The New Nation - Internet Edition

High Court Division

(Criminal Appellate Jurisdiction)

AKM Fazlur Rahman J

SM Ziaul Karim J

Judgment

June 13th, 2005

Manzu Sweeper

ttt..Appellant

vs

State tt…….Respondent'

Special Powers Act (XIV of 1974)

Section 25A

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.

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. .. t(32)

Omela Bibi vs State 54 DLR 98; Md Abdus Salam alias Abdus Salam vs State 1995 BLD 477; Almas Mia vs State 55 DLR 403 and AIR 1979 (SC) 1705 ref.

No one - For the Appellant.

Md Ibrahim Khalil, Assistant Attorney-General -For the Respondent.

Judgment

SM Ziaul Karim J : By this appeal convict appellant Manzu Sweeper has challenged 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.

2. The prosecution case as projected in the first information report and unfurled at trial is that on 3-2-1991 PW I 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 Saba, 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 give satisfactory answer. Thereupon there was an altercation between them. Then PW I nabbed the accused with the said counterfeit note and seized the same bearing number CR 289318 and prepared seizure list in presence of PW 5 Narayan Chandra Saha and PW 6 Md Selim. Thereafter he (PW I) arrested the accused and made GD Entry No. 112 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 I) 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.

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

4. 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.

5. 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.

6. 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.

7. 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.

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

9. 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.

10. 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 give 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.

11. 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.

12. PW I 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 counter feit 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 I) 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 GO 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 I 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 or 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 appellate. 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 I) that the employees of the said grocery shop were dragging the said note and he denied the suggestion that he was deposing falsely.

13. PW 2 Sub-Inspector M Makbul Hossain who Khandker was the Currency Officer of Bangladesh Bank at the relevant time deposed that a Bangladesh, note of Taka 500 bearing No. - 289318 was referred to him for examination as to genuineness. After exam Illation 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 I. III cross-examination he stated that after proper examination of the note he submitted a report.

14. 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.

15. 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.

16. 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 vone 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.

17. 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.

18. 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.

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

20. 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.

21. 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."

22. 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.

23. 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 a counterfeit note and he attempted to use the said note knowing or having reason to believe it to be so.

24. 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.

25. 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 hereunder:

25A. "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.

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

27. 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.

28. 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.

29. 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.

30. 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.

31. Even when an uneducated rustic citizen in usual course of daily life comes in possession or a counteract 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.

32. 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 Ome/a 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.

33. 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.

34. 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.

35. 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.

(From previous issue)

Government and in the first information report or in the charge sheet there is no allegation that petitioners resorted to any deception or false representation or inducement and the petitioners have not committed any offence punishable under section 420 of the Penal Code, inasmuch as neither the first information repot nor the charge sheet discloses that the petitioners deceived any person or fraudulently or dishonestly induced any person to deliver any property.

The learned Counsel next submitted that the High Court Division failed to consider that there is no ingredient of abetment in the first information report or in the charge sheet on the part of the petitioners in the commission of offence punishable under sections 409 and 420 of the Penal Code or section 5(2) of the Prevention of Corruption Act, 1947 and initiation and continuation of the above proceeding against the petitioners are abuse of the process of the Court.

5. As it appears the High Court Division discharged the Rule holding that the charge sheet in G.R. Case No. 20 of 1997 was received by the learned Chief Metropolitan Magistrate on 14.2.2000 and while the case was still pending before him awaiting execution of the processes petitioner Q.Z. Abedin preferred Criminal Misc. Case No. 1837 of 2000 and petitioner Abdul Haque prefered Criminal Misc. Case No. 7253 of 2000 seeking quashing of the proceedings of the above G.R. Case No. 20 of 1997 and then the High Court Division issued Rule and stayed the said proceeding in relation to them ; then on receipt of the records of the above G.R. Case No. 20 of 1997 from learned Chief Metropolitan Magistrate, the learned Metropolitan Sessions Judge Dhaka, the ex-officio Senior Metropolitan Special Judge, registered the same as Metropolitan Special Case No. 81 of 2000 but the certified copy of his order dated 21.11.2000 shows that he could not take cognizance of the offenced as further proceedings of G.R. case No. 20 of 1997 was stayed earlier as aforesaid ; thereafter, the High Court Division issued Rules in Criminal Misc. Case Nos. 1847, 4264 and 4297 of 2001 and also stayed further proceeding of Metro Special Case No. 81 of 2000 ; thus the learned Senior Metropolitan Special Judge, who had the exclusive jurisdiction to take cognizance of the offence either accepting the police report or refusing to accept it, could not take such cognisance ; section 5(2) of the Criminal Law Amendment Act, 1958 has introduced schedule to the Act specifying the offences triable under the above Act and the offences under sections 409 and 420 of the Penal Code committed by a public servant have been included in paragraph (b) of the above schedule and further, any other person abetting the public servant in the commission of such offence has been made jointly triable with such public servant in terms of paragraph (b) of the schedule ; offences punishable under the Prevention of Corruption Act, 1947 have been included in paragraph (c) of the schedule ; sections 4 and 5(1) of the Criminal Law Amendment Act have conferred exclusive jurisdiction upon the Senior Special Judge of the area in the matter of taking cognisance of the offence and further the offence might be tried by the Senior Special Judge himself or by any other special Judge on transfer of the case record by the Senior Special Judge ; all the cases seeking quashing of the proceedings were preferred before taking of cognisance of the offence by the Senior Metropolitan Special Judge ; in the case of Bangladesh Vs. Tan Khong Hock reported in 31 DLR (AD) 169 the Appellate Division has discouraged such seeking quashing of proceedings after submission of the charge sheet but before taking of cognisance of the case by the competent court or tribunal observing that "ity should not be presumed that we are expressing the view that the High Court is not competent to examine propriety of the charge sheet but this can be done at a proper stage. Because, after cognisance is taken on the basis of the charge sheet and on proper occasion or quashing the proceedings certainly the High Court shall examine the charge sheet to ascertain as to whether the allegations made therein constitute a criminal offence. (But before cognizance is taken by appropriate Court, there is hardly any scope for saying that charge sheet would lead to abuse of the process of the Court, because the court competent to try the case has ample power to refuse taking cognizance of the offence on the facts disclosed in the police report and pass an appropriate order."

In the case of Syed Mohammad Hashem alias Hashim Vs. State reported in 48 DLR (AD) 87 the Appellate Division held that "the usual and well settled practice is that a criminal proceeding can only be quahsed after cognizance has been taken and process issued thereupon subject to the fundamental principle that the power of quashing is and should be very sparingly exercised and only to prevent the abuse of the process of the court."

In the case of N Mahmud Vs. N. Ahmed reported in 36 DLR (AD) 14 the Appellate Division observed that "Proceeding before a court starts when the Magistrate has taken cognizance of an offence on police report or on complaint. Before such cognizance there is no proceeding that may be quashed under section 561A Cr.PC." Accordingly, before taking of cognisance of a case by the competent court or tribunal a proceedings cannot be said to be pending and accordingly, a proceeding cannot be quashed unless cognisance in respect thereof has been taken and process issued and so the instant criminal Miscellaneous cases preferred under section 561A of the Code of Criminal Procedure are quite premature and so the High Court Division should not enter into the first information report and the charge sheet in order to appreciate whether the facts alleged therein constitute any offence or not.

6. We are of the view that the High Court Division on proper consideration of the principle of law laid down by this Division and also the materials on record arrived at a correct decision. The learned Counsel could not point out any illegality or infirmity in the decision of the High Court Division so as to call for interference.

Cases cited :

Bangladesh Vs. Tan Khong Hock, 31 DLR (AD) 169.

Syed Mohammad Hashem alias Hashim Vs. State, 48 DLR (AD) 87.

N. Mahmud Vs. N. Ahmed, 36 DLR (AD) 14.