MD IRFAN ALI vs UNION OFINDIA N.F. RAILWAY

1.This is a criminal revision petition, filed under Sections 397/401 of the Cr.PC, against the judgment and order, dated 31.12.2018, passed by the

learned Additional Sessions Judge, No. 2 (FTC), Tinsukia in Criminal Appeal No. 30(3)/2008 dismissing the appeal and affirming the judgment and

order, dated 24.07.2008, passed by the learned trial court of the Special Railway Magistrate 1st Class, Tinsukia convicting andÂ

sentencing the accused-revision petitioner to suffer rigorous imprisonment for 6 (months) and to pay a fine of Rs. 3,000/- and in default to

undergo further rigorous imprisonment for 1 (one) month.

I have heard Mr. NS Laskar, learned counsel for the accused-revision petitioner. Mr. DK Dey, learned counsel appearing for the Railways has

appeared in this case although he has filed Vakalatnama today only.

The fact of the case is that, an FIR was lodged by one Sri K Sananda Singh, Sub-Inspector of RPF, Badarpur, to the effect that on 28.11.2004, at

about 9/10 hours, local police of Badarpur, informed him that railway materials were kept hiding somewhere in Deorail near Badarpur. On receipt of

the information, he alongwith Sub-Inspector, G Modak, Head Constable, N R Das, and Constable, K R Dey, conducted raid and search jointly in

presence of the local police and during the search of the godown/house made of bamboo structure and owned by the accused-revision petitioner, some

railway materials, like 67 nos. of CST, 9 pots and wagon cut pieces about 2 quintals were recovered. The accused-revision petitioner was present

during the search and he failed to show any valid document regarding possession of the railway materials and also he stated that the materials were

collected from various persons/suppliers and kept in his house where another accused (already acquitted) also had his share.

On completion of the investigation, charge-sheet was filed against the accused-revision petitioner under Section 3(a) of the Railway Property

(Unlawful Possession) Act, 1966. A formal charge against the accused-revision petitioner was framed under Section 3(a) of the Railway Property

(Unlawful Possession) Act, 1966, to which he pleaded not guilty.

The prosecution examined as many as 9 (nine) witnesses and the defence examined 3 (three) witnesses.

After closure of the prosecution evidence, statement of the accused-revision petitioner was recorded under Section 313 of the Cr.PC, and in his

such statement , he denied the allegation levelled against him.

After conclusion of the trial, the learned trial court as well as the learned appellate court convicted and sentenced the accused-revision petitioner, as

indicated above.

I have meticulously examined the evidence of the witnesses for both the sides.

Since the case is in respect of possession of Railway Properties unlawfully, this court has decided to confine its finding as to whether the property

mentioned in the complaint were found in the possession of the accused-revision petitioner in his house or not and if this fact is proved then the

offence is proved against the accused-revision petitioner.

The evidence of the PW2 makes it appear that, he alongwith the local police, some other staffs went to the house of the accused-revision

petitioner and found the railway materials, as indicated above, in his house to which the accused-revision petitioner did not have any explanation.

PW9 also supported the evidence of PW2 as far as the search and seizure is concerned.

PW7 is also a seizure witness who is also found to have subscribed to the evidence of PW2 that the railway properties were found in the

possession of the accused-revision petitioner and received from his house. This witness appears to be an independent witness as he does not belong to

the railway department or the police department.

PW8 was also present at the time of seizure of the railway materials from the possession of the accused-revision petitioner who has also

supported the evidence of the PW2, PW7 and PW9 as regards seizure of railway materials from the house of the accused-revision petitioner.

The defence could not demolish the prosecution evidence as regards the seizure of the railway property from the house of the accused-revision

petitioner. There is no evidence that the house was in possession of the accused-revision petitioner.

That being so, the seizure of the railway property from the house of the accused-revision petitioner, in his presence and from his possession, is

established by the prosecution witnesses, and therefore, in the considered view of this court, the seizure of the railway property from the house of the

accused-revision petitioner without there being any explanation from his side as to how he could possess the same, the conviction recorded by the

learned trial court is found to have been based on evidence on record requiring no interference by this court.

However, so far the sentence is concerned, this court has considered the facts and circumstances of the case as well as the fact that the case

was registered in the year 2004, and the accused-revision petitioner has been engaged in a prolonged legal battle for all these 13 years, and therefore,

this court is of the view that if the substantive sentence is set aside and the fine imposed by the learned trial court is retained, it will meet the ends of

justice.

Accordingly, the substantive sentence imposed upon the accused-revision petitioner is set aside, and the punishment in the form of fine, as imposed

by the learned trial court is retained i.e., the accused-revision petitioner shall pay a fine of Rs. 3,000/- and in default, to suffer rigorous imprisonment

for 1 (one) month.

The accused-revision petitioner shall surrender before the learned trial court within 1 (one) month to serve out the sentence.

With the above modifications, this criminal revision petition is, partly allowed.

Send down the LCR alongwith a copy of this judgment.