Calcutta High Court (Appellete Side)
Imam Hossain @ Emam Hossain vs The State Of West Bengal on 22 April, 2025
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 19 of 2014
Imam Hossain @ Emam Hossain
-Vs-
The State of West Bengal
For the Appellant : Mr. Soham Banerjee
(Amicus Curiae)
For the State : Mr. Bidyut Kumar Roy
Ms. Rita Dutta
Heard on : 05.03.2024, 02.05.2024, 04.09.2024
Judgment on : 22.04.2025
Ananya Bandyopadhyay, J.:-
1.
This appeal is preferred against judgment of conviction dated 21.12.2013
and order of sentenced dated 23.12.2013 passed by Learned Additional
Sessions Judge, 2nd Court, Malda in Sessions Case No.111/2013,
corresponding to Sessions Trial No.16/2013 in G.R. Case No.5330/2012,
arising out of Baishnabnagar P.S. Case No.307/2012 dated 11.12.2012,
thereby convicting the appellant for commission of offence under Section
489C of the Indian Penal Code, 1860 and thereby sentencing the appellant
to suffer rigorous imprisonment for 4 years and a fine of Rs.30,000/- in
default to suffer rigorous imprisonment for a further period of 1 year for
commission of offence under Section 489(C) of the Indian Penal Code.
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2. The prosecution case precisely stated that complainant P.S.I. Bitul Paul
attached to the Baishnabnagar P.S. arrested the appellant with two bundles
of 200 pieces of Indian Fake Currency Notes of denomination of Rs.1000/-
each along with one white colour poly carry bag and one red colour ZEN
Mobile Phone fitted with Vodafone Sim Card being no.9734827499 with
battery in running condition, one Voter Identity Card in the name of Imam
Hossain, son of Majibur Rahaman, one Motor Cycle YAMAHAALBA 106
Black and Blue colour bearing registration no.WB66G/6187 and one Coffee
colour full sleeve winter jacket which had been seized as alamat under
proper seizure list. T complaint against the accused person named Imam
Hossain stated that on 11.12.2012 at 13:15 hrs., on receipt of a source
information of illegal procurement and transportation of large amount of
FICN might occur through Telipara Ghat under Baishnabnagar P.S., the said
fact was noted in General Diary vide G.D.E. No.449 dated 11.12.2012 and
the matter was informed to the I.C., Baishnabnagar P.S. at 13:25 hrs. The
complainant along with force of Baishnabnagar P.S. left Fort Telipara Ghat
area in a Govt. vehicle bearing Registration no.WB24/1239 to act on the
information, which referred to Baishnabnagar P.S. GDE No.450 dated
11.12.12 and at about 14:25 hrs., they reached near at Telipara Ghat Side
and laid on ambush near around Telipara Bridge. At 15:05 hrs., they
noticed one person coming from Deonapaur Side towards Telipara Ghat by
motor cycle which was duly identified by the source. As he came near the
police, he was restrained and detained and eventually disclosed his identity.
Four available chance witnesses namely 1) Dibyendu Sarkar, son of Anil
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Sarkar of Sabdalpur, 2) Prokash Ch. Ghosh, son of Montu Ghosh of
Nurnagar, 3) Lalchand Singh, son of Late Bhusan Singha of Sabdalpur and
4) Kalipada Mondal, son of Late Schindra Nath Mondal of Sabalpur, all of
P.S. Baishnabnagar, District – Malda were summoned and on being asked
the said detained person disclosed his identity. Observing all formalities, the
complainant commenced search in respect of his person in presence of the
said available chance witnesses. During search of Imam Hossain in respect
of his person complainant recovered one bundle of Indian Currency which
seemed to be fake in denomination valued of Rs.1000/- each total 100 pieces
valued Rs.1,00,000/- (one lakh) and another bundle of Indian Currency
seemed to be fake in denomination valued of Rs.1,00,000/- (one lakh) both
wrapped in a white colour poly carry bag concealed in left side up-per inner
pocked of the jacket worn by him and recovered red colour zen Mobile Phone
fitted with Vodafone SIM Card no. 9734827499 and one voter Identity card
in the name of Imam Hossain. On preliminary interrogation the accused
person admitted that he procured or brought or trafficked the FICN from
Sovapur Side in lieu of genuine Indian Currency to sell the huge amount of
recovered FICN as genuine Indian Currency Notes at different places of West
Bengal and other States for wrongful gain.
3. On the basis of the aforesaid complaint, the Police initiated Baishnabnagar
P.S. Case No.307/2012 dated 11.12.2012 under Sections
489(B)/489(C)/120B of Indian Penal Code.
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4. After completion of investigation, the Police submitted charge- sheet vide
no.42/13 dated 03.03.2013 the appellant under Section 489(B)/489(C)
/120(B) of Indian Penal Code.
5. The charge was framed against the accused person under Sections
489(B)/489(C) of Indian Penal Code.
6. In order to prove its case, the prosecution examined as many as 11
witnesses and exhibited certain documents.
7. The alleged search and seizure was made near Telipara Ghat area and there
is residential house in that area but prosecution has failed to collect any
Independent witness of that area.
8. PW-6, PW-7, PW-8 and PW-10 were not residents of Telipara Ghat area being
residents of Sabdalpur and Nurnagar area.
9. The independent witnesses deposed in their evidences that as per
instruction of police they only signed one blank paper out of fear.
10. PW-1 who was the complainant of this case admitted witnesses were not the
resident of Telipara Ghat area and the family members of the accused was
not informed prior to his arrest and notes were not put in the envelope by
him, nor there was any special identification mark, more over the packet was
not labeled at the time of seizure.
11. PW-2, PW-3, PW-4, PW-5 and PW-9 corroborated the evidence of PW-1 and
PW-11.
12. Every counterfeit note was subjected to permissible limit of 1/33% of
connection but the forensic report speaks nothing of such correction.
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13. The forensic expert was not produce so it was not proved that the notes
seized were at all counterfeit or not and conviction without this evidence is
bad in law.
14. Learned Amicus Curiae representing the appellant submitted as follows:-
i. During the cross-examination the PW-1 admitted there were shops
situated at about 100/150 meters from the place of occurrence and
residential houses at about 200 meters from the place of occurrence.
He further admitted the villagers projected to be independent
witnesses resided 2 kilometres away from the place of occurrence,
and further admitted he had not mentioned why the residents of
Telipara Ghat were not called as witnesses.
A conjoint reading of Section 165(4) and Section 100 revealed that
it was the duty of the officer who was conducting search and seizure
should call upon two or more inhabitants of the locality, or of any
other locality if no such inhabitant of the said locality was available.
It was not the case of the prosecution that no inhabitant of the
locality was available to be the witnesses, and the prosecution story
suffered from an uncanny silence regarding the explanation for citing
calling witnesses from other localities. Such gross violation of the
procedural safeguards cast a shadow of doubt on the story of the
prosecution.
ii. The independent witnesses turned hostile.
iii. PW-6 stated when he was on his way back to his home from market,
the Police asked him to go inside “Kumbhira” outpost and asked him
6to sign the seizure list. He also failed to identify the Appellant on
dock. During the cross examination he said no FICN was shown to
him and he did not sign on the notes.
iv. PW-7 deposed to have been asked by Police to go inside Kumbhira
outpost and he was dictated to sign on certain papers. He also failed
to identify the appellant on dock.
v. PW-8 stated he went to the camp as asked by the police and signed
on papers as per instruction. He also failed to identify the appellant
on dock.
vi. PW-10 also revealed the same version of PW-7 and PW-8.
vii. All of the independent witnesses turned hostile, failed to identify the
appellant on dock and revealed that police obtained their signatures
inside Kumbhira outpost.
viii. During the cross-examination it was suggested to the arresting officer
that labels and seizure list were manufactured by him sitting at the
Police Station, which he denied, but the versions of the independent
witnesses revealed the fact that the labels and seizure list were in fact
prepared at ‘kumbhira’ outpost and not at the place of occurrence.
ix. PW-2 stated that he could not recollect how many pockets were there
in the jacket, inside which the appellant was allegedly carrying the
FICN. He could not remember if the jacket was labelled or not.
x. PW-3 stated L.T.I. of the Appellant was taken on all of the notes,
whereas it was admitted fact the notes bore the signature of the
accused person, not LTI.
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xi. PW-9 could not remember the colour or the brand of the motorcycle.
He could not recollect if the jacket was labelled or not. He could not
recollect in which types of papers the recovered bundles were
wrapped. Command Certificate was necessary for going outside from
the Police Station but on that day no such command certificate was
issued.
xii. It was revealed during the trial that the arrest of the appellant was an
illegal one. It was categorically stated by the Investigating Officer that
the family members of the accused were not informed and no
explanation had been endorsed in the arrest memo. The arrest memo
was signed by PW-8 who not only turned hostile but also revealed
that his signatures were obtained by the police at ‘Kumbhira’ outpost
and not at the place of occurrence, and he failed to identify the
appellant on dock.
The version of the prosecution gave no explanation regarding the
envelopes in which the seized notes were put into, the white carry
bag/plastic inside which the notes were primarily kept by the
appellant. The PW-1 stated that the notes were not put in the
envelope by him and stated that the seized articles were under his
custody till he reached Police Station..
It was further submitted that:-
a) the appellant was subjected to an illegal arrest,
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b) no independent witnesses were present at the place of
occurrence at the time of the alleged arrest, search and
seizure,
c) the procedural safeguards were violated by the concerned
officer during the alleged search procedures,
d) the arresting team completed their entire task incredibly
fast,
e) the chain of custody of the seized articles are broken.
15. A circumspection of the prosecution witnesses revealed as follows:-
i. PW-1 deposed that on 11.12.2012 he was posted as P.S.I.
Baishabnagar P.S. On that day around 13:15 hrs., he received a
source information of impeding transaction of FICN near Telipara
Ghat under their P.S. Thereafter, he noted down the information in
the G.D.E. No.449 dated 11.12.2012 and communicated the same to
I.C. As per order of I.C. he along with five other police personnel
including a driver left P.S. and reached the place of occurrence
around 14:45 hours. Thereafter, around 15:05 hours they noticed a
person was coming from the side of Deunapur on a motor cycle. As
per identification of the source they detained that person. They
disclosed their identity being the police personnel of Baishabnagar
P.S.
Thereafter, four local persons were called out of them; three had
their residence of Sabdalpur and one Neoginagar. On being
interrogated in presence of the local witnesses he disclosed his name
9as Imam Hossain S/o – Majibur Rahaman of Dakshin Baidyanathpur,
P.S. – Baishabnagar. They intimated Imam Hossain that he was
possessing FICN and they had the information that he dealt in FICN.
Thereafter, they disclosed their intention to search his person but
they also offered him to search their person prior to search of their
body but he denied. He searched the body of the accused person in
presence of four local witnesses.
On being searched two bundles of FICN of the denomination of
Rs.1000/- wrapped in a plastic packet was detected and recovered
from the left side of the inner pocket of the coffee coloured jacket
which was wore by the accused. On being interrogated he admitted
the same were FICN and he dealt with those notes and he had
brought the notes from the side of Sovapur. Apart from his Voter ID
card, one mobile was recovered from his possession. Thereafter, he
seized FICN with plastic packet, voter ID card, one mobile, jacket and
the ‘Yahama Alba’ motor cycle by preparing one seizure llist, marked
as Exbit.-1.
He labeled the notes marked as Exbt.-2 and Exbt.-3. The notes
which were seized from the possession of the accused persons were
marked as Mat. Exbt.-I and II collectively. The mobile and Voter ID
card seized from the possession of the accused person were marked
as Mat. Exbt.-III and Mat. Exbt.-IV respectively.
On being interrogated accused person disclosed that he dealt in
FICN and he previously dealt with FICN. He also disclosed that certain
10Bangladeshi people associated with the business to be known to him
and he could identify them. Thereafter, accused person was arrested
and taken to P.S. He lodged the complaint in the P.S. which was
marked as Exbt.-4.
ii. PW-1 in his cross-examination stated he entered the outgoing G.D.E.
No.450 when he left the P.S. He left the P.S. at 13:25 hours and
returned at 17:50/18:00 hours. The distance in between the P.O. and
P.S. was 30 k.m. It took about 1/1:15 hours to reach P.O. from P.S.
and to return P.S. from P.O.
Search and seizure was done during day hour. The family
members of the accused was not informed prior to his arrest and no
explanation had been endorsed on the arrest memo. He at first
arrested the accused and thereafter made seizure. Two envelopes in
which the notes were produced were not used by him at the time of
seizure. The notes were not put in the envelope by him. The seized
materials were kept in his custody after its seizure till he reached P.S.
It had not been mentioned in the F.I.R. what was done by him with
the seized materials and labels after reaching the P.S. The notes bore
no special identifying mark.
iii. PW-2 deposed that on 11.12.2012 he was posted as Constable at
Baishabnagar P.S., he accompanied PW-1 and other force to Telipara
Ghat. It was around 3:00 p.m., they saw one motor cycle approaching
which was apprehended along with the rider.
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Thereafter, PW-1 enquired about his name and address. They
searched the body of the person on which two bundles of FICN of the
denomination of Rs.1000/- each were recovered from the inner pocket
of the jacket worn by the accused person. On being interrogated the
accused disclosed that the same was FICN. In total Rs.1000 X 100 in
two bundles amounting to Rs.2,00,000/- were recovered from the
possession of the accused person.
Seizure list was prepared and the notes were also labeled marked
as Exbt.-1/1.
iv. PW-2 in his cross-examination stated that they were in total six
persons in the team including the driver and all were in plain clothes.
Search was made by PW-1. He did not notice to put any special
identifying mark on the notes by PW-1. He could not recollect the
serial number of the notes. He identified the notes as it was examined
by expert but he did not notice any mark of identification on the notes
by which the notes could be identified.
v. PW-3 corroborated the evidence of PW-2 in essence.
vi. PW-3 in his cross-examination stated that the notes were specially
marked by procuring signature of the accused on the notes. LTI of the
accused was also taken but he could not recollect whether all the
notes or not. No separate special identification mark was appended on
the notes. The notes were labeled but not put inside any packet and
sealed. He did not sign on any paper in the P.S.
vii. PW-4 reiterated the deposition of PW-1, PW-2 and PW-3.
12viii. PW-5 conceding to the deposition of PW-1 to PW-4, in his cross-
examination stated that he was not interrogated by the I.O. earlier. He
disclosed about the incident for the first time before the court. He
signed on the seizure at the place of occurrence but without going
through the same. He did not sign on the jacket.
ix. PW-6, PW-7, PW-8 and PW-10 were declared hostile by the
prosecution.
x. PW-9 deposed that on 11.12.2012 he was posted as a police driver
under Baishabnagar P.S. PW-1 asked him to keep the vehicle at a
place so that the vehicle could not be seen easily and asked them to
scatter in the area in order to apprehend one person as and when he
was instructed for the same. Thereafter, on being searched by PW-1
two bundles of notes of the denomination of Rs.1000/- each were
recovered from the pocket of the jacket of Imam Hossain. Then,
seizure was made by preparing seizure list and he signed on the
seizure list, marked as Exbt.-1/8. He also signed on the labels on the
notes. At that stage labels were produced before the witness and he
identified his signature on the same marked as Exbt.-2/5 and 3/5. He
was interrogated by the I.O. of that case and he made statement
before the I.O.
xi. PW-9 in his cross-examination stated that they make entry in the
logbook but ultimate control was on the I.C. of the P.S. Logbook was
inspected by I.O. but he did not sign on the same. Logbook of the
vehicle will reflect the journey in details with time. Seizure and
13preparation of seizure list and other documents were made on the
culvert of Telipara ghat and not at the P.S. He did not sign on the
notes.
xii. PW-11 deposed that on 11.12.2012 he was posted as A.S.I. of Police,
Baishabnagar P.S. On the basis of the written complaint formal F.I.R.,
was drawn by Shri Manik Debnath, I.C. of the P.S. He was conversant
with his signatures and handwriting on the formal F.I.R., marked as
Exbt.-5. In course of investigation of the case he drew the rough
sketch map of the P.O. with index which bore his signature marked as
Exbt.-6. He prepared seizure list relating to the papers of the motor
cycle marked as Exbt.-7. He sent the alleged FICN to the Bhartiya
Reserved Bank Note Mudran (P) Ltd., Salboni for examination of the
notes and subsequently collected report, marked as Exbt.-8. He also
examined witnesses Kalipada Mondal, Lalchand Singh, Dibendu
Sarkar and Prakash Ch. Ghosh.
xiii. PW-11 in his cross-examination stated first he examined the accused
person. Thereafter, he examined complainant at 19:35 hours but his
statement was not reduced into writing as he corroborated the F.I.R.
Thereafter, he examined the other accompanying force but their
names had not been mentioned in the F.I.R. He identified the
accompanying force from the seizure list and they were solely
examined by him.
xiv. He received the seizure list along with the seized material from
complainant on 11.12.2012 at 19:05 hours and he did not peruse the
14notes by breaking the seal. He did not record the statement of the
complainant regarding the condition of the seized articles at the time
of handing over the same. It had not been mentioned in the C.D. that
the notes were in sealed condition. The notes were sent to Salboni
through Constable No.74 Shankar Prasad whose name had been
mentioned in the C.D. but his statement was not recorded by him.
16. Section 489C of the Indian Penal Code states as follows:-
“Section 489C. Possession of forged or counterfeit currency
notes or bank-notes. – Whoever has in his possession any forged or
counterfeit currency-note or bank-note, knowing or having reason to
believe the same to be forged or counterfeit and intending to use the
same as genuine or that it may be used as genuine, shall be punished
with imprisonment of either description for a term which may extend to
seven years, or with fine, or with both.”
17. In Umashankar v. State of Chhatisgarh1, the Hon’ble Supreme Court
observed as follows:-
“8. A perusal of the provisions, extracted above, shows that mens rea of
offences under Sections 489-B and 489-C is “knowing or having reason to
believe the currency notes or banknotes are forged or counterfeit”. Without
the aforementioned mens rea selling, buying or receiving from another
person or otherwise trafficking in or using as genuine forged or counterfeit
currency notes or banknotes, is not enough to constitute offence under
Section 489-B IPC. So also possessing or even intending to use any forged
or counterfeit currency notes or banknotes is not sufficient to make out a
case under Section 489-C in the absence of the mens rea, noted above. No
material is brought on record by the prosecution to show that the appellant
had the requisite mens rea. The High Court, however, completely missed
this aspect. The learned trial Judge on the basis of the evidence of PW 2,1 (2001) 9 SCC 642
15PW 4 and PW 7 that they were able to make out that the currency note
alleged to have been given to PW 4 was fake, “presumed” such a mens
rea. On the date of the incident the appellant was said to be an eighteen-
year-old student. On the facts of this case the presumption drawn by the
trial court is not warranted under Section 4 of the Evidence Act. Further it
is also not shown that any specific question with regard to the currency
notes being fake or counterfeit was put to the appellant in his examination
under Section 313 of the Criminal Procedure Code. On these facts, we have
no option but to hold that the charges framed under Sections 489-B and
489-C are not proved. We, therefore, set aside the conviction and sentence
passed on the appellant under Sections 489-B and 489-C IPC and acquit
him of the said charges.”
18. In M. Mammutti Vs. State of Karnataka 2, the Hon’ble Apex Court
observed as follows:-
“… Mr. Nettar submitted that once the appellant is found in possession of
counterfeit notes, he must be presumed to know that the notes are
counterfeit. If the notes were of such a nature that mere look at them
would convince anybody that it was counterfeit such a presumption could
reasonably be drawn. But the difficulty is that the prosecution has not put
any specific question to the appellant in order to find out whether the
accused knew that the notes were of such a nature. No such evidence has
been led by the prosecution to prove the nature of the notes also. In these
circumstances, it is impossible for us to sustain the conviction of the
appellant. For these reasons, therefore, the appeal is allowed, conviction
and sentences passed on the appellant are set aside, and the appellant is
acquitted of the charges framed against him.”
19. Weirdly the complainant and the accompanying police officers in their secret
mission could not cite any independent witness from the locality
surrounding the place of occurrence. The presence of the prosecution
2 (1979) 4 SCC 723
16
witnesses apart from the police of the raiding party comprised of people
being distant residents, who eventually turned hostile before the Trial Court.
20. Inconsistencies in the versions of the police witnesses writ large contextually
to the event of the search and seizure of the FICN. The place and time of
seizure were contested and variant.
21. In Akil vs. State (NCT of Delhi), reported in 2024 SCC Online 3242 it was
observed as follows:-
“30. It was strenuously contended by counsel for the Appellants that all
witnesses examined by the prosecution were interested witnesses being
police officials and although the spot from where the alleged recovery
was made and Appellants were apprehended was a crowded market
place, no public witness was joined in investigation either at the stage of
apprehending the Appellants or conducting their personal search. This
argument in my view has no merit. It is a settled law that if the
testimony of a police official is consistent and of sterling quality and
does not give rise to any doubt or suspicion, it cannot be discarded
merely on the ground that the witness belongs to a police force.
In Baldev Singh v. State of Haryana, (2015) 17 SCC 554, the Supreme
Court observed as under:–
“10. There is no legal proposition that evidence of police officials
unless supported by independent evidence is unworthy of acceptance.
Evidence of police witnesses cannot be discarded merely on the ground
that they belong to police force and interested in the investigation and
their desire to see the success of the case. Prudence however requires
that the evidence of police officials who are interested in the outcome of
the result of the case needs to be carefully scrutinised and
independently appreciated. Mere fact that they are police officials does
not by itself give rise to any doubt about their creditworthiness.”
31. In Tahir v. State (Delhi), (1996) 3 SCC 338, the Supreme Court
observed that no infirmity attaches to the testimony of the police officials
17
merely because they hold that position. In Aner Raja Khima v. State of
Saurashtra, AIR 1956 SC 217 the Supreme Court held that the
presumption that a person acts honestly and legally applies as much in
favour of police officers as to others. It is not proper and permissible to
doubt the evidence of police officers unless strong reasons exist to do so.
Judicial approach must not be to distrust and suspect their evidence
without good and sufficient reasons. I may also allude to the judgment
of the Supreme Court in Om Parkash v. The State, 1982 Cri LJ 751.”
22. The evidence of police witnesses can be relied upon provided it is unflawed
and trustworthy. The prosecution failed to establish the mens rea on the part
of the appellant to have possessed the FICNs with knowledge of the same to
be fake coupled with the intention to utilize it for wrongful gain.
23. Mere possession of the FICN in absence of plausible reason to execute mal-
intention with a guilty motive cannot be accepted. The prosecution fortified
on the confession of the appellant which is legally discredited in view of
Section 27 of the Indian Evidence Act. Moreover, the investigating agency did
not record his statement and even endeavoured to trace his illegal
connection with Bangladeshi Nationals to embolden the imputation and
implication in exactitude.
24. Specific question under Section 313 of the Cr.P.C. was not directed to
extract a reply as to whether he had the knowledge counterfeit notes were in
possession which he intended to avail of illegally for wrongful gain. A
negative reply to such question could have entailed a possibility of
presumption and rebuttal. An entire paragraph consisting several episodes
was posed as a question leading to obfuscation and an evasive reply on the
part of the appellant as “I am innocent”. The Trial Court should have
18
maintained discretion in being discreet, specific and direct in framing the
question in conducting the process under Section 313 of the Cr.P.C. The
manner of paraphrase adopted in complying the provision under Section 313
Cr.P.C. was mechanical, incoherent and undiscerning.
25. In view of the above discussions, the prosecution cannot be said to have
proved its case beyond reasonable doubt and accordingly the instant
criminal appeal being CRA 19 of 2014 is allowed.
26. Under such facts and circumstances, the judgment of conviction dated
21.12.2013 and order of sentenced dated 23.12.2013 passed by Learned
Additional Sessions Judge, 2nd Court, Malda in Sessions Case No.111/2013,
corresponding to Sessions Trial No.16/2013 in G.R. Case No.5330/2012,
arising out of Baishnabnagar P.S. Case No.307/2012 dated 11.12.2012 is
set aside.
27. Accordingly, the Criminal Appeal being CRA 19 of 2014 stands disposed of.
28. There is no order as to costs.
29. I record my appreciation for the able assistance rendered by Learned
Advocate Mr. Soham Banerjee as Amicus Curiae, appearing for the
appellant, in disposing of this appeal.
30. Trial Court records along with a copy of this judgment be sent down at once
to the Learned Trial Court for necessary action.
31. Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)
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