Sekar vs State by Asst. Sub Inspector Railway Protection Force, Salam, Jn.

Maheswaran, J.—The revision petitioner has been convicted of an offence punishable under S. 3 (a) of the Railway Property (Unlawful

Possession) Act and was sentenced to undergo rigorous imprisonment for one year and to a fine of Rs. 1,000 by the learned Judicial First Class

Magistrate, No. 1, Salem. In appeal, the conviction and the sentence were confirmed.

On 14th November, 1978 at about 12:30 a.m . Sekar, the revision petitioner, was found moving in suspicious circumstances on the railway

platform at Salem Junction. P.W. 1, Dharu, Assistant Sub Inspector of Railway Protection force was on duty at the platform. He stopped the

accused on suspicion and wanted to know as to what the gunny bag which the revision petitioner was carrying an his shoulder, contained. As no

satisfactory reply was given, P.W.1 seized the gunny bag from him, which contained railway marks. The leather bag which the revision petitioner

was carrying was also searched and it was found to contain six cardboard boxes containing filter elements. There was also a chalan, Ex.P1 in it.

The revision petitioner was not able to account for possession of these articles which are railway properties. P.W.1 then recovered M.O.1 gunny

bag, and M.O.2, the filter elements, under a mahazar Ex.P2, attested by witnesses. A case was registered in Crime No. 30 of 1978 under S. 3(a)

of the Railway Property (Unlawful Possession) Act. A statement was also recorded. P.W.1 examined witnesses and laid the charge sheet.

The trial Magistrate on an analysis of the evidence adduced before him found the revision petitioner guilty of the offence under S. 3(a) of the

Railway Property (Unlawful Possession) Act and convicted and sentenced him as stated above. As already pointed out, in appeal the conviction

and sentence were confirmed. The revision petitioner challenges that order.

The fact that M.Os.1 and 2 were railway properties admits of no doubt. The evidence of P.W.3, 4 and 7 will prove that M.O.1 was booked at

Karur and was unloaded at Erode for onward transmission. So also the evidence of P.Ws.8, 9 and 10 shows that M.O. 2 was booked at

Hyderabad and unloaded at Erode. The revision petitioner stayed at Erode in a lodge and Ex.P5 the receipt, proves that. Ex.P4, the ticket seized

from the revision petitioner under a mahazar by P.W.1 shows that he has travelled by an express train from Erode to Salem on 14th November,

1978. The evidence of P.W. 2 shows that M.Os. 1 and 2 were recovered from the revision petitioner by P.W.1 on 14th November, 1978 at

12:30 a.m. There is therefore, overwhelming evidence that M.Os. 1 and 2 which are railway properties were found in the possession of the

revision petitioner on the night of 14th November, 1978. That apart, the revision petitioner has confessed having committed theft of these articles,

M.Os. 1 and 2, in his statement, Ex.P3, which is clearly admissible in evidence. Both the courts have concurrently found that the railway

properties, M.Os. 1 and 2, were found in the possession of the revision petitioner and that the revision petitioner was not able to account for his

possession. Sitting in revision I do not see any reason to interfere with this finding of fact. The conviction therefore under S. 3(a) of the Railway

Property (Unlawful Possession) Act is correct and is confirmed.

Mr. V. Srinivasan, learned counsel for the revision petitioner urged that the revision petitioner is a graduate of Bangalore University and his

relatives are well placed in life and that the courts below ought to have invoked the beneficial provisions of the Probation of Offenders Act, 1958,

as he is a first offender with no record of previous conviction and as he was only aged 22 at the time of occurrence.

A reference to S. 3(a) of the Railway Property (Unlawful Possession) Act shows that whoever is found, or is proved to have been in possession

of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came

into his possession lawfully, be punished for the first offence with imprisonment for a term which may extend to five years, or with fine or with both

and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year

and such fine shall not be less than one thousand rupees. A minimum punishment of either imprisonment or fine has to be imposed if one is found

guilty of the offence punishable under S. 3(a) of the Act. If under S. 3(a) the court inflicts a punishment below the prescribed minimum, it has to

give special and adequate reasons in the judgment. The question is whether under suck circumstances, the provisions of the Probation of Offenders

Act, 1958 could be invoked.

In Superintendent, Central Excise Bangalore v. Bahubali 1979 M.L.J. Crl. 241 the Supreme Court had to consider the applicability of the

Probation of Offenders Act, 1958, in the case of inconsistencies with the later Acts. That was a case where gold ingots bearing foreign markings

were recovered from the respondent therein, but the Magistrate in the trial before him acquitted the respondent of the charge under S. 135 of the

Customs Act, but convicted him of the offence under R.126 I (i) and (10) read with R.126-P (2)(ii) of the Defence of India Rules, 1963, and

sentenced him to rigorous imprisonment for six months and to a fine of Rs. 2,000. The Additional Sessions Judge convicted him under R.126 P (2)

(i) of the Defence of India Rules and sentenced him to simple imprisonment till the rising of the court and maintained the sentence of fine Rs. 2,000.

The department filed an appeal and a revision was also filed by the accused. The High Court allowed the appeal and held that the case falls under

R. 126-P (2) (ii) which prescribed a minimum sentence of imprisonment for six months and directed that the respondent be released on probation

of good conduct for a period of two years under the Probation of Offenders Act, 1958. The Supreme Court held that where there is a statute

which bars the exercise of judicial discretion in the matter of award of sentence, the Probation of Offenders Act will have no application or

relevance. The Supreme Court pointed out that Ss. 3, 4 and 6 of the Probation of Offenders Act are inconsistent with R.126P(2)(ii) of the

Defence of India Rules, 1963, which manifestly bars the exercise of judicial discretion in awarding punishment or in releasing an offender on

probation in lieu of sentencing him by laying down a minimum sentence of imprisonment and that rule has to prevail over the provisions of the

Probation of Offenders Act in view of S. 43 of the Defence of India Act, 1962, which is later in point of time, than the Probation of Offenders Act.

As I earlier pointed out, in this case, S. 3 of the Railway Property (Unlawful Possession) Act provides for a minimum sentence of either

imprisonment or fine. S. 14 of the said Act enacts a non obstante clause which runs thus�

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

In other words, it has the effect of overriding the provisions of other enactments which contained inconsistent provisions and that would include the

provisions of the Probation of Offenders Act also. S. 3 of the Railway Property (Unlawful Possession) Act prescribing a minimum punishment is

manifestly inconsistent with the provisions of Probation of Offenders Act. Therefore, the application of the Probation of Offenders Act is excluded.

But, Mr. Srinivasan pointed out that an educated youth who is a first offender ought not to be sent to jail and allowed to mix with seasoned

criminals, and that, therefore, the court can take a lenient view of the matter and impose a sentence of fine only. Having regard to the fact that the

revision petitioner is a first offender, who is also a youth, and comes of a respectable family, I feel that the ends of justice would be met by setting

aside the sentence of imprisonment and imposing a fine instead. Accordingly, the sentence of imprisonment for one year is set aside and a fine of

Rs. 500 in addition to the fine already paid, in default to undergo rigorous imprisonment for three months. Time for payment of fine-one month

from this date. Except for this modification in the sentence, the revision, in other respects, fails and is dismissed.