Sahid @ Sahil Ansary Vs

Madhumati Mitra, J

Petitioner has preferred this application under Section 401 read with Section 482 of the Code of criminal Procedure praying for setting aside the judgment and order dated March 21, 2015 passed by the Learned Additional Sessions Judge, 1st Court, Purulia in Criminal appeal No.02/2014. By the impugned judgment and order the Learned Judge has affirmed the judgment and order of conviction passed by the Learned Judicial Magistrate, 3rd Court, Purulia on 16.12.2013. Learned Magistrate convicted and sentenced the petitioner for commission of the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentenced him to suffer simple imprisonment for one year and to pay a fine of Rs.1000/- in default to suffer a further imprisonment for one month.

The facts giving rise to the present Revisional Application may be summarized as under:-

On 13th February 2003 Sri Subhendu Roy, Sub-Inspector of RPF Post, Kotshila filed one written complaint to the effect that on December 15, 2002 between 3 a.m. to 4 a.m. he (complainant) along with other officers and staff of RPF post, Kotshila and C.I.B. staff of Adra and Bokaro assisted by Police personnel of Purulia (M) P.S. under supervision of O.C. of RPF Post Kotshila had conducted a raid and recovered from the possession of accused Sahil @ Sahid Ansary, Siddik Ansary, Sultan Ansary and Alauddin Ansary 32 number of OHE copper contact wire of different sizes from 1/1.5 k.m. away from the railway track at KM No.333 between Gourinath dham and Purulia Section (North Side). Said OHE coppers wires belonged to the Railway. The Accused persons did not give any explanation or produce any legal authority to the effect that they were in lawful possession of the said railway properties.

Learned Chief Judicial Magistrate, Purulia took cognizance of the alleged offence under Section 3 (a) Railway Property (Unlawful Possession) Act on the basis of the written complaint lodged by the O.C., RPF. After taking cognizance the Learned Chief Judicial Magistrate transferred the case to the Learned Judicial Magistrate 3rd Court, Purulia for disposal.

The evidence was recorded before framing of charge. After considering the evidence adduced by the prosecution before charge and considering the other relevant materials the Learned Magistrate framed charge on 21st April, 2012 against the accused Sultan Ansary, Sahid Ansary and Siddik Ansary for commission of alleged offence punishable under Section 3(a) of RP (UP) Act. The contents of the charge were read over and explained to the accused persons who pleaded innocence and claimed to be tried. Out of six accused persons the case in respect of three accused persons were filed for the present. No specific defence was taken by the accused as it appeared from the cross examination of the prosecution witnesses and their examination under Section 313 of the Code of Criminal Procedure. Defence case is nothing but the denial of the accusation. No defence witness was examined by the accused persons in support of their defence.

From the case record it appears that the prosecution examined as many as eight witnesses before charge. The Learned Magistrate after considering the evidence of the prosecution witnesses and exhibited documents came to his conclusion that the articles of the Railway which had been stolen were recovered from the possession of the accused persons and the accused persons failed to offer valid explanation or to produce documents in support of the possession of the railway property which were alleged to have been stolen. Thereafter the Learned Magistrate found the three accused persons guilty for commission of the offence punishable under Section 3(a) of the Railway Property (unlawful Possession) Act and sentenced them to suffer simple imprisonment for one year each and to pay fine of Rs.1000/- each and in default of payment of fine to suffer a further sentence for one month.

Being aggrieved by and dissatisfied with the impugned judgment of conviction and order of sentence convicts Sahil Ansary and Siddik Ansary preferred Criminal Appeal being No.02/2014. The said criminal appeal was dismissed on March 21, 2015 by Learned Additional Sessions Judge, Purulia.

Present petitioner Sahil @ Sahid Ansary has preferred the present Revisional Application challenging the judgment and order passed by the Learned Additional Sessions Judge in appeal.

While making his submission in support of setting aside the impugned judgment and order passed by the Learned Additional Sessions Judge in appeal, the Learned counsel appearing for the petitioner has submitted that both the Learned Courts below over-looked the fact that the alleged seizure from the possession of the petitioner was doubtful and the prosecution miserably failed to prove that the seized articles belonged to the Railway. He has also contended that the alleged recovery was made from a pond near railway track and the said pond was easily accessible to the public. The another contention of the Learned Counsel for the petitioner is that the prosecution initiated the proceedings against only three accused persons though as per the petition of complaint there were other accused persons. It has been forcefully contended by the Learned counsel for the petitioner that the seized articles/alamat were not produced before the Court during trial and non-production of seized articles during trial raised a doubt regarding the seizure of the articles from the possession of the accused. He has also contended that the seizure lists have not been properly proved by the prosecution during trial. No independent witness was present at the time of alleged seizure and absence of independent witness at the time of seizure made the seizure doubtful. The Learned Counsel has also pointed out that some of the vital witnesses were not produced by the prosecution for cross-examination after charge and the petitioner was deprived to cross-examine the said vital witnesses after charge. As a result, the interest of the petitioner has been highly prejudiced due to non-production of those prosecution witnesses.

On the other hand, Learned Counsel appearing for the opposite party has invited the attention of the Court to the impugned judgment and order passed in appeal and submitted that the prosecution has succeeded in proving that the accused were in unlawful possession of the railway property. He has invited the attention of the court to the seizure lists dated 15.12.2002, 04.02.2003 and submitted that there is no doubt regarding recovery of railway property from the possession of the petitioner. According to his contention prosecution has successfully discharged its burden that the accused were in possession of the railway property and the accused failed to show that they were in lawful possession of the same. He has further contended that the petitioner has failed to discharge his burden that he came into possession of the railway property lawfully. He has further submitted that the Learned Courts below have rightly passed the judgment of conviction and order of sentence. There is no ground to interfere with the impugned judgment and order passed in appeal affirming the judgment and sentence passed by the Learned Magistrate.

In the instant case, prosecution examined as many as eight witnesses.

From the evidence of the prosecution witnesses particularly from the evidence of PW-1 and PW-3 it transpires that they were the members of the raiding party. Both of them deposed in the same line to the effect that on 15.12.2002 while they were posted at Kotshila they went to raid. It also transpires from their evidence that at about 4 a.m. they noticed 6/7 persons were searching for some goods in a pond and they chased them. They arrested three persons and others managed to escape. From their evidence it also appears that they recovered 32 pieces of OHE copper/contact wire from the possession of the accused. PW-8 during his examination-in-chief corroborated the evidence of PW-1 and PW-3 regarding the arrest of three persons and recovery of articles from their possession. From the evidence of PW-8 it is revealed that the articles which had been recovered from the arrested persons were seized on the basis of seizure lists.

A plea has been taken on behalf of the petitioner that the seizure was not made in accordance with law. It is the specific contention of the Learned Counsel appearing for the petitioner that no independent witness was present at the time of alleged seizure and absence of independent witness creates a doubt regarding seizure of articles from the possession of the accused.

From the evidence on record, it appears that the incident of seizure and arrest of the accused took place in the month of December 2002, at about 4:00 a.m. Presence of public in the early morning of winter season is very difficult. More so, during his cross-examination the PW-1 and PW-3 categorically deposed that the local people were not present at the time of search and seizure. It appears that at the time of search and seizure there was no independent witness from the locality to witness the search and seizure due early winter morning. Absence of independent witness would not be material in the instant case.

In the instant case, the prosecution witnesses mainly PW-1, PW-2, PW-3 and PW-5 have deposed regarding the recovery of the articles from the possession of the accused persons. Though the PW-4 and PW-5 have deposed in support of the search and seizure but no reliance can be placed on their evidence as they failed to face cross-examination after charge.

Exhibit-1 is the seizure list dated 15.12.2002. From the Exhibit-1 it appears that the seizure was made in between 4.15 and 4.45 hours. Place of seizure mentioned in the seizure list was a pond which was located on the south side of railway track. The seized articles were 32 number of cut pieces of OHE copper/contact wire in different sizes weighing about 20 K.G. From the said seizure list it appears that six cut pieces of OHE cut wires had been in the right hand of the accused Sahid Ansary i.e. the present petitioner, 7 cut pieces of OHE wires had been in the right hand of Siddik Ansary and 8 cut pieces of the same were found from the possession of Bhakru Karmakar and the rest 11 pieces were recovered from pond in small different pieces. The contention of the Learned Advocate for the petitioner is that the articles were recovered from the pond and the pond is situated in public place and the prosecution did not make any enquiry regarding the ownership of the pond. Exhibit-1 is the seizure list which has specifically mentioned that 21 number of pieces of OHE wire in different sizes were recovered from the accused persons. Accused received the copy of seizure list by putting their signatures. Column No.4 of the seizure list also bears the signature of the petitioner Sahid Ansary and other accused. Column No.4 is regarding from whom the articles were seized. No contrary suggestion was given to the PW-1 during his cross-examination regarding the signatures and LTI of the accused persons in respect of the column 'from whom seized'. The evidence of PW-1, PW-3 and PW-8 remains unassailed regarding the search, seizure and recovery of the articles from the possession of the accused persons in spite of their cross-examination.

Another plea has been raised by the petitioner that no FIR was lodged by the railway authority regarding the theft of the articles. In this connection the evidence of PW-8 may be looked into. During his examination-in-chief PW-8 deposed that during investigation he collected the loss report. Exhibit-7 is the said loss report bearing loss register entry No.OHE/PRR/12.05.2002 dated 11.12.2002. It was recorded that about 70 mtrs OHE cat and cont wire was cut and stolen by the miscreants on 11.12.2002. The recovery of the articles as per seizure list was on 15.12.2002. That means the seizure and recovery took place after loss report i.e. Exhibit-7. There is no discrepancy in the evidence of prosecution witnesses regarding search, seizure and recovery of the articles from the possession of the accused. The prosecution has succeeded in proving the theft of 70 mtrs OHE copper/contact wire and recovery of some portion of the said wire from the possession of the accused.

From Exhibit-3 it appears that seized alamats were placed before PW-6. PW-6 carefully examined the same and thereafter expressed his opinion that those seized wires were the property of the railway and wire exclusively used in railway as OHE contact wire. The evidence of PW-6 remains un-assailed in spite of his cross-examination. During his submission the Learned Counsel for the petitioner has contended that the seized articles were never produced during trial for identification. This submission has no basis at all. From the evidence of PW-1 and PW-3, it appears that the seized articles were produced before them during their evidence. They identified the same.

The evidence on record clearly establishes the theft of railway property i.e. 70 mtrs OHE copper/contact wire and subsequently some portion of the said i.e. 21 pieces were recovered from the possession of the accused. No evidence has been adduced by the defence to show how they came into possession of those articles. No documents was produced by the defence in support of the possession of those articles. The Learned Courts below have rightly come to the conclusion that the accused committed the offence punishable under Section 3(a) Railway RP (UP) Act. I do not find any reasons to interfere with the concurrent findings arrived at by the Learned Courts below.

Accordingly, the Revisional Application is dismissed. Let a copy of this judgment along with the LCR be sent down to the Learned Court below.

Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.