Manzu Sweeper vs. Respondent: State

IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)

Criminal Appeal No. 2491 of 1993

Decided On: 13.06.2005

Appellants: Manzu Sweeper
Vs.
Respondent: State

**Hon’ble Judges:**A.K.M. Fazlur Rahman and Syed Md. Ziaul Karim, JJ.

Counsels:
For Respondents/Defendant: Md Ibrahim Khalil, Assistant Attorney-General

Subject: Criminal law

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Code of Criminal Procedure, 1898 (CrPC) - Section 161; Code of Criminal Procedure, 1898 (CrPC) - Section 342; Special Powers Act, 1974 - Section 25A

Citing Reference:

Mentioned

 3

Case Note:
Criminal - Counterfeit currency - Section 25A of Special Powers Act, 1974 - Appeal filed against conviction under Section 25A of Act - Whether prosecution failed to prove charge against Appellant beyond all reasonable doubt - Held, Appellant was found to be in possession of one five hundred note only - He was charged to have used note as genuine knowing same to be forged - Possession of counterfeit note did not ipso facto prove charge unless person had used it with knowledge that it was forged - Prosecution failed to prove charge against Appellant beyond all reasonable doubt - Appeal allowed. [27], [28],[33]

Disposition:
Appeal Allowed

JUDGMENT

Syed Md. Ziaul Karim, J.

1. By this appeal convict appellant Manzu Sweeper has challenged the propriety of the judgment and order dated 15-11-1993 passed by the Special Tribunal No. 8, Comilla in Special Tribunal Case No. 85 of 1991 convicting the appellant under section 25A of the Special Powers Act, 1974 and sentencing him to suffer rigorous imprisonment for 14 (fourteen) years and also to pay a fine of Taka 2000 in default to suffer rigorous imprisonment for 3(three) months more. The prosecution case as projected in the first information report and unfurled at trial is that on 3-2-1991 PW 1 Md Mizanur Rahman, Police Inspector, CID Camp, Comilla received a secret information to the effect that some persons were trying to get exchange of Bangladeshi counterfeit currency notes in different shops of Chawk Bazar area of Comilla town. Accordingly he along with other police personnel rushed to that area and found the accused Manzu gave one Bangladeshi note of Taka 500 to PW 5 Narayan Chandra Saha, an employee of grocery shop of Mofiz Mia Sawdagar to change, which he declined and doubted the note to be fake, on interrogation the accused could not gave satisfactory answer. Thereupon there was an altercation between them. Then PW 1 nabbed the accused with the said counterfeit note and seized the same bearing number   289318 and prepared seizure list in presence of PW 5 Narayan Chandra Saha and PW 6 Md Selim. Thereafter he (PW 1) arrested the accused and made GD Entry No. 122 dated 3-2-1991 with the Kotwali Police Station and handed over the accused with the seized currency note to the police station. Subsequently, the same was referred to Bangladesh Bank for expert opinion. On receipt of the report he (PW 1) lodged the first information report, which was recorded as Kotwali Police Station Case No. 13 dated 12-3-1991 corresponding to GR No. 75 of 1991.

2. The police after investigation submitted charge sheet against the appellant under section 25A of the Special Powers Act, 1974.

3. Eventually the appellant was put to trial in the Court of Special Tribunal No 8, Comilla to answer the charge under section 25A of the Special Powers Act, 1974 to which he pleaded not guilty and claimed to be tried.

4. The defence case, as it transpires from the trend of cross-examination, is that of innocence and false implication. The definite case of the defence was that the appellant did not go to the grocery shop of Mafiz Mia at the relevant time and no counterfeit currency note was recovered from his possession.

5. In course of trial the prosecution in all produced eight witnesses and examined seven witnesses and tendered one, named PW 8 Constable Ahmad Hossain and the defence examined none.

6. After closure of the prosecution evidence the appellant was examined under section 342 of the Code of Criminal Procedure, again he repeated his innocence and led no evidence in defence.

7. After trial the appellant was awarded such conviction. Hence the appeal.

8. No one appears on behalf of the appellant to support the appeal. In view of the fact this is a very old case we are inclined to take it up for disposal on merit considering the materials on record.

9. Mr Md Ibrahim Khalil, the learned Assistant Attorney-General appearing on behalf of the respondent opposes the appeal and submits that one Bangladeshi counterfeit currency note of Taka 500 was recovered from the exclusive control and possession of the appellant and he was nabbed by the police at the spot while he was trying to change it. He further submits that the accused could not make any explanation for such possession of the counterfeit note. So, according to him, the learned Judge of the Tribunal upon considering the evidence on record rightly convicted the appellant, which calls for no interference by this Court.

10. To appreciate the submission advanced by the learned Assistant Attorney-General for the respondent, let us now weigh and sift the evidence on record adduced by the prosecution in support of the charge.

11. PW 1 Police Inspector Md Mizanur Rahman who was the informant as well as the investigating officer of the case deposed that on 3-2-1991 he received secret information to the effect that some persons were trying to change some counterfeit currency note at Chawk Bazar area. On such information he along with Sub-Inspector Abu Hanif, ASI Rafiqul Islam, Constable Lutfor Rahman, Constable Ahmad Hossain, Constable Abdur Rashid and Constable Swapan Barua rushed to the grocery shop of Mafiz Mia at Chawk Bazar area and found that accused Manzu Sweeper was tendering one counterfeit note of Taka 500 to Narayan Chandra Saha and Md. Selim employees of the grocery shop of Mafiz Mia and they declined to do so. Then he (PW 1) interrogated the accused about the note but he could not give any satisfactory answer. At one stage the accused tried to escape but they caught him red handed and seized the said counterfeit note bearing No.   289331 in presence of witnesses Narayan Chandra Saha and Md Selim. He, then made a GD entry bearing No. 122 dated 3-2-1991 and sent the said note to the Bangladesh Bank for expert opinion. On receipt of the report he lodged the first information report, which he proved it as Exhibit 1 and his signature as Exhibit 1/1. In cross-examination he stated that the case was endorsed to him for investigation. During investigation he visited the place of occurrence, recorded the statement of some of the witnesses under section 161 of the Code of Criminal Procedure and on the basis of the memo. of evidence prepared by Sub-Inspector Abul Hossain he submitted charge sheet against the appellant. He added that after his arrival at the grocery shop the accused went to change the said note. He seized the note bearing No. Tr-289318. He added that accused was a Sweeper by profession who stated to him (PW 1) that the employees of the said grocery shop were dragging the said note and he denied the suggestion that he was deposing falsely.

12. PW 2 Sub-Inspector M Makbul Hossain Khandker was the Currency Officer of Bangladesh Bank at the relevant time deposed that a Bangladeshi note of Taka 500 bearing No.   289318 was referred to him for examination as to genuineness. After examination he found that the said note is a counterfeit one. Accordingly, he submitted a report, which he proved it as Exhibit 2 and the counterfeit note as Material Exhibit 1. In cross-examination he stated that after proper examination of the note he submitted a report.

13. PW 3 Sub-Inspector Md Abul Hossain partly investigated the case deposed that during investigation he visited the place of occurrence, prepared sketch map with separate index, recorded the statement of some of the witnesses and after transfer he handed over the memo of evidence to the CID.

14. PW 4 Sub-Inspector Md Rafiqul Alam deposed that on 3-2-1991 on the basis of secret information he along with Inspector Mizanur Rahman and other police personnel rushed to the grocery shop of Mafiz Mia and caught red handed the accused Manzu Sweeper with a Bangladeshi counterfeit note of Taka 500. Inspector Mizanur Rahman prepared seizure list in presence of the employees of the shop. He identified the accused on dock and the counterfeit note. In cross-examination he stated that at the time of recovery of the note he was inside the shop and while the employee declined to change the note then there was an altercation between them. He denied the suggestion that no counterfeit note was recovered from the possession of the accused.

15. PW 5 Narayan Chandra Saha was the employee of the grocery shop of Mafiz Mia at Chalk Bazar deposed that on 3-2-1991 at 7-00 PM the accused came to their shop to change a note of Taka 500 and he refused to change it. At that time one unknown person told him that it was a counterfeit note. He added that the said unknown person was a member of the police who seized the said note and prepared seizure list, which he proved it as Exhibit 4 and his signature as Exhibit 4/1. In cross-examination he stated that at the time of occurrence he was in the grocery shop of Mafiz Mia and found that the informant was taking the counterfeit note of Taka 500 from the accused. He denied the suggestion that he was deposing falsely.

16. PW 6 Md Selim was the employee of the grocery shop of Mafiz Mia at the relevant time and witness of the seizure list. He proved his signature in the seizure list as Exhibit 4/2. In cross-examination he denied the suggestion that the accused was falsely implicated in this case.

17. PW 7 Constable Swapan Chandra deposed that on the date of occurrence he was with Inspector Mizanur Rahman at the time of arrest of the accused from the grocery shop with counterfeit currency note of Taka 500. The accused could not give any satisfactory answer of the possession of such note. Then they arrested the accused. In cross-examination he stated that he could not remember the number of the said counterfeit note.

18. These are all of the evidence on record adduced by the prosecution in support of the charge.

19. We have gone through the first information report, the charge, the depositions of the witnesses, the report of the Currency Officer, Exhibit 2, impugned judgment and other materials on record and given our anxious consideration to the submission advanced by the learned Assistant Attorney-General.

20. On appraisal of the evidence on record it appears that on 3-2-1991 at 7-00 PM on the basis of secret information PW 1 Inspector Md Mizanur Rahman along with PW 4 ASI Md Rafiqul Alam, PW 7 Constable Swapan Chandra Barua, PW 8 Constable Ahmad Hossain and other police personnel rushed to the grocery shop of Mafiz Mia at Chalk Bazar area and nabbed accused Manzu Sweeper with a Bangladeshi currency note of Taka 500, while he was trying to change it. He seized the said note from the accused and prepared seizure list, Exhibit 4 in presence of PW 5 Narayan Chandra Saha and PW 6 Md Selim the employees of the said grocery shop. It further appears from the evidence of PW 2 Sub-Inspector M. Makbul Hossain Khandker, Currency Officer of the Bangladesh Bank who examined the note bearing No.  -289318 and found that the note was a counterfeit one and to that effect he submitted a report, Exhibit 2.

21. On close analysis of the evidence of PWs 1, 4, 5, 6 and 7 that the accused was caught red handed with the said note. So, the evidence regarding recovery of the counterfeit note from the possession of the accused were consistent and uniform.

22. But now the question calls for our consideration whether the prosecution was able to prove that the appellant knew or had any reason to believe that the said note of Taka 500 was counterfeit note and he attempted to use the said note knowing or having reason to believe it to be so.

23. On critical analysis it appears to us from the evidence of PW 4 Sub-Inspector Md Rafiqul Alam who was alone with the PW 1 Inspector Mizanur Rahman at the time of recovery of the said note from the possession of the accused that while the employees of the grocery shop namely PW 5 Narayan Chandra Saha and PW 6 Md. Selim declined to change the said note then the accused made quarrel with those employees. So it was expected if the appellant had any prior knowledge or having reason to believe that the note is counterfeit one, then he certainly escaped from the scene and in such circumstances the appellant will not fall into any quarrel with the employees of the said grocery shop.

24. Be that as it may, we shall have to see whether mere possession of a forged or counterfeit note constitutes an offence under section 25A of the Special Powers Act, 1974. For the convenience of understanding the section 25A reads as here under:

24A. “Penalty for counterfeiting currency notes and Government stamps : whoever-

(a) Counterfeits, or knowingly performs any part of the process of counterfeiting any currency note or Government stamp, or

(b) Sells to, or buys or receives from any person, or otherwise traffics in or uses as genuine, any counterfeit currency note or Government stamp, knowing or having reason to believe the same to be counterfeit or

(c) Makes, or performs any part of the process of making or buys or sells or disposes of or has in his possession, any machinery, instrument or material for the purposes of being used or knowing or having reasons to believe that it is intended to be used, for counterfeiting any currency note, or Government stamp, shall be punishable with death, or with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.

25. When all the ingredients are proved only then it could be said the offence is established.

26. The object of the legislature is to prevent using, selling or trafficking in any way in counterfeit or forged notes. The offence as made under the section is no doubt of serious nature and may entail with death, or imprisonment for life depending on the gravity of the offence. As the offence is grave so is the care to be taken in dealing with such offence lest an innocent citizen is punished.

27. In this case, at hand, the appellant was found to be in possession of one five hundred Taka note only. He was charged to have used the note as genuine knowing the same to be forged and/or counterfeit.

28. No doubt the appellant had the note with him. But mere possession or use of a forged or counterfeit note does not ipso facto prove the charge under the section against one unless he had used it with the knowledge or belief that it was forged or counterfeit. A conviction under the section can only be held valid when the prosecution proves in addition to possession that the accused used the note or having reason to believe the same to be forged or counterfeit. It must be remembered that in course of daily interaction with various people a fake or counterfeit note may come into the hands of an innocent citizen without slightest of his knowledge and he may so use it without knowing or having reason to believe it to be forged or counterfeit.

29. Where there was no evidence that the currency note in possession of the accused was of such nature or description of look that a mere look at it would convince any person of average intelligence that it was counterfeit or forged nor any such question was put to the accused during trial, the conviction and sentence of the accused under the section cannot be sustained in law.

30. Even when an uneducated rustic citizen in usual course of daily life comes in possession of a counterfeit or forged note which he finds to be suspicious and tries to get rid of it, he cannot be held guilty under the section. Having regards to the facts we could not find any evidence whatsoever from the record that the appellant used or tendered the note, knowing or having reason to believe the same to be forged or counterfeit.

31. It is well settled that an accused, in order to be found guilty under section 25A of the Special Powers Act, must have mens rea or guilty mind or reason to believe that the currency-note which he kept in his possession or tried to use was in fact a counterfeit currency note. With this regard reliance can be placed in the case of Omela Bibi vs. State reported in 54 DLR 98. Similar view was also taken in the case of Md Abdus Salam alias Abdus Salam and another vs. State reported in 1995 BLD 477, Almas Mia vs. State reported in 55 DLR 403 and the case reported in AIR 1979 (SC) 1705.

32. Having regard to the fact we may observe that any false statement by the appellant wilfully or even being frightened by the impact of the occurrence shall never render him liable under section 25A of the Special Powers Act, even if he was found unable to account for his possession for the said one 500 Taka currency note and in view of such facts we are unable to accept the contention advanced by the learned Assistant Attorney-General.

33. Having considered the facts and circumstances of the case and foregoing narrative we are of the view that the prosecution miserably failed to prove the charge under section 25A of the Special Powers Act, 1974 against the appellant beyond all reasonable doubt. Thus the appeal having merit succeeds and the impugned judgment and order of conviction and sentence calls for interference by this Court. In the result, the appeal is allowed. The judgment and order of conviction and sentence dated 15-11-1993 passed by the learned Special Tribunal No. 8, Comilla in Special Tribunal Case No. 85 of 1991 is hereby set aside and the appellant is acquitted of the charge levelled against him and be set at liberty forthwith if not wanted in any other case.

Send down the lower Court’s records at once with a copy of the judgment for information and taking necessary action.