reported in (2011) 1 SCC 370,

8) Poolpandi And Others Vs. Superintendent, Central Excise reported in (1992) 3 SCC 259,

9) Union of India And Others Vs. Pratap Narain And Others. reported in (1992) 3 SCC 268,

10) Kamalanantha And Others Vs. State of T.N. reported in (2005) 5 SCC 194,

For proper appreciation of the contentions of the parties, I think it would be better to have a look at Section 160 of the Code of Criminal Procedure.

This section empowers the Investigating Officer to examine persons who are acquainted with the facts and circumstances of the case. While discussing the applicability of Section 160 of the Code of Criminal Procedure our Apex Court in State Vs. N.M.T. Joy Immaculate reported in 2004 SCC (Cr.) 1722 was pleased to observe as under:

“Section 160 of the Code of Criminal Procedure deals with police officer’s power to require attendance of witnesses. This section aims at securing the attendance of persons who would supply the necessary information in respect of the commission of an offence and would be examined as witnesses in the inquiry or trial therefor. This section applies only to the cases of persons who appear to be acquainted with the circumstances of the case i.e. the witnesses or possible witnesses only. An order under this section cannot be made requiring the attendance of an accused person with a view to his answering the charge made against him. The intention of the legislature seems to have been only to provide a facility for obtaining evidence and not for procuring the attendance of the accused, who may be arrested at any time, if necessary. In other words, this section has reference to the persons to be examined as witnesses in the trial or inquiry to be held after the completion of the investigation. As an accused cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in the section. But the police officers are fully authorised to require the personal attendance of the suspects during the investigation.”

It has been alleged by the petitioner that he was thoroughly examined by the C.B.I. at Shillong, over a period of 39 hours and 45 minutes from 09.02.2019 to 13.02.2019 and he responded to each query truthfully and best of his knowledge, despite the questions being repetitive in nature.

In this connection, Learned Senior Advocate Mr.Dastoor representing the C.B.I. has contended that while interrogating the petitioner, the Investigating Agency faced great inconvenience and was handicapped as the petitioner was armed with a protective order.

In support of his contention, Learned Counsel has cited the decision in State REP. By the C.B.I. Vs. Anil Sharma reported in (1997)7 Supreme Court Cases 187. Learned Counsel has laid emphasis on paragraph 6 of the decision as cited above:-

Paragraph 6 is as under:-

“6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.”

On the other hand, Learned Counsel for the petitioner has contended that the C.B.I. is harassing the petitioner by calling him in the name of interrogation and is trying to malign his dignity and reputation in violation of his personal liberty as guaranteed under Article 21 of the Constitution of India. He has submitted that the decision referred to State REP. By the C.B.I. Vs. Anil Sharma reported in (1997)7 Supreme Court Cases 187 by the Learned Counsel for the C.B.I. has no manner of application to the facts of the present case. He has contended that till date the petitioner has not been arraigned as accused and the decision relates to the grant of anticipatory bail to an accused.

In support of his contention, Learned Counsel for the petitioner has cited paragraph 1 of the decision of Om Prakash Chautala Vs. Kanwar Bhan and Others reported in (2014)5 SCC 417 . In paragraph 1, our Apex Court has observed as under:

“1.Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. One would like to perceive it as an honour rather than popularity. When a court deals with a matter that has something likely to affect a person’s reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said.”

Mr. Dastoor, the Learned Counsel has contended that the decisions cited by the petitioner are in connection with Article 21 and 20(3) of the Constitution of India and relate to the right of an accused. He has contended that repeated questioning of a person who is served notice under Section 160 of the Code of Criminal Procedure is part of the investigation process and this cannot be considered as harassment or violation of his personal liberty. He has also submitted that the protection under Article 20(3) of the Constitution does not cover a witness or a suspect as the language used in Article 20(3) only referred to an accused.

In support of his submission, he has cited a decision in Poolpandi

and Others Vs. Superintendent, Central Excise and Others reported in (1992)3 SCC 259.

Paragraph 6 of the said judgment is as under:-

“6. Clause (3) of Article 20 declares that no person accused of any offence shall be compelled to be a witness against himself. It does not refer to the hypothetical person who may in the future be discovered to have been guilty of some offence. In Ramesh Chandra Mehta case [(1969) 2 SCR 461 : AIR 1970 SC 940 : 1970 Cri LJ 863] , the appellant was searched at the Calcutta Airport and diamonds and jewelleries of substantial value were found on his person as also currency notes in a suitcase with him, and in pursuance to a statement made by him more pearls and jewellery were recovered from different places. He was charged with  offences under the Sea Customs Act. During the trial, reliance was placed on his confessional statements made before the Customs authorities, which was objected to on the ground that the same were inadmissible in evidence inter alia in view of the provisions of Article 20(3). While rejecting the objection, the Supreme Court held that in order that the guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person, it has to be established that when he made the statement in question, he was a person accused of an offence. Pointing out to the similar provisions of the Sea Customs Act as in the present Act and referring to the power of a Customs Officer, in an inquiry in connection with the smuggling of goods, to summon any person whose attendance he considers necessary to give evidence or to produce a particular document the Supreme Court observed thus: (pp. 469-70)

“The expression ‘any person’ includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of Customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate.”

The above conclusion was reached after consideration of several relevant decisions and deep deliberation on the issue, and cannot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathy case [(1978) 2 SCC 424 : 1978 SCC (Cri) 236 : (1978) 3 SCR 608, 623, 624, 626-629, 645, 646] which is, as will be pointed out hereinafter, clearly distinguishable.

Learned Counsel for C.B.I. has further contended that the C.B.I. is conducting investigation as directed by the Apex Court considering the magnitude of the alleged offence and to find out the money trail. It is the duty of every person having knowledge or information regarding the offence to assist the investigating agencies to find out the truth and that is why Section 160 of the Code of Criminal Procedure has been incorporated.

Learned Counsel for the C.B.I. has challenged the maintainability of the present petition. He has specifically contended that the present petition is not at all maintainable in its present form and law. Learned Counsel has contended that the petitioner at the time of filing the application prayed for quashing of the proceedings in question and thereafter he moulded his prayer. Now, he has prayed for a direction upon the C.B.I. that no coercive step shall be taken against him by the opposite party without specific leave of this Court on an application being made by the opposite party with due notice to the petitioner showing the materials which necessitates so called custodial interrogation of the petitioner. According to his submission the relief sought for by the petitioner is not permissible in law as no Court shall grant any blanket order in favour of any person. In support of his submission he has referred to the decisions of Balasaheb alias Ramesh Laxman Deshmukh Vs. State of Maharashtra and Another reported in (2011)1 SCC 364. In paragraph 10 of the said judgment the Apex Court

was pleased to observe as under:

“10. At first blush we were inclined to accept this submission but on a deeper scrutiny we find no substance in it and the decision relied on instead of supporting his case, goes against him. Protection under Article 20(3) of the Constitution does not extend to any kind of evidence but only to self-incriminating statements relating to the charges brought against an accused. In order to bring the testimony of an accused within the prohibition of constitutional protection, it must be of such character that by itself it tends to incriminate the accused. The appellant is not an accused in the police case and in fact a witness, whose statement was recorded under Section 161 of the Criminal Procedure Code, and, therefore, not entitled to a blanket protection. However, in case of trial in the police case, answer to certain question if tends to incriminate the appellant, he can seek protection at that stage. Whether answer to a question is incriminating or otherwise has to be considered at the time it is put.”

He has also cited the decision of State of Maharashtra Vs. Mohd. Rashid and Another reported in (2005)7 SCC 56. In paragraph 7 of the said judgment our Apex Court observed as under:

“7. Having heard the learned counsel for the parties and also having perused the record, including the order dated 26-8-2002, it is clear that such a blanket protection of not arresting the first respondent in any crime, except after written notice to him, could not be passed. Accordingly, the direction given in the penultimate paragraph of the impugned order giving blanket protection to the first respondent is set aside and, to that extent, the impugned order stands modified.”

Initially, the petitioner prayed for quashing of the proceedings of Case No. RC-04(S)/2014 pending before the Learned Judge Special Court, C.B.I., Barasat, North 24 Parganas. Thereafter, the petitioner has moulded his prayer by way of supplementary affidavit filed on 29.08.2019. Petitioner has added in his prayer that no coercive steps against the petitioner shall be taken by the opposite party without specific leave of High Court on an application being made by the opposite party with due notice to the petitioner showing the materials which necessitates so called custodial interrogation of the petitioner.

Both the Learned Senior Advocates appearing for the parties took much pain and advanced their eloquent arguments. They have cited a series of decisions. In addition to this, written notes of argument has been filed on behalf of the petitioner.

I, after carefully examining the submissions and counter submissions advanced by the Learned Counsel for the parties both on the legal and factual aspects and after scrupulously examining the arguments submitted by the parties, would like to deal with those contentions seriatim.

The petitioner was one of the members of the SIT as it appears from West Bengal Police gazette notification dated 26.04.2013. At the relevant point of time he was Commissioner of Police, Bidhannagar Commissionerate. The said SIT conducted the investigation up to 09.05.2014.

The very object of Section 160 of the Code of Criminal Procedure is to enable the Investigating Officer to collect information from whomsoever, is found acquainted with the facts of the case in relation to which the investigation is carried out.

In the instant case, the Learned Counsel appearing for the petitioner has taken the plea that the petitioner has been targeted and singled out. Admittedly, the petitioner was one of the members of the Special Investigation Team formed by the State Government to investigate chit fund scam. From the case diary it appears that other Officers who were the members of SIT and who are superior in rank to the petitioner attended and interrogated in response to the notices issued under Section 160 of the Code of Criminal Procedure. The allegation of the petitioner that he has been singled out and targeted cannot be accepted at this stage.

A conjoint reading of Section 160 and 161 of the Code of Criminal Procedure would reveal that the Police Officer making an investigation has the authority to examine any person who is supposed to be acquainted with the facts and circumstances of the case. When such person is examined by the Investigating Officer that person shall be bound to answer truly all questions relating to such case put to him by such Officer. Exception is that the person who is examined by the Investigating Officer is not bound to answer the questions which could expose him to a criminal charge or to a penalty or forfeiture. In Selvi and Others Vs. State of Karnataka reported in AIR 2010 SC 1974 our Apex Court held that the ‘right against self-incrimination’ protect persons who have been formally accused as well as who are examined as suspects in criminal case. It also extends to cover witnesses who apprehend that their answers would expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigation.

It has been argued on behalf of the petitioner that the petitioner has not been served any notice under Section 41A of the Code of Criminal Procedure.

The object of introduction of Section 41A, is so that arrest of accused for cognizable offences for which maximum sentence is 7 (Seven) years, is not made in routine manner and restrictions imposed under Section 41(1)(b) to be followed prior to making such arrest. It is compulsory for the police under Section 41(1) to record reasons for making arrest as well as reasons for not making such arrest. Where arrest is not made under Section 41(1), Police Officer compulsorily has to issue notice of appearance under Section 41A to the alleged accused. Unwillingness of alleged accused to whom notice under Section 41A is issued to identify himself, could be ground for arrest.

In this connection, it would not be out of place to mention that the impugned criminal proceedings are under Sections 120B/420/406/409 of the Indian Penal Code. The maximum punishment for an offence under Section 409 of the Indian Penal Code is life imprisonment. The question of service of notice under Section 41A of the Code of Criminal Procedure is redundant to the petitioner. In his petition, the petitioner has stated that he has not been projected as an accused in any of the First Information Reports lodged in connection with chit fund scam. The objective of issuance of notice under Section 41A is quite different from the objective of issuance of notice to a person under Section 160 of the Code of Criminal Procedure, which is for the purpose of investigation.

Admittedly, RC Case No.04(S)-2014 is being investigated by the Central Bureau Investigation as per the direction of our Apex Court. The Investigating Officer issued notice to the petitioner for his examination under Section 160 of the Code of Criminal Procedure. Section 160 of the Code empowers the Investigating Officer to issue notice for securing the attendance of persons who are acquainted with the facts and circumstances of the case to find out the truth. Repeated questioning of the person is part of investigation process. When the Investigating Officer acts within his statutory limit then the question that the Investigating Officer has acted beyond his authority does not arise. Service of notices upon the petitioner requiring his attendance for the purpose of interrogation by the Investigating Officer cannot be said to be mala fide.

The Learned Counsel for the petitioner has tried to impress upon the Court regarding the mode of investigation and claimed that the State Police extended all sorts of cooperation to the C.B.I. for investigation as directed by the Apex Court.

From the judgment of the Apex Court dated 09.05.2014, it appears that the Apex Court observed that the investigation conducted so far revealed involvement of several political and other influential personalities wielding considerable clout and influence.

Petitioner apprehends that his personal liberty, right to reputation, etc. may be denied by the Investigating Agencies. It is well settled that right to fair trial and fair investigation cannot be so amplified as to permit accused to choose manner of investigation. None is above the law and the petitioner cannot seek special treatment.

We all know that free and fair trial is sine qua non of Article 21 of the Constitution, the apprehension of denial must be reasonable and not imaginary. Reasonableness would obviously depend on the facts and circumstances of a case and their evaluation by the Courts.

It is true that Court has duty to protect and promote citizens’ right and liberty guaranteed under Article 21 of the Constitution of India. This does not mean that right is allowed to be used by a person to enjoy special treatment to keep him away from interrogation by the Investigating Agency under Section 160 of the Code of Criminal Procedure.

Right guaranteed under Article 21 of the Constitution of India does not prohibit arrest on reasonable ground. It cannot be denied that arrest or custody can cause harm to the reputation of a person. As such arrest or custody of person should not be effected on the ground of mere suspicion, but only after a reasonable satisfaction that such arrest or custody is needed for the purpose of ensuring fair investigation.

In the case at hand, the petitioner has failed to substantiate the allegation that he is being called by the C.B.I. for interrogation to harass him, and to injure his reputation.

From the replies given by the petitioner in response to the notices issued under Section 160 of the Code of Criminal Procedure, it appears that, the petitioner took various pleas to avoid interrogation by the C.B.I. The investigating agency is required to find out larger conspiracy. Without cooperation and assistance from all corners, it would be difficult for the investigating agency to find out the truth. It should be the duty of every responsible Officer to assist the investigation.

At the time of making his submission, Learned Counsel appearing for the petitioner has given emphasis on Article 21 of the Constitution of India. He has submitted that in absence of statutory provision, the petitioner cannot be taken into custody. It is his specific contention that our law is quite silent regarding conversion of an witness into an accused. Interrogation of a witness or a suspect under Section 161 of the Code of Criminal Procedure is the part of investigation. If during interrogation the Investigating Officer is satisfied that the person concerned has committed a cognizable offence, then the law permits the Investigating Officer to arrest that person subject to the provisions as contained in the Code of Criminal Procedure. Prior to interrogation or investigation, it cannot be said whether the person who is served notice under Section 160 of the Code of Criminal Procedure would come in the category of a witness or an accused. When a witness becomes an accused, he is entitled to the rights available to the accused. If commission of a cognizable offence by a person is detected in course of interrogation then the law permits the Investigating Officer to arrest that person without warrant and without leave of the Court.

In this connection, I would like to mention that the Investigating Officer has to justify the arrest of any person. Section 60A of the Criminal Procedure Code may be mentioned here:-
“60-A. Arrest to be made strictly according to the

Code.- No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.”

In the decision of Hema Mishra Vs. State of Uttar Pradesh and Others reported in (2014)4 SCC 453 in paragraph 29 here as under:-

29. In Joginder Kumar v. State of U.P. [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172 : 1994 Cri LJ 1981] the Supreme Court observed: (SCC p. 267, para 20)

“20. … No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.”

In the decision of Babubhai Vs. State of Gujarat and Others reported in (2010)12 SCC 254 our Apex court observed that fair investigation is a part of Constitutional Right that is guaranteed under Articles 20 and 21 of the Constitution. So, investigation must be fair,

transparent and judicious and accordingly, the investigating agency cannot be permitted to conduct the investigation in a tainted and biased manner.

The issuance of notice to a witness requiring his attendance for interrogation in connection with the case, cannot said to be grounds for the claim, that the investigating agency is conducting the investigation in a biased manner.

Article 21 of the Constitution of India deals with the Right to Liberty. According to this Article no person shall be deprived of his life and liberty without due process of law. At the time of making his submission the Learned Counsel appearing for the petitioner has given emphasis and reiterated that the reputation of the petitioner has been tarnished.

It is true that the right to life and personal liberty protected by Article 21 is not an absolute right but a qualified right. The right as contained in Article 21 does not confer any fundamental right to a person to refuse or not to be interrogated by the Investigating Officer, when he is served notice under Section 160 of the Code of Criminal Procedure. Section 157(1) of the Code of Criminal Procedure provides that a Police Officer shall investigate a case relating to a cognizable offence and if necessary, take necessary measures for the arrest of the offender.

Argument has been advanced on behalf of the petitioner that the petitioner’s right to reputation has been infringed. This submission has no basis at all considering the facts and situation as discussed above.

From the submission and rival submission of the parties and the materials placed on record it appears that the petitioner is not an accused till today. The status of the petitioner in connection with criminal proceedings pending before the Learned Special Judge has not yet been settled. The quashing of an First Information Report or a criminal proceedings, at the instance of a 3rd party is unknown to law.

During the pendency of the application, the petitioner has moulded his prayer and sought for a direction upon the opposite party that no coercive step against him shall be taken by the opposite party without specific leave of this Court on an application by the opposite party with due notice to the petitioner showing the materials which necessitates so called custodial interrogation of the petitioner.

Learned Senior Counsel for the petitioner has drawn the attention of the Court to Section 482 of the Code and submitted that in exercise of inherent power Court can grant appropriate relief to the petitioner.

Section 482 of the Code envisages three circumstances under which the inherent jurisdiction may be exercised namely –

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of the Court and

(iii) to otherwise secure the ends of justice.

The present application does not come within the purview of Section 482 of the Code of Criminal Procedure and it cannot be said that continuance of the Criminal Proceedings in respect of R.C-04(S) 2014 would be an abuse of the process of the Court.

I have already observed that at present the petitioner has no locus standi to pray for quashing of the criminal proceedings pending before the Learned Court below. The prayer which has been moulded by the petitioner by way of submitting supplementary affidavit cannot be granted to him, since the investigation of a cognizable offence is a statutory right of the police and the Court should not obstruct the track of investigation so long as the investigating agencies are within their legal bounds.

Confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entries in the case diary to the person against whom the Investigating Agencies intend to take action. Moreover, the nature of the relief sought for, is blanket protection of not arresting the petitioner in connection with the impugned criminal proceedings except after making an application before this Court by the C.B.I. and disclosing the materials against him. This type of protection as prayed for by the petitioner is not available under the law and cannot be entertained. If the relief as prayed for is granted, then it would cause unnecessary interference with the investigation.

The application under Section 482 of the Code of Criminal Procedure is devoid of merit and stands dismissed.

Interim order stands vacated.

Re: CRAN 2331 of 2019

In view of the judgment passed in C.R.R.1308 of 2019, the C.R.A.N.

2331 of 2019 application becomes infructuous and stands dismissed. Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.

(Madhumati Mitra, J.)

13/09/2019

Ahmed Hossain Versus The State of West Bengal and Anr- 29/08/2014

On consideration of the deed of revocation of power of attorney, it is found that the petitioner appointed and authorized the accused no. 1 as his power of attorney holder for developing the premises by way of new construction after obtaining sanction plan from C.M.C. but as the power of attorney holder, the accused no. 1 failed to perform the duties, the power of attorney was revoked and cancelled. There is no remote indication that the petitioner by that power of attorney, now revoked, also authorized and empowered the accused to collect money from the prospective buyers on his behalf. Undoubtedly no case is made out against the petitioner for having committed offences punishable under sections 420/120B IPC for which he has been charge sheeted. On a mere allegation that there was a collusion between the petitioner and the accused no. 1 , without anything more, submission of charge sheet against the petitioner is not at all justified.

In the High Court at Calcutta

Criminal Revisional Jurisdiction

Appellate Side

Present : The Hon’ble Justice Ashim Kumar Roy

CRR No. 2590 of 2014

Ahmed Hossain

Versus

The State of West Bengal and Anr.

Acts : Sections 420/120B IPC and Section 482 CrPC

For the petitioner : Mr. Syed Arif Ahmed

For the State : Mr. Imran Ali

For defacto-complainant : Mr. Masud Karim

Heard on : 29-08-2014

Judgment on : 10.9.2014

Ashim Kumar Roy, J.:

Invoking Section 482 CrPC, the petitioner, who has been charge sheeted along with another for the offence punishable under Sections 420/120B IPC, has approached this court for quashing of the charge sheet so far as he is concerned.

A charge sheet can very well be quashed, if going through the allegation made in the FIR and materials collected during investigation and accepting the same to be true, it is found that out of that no offence, for which charge sheet has been submitted, is made out. It can also be quashed against a particular accused when although the allegation made out the offence but there is nothing that such accused is a perpetrator of such offences.

Now, on perusal of the FIR, it is found the case of the de facto complainant against the petitioner and another is confined to the allegations made in paragraphs 3, 4, 5, 6, 7 and 8 thereof, which are quoted below:

The de facto complainant is the family physician of the accused no. 2, Ahmed Hossain and the accused no. 2 introduced him with the accused no. 1, Ali Haider, a promoter and developer. The accused no. 2 was the owner of premises No. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017.

It was the further case of the de facto complainant as he was in urgent need of a residential flat and the accused no. 1, Ali Haider in the month of December, 95, told the petitioner he could arrange one rental basis a flat for him at the premises no. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017. When believing the rosy picture given by the accused no. 1, Ali Haider, the de facto complainant on December 12, 1995, entered with an agreement with him and in the said agreement the accused no. 1 was agreed to deliver and hand over the possession of a flat on rental basis to the de facto complainant at the premises no. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017. Thereafter, on such representation of rosy picture and in pursuance to the agreement executed on December 20, 1995, the de facto complainant paid a total sum of Rs. 1,13,000/- by December 20, 1996, out of the agreed amount of Rs. 2.5 lakhs to the accused no. 1 in the manner as follows,

(1) 01.01.96 Rs. 8,000/-
(2) 31.07.96 Rs. 30,000/-
(3) 09.08.96 Rs.25,000/-
(4)08.10.96 Rs.5,000/-
(5)18.11.96 Rs.5,000/-
(6)20.12.96 Rs.40,000/-
……………………….

Rs. 1,13,000/-

………………………..

The receipt of the aforesaid amount was duly acknowledged by the accused no. 1

However, when the de facto complainant on March 10, 2005 met the accused no. 1 and offered him to pay the balance amount pursuant to the said agreement, the de facto complainant came to know that the accused no. 1 in collusion with accused no. 2 had already handed over the said flat to a third party without his consent and knowledge and the accused no. 1 flatly denied about the receipt of the aforesaid sum of Rs. 1,13,000/-and also the agreement. The de facto complainant on several occasions requested the accused no. 1 and 2 to give him the possession of the flat but neither the possession of the flat was given to him nor the advance money was refunded.

Therefore, the only allegation against the petitioner is that he introduced the accused no. 1, Ali Haider with the de facto complainant and in collusion with the petitioner, the accused no. 1 Ali Haider handed over the flat to a third party although received an advance from the de facto complainant for the same, without his consent and knowledge. According to the de facto complainant, the aforesaid amount was given to the accused no. 1 Ali Haider and the agreement was entered into between the de facto complainant and the said Ali Haider. There was no allegation that any money was paid to the petitioner or he was a party to the agreement. Although it is alleged that in collusion with the petitioner the accused no. 1 Ali Haider handed over the flat to a third party in spite of receipt of advance but nothing has been disclosed how they have colluded. Even assuming the accused Ali Haider, obtained advance from the de facto complainant for the flat in question dishonestly by making a false representation, still for selling out the flat to a third party without his consent and if such sale was made in collusion with the petitioner, he cannot be charged for conspiracy to cheat or for cheating, in absence of any allegation that the petitioner was a party to such conspiracy from the very beginning when the advance was obtained.

It is further found from the perusal of the case diary that during the course of investigation only one witness was examined but according to the statement of such witness nothing further disclosed implicating the petitioner in the commission of the offence. It is further found police also seized some money receipt but those money receipts clearly show that the amount was received by the accused no. 1 Ali Haider not by the present petitioner. There is also no allegation on being deceived by the petitioner the above amount was given to the accused no. 1 Ali Haider.

The learned counsel appearing on behalf of the de facto complainant submitted that the petitioner by executing a power of attorney authorised the principal accused to collect money from different persons including the present petitioner for providing them flats and on the strength of such power of attorney, the said sum of Rs. 1,13,000/- was obtained by the principal accused from the present petitioner.

However, going through the case diary, I do not find the purported power of attorney is the part of the charge sheeted materials. Therefore, there is no scope available to this court to consider the content of such power of attorney. The learned counsel for the de facto complainant also invited the attention of this court to annexure P/2 of the criminal revision and pointed out that the same was the revocation of the power of attorney. This document is also not a part of the case diary. In any event, on consideration of the deed of revocation of power of attorney, it is found that the petitioner appointed and authorized the accused no. 1 Sk. Ali Haider as his power of attorney holder for developing the premises no. T-47A Monoranjan Roy Chowdhury Road, (North Range), Kolkata-700 017 by way of new construction after obtaining sanction plan from C.M.C. but as the power of attorney holder, the accused no. 1 Sk. Ali Haider failed to perform the duties, the power of attorney was revoked and cancelled. There is no remote indication that the petitioner by that power of attorney, now revoked, also authorized and empowered the accused Sk. Ali Haider to collect money from the prospective buyers on his behalf.

Having regard to above, undoubtedly no case is made out against the petitioner for having committed offences punishable under sections 420/120B IPC for which he has been charge sheeted. On a mere allegation that there was a collusion between the petitioner and the accused no. 1 Sk. Ali Haider, without anything more, submission of charge sheet against the petitioner is not at all justified.

In the result, the impugned charge sheet against the petitioner stands quashed.

This criminal revision is allowed and disposed of.

Urgent xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making such application.

(Ashim Kumar Roy, J.)

10.9.2014

Subhra Mukherjee vs M/S. Bengal Media Pvt. Ltd-10/01/2014[CHC]

Order 8 Rule 10 of the Code of Civil Procedure should not act blindly on the averments made in the plaint and passed a judgment merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein.

CALCUTA HIGH COURT [ ORIGINAL SIDE ]

Subhra Mukherjee vs M/S. Bengal Media Pvt. Ltd

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

Present : The Hon’ble Justice Soumen Sen

C.S. 173 of 2013

For the plaintiff : Mr. Jishnu Chowdhury,
Md. Arif
Mr. Soumabha Ghose

Heard on : 26.11.2013, 29.11.13, 03.12.13,
10.12.2013, 17.12.2013, 06.01.2014,
07.01.2014, 09.01.2014,

Judgment on : 10th January, 2014

Soumen Sen, J:– The plaintiff has instituted the suit for recovery of possession of the Scheduled portion of Premises No.63, Rafi Ahmed Kidwai Road, Kolkata – 700 016 as described in Schedules A and B to the plaint and other monetary reliefs. The owner of 5000 sq.ft. super built up area on the second floor and 120 sq. ft. area on the roof of Premises No.63, Rafi Ahmed Kidwai Road, Kolkata – 700 016 (hereinafter referred to as ‘first demised portion’) and 1000 sq. ft. super built up area on the ground floor of the said premises (hereinafter referred to as ‘second demised portion’). The plaintiff demised the said portion of the premises to the defendant by and under three documents, namely, 31st October, 2009 and 1st July, 2011 in so far as it relates to the first demised portion and 16th July, 2010, with regard to the second demised portion.

Until determination of the tenancies, the defendant was paying Rs.1,32,000/- per month in respect of the first demised portion and Rs.45,000/- with the regard to the second demised portion. Due to default in making payment of rents in respect of both the demised portions, the plaintiff issued three several notices all dated April 25, 2013, under Section 106 of the Transfer of Property Act and called upon the defendant to quit, vacate and make over khas and vacant possession of the aforesaid tenanted portions within 15 days from the date of the receipt of the said notice. The defendant received the said notices on 25th April, 2013. However, the defendant had failed and neglected to make over possession of the demised portions to the plaintiff. Hence this suit.

In spite of service of writ of summons, the defendant did not enter appearance in the suit. The report of the Deputy Sheriff dated 28th November, 2013 shows that writ of summons have been duly served upon the said defendant. In spite thereof, the said defendant had failed to appear and contest the proceeding.

Although the plaintiff is not obliged to adduce any evidence in view of the failure of the defendant to appear and contest the proceeding in spite of opportunities being given to the said defendant to appear and contest, the plaintiff appears in person as a witness and produced documents to establish her claim in the suit.

The plaintiff has produced oral and documentary evidence to substantiate her claim in the suit. The witness has stated in her deposition that she is the owner of the property in question. The defendant is in occupation of 6120 sq.ft. under two several tenancies. The total rent was Rs.1,77,000/- but after deduction of TDS the plaintiff received Rs.1,60,000/-. The defendant has failed and neglected to pay rent since February, 2013. All the rents collected during the subsistence of the tenancy were deposited with the ICICI Bank, Bhabanipur Branch. In view of the failure to deposit rent, the said two tenancies were terminated by three several notices dated 25th April, 2013 duly signed by the plaintiff. The plaintiff duly identified the signature. The notices were served upon the officers present in the office of Bengal Media Pvt. Ltd. at 63, Rafi Ahmed Kidwai Road, Kolkata tendered by the plaintiff personally.

The copies of the notices were exhibited being Exhibit A (collectively) which would show that the notices were duly served and received by the defendant by putting seal and stamp of the defendant on such notices.

The plaintiff, however, claims that the defendant has failed to pay the electricity and maintenance charges being a sum of Rs.9,32,783/- and Rs.40,000/- respectively. The plaintiff has also claimed mesne profits at the rate of Rs.40,800/- per diem on and from 10th May, 2013. The plaintiff has stated that the agreements dated 31st October, 2009 and 1st July, 2011 in so far as it relates to the first demised portion, are unstamped and unregistered and in so far as the second demised portion is concerned, the agreement dated 16th July, 2010 was termed as leave and licence agreement which had expired on 15th January, 2011 and, thereafter, a monthly tenancy was created upon tendering acceptance of rent at Rs.45,000/- per month. On the basis of the oral and documentary evidence it appears that the defendant is in possession of the suit premises under an unregistered lease and it becomes a tenancy from month to month terminable on the part of either of the parties by 15 days’ notice expiring with the end of a month of the tenancy in terms of Section 106 of the Transfer of Property Act. The ground for termination of the lease appears to be that the defendant has failed to pay the rent since February, 2013. The witness has stated that the last rent received from the defendant was in the month of January, 2013 for a sum of Rs.1,60,000/- after deduction of TDS. Non-registration of the document usually causes two consequences. One is that no lease exceeding one year can be considered to be created and secondly the instrument becomes useless so far as creation of the lease is concerned. Nonetheless, the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the Court to determine whether there was, in fact, a lease otherwise than through such deed.

A lease month by month is determinable either by the lessor or lessee by 15 days’ notice expiring with the end of the month. The lessor is not required to give any reason for determination of such lease. However, the plaintiff would be required to establish such claim. There would not be much difficulty in establishing that arrears of rent had fallen due. The witness has said that the composite rent receivable in respect of the demised portions of the premises is Rs.1,60,000/- after deduction of TDS. However, the plaintiff has failed to establish that the aforesaid sum is not inclusive of maintenance charges. The agreement, on the basis of which the claim on account of maintenance and electricity charges has been made, is not disclosed and not accepted.

The notice terminated the tenancy under Section 106 has been duly served in the mode and manner has required under the said section upon the defendant and the defendant notwithstanding the receipt of such notices did not controvert the statements made in the said notices, not the said defendant is contesting the suit, the Court requires the plaintiff to establish its claim on account of maintenance and electricity charges.

Although, it was open for the Court to exercise its power under Order 8 Rule 5 of the Code of Civil Procedure in view of absence of specic denial to the pleadings of the plaintiff and to take the facts stated in the plaintiff as admitted the Court in its discretion required certain facts to be proved in this proceeding otherwise than by such admission in its anxiety to ensure that merely by absence in finding and/or decision arrived at by this Court may not cause any prejudice to the non- appearing and non-contesting defendants. In fact, in a recent decision reported in 2013 (4) SCC 396 (Shantilal Gulabchand Mutha Versus Tata Engineering And Locomotive Company Limited & Another), the Hon’ble Supreme Court considering the provisions of Order 8 Rule 10 of the Code of Civil Procedure stated that the Court should be little cautious of any proceeding under Order 8 Rule of the Code of Civil Procedure and should not act blindly on the averments made in the plaint and passed a judgment merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. It was stated that before the judgment is passed, it must be ensured that even if the facts set out in the plaint are treated to have been admitted, a judgment would possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of court’s satisfaction and, therefore, only on being satisfied that there is no fact which need to be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who failed to file the written statement. However, if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaintiff itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. (Balraj Taneja v. Sunil Madan; AIR 1999 SC 3381) The evidence of Lalit Mohan Patra, the second witness on behalf of the plaintiff with regard to maintenance and electricity charges appears to be unconvincing and by and large hearsay. The plaintiff has failed to prove its claim on account of maintenance and electricity charges. There is no evidence on record to show that the maintenance and electricity charges constitute components of the rent. It is also not the plaintiff’s case that the electricity consumed by the defendant has been paid by the plaintiff on account of the defendant to the CESC Ltd. and the claim on account of electricity is for reimbursement purpose only. In view thereof, this Court is not inclined to pass any decree on account of maintenance and electricity charges. However, on the basis of the evidence on record, the plaintiff is entitled to a decree for recovery of khas possession of the demised portions as mentioned in Schedule A and Schedule B of the Plaint.

The plaintiff has not adduced any evidence in support of its claim for mesne profits. The learned Counsel appearing on behalf of plaintiff, however, submits that since the tenancy has been determined only recently and the last rent paid represents a reasonable letting out value of the said premises, the Court may determine mesne profits at the rate of Rs.1,77,000/- per month from 1st June, 2013 till recovery of possession. This Court accepts the submissions made on behalf of the plaintiff. Accordingly, there shall be a decree for recovery of khas possession of the demised portions as mentioned in Schedule A and Schedule B of the Plaint. There shall also be a decree for mesne profits at the rate of Rs.1,77,000/- per month from 1st June, 2013 till recovery of possession. The plaintiff shall also be entitled to a decree for a sum of Rs.3,54,000/- being the arrears of rent. The said amount shall carry interest at the rate of 8 per cent per annum till realization.

The Department is directed to draw up the decree as expeditiously as possible.

Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.

(Soumen Sen, J.)

Fateh Chand Agarwalla vs Emperor – 29/8/1916

The Penal Code has not used the expression “custody” in dealing with the servant’s possession on behalf of the master, but it is quite another thing to say that the distinction in law between “custody” and “possession” has been wiped out by the Penal Code

CALCUTTA HIGH COURT

(Constitution Bench- Five Judge)

 Judgment Date: Aug 29, 1916

Fateh Chand Agarwalla vs Emperor

Bench: L Sanderson, A Mookerjee, Fletcher, Teunon, Chaudhuri

JUDGMENT

Lancelot Sanderson, C.J.

1. In this case the charge against the accused was as follows:–That he the said Fateh Chand Agarwalla on or about the 26th day of November in the year of our Lord 1915 in Calcutta aforesaid, fraudulently or with intent that fraud might be committed, had in his possession certain counterfeit coins, that is to say, 160 counterfeit rupees, being counterfeit of the King’s coin, having known at the time when be became possessed of them that they were counterfeit, and thereby he the said Fateh Chand Agarwalla committed an offence punishable under Section 243 of the Indian Penal Code.

2. Secondly, that he the said Fateh Chand Agarwalla at or about the time and in the place aforesaid, fraudulently or with intent that fraud might be committed, had in his possession certain counterfeit coins, that is to say, 3 counterfeit rupees, being counterfeit of the King’s coin, having known at the time when he became possessed of them that they were counterfeit, and thereby he the said Fateh Chand Agarwalla committed an offence punishable under Section 243 of the Indian Penal Code.

3. He was tried at the Criminal Sessions of this Court; the Jury by an unanimous verdict convicted him of both charges and he was sentenced to a term of imprisonment. A representation was made to the Advocate-General, who gave a certificate under Clause 26 of the Letters Patent to the effect that the question whether the direction to the Jury was right in law and whether certain alleged omissions to direct the Jury do not amount to a misdirection, should be further considered by the High Court, and consequently the petition to this Court was presented.

4. The accused had a place of business at 24 Armenian Street, Calcutta, and the case for the prosecution was that the Police in consequence of certain information went, on the 26th November 1915, to the shop of one Soniram in Machua Bazar and searched it. They found in Soniram’s shop 31 counterfeit rupees, dated 1898. In consequence of information received from Soniram the Police proceeded to the shop of the accused; 24 Armenian Street, and arrived there between 10-30 P.M. and 11 P.M. on the same evening. The accused, one Gungasahai, who. was alleged to be the cashier of the accused, and another man named Choteylal, who was alleged to be connected with the business, were present on the premises.

5. The evidence of the Police officer was that in response to a request by him, the accused opened the safe which was locked, and the key of which was produced by the accused. In the safe were found 15 G. C. Notes of Rs. 10 each.

1″ ” ” ” 5 “

1 ” 1000 and 497 rupees; these rupees were in a bag inside the safe.

6. The officer sorted them and found that 160 were counterfeit coins, dated 1898. In a wooden box which was also inside the safe, there were 40 rupees, 3 of which were counterfeit coins dated 1901. These three counterfeit coins were not mixed up with the other coins in the box.

7. The coins were produced; the 160 counterfeit coins of 1898 appeared to be new and were obviously made from the same die, and on comparison with the false coins taken from Soniram’s shop, were found to be similar to them.

8. The accused was arrested. Before the arrest, according to the Police officer’s evidence, he was asked for an explanation; he gave one; thereupon the Police officers proceeded to Strand Road, and searched the house of a Muhammadan, who was afterwards arrested at Dacca; nothing was found at the house of the Muhammadan: the accused also referred the Police officers to Soniram.

9. The case of the accused, to support which Gungasahai and Choteylal were called as witnesses, was that Gungasahai was the cashier, who used to receive the money in the ordinary course of business, and that the daily receipts varied from Rs. 2,000 to Rs. 5,000 a day. That when the Police came to the shop on the 26th November 1915, Gungasahai had the key of the safe, and that he was asked by the accused for the key, and that he gave it to the accused.

10. The case for the defence further was, that Gungasahai must have received the 160 counterfeit rupees, that he did not know they were counterfeit, and it was suggested that the counterfeit money had been received that very day and that it might have been included in a payment of cash, Rs. 222, which Soniram had made that day. Although there were only two payments of cash, of larger amount than Rs. 160, received on that day, viz., one of Rs. 240 from other business premises of the accused, and one of Rs. 222 from Soniram. and although the counterfeit coins were all obviously new and bright coins and, therefore, likely to attract attention, Gungasahai said, he could not make any suggestion from which party the coins came.

11. The first and main ground of the alleged misdirection was the direction given by the learned Judge to the Jury as to the construction of Section 243, Indian Penal Code, under which the charge was brought: secondly, it was contended in argument that the learned Judge should have directed the Jury that there was no evidence (a) to show when, if ever, the counterfeit coins came into the actual possession of the accused, (6) to show that the accused had knowledge of the spurious character of the coins either when they were received by his servant, or at any time before the Police raid.

12. With regard to the construction of the section, the passage of the summing up which was laid before the Advocate-General, and upon which the certificate was based, was taken from learned Counsel’s notes; but admittedly it did not represent a full or complete statement of the learned Judge’s charge on this point. It was as follows:– ‘Counsel for the defence put too narrow a construction on Section 243, Indian Penal Code, when he said that the accused must have knowledge at the time when he became possessed of the coins. Knowledge that the coins were counterfeit at the time when he became possessed of the coins was not necessary. It is enough if the accused subsequently became aware of the spurious nature of the coins.”

13. The learned Judge has supplied the Court and the parties with a memorandum of his summing up made for the purpose of this appeal from his recollection and the notes which he used for his summing up, and it is upon the summing up as shown in the memorandum that the case was argued by both sides.

14. The learned Judge first dealt with the question of fraudulent intent, then with possession, in which connection he drew the attention of the Jury to Section 27 of the Indian Penal Code and pointed out “that the law made possession of the servant on account of his master the possession of the master. The question of possession, therefore, was free from difficulty.”

15. He then dealt with the question of knowledge, and after pointing out that it must be the personal knowledge of the accused, and that the knowledge of the servant would not be sufficient, he directed the Jury that they had to decide two matters in this connection:–(1) Had the accused knowledge that he was possessed of counterfeit coin? (2) If he had knowledge, did he intend fraudulent use and, if so, at what time did he so intend?

16. After dealing with the first point and telling the Jury that they had to find on the evidence whether the accused had actual knowledge or not, he then proceeded to direct the Jury as to the time of knowledge in connection with intention as follows:–

The next point was about the time of knowledge in connection with intention. The section says ‘having known at the time when he became possessed of it.’ I thought that Counsel for the defence had put. Too narrow a construction upon it. I was of opinion that it referred to the time of conscious possession so far as the accused was concerned, that it need not be the time when the servant received the money. I thought that it referred to the time when the master came to know that the coin had been received. The point to consider was, had the accused fraudulent intention at that point of time when he became aware of the possession, became conscious of the possession or had knowledge of it. Such knowledge need not be contemporaneous with the receipt of the coin if the accused did not receive the money, but someone else had received it on his behalf. So to construe would be to restrict the scope of the section. The essential point was, was the accused fraudulently, or with fraudulent intention, in possession, having known, at the time he became aware of the possession, that coin was counterfeit. That was, I thought, the meaning of the section. The man may not have been present when his servant received it. There was no evidence in this case that he was. I cautioned them more than once that the servant’s knowledge, if any, could not be attributed to the master. I also told them that possession involved the idea of retention. They had also to consider whether the money was kept in possession with a fraudulent intention, and was such intention formed at the time when the fact of possession became known to the accused, if he came to know it at all. I explained why I thought the section difficult to apply.

17. I agree with the learned Judge that this section is one which it is difficult to apply, but with great deference to him, I do not think that the construction which he placed upon the section, as indicated in his summing up, is correct.

18. To constitute an offence under this Section, (1) it must be proved that the accused was in possession of the coin.

(2) that the coin was counterfeit of the King’s coin.

(3) that the accused was in such possession fraudulently or with intent to defraud.

(4) that at the time he became possessed of such counterfeit coin, he knew it to be counterfeit.

19. Section 27 of the Indian Penal Code provides that when property is in the possession of a person’s wife, clerk, or servant on account of that person, it is in that person’s possession within the meaning of this Code, and by Section 7 of the Indian Penal Code, it is enacted that every expression, which is explained in any part of this Code, is used in every part of this Code in conformity with the explanation.

20. Consequently Section 243 must be read in view of these two sections, and therefore, two kinds of possession may have to be considered in connection with a case under this section, viz., the possession of the accused person himself and the possession of an accused person’s wife, clerk or servant on account of that person.

21. In the case now before us it was alleged by the defence that the counterfeit coins must have been received in the first instance by the servant of the accused, viz., Gungasahai, and that they remained in his possession; on the other hand it was urged for the prosecution that the counterfeit coin was found in the locked safe of the accused; that the accused kept the key and the number of counterfeit coins was large and that from such facts it was only reasonable to suppose that the accused was in possession of the coins and that he must have known when he became possessed of them that they were counterfeit. Having regard to the facts and the contentions on this part of the case, in my judgment a direction should have been given to the Jury to the effect that they should come to a decision (1) whether the counterfeit coins were in the possession of the accused, or in the possession of his clerk or servant on behalf of the accused: and second, if they came to the conclusion that the coin? were in the possession of the accused, they would then have to decide whether he knew, at the time when he became so possessed of them, that the coins were counterfeit: third, if they came to the conclusion that the coins were in the possession of the clerk or servant on behalf of the accused, they would then have to decide whether at the time the clerk or servant on behalf of the accused became possessed of the counterfeit coins, the accused himself knew that they were counterfeit. I do not find that these questions were put either directly or indirectly to the Jury; on the contrary the Jury’s attention was directed to a question which was said to be the essential question, viz, whether “the accused was fraudulently, or with fraudulent intention, in possession, having known at the time he became aware of the possession that the coin was counterfeit.” This was in my judgment not a correct direction, and for the reasons given above: and while agreeing with the learned Judge that the section is a difficult one to apply, I must with deference differ from him on the point of construction. In view of the above conclusion it is not necessary to give any opinion as to the second contention as to the alleged omission of the learned Judge to direct the Jury. It was also urged during the course of the argument that the learned Judge ought not to have left the case to the Jury at all, as there was no evidence on which the charge could be supported.

22. I do not think this really was open to the learned Counsel for the accused in view of the terms of the certificate of the Advocate-General; but even if it was open for argument, in my judgment there was evidence which the learned Judge was bound to leave to the Jury in support of the charge.

23. In view, however, of the fact that I think there was a misdirection, as already indicated, in a part of the summing up, which related to a material and essential element of the charge, I think the conviction should be set aside. I do not think the facts are so clear that we should be justified in saying that the misdirection has not in fact occasioned a failure of justice.

24. In my judgment, therefore, the conviction should be set aside.

Mokerjee, J.

25. This is an application for review of a criminal case on the certificate of the Advocate-General under Clause 26 of the Letters Patent. The petitioner Fateh Chand Agarwalla was tried at the third Criminal Sessions of this year on a charge of offences punishable under Section 243 of the Indian Penal Code, and, on the unanimous verdict of the Jury, was convicted and sentenced to undergo rigorous imprisonment. The accused then applied to the Advocate-General and obtained a certificate that “in his judgment, whether the direction to the Jury (hereinbefore specified) was right in law and whether the alleged omissions to direct the Jury do not in law amount to a misdirection should be further considered by the High Court.” To determine the points of law certified by the Advocate-General, it is necessary to give a brief outline of the history of the trial.

26. The accused is the owner of two flour mills, one in Armenian Street, the other in Hanspukur Road, and carries on considerable business. On the 26th November 1915, Purnachandra Lahiri, Assistant Commissioner of Police, received information that there were counterfeit coins in the shop of one Soniram Agarwalla in Machua Bazar Street. Lahiri searched the shop that very day, and found 31 spurious coins which bore the year 1898. Soniram gave him certain information, and he raided the shop of the accused in Armenian Street late in the evening between 10-30 and 11 P.M. The case for the prosecution is that they found in an iron safe (the key of which was produced by the accused) 160 counterfeit coins (1898) similar to the 31 coins found in the shop of Soniram. The Police further found 3 counterfeit coins, which bore the year 1901, in a wooden box inside the safe. The 160 coins were found in a bag mixed up with 337 genuine rupees. Inside the safe, there were also 37 genuine rupees and currency notes to the extent of Rs. 1,555. The Police took charge of the currency notes (Rs. 1,555), the genuine coins (Rs. 374), and the counterfeit coins (Rs. 163). At the time of the search, there were present in the shop, besides the accused, one Gungasahai, alleged to be his cashier, and another man named Choteylal, said to be his partner in the Electric Flour Mill. The case for the defense was that his cashier receives, as a rule, all moneys paid into the shop, that on the day of the incident Gungasahai was the cashier, that he himself did not receive the counterfeit coins, that it was quite likely ‘that the coins were included in a payment of Rs, 222 made on that date ,by Soniram for goods supplied oh the 23rd November, and that, as payments had been made by other persons also on the same date, it was impossible to state with certainty how or from whom the spurious rupees were received. In support of the defence, both Gungasahai and Choteylal were examined, and what purported to be the account books of the firm were also produced. In these circumstances, the question arises, whether there was an error of law in the charge to the Jury.

27. Section 243 of the Indian Penal Code is in these terms: “Whoever fraudulently or with intent that fraud may be Committed is in possession of counterfeit coin which is a counterfeit of the Queen’s coin having known at the time when he became possessed of it that it was counterfeit, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.”

28. To establish that the accused has committed an offence under this section it must be proved, (1) that the coin in question is a counterfeit of the Queen’s coin;

(2) that the accused was in possession of it;

(3) that he was in possession thereof fraudulently (that is, with intent to defraud, or with intent that fraud might be committed);

(4) that at the time that he became so possessed thereof, he knew it to be counterfeit. The term “possession” has to be interpreted in the light of Section 27, which by virtue of Section 7 is applicable wherever the term is used in the Code. Section 27, which abolishes the distinction recognized in English Law between possession and custody, provides as follows:

When property is in the possession of a person’s wife, clerk or servant, on account of that person, it is in that person’s possession within the meaning of this Code.

29. Consequently, an accused charged under Section 243 may be proved to be in possession within the meaning of that section, if he is in possession in either of two modes, namely, (a) he may be in possession of the coin himself, or (6) he may be in possession, because his wife, clerk or servant is in possession of the coin on his account. It is plain that whichever mode of possession is established, it is essential to prove that at the time the accused became possessed of the coin, he knew it to be counterfeit. The vital point of the matter, then, is to determine the precise moment when the accused becomes possessed of the coin in either of the two modes whereby possession may be acquired. If the coin is delivered directly into the hands of the accused, there is no room for controversy that he does, at that moment, become possessed of it, and, in such a case, it is necessary to establish that the accused knows that the coin is’ counterfeit when it is so delivered to him. When, however, the coin is delivered to the wife, clerk or servant of the accused, a different question arises, a question which may be by no means easy of solution in the circumstances of a particular case. Possession of property by the wife, clerk or servant of a person is, under Section 27, his possession, only if the possession is on his account. Consequently, when a spurious coin is delivered to the wife, clerk or servant of a person, it does not necessarily follow that he is in possession from that moment; it must further be shown that tie person to whom it has been delivered possesses it on his account. Questions of extreme nicety may, in this connection, arise on the facts of some cases, as may be seen from the decisions in Reg. v. Boober (1850) 4 Cox. C.C. 272 and Anglo-American Oil Co. v. Manning (1908) 1 K.B. 536 : 77 L.J.K.B. 205 : 98 L.T. 570 : 6 L.G.R. 299 : 72 J.P. 35 : 24 T.L.R. 215. There may, on the other hand, arise obviously simple cases, as in Reg. v. Weeks (1861) 8 Cox. C.C. 455 : L. & C. 18: 30 L.J.M.C. 141 : 7 Jur. (N.S.) 472 : 4 L.T. 373 : 9 W.R. 553. For example, A asks a coiner, B, to supply him with 100 spurious coins and instructs him to leave them with his servant if he is not at home; as soon as the parcel is delivered to the servant, A is in possession of the coins. On the other hand, suppose B, a coiner, delivers to the servant of A, without the knowledge of A, a packet of spurious coins; it cannot be said that A is necessarily in possession of the coins from the moment of their delivery to his servant. Consequently, when property is in the possession of a servant, it is essential to determine, whether, upon the special facts of the case, it can be said that he is in possession on account of his master. This may be answered in the affirmative, either because, from the very moment when the property comes into the possession of the servant, he was in possession on behalf of his master, or because, though not in possession on his behalf at that time, he becomes so possessed later on by reason of events subsequent. When this moment of time has been determined, there must be proof that at that moment the accused had knowledge that the coins are counterfeit. In my opinion, the charge in this case should have specified that the first point for the Jury to determine was, whether the coins had been delivered to the accused himself or to his cashier. The charge should further have specified that the second point for determination by the Jury would depend upon their view of the first question. If they found that the coins had been delivered to the accused himself, they would have to determine whether, when he received the coins, he knew that they were counterfeit; if, on the other hand, they came to the conclusion that the coins were delivered to the cashier, they would have to decide, whether from the moment of such delivery or only from a later period, the possession of the cashier was on account of the accused. They would finally have to decide, whether at the time when the cashier could be said to be in possession on account of his master, the master had knowledge that the coins were counterfeit. After a careful perusal of the notes of the charge as drawn up by the learned Judge, I regret I cannot see any escape from the conclusion that the charge involved an error of law, inasmuch as it was based on an erroneous view of the requirements of Section 243, specially with reference to the element of time when the accused must be proved to have known that the coins were counterfeit. I may add that I have based my conclusion, not upon the notes supplied by Counsel, but upon the notes of the learned Judge himself, for, as pointed out in a long series of decisions mentioned in the case of Emperor v. Upendra Nath Das 30 Ind. Cas. 113 : 21 C.L.J. 377 : 19 C.W.N. 658 :16 Cr. L.J. 561, the statement of the Judge who presides at the trial as to what actually took place before him is conclusive. But though the version of the charge, whereupon the certificate of the Advocate-General was granted, differs in certain respects from, the substance of the charge as given by the learned Judge, the certificate does, in my opinion, substantially bring out the question in controversy, and it has consequently not been necessary to require an amended certificate, as was done in the case of Emperor v. Upendra Nath Dae 30 Ind. Cas. 113 : 21 C.L.J. 377 : 19 C.W.N. 658 :16 Cr. L.J. 561; there the Court found that the questions sought to be raised on review were fundamentally different from the points of law specified in the certificate of the Advocate-General. I desire to add further, as the application for review is based on allegations of not only erroneous direction but also non-direction, that, in my opinion, mere non-direction is not necessarily misdirection. The true rule on the subject was enunciated by Lord Alverstone, C.J., in Rex v. Stoddart (1909) 2 Cr. App. Rep. 217 at. p. 246 : 73 J.P. 848 : 53 S.J. 578 : 25 T.L.R. 612: “it is no misdirection not to tell the Jury everything which might have been told them. Again, there is no misdirection unless the Judge has told them something wrong, or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not misdirection, and those who allege misdirection must show that something wrong was said or that something was said which would make wrong that which was left to be understood.”

30. In the view that there was misdirection in the charge to the Jury, the question arises, what course should be pursued. Reference was made on behalf of the Crown to Section 537 of the Criminal Procedure Code, 1898, which provides that no sentence passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII (confirmation of sentences of death), or on appeal, or revision, on account of any misdirection in any charge to a Jury, unless such misdirection has in fact occasioned a failure of justice. But Section 537 is clearly of no avail. In the first place, the section has no application to a case reviewed under Clause 26 of the Letters Patent. The proceeding is not by way of appeal, which is expressly excluded by Clause 25; nor is it in the exercise of revisional jurisdiction, which is created by Clause 28; and it is needless to observe that it does not fall within the scope of the chapter which deals with the confirmation of sentences of death. In the second place, even if Section 537 had applied, I would not hesitate to hold on the facts of this case that the misdirection had in fact occasioned failure of justice. We must, consequently, consider the scope of the authority of the Court under Clause 26 of the Letters Patent.

31. Mr. Norton contended, on behalf of the accused, that if the Court comes to the conclusion that the Jury were misdirected, there is no option left to the Court but to set aside the conviction and acquit the accused. In support of this argument, he relied upon the decision of the Judicial Committee in Subrahmania v. King-Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271. Mr. Mitter, on behalf of the Crown, contested the validity of this contention as opposed to the settled practice of this Court. The question raised, if it were res integra, must be deemed not free from difficulty. Clauses 25 and 26 make it plain that, when a point or points of law have been reserved or have been certified by the Advocate-General as erroneously decided or as worthy of further consideration, the Court has full power and authority “to review the case or such part of it as may be necessary, and finally determine upon such point or points of law, and thereupon to alter the sentence passed by the Court of Original Jurisdiction and to pass such judgment and sentence as to the said High Court shall seem right.” It is obvious that the intention is that the case should be finally decided on review and not remitted for re-trial. It has also been ruled that when the Court on review holds on the point of law in favour of the accused, it is competent to the Court to consider the whole case on the evidence and to pass such sentence as shall seem right. The Bombay High Court followed this procedure in the cases of Reg. v. Navroji Dadabhai 9 B.H.C.R. 358 and Imperatrix v. Pitamber Jina 2 B. 61 : 1 Ind. Dec. (N.S.) 469; in each instance although the Court decided the question of law in favour of the accused, yet, upon a review of the whole case and an examination of the merits, affirmed the conviction. In this Court, the same procedure was adopted in the cases of Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. : 1 Ind. Doc. (N.s.) 132 and Queen-Empress v. O’Hara 17 C. 642 : 8 Ind. Dec. (N.S.) 967; in each instance, the point of law was decided in favour of the accused; but on a review of the whole evidence, while the conviction was affirmed in the former case, it was set aside in the latter instance. The cases of Queen-Empress v. Shib Chunder Mitter 10 C. 1079 : 5 Ind. Dec. (N.S.) 721 and Emperor v. Upendra Nath Das 30 Ind. Cas. 113 : 21 C.L.J. 377 : 19 C.W.N. 658 :16 Cr. L.J. 561 do not directly touch the present question, inasmuch as the alleged error of law was not established in either instance. The only question thus is, whether the decision of the Judicial Committee in Subrahmania v. King-Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271 overrules in effect the decisions in Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. : 1 Ind. Doc. (N.s.) 132 and Queen-Empress v. O’Hara 17 C. 642 : 8 Ind. Dec. (N.S.) 967. The point is not free from difficulty and deserves much fuller examination than is possible on the arguments addressed to us. The accused, in the case of Subrahmania v. King-Emperor 25 M. 61 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 5 C.W.N. 866 : 2 Weir 271, was charged upon an indictment which contained seven counts and was jointly tried with an abettor who was charged with abetment of the offences set out in three of the counts. The accused was convicted and sentenced to undergo imprisonment and to pay a heavy fine. He then obtained a certificate from the Advocate-General under Clause 26 of the Letters Patent, and the points of law were heard by a Full Bench of six Judges. The Judges were equally divided in opinion upon the question whether the first count was bad; but the majority were agreed that whether good or bad, its union with the remaining counts made the whole indictment bad for misjoinder; they held, however, that it was open to them to strike out the first count and to deal with the evidence applicable to the remaining counts. The accused contended that the Court was not competent to deal with the case in this manner, to usurp the functions of the Jury and to substitute in essence the judgment of the Court for the verdict of the Jury. The Court overruled the objection raised as to its jurisdiction to review, the case upon the evidence, and the six Judges sat a second time to hear the case on the facts. They examined the evidence, came to the conclusion that the conviction could be sustained on the counts other than the first which they had expunged, and passed sentences on the remaining counts in modification of the original sentence. The accused obtained special leave to appeal to His Majesty in Council. Before the Judicial Committee, the point was pressed that the trial was bad for misjoinder of charges and that the Court had no power, under Clause 26 of the Letters Patent, to decide the case on the residue of the evidence. The Judicial Committee came to the conclusion that the trial had been held in contravention of Section 234 of the Criminal Procedure Code, inasmuch as the accused was charged in the indictment with no less than 41 acts extending over a period of two years, whereas, under the law, he could be tried only for three such offences of the same kind if committed within a period of twelve months. Lord Halsbury, L.C, then proceeded to observe as follows: “Their Lordships think that the course pursued and which was plainly illegal, cannot be amended by arranging afterwards what might or might not have been properly submitted to the Jury. Upon the assumption that the trial was illegally conducted, it is idle to suggest that there is enough left upon the indictment upon which a conviction might have been supported, if the accused had been properly tried. The mischief sought to be avoided by the Statute has been done. The effect of the multitude of charges before the Jury has not been averted by dissecting the verdict afterwards and appropriating the finding of guilty, only to such parts of the written accusation as ought to have been submitted to the Jury. It would in the first place leave to the Court the functions of the Jury and the accused would never have really been tried at all upon the charge arranged afterwards by the Court. Their Lordships cannot regard this as cured by Section 537.” In this view, their Lordships did not consider whether the conviction on any of the counts could be supported on the evidence adduced at the trial, and allowed the appeal. On this judgment, Mr. Norton based the contention that in no circumstances is the High Court competent, under Clause 26, to review the case on the evidence. This raises the question, whether the Judicial Committee intended their observations to be limited to cases of the ype then before them, namely, cases where the trial has been conducted in a mode prohibited by law or, in the words of Lord Russell quoted by them, where the proceedings have been constituted in a way not authorised by law and the rules applicable to procedure; or did the Judicial Committee intend to go further and to include in their observations cases of the type of Reg. v. Navroji Dadabhai 9 B.H.C.R. 358, Queen v. Hurribole Chunder Ghose 1 C. 207 : 25 W.R. 36 Cr. : 1 Ind. Doc. (N.s.) 132 and Queen-Empress v. O’Haru 17 C. 642 : 8 Ind. Dec. (N.S.) 967, where evidence had been erroneously received, or cases of the type of Imperatrix v. Pitamber Jina 2 B. 61 : 1 Ind. Dec. (N.S.) 469, where evidence was improperly rejected, or, again, cases of the type of the one now before us, where the error assigned consists in the erroneous exposition of a principle of law or the constituent elements of the offence charged; or, did the Judicial Committee intend, in substance, to adopt the rule enunciated by themselves in the earlier case of Makin v. Attorney-General for New South Wales (1894) App. Cas. 57 : 63 L.J.P.C. 41 : 6 R. 373 : 69 L.T. 778 : 17 Cox. C.C. 704 : 58 J.P. 148, where they bad emphatically condemned the transference from the Jury to the Court the determination of the question whether the evidence, that is, what the law regards as evidence, established the guilt of the accused? These are questions not wholly free from difficulty, and in the absence of full arguments thereon at the Bar, I must reserve my opinion on them. This is rendered possible, because, in my judgment, an examination of the evidence, assuming it to be permissible, shows that the conviction cannot be sustained. There are lacunas in the evidence which make it impossible for me to hold that the elements essential for conviction under Section 243 have been established. I do not propose to review the evidence in detail; but I desire to state that upon one fundamental point, namely, who had the key of the iron safe, there is really no contradiction. Lahiri stated that the key was produced by the accused; he does not appear to have been cross-examined upon this point. Gungasahai stated that the keys were with him, then when the Police came, his master asked for the keys, that he gave them up and the safe was opened. This witness also does not appear to have been cross-examined on this point. The two statements may obviously be reconciled. If, then, the coins were received by Gungasahai as he would seem to assert, and if the keys were with him when the Police came, how does the prosecution establish the requisite elements under Section 243? The evidence clearly does not prove that the case falls within that section. Much stress was laid on the large number of coins and their appearance, and reference was made to Reg. v. Jarvis (1865) 7 Cox. C.C. 53, (sic). C.C. 552 : 25 L.J.M.C. 30 : 1 Jur. (N.S.) 1114 : 4 W.R. 85, where Rex. v. Fuller (1816) Russell & Ryan. 308 was followed. These cases are of no assistance to the Crown, in the absence of evidence, direct or circumstantial, to show that the accused had seen the coins or had even been aware of their existence in the safe before the Police raided his shop. I also find from the notes of evidence that on behalf of the Crown the suggestion was made to two of the defence witnesses, Gungasahai and Choteylal, that there was an agreement between the accused and Soniram to pass counterfeit coins at a profit. In my opinion, this was calculated to prejudice the accused and was obviously unfair to him, if there was no basis for the suggestion; if, on the other hand, the suggestion was well founded in fact, the Crown should have adduced the evidence at their disposal. It has been repeatedly ruled that the duty of the prosecution is, not to secure a conviction, but to assist the Court in arriving at the truth, and for that purpose to place before the Court all the material evidence at its disposal; Ram Ranjan Roy v. Emperor 27 Ind. Cas. 654 : 19 C.W.N. 28 : 42 C. 422 :16 Cr. L.J. 170; Amritalal Hazra v. Emperor 29 Ind. Cas. 513 : 21 C.L.J. 331 : 19 C.W.N. 676 : 16 Cr. L.J. 497 : 42 C. 957, Emperor v. Nogendra Nath Sen Gupta 30 Ind. Cas. 128 : 21 C.L.J. 396 : 19 C.W.N. 923 : 16 Cr. L.J. 576. On an examination of the whole evidence, my conclusion is that the conviction cannot be sustained.

32. In my judgment, this application must be granted and the conviction and sentence set aside.

Fletcher, J.

33. The only matters that have been certified by the Advocate-General in this case are, first, whether the direction set out in paragraph No. 7 of the petition for review was right in law, secondly, whether the matter set out in paragraph No. 9 of the same petition vitiated the trial, and thirdly, whether the alleged omissions to direct the Jury on the matters referred to in paragraph No. 8 of such petition, amounted to misdirection. The second and third heads may be shortly disposed of. The second head does not represent what in fact took place at the trial. The third head has not been argued before us.

34. We are, therefore, left to deal with the first head, namely, the alleged misdirection set out in paragraph No. 7 of the petition for review.

35. The two charges on which the accused was tried were framed under Section 243 of the Indian Penal Code, namely, of being in possession of certain counterfeit coins with intent to utter the same, the accused having known at the time he became possessed of the same that they were counterfeit. The case set up by the prosecution was as follows:–On the 26th of November last on a search by the Police at a shop at Machua Bazar Street, Calcutta, belonging to one Soniram Agarwalla, thirty-one counterfeit (1898) rupees and other base coins were found. Soniram was arrested. Acting on certain information received from Soniram the Police at about 10-30 or 11 P.M. the same night raided the premises of the accused and found in an iron safe, the key of which was produced by the accused and opened by him, 160 counterfeit (1S98) rupees similar to the 31 counterfeit rupees found in the shop of Soniram. The Police also found 3 counterfeit (1901) rupees in a wooden box inside the safe–the key of which box was also produced by the accused.

36. The 160 counterfeit (1898) rupees were found in the safe inside a bag mixed up wtih 237 genuine rupees. Thirty-seven other genuine rupees and currency notes for Rs. 1,555 were also found in the safe.

37. Now if the case had stopped there, the Jury could obviously have found that the accused had committed the offences with which he was charged. The possession of so large a number as 160 counterfeit rupees all bearing the same date and appearing as if they had recently been issued from the mint, are facts from which the Jury might well have inferred, in the absence of any explanation by the accused, that the accused must have known at the time he became possessed of the same, that they were counterfeit and that the accused could not be in possession of such a large number of counterfeit rupees except fraudulently, or with intent that fraud might be committed. The accused, however, called evidence in support of his defence.

38. The principal witness was one Gungasahai, said to be the cashier of the accused’s firm and so acting in November last. His evidence was to the effect that he received moneys and made payments on account of the accused’s firm and that he never received any counterfeit rupees to his knowledge. He also produced certain books of account alleged to be the books of the accused’s, firm, showing the payment on the 26th of November last of the sum of Rs. 222 by Soniram to the accused’s firm on account of certain goods sold and delivered.

39. Now it seems to me obvious that Counsel for the defence in his address to the Jury had argued that even if the Jury came to the conclusion on the evidence that at the time the accused obtained physical possession of the counterfeit rupees he knew that they were counterfeit, no offence had been committed under Section 243 of the Indian Penal Code, because the evidence called by the defence proved or strongly suggested that moneys paid to the firm were received by the cashier Gungasahai. It seems to have been argued that under the provisions of Section 27 of the Indian Penal Code the possession of Gungasahai was the possession of the accused, and as the accused would not at the very instant become aware of any payments made to his cashier, he would not in the ordinary course know, at the time he became possessed of the counterfeit rupees, that they were counterfeit. In dealing with this argument the learned Judge gave the direction to the Jury that is complained of.

40. If the direction had been in the terms set out in paragraph No. 7 of the petition for review, it would clearly have been a misdirection. The learned Judge has, however, furnished us with a note of his charge to the Jury, and the portion dealing with the argument before mentioned is as follows:–“The section says ‘having known at the time when he became possessed of it’, I thought that Counsel for the defence had put too narrow a construction upon it. I was of opinion that it referred to the time of conscious possession so far as the accused was concerned, that it need not be the time when the servant received the money. I thought that it referred to the time when the master knew that the coin had been received. The point to consider was, had the accused the fraudulent intention at the point of time when he became aware of the possession, became conscious of the possession, or had knowledge of it. Such knowledge need not be contemporaneous with the receipt of the coin if the accused did not receive the money, but some one else had received it on his behalf.” I venture to think that that was a proper direction of the learned Judge to give to the Jury in the circumstances of the case. The cashier Gungasahai was put forward presumably as a witness of truth, and it must be taken in accordance with his evidence that he had no knowledge of the receipt of the counterfeit rupees. If the cashier Gungasahai had no authority to receive counterfeit coins on behalf of the accused and did not in fact know that he had received them, would the fact that the counterfeit coins had passed through the hands of Gungasahai to the accused prevent the accused, if the other elements necessary to prove the offence were present, from being convicted of an offence under Section 243 of the Indian Penal Code? In my opinion it would not. No doubt, under the provisions of Section 27 of the Indian Penal Code when property is in possession of a penson’s wife, clerk or servant on account of that person, it is in the person’s possession within the meaning of the Code, But not every possession of a person’s wife, clerk or servant is his possession–it must be possession on account of that person. For instance, possession by a housemaid of stolen property is not the possession of her master unless the housemaid has been authorised to receive it, or her possession has been ratified, as the receipt of stolen property is not within the scope of a housemaid’s authority.

41. In the present case it is not suggested that Gungasahai had authority to receive counterfeit rupees on behalf of the accused. His possession was not, therefore, I think, on account of the accused, and the learned Judge, I think, correctly directed the Jury that the point of time they had to look at, in the circumstances of the case, was the time when the accused had actual or, as the Judge calls it, conscious possession of the counterfeit coins for determining whether he had knowledge at that time that the coins were spurious. In my opinion, therefore, the direction of the learned Judge, to which the Advocate-General’s certificate relates, was correct. The application for review ought, I think, to be refused.

42. The majority of the Bench, however, are, I understand, of a contrary opinion, and in that view of the case it becomes necessary to consider whether in a review we should affirm the conviction and sentence. The verdict of the Jury, in accordance with the opinion of the majority of the Bench, notbeing a verdict arrived at after proper directions as to the law, we have to review the evidence without having the benefit of an opinion, which we can act on, of the Court which saw the witnesses give their evidence, and observed their demeanour. In that view I think with evidence both on the side of the prosecution and the defence, we cannot say that the defence evidence is so palpably false that a conviction ought to take place.

43. In view of the fact that the majority of the Bench are of opinion that there was a misdirection by the learned Judge, I agree that the conviction and sentence ought to be set aside.

Teunon, J.

44. In this case the petitioner before us one Fateh Chand Agarwalla has been convicted on two charges under Section 243 of the Indian Penal Code. The conviction was had on the 7th July 1916 at the Criminal Sessions holden in this Court, and the matter comes before us on a certificate granted by the learned Advocate-General under the provisions of Section 26 of the Letters Patent.

45. The case for the prosecution was that at about 11 P.M. on the 26th November 1915 the business premises of the accused were searched by an Assistant Commissioner of Police, who, in a safe, the key of which was produced by the accused, found 160 counterfeit rupees bearing date 1898 and three counterfeit rupees bearing date 1901. The 160 were in a bag mixed up with 337 good rupees and the 3 bearing date 1901 were in a wooden box in which it appears there were also 37 good rupees, though in this case the good and the bad were not mixed together.

46. The first count or charge on which the accused has been convicted referred to the 160 rupees bearing date 1898, and the second charge or count to the 3 bearing date 1901.

47. In the safe were also found currency notes aggregating Rs. 1,555 in value and small coins to the value of some Rs. 200. It was the further case for the prosecution that at a search of the shop or business premises of another trader named Soniram Agarwalla, made by the same Assistant Commissioner of Police If hours earlier, 31 counterfeit rupees were found, and that it was on information received from Soniram that the search officer proceeded to the premises of this petitioner. In fact the 31 counterfeit found at Soniram’s were similar to the 160 found in the petitioner’s safe and all appear to be from the same die.

48. The prosecution rested its case on the possession by the accused of this large number of counterfeit coins and left it to the accused to rebut the presumption thereby created.

49. The accused did not deny that the coins were found in his safe, but pointed out that as the owner of two flour mills he had a considerable business and that for the receipt and payment of moneys he employed a cashier by whom moneys received were placed in the safe. He also alleged that in the course of the 26th November a payment of Rs. 222 had been made by the very Soniram in whose possession similar counterfeit coins had been found. In short he denied all personal knowledge of the existence of base coins in his safe and alleged the possibility of a fraud practised upon his cashier by Soniram.

50. In support of his defence the accused examined his cashier Gungasahai and a second witness Choteylal said to be his partner. These witnesses speak of the duties of the cashier, of the extent of the business, of the firm’s dealings with Soniram and of the transaction with the latter on the 26th. The cashier also explained how he tested the coins offered to him.

51. From the learned Judge’s charge to the Jury it would seem that he was satisfied that the accused did in fact carry on an honest business on a considerable scale, and that in this business money came in and went out daily. He appears also to have been satisfied that in the ordinary course of business the money now in question would have been taken in by the cashier and he pointed out to the Jury that it did not appear that the accused was present when the coin was received.

52. It is impossible for us to say what view was taken by the Jury of any particular portion of the evidence, but from their verdict it is clear that they were satisfied that the accused had knowledge of the spurious character of the coins, and intended to make a fraudulent use of them.

53. But in order to a conviction under Section 243 of the Code, the law requires that the accused should have this knowledge that the coin in question is counterfeit “at the time when he became possessed of it.”

54. If we could take it that the Jury had found that the accused had himself received the money from his customer or customers, the case would present no difficulty. The difficulty is caused by the interposition or possible interposition of the cashier. By virtue of Section 27 of the Code the possession of the cashier on account of his master is the master’s possession. Now, on this aspect of the case, the learned Judge directed the Jury to the effect that if the money had in fact been received by the cashier, the requirements of the section would be satisfied if the Jury found that the accused had knowledge of the spurious character of the coin when he “became aware” that the coin had been received or became conscious” of his possession: that is to say, the Jury were directed that if the receipt by the cashier on the account and for the use of the accused and the accused’s knowledge of the receipt were not contemporaneous, the Jury should have regard not to the time of receipt but to the later point of time when the accused’s unwitting possession became conscious possession.

55. With all respect I am unable to agree in this interpretation of the section.

56. In the case of an employer doing a large business, such knowledge or consciousness might be deferred for days. During those days, for all other purposes, for instance, for the purposes of the sections relating to theft, the coins are to be treated as in the employer’s possession; for the purposes of the section under consideration, they are in this view not to be so regarded; for this purpose, the employer’s possession is to Be deferred until he has seen them or been otherwise informed of their true character. But this appears to be contrary to the provisions of Section 7, which requires us to give to the expression “possession” the same sense or value in all parts of the Code.

57. It has been contended that “conscious retention” is implied or is a necessary element in all possession. In so far as that may be so, it would seem that in cases where possession is held or obtained through a servant, the law makes the conscious retention of the servant on the master’s account supply the place of the conscious retention of the employer. It is, of course, otherwise with the knowledge of the base character of the coin. Such knowledge must be personal.

58. It has also been urged that to place upon the section the interpretation which I do is unduly to restrict its scope and to make it extremely difficult of application in the case of shopkeepers, traders or business men. I am not pressed by that argument. I can see no reason on principle why the employer, whose cashier has received bad coin otherwise than in conspiracy with him, should be placed in a worse position than the unwary person upon whom bad coin has been passed. In any case, if there is a defect in the law, the remedy is with the Legislature.

59. In the view I take, reading the verdict with the charge, it cannot, I think, be held that the Jury have found that the accused knew of the spurious character of the coin in question when he first came into possession of or originally obtained it.

60. That being so, we have to consider the case on the merits.

61. The takings in the accused’s business appear to average Rs. 1,000 a day, and it appears to be fairly clear that, in ordinary course, the coins in question would have been received by the cashier. It was apparently not seriously suggested in the Trial Court that the accused and his cashier were engaged in a conspiracy for the object of uttering base coins. If the 160 coins bearing the date 1898 were in fact received from Soniram on the 26th, it is not clear that the accused must have seen them, as it would seem that the practice is that the accounts are made up in the morning. The coins are fresh and this taken with their number should possibly have excited suspicion. Apart from this, these coins are remarkably good imitations. There is no difference in size, the difference in sound and weight is not noticeable, and it is only when the coins come to be examined that the differences in the heading, lettering and effigy, are observed.

62. On the whole, though the case is one of grave suspicion, the accused is, I think, entitled to the benefit of the doubt.

63. I should, therefore, acquit him and direct that his bail-bond be discharged.

Chaudhuri, J.

64. I am of opinion that I correctly interpreted the meaning of Section 243, Indian Penal Code, to the Jury. My note deals with the points raised in the certificate of the Advocate-General, but it may be taken as practically containing the whole of my charge. It sets out my view of the law, but I shall add a few comments on the points discussed before us.

65. Section 27, Indian Penal Code, lays down that when property is in the possession of a servant, on account of his master, it is in the master’s possession. Section 7 says that every expression, which is explained in any part of the Code, is used in every part of the Code in conformity with the explanation. Therefore, “in possession” throughout the Code includes the servant’s possession on account of the master, as the master’s possession. There is, however, a clear distinction in law between “custody” and “possession.” Custody means possession on account of another. A person in possession of his property is not in custody of it, but a servant is, when he holds the property on behalf of his master. Although such possession of the servant is the master’s possession, the possession of the master cannot always be said to be that of the servant, though he may be in charge. Let us take Section 266, Indian Penal Code. It seems to me that the words “in possession” there do not apply to a servant in charge of his master’s shop, in the master’s absence. Learned Counsel for the defence agreed with that view. In England it has been held not to apply to that case. See Smith v. Webb (1896) 12 T.L.R. 450.

66. In the Penal Code different expressions have been used in different places, which indicate that a distinction between being in possession” and “becoming possessed” was intended. Sections 239 and 241 may be referred to in this connection. Section 239 deals with the case of a person “having” any counterfeit coin, which at the time he became possessed of it, he knew to be counterfeit, delivering the same to any person fraudulently.” This section has been held not to apply to a coiner, who manufactures counterfeit coin. He has it, or in other words he is in possession of it, and although he may have intended fraudulent use with it, he is not liable, having regard to the words used in the section, which at the time he became possessed of.” See Queen v. Sheo Bux 3 N.W.P.H.C.R. 150. Section, 241 deals with the time when the person charged “took it into his possession.”

67. The Penal Code has not used the expression “custody” in dealing with the servant’s possession on behalf of the master, but it is quite another thing to say that the distinction in law between “custody” and “possession” has been wiped out by the Penal Code. Confusion has resulted from the two ideas being thus mixed up in Section 27. It is interesting to note that Mr. Norton, senior, objected to Clauses 17 and 18 (the original sections corresponding to Section 27) when the Code was under discussion, as it did not contain the words “with the consent and knowledge of the husband or master.” The Law Commissioners, although they made some alterations which do not affect this point, thought the objections would have weight, if such constructive possession could be charged against the party possessing, as a criminal possession, in order to bring him within the definition of any offence, and to render him liable to a penal prosecution, but said that they were not aware that the clauses in question were capable of being so perverted under the provisions of the Code (see Section 83, The First Report of the Law Commissioners).

68. We are bound to interpret the expression “in possession” according to Section 27, but there is nothing in the Code which lays down that Section 27 must be used to interpret the expression become possessed.” It is clear to me that Section 27 does not express the complete thought of the Legislature on the question of possession and it is competent to us to interpret the words “to become possessed” in accordance with the meaning that the general law has given to them. [See the observations of Holloway, J., in Proceedings, 22nd December 1866 3 M.H.C.R. Appendix xi.] When a servant takes possession on behalf of the master, it does not necessarily follow that it is the master who takes possession. Suppose the servant takes wrongful possession, purporting to do so on behalf of his master, does the master become liable? The master is not liable in civil law, for acts wholly outside the servant’s authority. He is not answerable if the servant takes upon himself, though in good faith, and meaning to further the master’s interest, that which the master has no right to do, even if the facts were, as the servant thinks them to be: [Poulton v. London and South Western Railway Company (1967) 2 Q.B. 534 : 8 B. & S. 616 : 36 L.J.Q.B. 294 : 17 L.T. 11 : 16 W.R. 309]. Much less can the master be held to be criminally liable in those circumstances. It would be to pervert the meaning of the expression, to use the phrase of the Law Commissioners, to put such a construction on a Penal Statute. Possession in law is that of the master. The servant does not become possessed, although he may be in custody, or “in possession.” Dishonest removal of money from the master’s safe in which it has been kept by the servant, is removal from the master’s possession. It is theft of the master’s property, not of the servant. If the servant dishonestly removes the money from the safe, after having kept the money there, he may be guilty of theft, or of criminal breach of trust, according to circumstances. Possession involves the idea of proprietorship, the right to exercise power or control over the object possessed–animus sibi pabendi. “Becoming possessed” of property involves the intention to possess (animus possidendi). A person picks up a coin in his shop dropped by a customer and puts it into his till with the intention of restoring it to the customer, but he does not thereby become possessed, although he is “in possession.” The master becomes possessed, when he personally takes possession on his own account, or when he authorises the servant to take a thing for him, for his benefit, or on his account, or when he consents to or sanctions the retention of the thing received by the servant, or knowingly allows the servant to retain in custody for him. If there be prior authority to the servant, or arrangement with him to receive, the time when the servant receives, is the time when the master becomes possessed. In other cases, the time when the master comes to know or consents or allows the thing to remain with the servant, is the time when he becomes possessed. The master, for purposes of Section 243, may be in possession in two ways, personally or constructively through a servant, but the time when he becomes possessed, is, I have endeavoured to explain, as above, in other words, when it can be held that he was “conscious” of his possession. I hold, therefore, that the law was correctly put before the Jury. Since there was no evidence in this case of any prior authority given to the servant, or of any arrangement with him to receive the counterfeit coin, it was unnecessary to deal with the time of the servant’s receipt. The accused produced the key of the safe and it was opened by him. It was all-important to find, if he had at all come to know that the counterfeit coin was there. The attention of the Jury was prominently called to the point. If they so found, they were asked to consider whether he knew it at the time he became conscious of such possession. This became necessary haying regard to the reading of the section by the defence.

69. It follows that I hold, we cannot interfere with their verdict. I think it right to add, as the facts of the case have been discussed before us, I would not have convicted him if I had tried the case independently of a Jury.

Md. Sarfaraz @ Bonu & Anr. Vs- The Union of India- 09/08/2019[CHC]

Affidavit of a witness with regard to the facts in issue cannot be treated as a statement of the deponent before the Court. Hence, such affidavit cannot be treated as ‘evidence’ under section 3 of the Evidence Act unless the law otherwise permits it.

Act: 20(b)(ii)(c) read with section 29 of the NDPS Act

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Joymalya Bagchi

And

The Hon’ble Justice Manojit Mandal

C.R.A. 667 of 2017

Md. Sarfaraz @ Bonu & Anr. …..Appellants
-Vs-
The Union of India ….Respondent

With

C.R.A. 384 of 2017

Amirul Rahaman …..Appellants
-Vs-
The Union of India ….Respondent

For the Appellant : Mr. Sandip Chakraborty, Adv.
[in C.R.A. 667 of 2017] Mr. Diptendu Banerjee, Adv.
Ms. Sinthia Bala, Adv.
Amicus Curiae : Ms. Meenal Sinha, Adv.
[in C.R.A. 384 of 2017]
For the State : Mr. Sanjoy Bardhan, Adv.
Ms. Trina Mitra, Adv.
For the Union of India : Ms. Hasi Saha, Adv.
Mr. Amajit De, Adv.
For the DRI : Mr. Kaushik Dey, Adv.

Heard on : 26.02.2019, 06.03.2019, 26.03.2019, 03.04.2019,17.04.2019, 08.07.2019, 11.07.2019, 15.07.2019,29.07.2019

Judgment on : 09.08.2019

Joymalya Bagchi, J. :-

Appeals are directed against the judgment and order dated 30.03.2017 and 01.04.2017 passed by the learned Judge, Special Court, NDPS Act, Siliguri in C.R. (NDPS) Case No. 2 of 2012 convicting the appellants for commission of offence punishable under Sections 20(b)(ii)(c) read with section 29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- in default, to suffer further rigorous imprisonment for six months each.

The prosecution case as alleged against the appellants is as follows:-Pursuant to secret information received by DRI, Deputy Director DRI, Siliguri Regional Unit, that five persons will be carrying narcotic drug (Hashish) coach no. S-7, berth no. 23, 31 and 39 of Kanchankanya Express officers of DRI of Siliguri Regional Unit went to New Jalpaiguri Railway Station on 28.01.2012 around 08:00 p.m. to work out the said information. Kanchankanya Express which was scheduled to arrive at NJP station at 20:15 hours was late by half an hour on that day. At 20:50 hours the train arrived at platform no. 3 of the said railway station. Thereupon, DRI officers boarded sleeper coach no. S-7. One Md. Islam was found occupying berth no. 23 while berth no. 31 was occupied by Nasim Akhter and Amirul Rahaman and berth no. 39 was occupied by Kamaluddin and Md. Sarfaraz. They stated that they were travelling together and had boarded the train to proceed to Kolkata. They produced their e-ticket bearing PNR No. 6106317529 of 13150 Kanchankanya Express. Out of the five names printed on the ticket four names tallied with the aforesaid persons whereas the name mentioned in serial no.4 of the ticket was Md. Nadim but actually Kamaluddin was found to be travelling in the said seat. On query the aforesaid persons clarified that the said name had been mistakenly given at the time of booking and Kamaluddin was travelling in the name of Md. Nadim. The said persons were directed to produce their luggage. Upon noticing suspicious circumstances and on preliminary checking of the luggage, the said appellants were directed to accompany the officers to the DRI office at Pradhan Nagar along with their luggage. The officers checked the luggage at the DRI office in presence of independent witnesses. From a trolly luggage bag marked ‘Corallite’, 24 packets wrapped in plastic tapes was recovered. From another luggage bag marked ‘Cloudragon’, 8 identical packets and 2 packets of cylindrical shape wrapped with adhesive tapes were recovered. On unwrapping the packets, 48 cakes of blackish material suspected to be Hashish were recovered from the trolly bag while 12 cakes of similar material suspected to be Hashish were recovered from the eight packets in other bags. 60 and 59 capsules respectively containing contraband suspected to be Hashish were recovered from the two cylindrical packets. Upon weightment, 60 cakes of black sticky material suspected to be Hashish were found to be 30.440 kgs. Weights of 60 and 59 pieces of capsules were noted as 580 gms. and 590 gms. Respectively. Contraband suspected to be Hashish was found from the 119 capsules as per the accused persons. The contraband articles were seized under a seizure list. In total 100 grams of representatives samples were drawn from the seized contrabands and sent for chemical examination. The remaining seized material were kept in an envelope in the godown of the Siliguri Customs and was subsequently disposed of under the supervision of the Magistrate under section 52A Cr.P.C. Statements of the appellants were recorded under section 67 of the NDPS Act where they admitted their guilt and claimed that they had received Hashish from Kathmandu and were taking it to Kolkata. Upon receiving of chemical examiner’s report disclosing that the contraband contained Hashish, complaint was filed against the appellants.

In conclusion of investigation, charges were framed against the appellants under Section 20 (b)(ii)(c) read with Section 29 of the NDPS Act.

In the course of trial prosecution examined 12 witnesses and exhibited a number of documents.

Defence of the appellants was one of innocence and false implication in the instant case.

In conclusion of trial, the trial Judge by the impugned judgment and order dated 30.03.2017 and 01.04.2017 convicted and sentenced the appellant, as aforesaid.

Mr. Sandip Chakraborty, learned Counsel appearing for the appellants in CRA No. 667 of 2017 argued that the prosecution case has not been proved beyond doubt. Evidence of the officers of DRI have not been corroborated by contemporaneous documentary evidence like platform ticket, etc. to show that they had gone to the railway platform and the appellants boarded with their luggage at coach no.7 of Kanchankanya Express. The e-ticket has not been exhibited in the instant case. Name of Kalamuddin does not appear in the e-ticket which was produced in Court. Fokra Alam, official e-ticket seller, who sold the e-ticket has not been examined. Rough seizure list has not been exhibited and P.W. 2 admitted that Ext. 24 cannot be treated as a seizure list with regard to seizure of contraband. Appellants were in the custody of DRI officers at the time when they made statements under section 67 NDPS Act. Such statements are involuntary and inadmissible in law. Independent witnesses (P.W.s 9 and 10) did not support the prosecution case that they were present along with the DRI officials at the railway station. They also admitted that they had been witness in earlier cases. No permission was taken from the Court to send seized materials for FSL examination and there is variation in the weight of the materials sent and the articles which were examined in the instant case. Original contraband was not produced in Court. Finally, it was argued that the examination-in-chief of P.W.s 3 to 8, 11 and 12 – DRI officers and their associates were adduced by filing affidavits and were inadmissible in law as their evidence did not fall within the ambit of section 295/296 Cr.P.C. and therefore could not have been adduced by filing affidavits.

Nobody appeared for appellant in CRA No. 384 of 2017. Ms. Meenal, learned Advocate, was requested to assist the Court as amicus curiae. She made elaborate arguments supporting the submission of Mr. Chakraborty. They submitted written submission in support of their oral arguments.

On the other hand, Mr. Dey, learned Counsel appearing for the DRI submitted that the affidavit evidence of the prosecution witnesses were initiated in terms of the directions of the Apex Court in Thana Singh Vs. Central Bureau of Narcotics, (2013) 2 SCC 590. No objection was raised on behalf of the defence in the course of trial. Hence, the appellants cannot raise objection at the appellate stage in that regard. Evidence of the official witnesses have established the prosecution case beyond reasonable doubt. Independent witnesses have also proved their signature on the seizure list and other documents and were present at the time of recovery of the articles from the luggage belonging to the appellants at DRI office. E-ticket handed over to P.W. 1 was produced in Court. Non-examination of railway officials or local passengers do not affect the unfolding of the prosecution case and the said case cannot be disbelieved on such score. They submitted written arguments to bolster their written submission. Mr. Bardhan for the State supported the submissions of Union of India.

An interesting issue has cropped up in the course of hearing of these appellants. During trial, examination-in-chief of P.W.s 3 to 8, 11 and 12 were adduced by way of affidavit statutory evidence. Learned Counsel for the appellants as well as amicus curiae strongly contended that examination-in-chief of prosecution witnesses cannot be adduced by submitting affidavit evidence. Such procedure is not envisaged in Code and the directions in Thana Singh (supra) cannot be interpreted to permit such a course of action. On the contrary, learned Counsel for the Union of India submitted that the evidence of P.W.s 3 to 8, 11 and 12 fall within the species of ‘official evidence’ referred to in paragraph 12 of the report and since no objection had been taken during trial, the appellants cannot be permitted to raise objection in this regard at the appellate stage.

In a criminal trial, fact must be proved in accordance with procedure established by law.

The Evidence Act and the Code of Criminal Procedure lay down the procedure in which evidence is to be led in a criminal trial, subject, however, to any provision to the contrary in the special law e.g. NDPS Act applicable which is in the present case.

Section 3 of the Evidence Act defines evidence as follows:-

“Evidence”. – “Evidence” means and includes –

(1) all statements which the Court permits or requires to be made before it by such statements are called oral evidence;

(2) all documents [including electronic records] produced for the inspection of the court;
such documents are called documentary evidence.

The aforesaid provision creates two categories of evidence, that is, (i) oral evidence – statement of witnesses made before the Court; and (ii) documentary evidence including electronic records produced before the Court for its inspection. Affidavit of a witness with regard to the facts in issue cannot be treated as a statement of the deponent before the Court. Hence, such affidavit cannot be treated as ‘evidence’ under section 3 of the Evidence Act unless the law otherwise permits it. In criminal trials affidavit evidence may be given in terms of section 295 and 296 thereof which read as follows:-

“295. Affidavit in proof of conduct of public servants. – When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servants, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court mnay, if it thinks fit, order that evidence relating to such facts be s given.

296. Evidence of formal character on affidavit. – (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the applications of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.”

Analysis of the aforesaid sections would show that they operate in completely different fact situation than the present one. P.W.s 3 to 8, 11 and 12 are officers of DRI who were members of the raiding party and had deposed by filing affidavit evidence with regard to the facts they saw and did in the course of the raid. Such evidence is neither in response to any application containing allegations against a public servant nor is it of a formal character, e.g. witness producing official records. There is no provision in the NDPS Act also permitting recording of evidence of members of the raiding party by way of affidavit evidence unlike section 145 of the Negotiable Instrument Act wherein a complainant may adduce evidence on behalf of himself and his witnesses by filing affidavits. Directions in Thana Singh (supra) is to be read in the backdrop of the aforesaid statutory scheme skill relating to criminal trials. In order to ensure enforcement of fundamental rights particularly the cluster of rights incorporated in Article 21 which stood frequently violated due to delay and laches in conducting trials under NDPS Act, the Apex Court in the said report issued various directions and guidelines under Article 141 read with Article 32 of the Constitution of India. With regard to examination of witnesses in trials in NDPS case, the Apex Court directed as follows:-

“11. It would be prudent to return to the erstwhile method of holding “sessions trials” i.e. conducting examination and cross-examination of a witness on consecutive days over a block period of three to four days. This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which, he is liberated from his civil duties qua a particular case. Therefore, this Court directs the courts concerned to adopt the method of “sessions trials” and assign block dates for examination of witnesses.”

In view of the difficulty faced by various agencies in procuring attendance of officers who have been transferred from their parent organizations to different places, the Apex Court further directed as follows:-

“12. The Narcotics Control Board also pointed out that since operations for prevention of crimes related to narcotic drugs and substances demands coordination of several different agencies viz. Central Bureau of Narcotics (CBN), Narcotics Control Bureau (NCB), Department of Revenue Intelligence (DRI), Department of Customs and Central Excise, Stat Law Enforcement Agency, State Excise Agency to name a few, procuring attendance of different officers of these agencies becomes difficult. On the completion of investigation for instance, investigating officers return to their parent organizations and are thus, often unavailable as prosecution witnesses. In the light of the recording of such official evidence, we direct the courts concernd to make most of section 293 of the Code of Criminal Procedure, 1973 and save time by taking evidence from official witnesses in the form of affidavits.”

It has been argued in terms of the aforesaid direction evidence of official witnesses were recorded in the form of affidavits. On the other hand, it is argued that the expressions “official evidence” and “official witnesses” in the aforesaid direction must be restricted to government scientific expert under section 293 Cr.P.C. It is settled law that direction of the Apex Court under Article 141 of the Constitution is in the nature of an imprimatur and is binding on all courts of the country. Whether such declaration of law was made without considering statutory provisions, e.g. section 295/296 Cr.P.C. or not as argued on behalf of the appellants cannot be a matter of adjudication before this Court. It is settled law that a decision of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court. (see Director of Settlement, A.P. Vs. M.R. Apparao, (2002) 4 SCC 638.)

In Suganthi Suresh Kumar Vs. Jagdeeshan, (2002) 2 SCC 420, the Court held as follows:-

“9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.”

Furthermore, in this case the objection with regard to admissibility of affidavit evidence has been raised at the appellate stage and not in the course of trial. As the contents of the affidavits are not inherently inadmissible but their mode and manner of leading evidence is in question, I am of the opinion that the objection thereto must have been raised at the earliest and not at the appellate stage. In this regard, reference may be made to the ratio of the Apex Court relating to objection vis-à-vis proof of electronic evidence sans certification under section 65B of the Evidence Act. The Apex Court in Sonu v. State of Haryana, (2017) 8 SCC 570 held as follows:-

“32. …Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.”

Hence, I am of the opinion that the objection raised with regard to the examination-in-chief of P.W.s 3 to 8, 11 and 12 recorded by way of affidavit cannot be permitted to be raised at the appellate stage. However, in future cases the aforesaid direction given by the Apex Court in Thana Singh (supra) may be considered in the light of advancement in technology particularly availability of video conferencing facilities for recording evidence in criminal cases. Concern expressed in Thana Singh (supra) with regard to delay in examination of official witnesses, due to transfer from parent organization to different places may be effectively addressed if the said witnesses are permitted to record their evidence via electronic/video linkage available in the district court complex nearest to his present place of posting. In State of Maharashtra Vs. Dr Praful B. Desai, (2003) 4 SCC 601 and Sujoy Mitra Vs. State of W.B., (2015) 16 SCC 615, the Apex Court held that examination of a witness via video conference is permissible in law. In Sujoy Mitra (supra), the Apex Court permitted examination of a foreign national via video conference by adopting the following procedure:-

“3.1. The State of West Bengal shall make provision for recording the testimony of PW 5 in the trial court by seeking the services of the National Informatics Centre (NIC) for installing the appropriate equipment for video conferencing, by using “VC Solution” software, to facilitate video conferencing in the case. This provision shall be made by the State of West Bengal in a room to be identified by the Sessions Judge concerned, within four weeks from today. The NIC will ensure, that the equipment installed in the premises of the trial court, is compatible with the video conferencing facilities at the Indian Embassy in Ireland at Dublin.

3.2. Before recording the statement of the prosecutrix, PW 5, the Embassy shall nominate a responsible officer, in whose presence the statement is to be recorded. The said officer shall remain present at all times from the beginning to the end of each session, of the recording of the said testimony.

3.3. The officer deputed to have the statement recorded shall also ensure that there is no other person besides the witness concerned, in the room, in which the testimony of PW 5 is to be recorded. In case, the witness is in possession of any material or documents, the same shall be taken over by the officer concerned in his personal custody.

3.4. The statement of witness will then be recorded. The witness shall be permitted to rely upon the material and documents in the custody of the officer concerned, or to tender the same in evidence, only with the express permission of the trial court.

3.5. The officer concerned will affirm to the trial court, before the commencement of the recording of the statement, the fact, that no other person is present in the room where evidence is recorded, and further, that all material and documents in possession of the prosecutrix, PW 5 (if any) were taken by him in his custody before the statement was recorded. He shall further affirm to the trial court, at the culmination of the testimony, that no other person had entered the room, during the course of recording of the statement of the witness, till the conclusion thereof. The learned counsel for the accused shall assist the trial court, to ensure, that the above procedure is adopted, by placing reliance on the instant order.

3.6. The statement of the witness shall be recorded by the trial court, in consonance with the provisions of Section 278 of the Code of Criminal Procedure. At the culmination of the recording of the statement, the same shall be read out to the witness in the presence of the accused (if in attendance, or to his pleader). If the witness denies the correctness of any part of the evidence, when the same is read over to her, the trial court may make the necessary correction, or alternatively, may record a memorandum thereon, to the objection made to the recorded statement by the witness, and in addition thereto, record his own remarks, if necessary.

3.7. The transcript of the statement of the witness recorded through video conferencing (as corrected, if necessary), in consonance with the provisions of Section 278 of the Code of Criminal Procedure, shall be scanned and dispatched through email to the embassy. At the embassy, the witness will authenticate the same in consonance with law. The aforesaid authenticated statement shall be endorsed by the officer deputed by the embassy. It shall be scanned and returned to the trial court through email. The statement signed by the witness at the embassy, shall be retained in its custody in a sealed cover.

3.8. The statement received by the trial court through email shall be re-endorsed by the trial Judge. The instant statement endorsed by the trial Judge, shall constitute the testimony of the prosecutrix, PW 5, for all intents and purposes.”

Although the aforesaid case related to a witness in a foreign country, the procedure laid down in the aforesaid decision may be utilized while examining official witnesses in narcotic cases subject to the modification that the official witness may depose via video conferencing facility from the district court complex nearest to his place of posting under the supervision of a responsible officer (e.g. Registrar of the said court) so authorized in that regard by the concerned District Judge. Procedure of recording evidence of witness in far off places via video conference in Sujoy Mitra (supra) were laid down by the Apex Court subsequent to Thana Singh (supra) and the ratio contained therein may be gainfully utilized for recording evidence of official witnesses who have been transferred to a distant place and their physical attendance in court cannot be promptly procured. In fact, examination of official witnesses via video conference has two-fold advantages over affidavit evidence. Firstly, when examination-in-chief of a witness is recorded by filing affidavit evidence the witness is not absolved from being physically present in Court as he has to prove the affidavit and offer himself for cross-examination and the wholesome object of saving time by avoiding travel of official witnesses from their place of posting to the trial Court is defeated. On the other hand, if evidence of the said witness is recorded via electronic/video linkage, he need not be physically present in the court premises and thereby the purpose of quick trial would be better served. Secondly, recording of evidence of witnesses via video linkage is better suited to the concept of fair trial than affidavit evidence. If a witness is examined via electronic/video linkage, his demeanour may be watched by the Court enabling it to form an opinion with regard to his creditworthiness. Similarly, it helps the accused to formulate his defence and pose appropriate questions in cross to test the veracity of his deposition. Demeanour of a witness cannot be assessed if his chief is recorded through affidavit evidence. One cannot lose sight of the fact that criminal cases, unlike civil cases, are primarily based on oral evidence of witnesses of fact where demeanour and conduct of the witness during his examination-in-chief play a very vital role in assessing his truthfulness.

Technological progress in recording evidence via electronic/video linkage is a boon and ought to effectively utilized to improve the quality of dispensation of justice by reducing the time taken for conducting trials in narcotic cases involving official witnesses who are posted at far off places and whose attendance in Court cannot be promptly ensured. Special courts conducting such trial (particularly where under trials are in jail) are directed to avail of electronic/video linkage facilities and examine official witnesses whose attendance cannot be procured without delay, undue expenses and/or other inconveniences so that the fundamental right of speedy and fair trial is effectively enforced and does not become a dead letter of law.

Coming to the evidence on record, I note P.W.s 1, 2, 5, 11 and 12 are members of the raiding party. All of them deposed P.W. 11 had received prior information that five persons would board Kanchankanya Express with Hashish at New Jalpaiguri Railway Station on 28.01.2012. Pursuant to such intelligence, under the leadership of P.W. 11, they went to the railway station. On arrival of the train they boarded coach no. S-7 and identified occupants of berth no. 23, 31 and 39, that is, the appellants herein. The appellants identified their luggage. On preliminary examination of their luggage, it was suspected that they were carrying contraband. The appellants were directed to accompany the members of the raiding party with their luggage to their office. At the office, their bags were opened and contraband articles were recovered. Articles were seized and representatives samples were taken therefrom. Statements of the appellants were recorded under section 67 of the NDPS Act and thereafter they were arrested. Samples were sent for chemical examination and the chemical examiner’s report confirmed that the contraband contained Hashish.

P.W.s 6 and 7 were drivers of the vehicles in which the raiding party went to the railway station.

P.W. 8 was one of an associate of the drivers.

P.W.s 9 and 10 are independent witnesses to seizure of narcotics from the luggage of the appellants at DRI office.

The evidence of the official witnesses have been criticised on the ground that contemporaneous document like platform tickets have not been exhibited. Neither railway official nor any passenger of the said train was examined to support the evidence of the prosecution case. Even P.W. 9 and 10 did not admit their presence at the railway station wherefrom the appellants along with their luggage was brought to DRI office. E-ticket produced by the appellants has also not been proved in accordance with law. Fokra Alam, e-ticket seller has also not been examined.

I have given anxious consideration to the aforesaid submission on behalf of the defence. It is a trite law if official witnesses are clear and convincing, mere lack of corroboration from independent witnesses cannot be a ground to reject their evidence. [Ref. Sumit Tomar Vs. State of Punjab, (2013) 1 SCC 395,

Kulwinder Singh Vs. State of Pubjab, (2015) 6 SCC 674, Baldev Singh Vs. State of Haryana, (2015) 17 SCC 554, Varinder Kumar Vs. State of Himachal Pradesh, 2019 SAR (Criminal) 245]

It is the quality and not quantity of evidence which is relevant to prove a fact. Narration of the incident as coming from the mouths of the members of the raiding party particularly P.W. 1 and 2 establish beyond doubt that the DRI officials on the fateful day went to the railway station and upon boarding the train had identified the appellants with their luggage. Upon preliminary examination it appeared the appellants were carrying contraband. Thereupon they were asked to accompany the officials to their office. Evidence has also come record that the appellants handed over an e-ticket, on which name of Kamaluddin was incorrectly stated as Md. Nadim, which was subsequently seized. These facts have remained unshaken in cross-examination and the fact that the appellants upon being confronted by the DRI officials in their version had accompanied them with the luggage to their office is established beyond doubt. When the evidence of the official witnesses appear to be clear and convincing, non-production of the platform ticket or non-examination of RPF officials including the ticket seller, in my considered opinion, does not render the prosecution case improbable.

It has also been argued that the independent witnesses P.W. 9 and 10 have not supported the prosecution case. In this regard reliance has been placed on Naresh Kumar Vs. State of H.P., (2017) 15 SCC 684 and Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305. It has also been submitted that P.W. 9 had deposed earlier in DRI cases. I have examined the evidence of P.W. 9 and 10 from that perspective. Although P.W. 1 and 2 deposed the said witnesses had accompanied them to the platform where the appellants were identified with their luggage and requested to accompany the DRI officials to their office. P.W. 9 and 10 claimed that they came to the DRI office and found appellants present there along with their luggage. P.W. 9 stated DRI officials had told him that there were capsules in the luggage belonging to the appellants. He, thereafter, signed on inventory-cum-seizure list (Ext. 24) and Panchnama (Ext. 25). He also recorded the statements of appellant Nasim Akhtar and Kamaluddin marked as exhibit 5 and 9 respectively. Similarly, P.W. 10 came to the DRI office and found that there were packets on the table which he heard were Hashish. Although he could not identify the accused persons by face, he stated five persons were arrested and admitted his signature on the inventory-cum-seizure list, Panchnama and other documents.

From the evidence of the aforesaid witnesses it appears that they have not wholly disowned the prosecution case. Although they did not support the evidence of official statement with regard to their presence at the platform but one of them, that is, P.W. 9 claimed that the appellants were present along with their luggage when he arrived at the DRI office and the officials informed him that there was Hashish in their luggage. Accordingly, he put his signature on the inventory-cum-seizure list and Panchnama. He also recorded the statements of two of the appellants in Hindi. P.W. 10 claimed when he arrived at the DRI office there were packets on the table and the officials said they contained Hashish. Four persons were arrested and he admitted his signature on the seizure list. The evidence of the aforesaid witnesses taken as a whole do not render the prosecution case improbable. On the other hand, evidence of P.W.9, independent witness lends credence to the presence of the appellants along with their luggage at the DRI office and recovery of articles which was said to be Hashish. Soon thereafter, voluntary statements of Kalamuddin were recorded by the said witness strongly probabilising his presence at the DRI office at the time of recovery. In these circumstances, I am of the opinion the prosecution case is corroborated with regard to the recovery of narcotic substance from the luggage of the appellants in their presence at the DRI office by the independent witnesses particularly P.W.9. In this factual backdrop the authorities relied on by the defence are clearly distinguishable. In Naresh Kumar @ Nitu Vs. State of Nana Keshav Lagad Vs. Himachal Pradesh, (2017) 15 SCC 684, the independent witness P.W. 2 wholly denied the presence of the appellant at the place of occurrence and the circumstances of the case showed that presence of appellant at the spot was an impossibility. In Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305, P.W. 2 and 3 denied recovery and claimed their signatures were obtained in blank papers.

As discussed above in the present case independent witnesses, particularly P.W. 9 admitted with regard to the presence of the appellants along with their luggage at the DRI office and the officials informed him narcotic substance were recovered from such luggage. Thereupon P.W.9 signed on inventory and seizure memo and other documents. He also recorded voluntary statements of Naskar and Kalamuddin. It has been contended that P.W. 9 was a stock witness as he had deposed in other cases. However, prosecution has not been able to show P.W. 9 had any enmity with the appellants or was under any obligation to the DRI officers to support their case. On the other hand, when his evidence is read as a whole it does not appear that he deposed as per dictates of the DRI officers. Merely because a witness has deposed in other cases on behalf of the police his evidence cannot be rejected on such score alone. [see State of Maharashtra, (2013) 12 SCC 721, Para 26, Mahesh Janardhan Gonnade Vs. State of Maharashtra, 2008 Cri.L.J. 3602, Para 45].

It has been argued that the seizure list has not been exhibited in the instant case. From the evidence on record it appears that the contraband articles were recovered from the luggage of the appellants at the DRI office. At the time seizure list was prepared by P.W.2 (Ext. 24). He also prepared a panchnama (Ext.25). P.W.2 deposed initially he prepared a rough seizure list and thereafter a typed seizure list (Ext. 24) was prepared by him. Ext. 24 bears signatures of the accused persons and public witnesses and appears to have been contemporaneously prepared at the time of seizure. In the backdrop of the aforesaid fact I am of the opinion that Ext. 24, namely, the inventory-cum-seizure list is a contemporaneous record with regard to the recovery of the articles from the luggage of the appellants and the defence cannot cast doubt with regard to its authenticity on the score of non-production of rough notings of P.W.2 which he has described as rough seizure list.

It has also been argued as the appellants were in custody of DRI officials when their statements recorded under section 67 of the NDPS Act, accordingly such statements are involuntary and inadmissible in Court. Reference has been made to Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 and Union of India Vs. Bal Mukund, (2009) 12 SCC 161. It is further argued that in Tofan Singh Vs. State of T.N., (2013) 16 SCC 31, the issue whether statement recorded under section 67 NDPS is substantive evidence and can be the sole basis of conviction has been referred to a larger bench. It appears from the evidence of the official witnesses that the appellants had not been arrested prior to the recording of their statements under section 67 of NDPS. In fact, statements of two of the appellants, namely Naism Akhtar & Kamaluddin were recorded by an independent witness (P.W.9) in Hindi. The appellants have not retracted their statements under section 67 of the NDPS Act at any point of time. Hence, the facts of the instant case are distinguishable from Noor Aga (supra) and Bal where the confessional statements had been retracted.

Furthermore, there is direct evidence with regard to recovery of narcotic substance from the luggage of the appellants. Under such circumstances, the voluntary statements of the appellants recorded under section 67 of NDPS Act can be used as corroborative evidence to bolster the prosecution case. Reference in this regard may be made to Daulat Ram Vs. Crime Branch (Narcotics) Mandsaur, (2011) 15 SCC 176,wherein evidence of official witnesses relating recovery of narcotics corroborated by the statement of accused under section 67 of NDPS was the basis of conviction.

Chain of custody of the seized contraband and the representative samples taken therefrom for chemical examination have been proved. P.W.11 sent the representative samples for chemical examination under cover of letter (Ext. 16/16/1). Chemical examiner’s report showing that the samples contain Charas was exhibited as Ext. 17. Variation in weight of the representative samples in the test report and as noted in panchnama are minor and of little relevance as signatures and seals on the envelopes containing the samples were found intact. Remainder of the contraband was kept in Siliguri Customs Godown and destroyed with permission of the Court in terms of section 52 NDPS Act. Hence, non-production of seized contraband in court cannot be a ground to reject the prosecution case.

Accordingly, I uphold the conviction and sentence recorded against the appellants.

The appeals are, accordingly, dismissed.

The period of detention suffered by appellants during investigation, inquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.

I record my appreciation for the able assistance rendered to this Court by Ms. Meenal Sinha as amicus curiae for disposing the appeal.

Copy of the judgment along with L.C.R. be sent down to the trial court at once.

Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

I agree.

(Joymalya Bagchi, J.)

(Manojit Mandal, J.)

09.08.2019
PA