State vs Kadhar Basha

R.S. Ramanathan, J.—The complainant in C.C.No. 72 of 1996 on the file of the learned Judicial Magistrate, Tambaram is the appellant. The complainant prosecuted the respondent for having committed offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.

The case of the prosecution as per the charge sheet is that on 10.10.1995 when the shop belonging to the respondent was searched by the complainant, they found 6 Nos of C.I. Crossing Blocks and 9 Cast Iron Lugs belonged to the Railway and the respondent was keeping them unlawfully and therefore, he committed the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.

The trial Court acquitted the accused on the ground that search was illegal and the complainant failed to produce stock list maintained by the Railways and no proof was produced by the prosecution to the effect that these articles were lost from the Railway Department. Aggrieved by the same, this appeal is filed by the appellant/complainant.

The learned Additional Public Prosecutor for the appellant / complainant submitted that the prosecution examined 8 witnesses and PW.1 is the Sub-Inspector of Police who conducted search and recovered the properties belonged to the Railways from the shop of the respondent. PW.2 and PW.3 are the Senior Engineer and Maintenance Engineers respectively and they have identified the properties recovered from the shop of the respondent. PW.4 is the Signal Inspector who gave the certificate that 135 pieces of cast iron lugs were found missing. PW.6 is the owner of the shop where the respondent was doing business. PW.7 and PW.8 are the witnesses to search. As per the evidence of PW.1, PW.2, and PW.4, the prosecution proved the case that the properties belonged to the Railways and they were recovered from the shop of the respondent and PW.2 identified MO.2(Series), namely, 9 cast iron found stolen as per the evidence of PW.4 and Ex.P.10 and when they were found in the shop of the respondent were also identified by PW.2. In the absence of any explanation given by the respondent how he came to be in possession of the property lawfully, the prosecution has proved his case and without appreciating the same, the trial Court acquitted the respondent on the ground that the stock register was not maintained and produced before the Court. He submitted that there is no need to produce stock register and that would also not prove the missing properties and PW.4 has given a report even on 25.7.1995 about missing of 135 numbers of cast iron lugs and he also gave a certificate to that effect during investigation and those were marked as MO.2 (Series) and PW.2 identified the same in Court also. Therefore, in respect of missing of 135 cast iron lugs, the prosecution has proved the case and that was not properly appreciated by the trial Court. He further submitted that the trial court also erred in holding that the search was illegal on the ground that the search was conducted on the next day after receipt of warrant. He submitted that as per Ex.P.1, Warrant was dated 9.10.1995 but it was issued on 10.10.1995 and it is seen from the seal affixed in the Ex.P.1 and also the signature found in the Warrant and therefore, on 10.10.1995 after the receipt of warrant search was conducted in the presence of PW.7 and PW.8 and articles were recovered and therefore, it cannot be contended that the search was illegal by reason of delay. He also submitted that even assuming that the warrant was issued on 9.10.1995, the search conducted on 10.10.1995 would not be vitiated on the ground of laches. He therefore submitted that the judgment of the trial Court is liable to be set aside. The accused is liable to be convicted.

The learned counsel for the respondent submitted that no reason was stated by PW.1 for the delay in conducting search and according to the defence, the respondent was illegally detained on 8.10.1995 and thereafter, the case was foisted on the respondent and therefore, when the search was conducted with the delay of 24 hours, the search was illegal and that was properly appreciated by the trial Court. He further submitted that according to the prosecution 2 items of Railway properties were recovered from the shop of the respondent. They are 6 pieces of Crossing Blocks and 9 pieces of Cast Iron Lugs. PW.3 and PW.4 were examined to identify those properties. PW.3 identified 6 caste iron Blocks Crossing Blocks. PW.4 identified 9 cast iron lugs. PW.3 issued Certificate Ex.P.6 and statement Ex.P.7. PW.4 issued certificate Ex.P.8 and statement Ex.P.9. Both PW.3 and PW.4 stated in their certificate and in their statement that they have signed slips which were affixed on the case property but PW.1 deposed in evidence that in MO.2 (Series), in respect of one item only slip was found and in respect of other items, slips were not found. He has not stated that slips were found in MO.1(Series). Therefore, the absence of slips found in MO.1(Series) and MO.2 (Series) would lead to the conclusion that those properties were not the properties seized from the shop of the respondent and some other properties were produced. Hence, the trial Court rightly acquitted the respondent.

Having regard to the submissions of the learned Additional Public Prosecutor for the appellant/complainant and the learned counsel for the respondent, it has to be seen

(i) whether the appellant/ complainant proved the case beyond reasonable doubt by proving that the properties which were produced before the trial Court belonged to the Railways and they were stolen from Railways?

(ii) Whether the respondent was able to give any explanation for his lawful possession?

As per Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, whoever is found, or is proved to have been, in possession of any railway properly reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable. Therefore, the prosecution has to prove initially that the properties which were produced before the Court belonged to the Railways and it was reasonably suspected of having stolen or the subject matter of theft and thereafter, the burden shifts on the accused to prove that he came into possession of the property lawfully.

In this case, the prosecution proved that MO.2 (Series) belonged to the Railways by examining PW.2. PW.2 identified MO.2 (Series) in Court and he also gave evidence that properties were not available in open market and the Railway also never sold such items in open market. PW.4 also gave evidence that 135 pieces of cast iron lugs were found missing and he issued certificate Ex.P.8 and also gave a statement Ex.P.9. In Ex.P.8 and P.9, he admitted that he has signed in the slips which were affixed on the case property of 9 Nos. of cast iron lugs. PW.1 also deposed that in MO.2(Series), identification slip is found in 1 item and MO.2(Series) is 9 pieces of cast iron lugs. Therefore, as per the evidence of PW.1, the identification slip is found in only one item of MO.2(Series). PW.4 did not identify MO.2(Series) and PW.2 who identified MO.2 (Series) also did not give any evidence that MO.2 (Series) identified by him contained any identification slips. In other words, PW.2 did not identify slips found in MO.2 (Series). Therefore, it is seen from the evidence of PW.2 and PW.4 that the prosecution failed to prove that MO.2 (Series) were the properties recovered from the shop of the respondent and even though PW.2 identified MO.2(Series), in the absence of any identification by his signature in MO.2 (Series) by PW.2 during evidence, it cannot be stated that MO.2 (Series) were seized from the shop of the respondent. As regards MO.1(Series), the prosecution failed to prove that the same was seized from the shop of the respondent. PW.3 was examined to prove that MO.1 (Series) belonged to the Railways and he did not identify MO.1(Series) in Court and PW.1 also did not state that MO.1 (Series) contained any identification slips signed by PW.3. Therefore, the prosecution failed to prove that MO.1 (Series) which were alleged to have been seized from the shop of the respondent and which contained identification slips were produced before the trial Court. Similarly, though PW.1 has stated in his evidence that in one piece MO.2(Series) identification slip was found, the identification slip was not found in other 8 items of properties in MO.2 (Series). PW.2 did not identify the identification slip of MO.2 (Series) and only identified MO.2(Series) and in the absence of identification slips identified by PW.2, it cannot be stated that the prosecution proved that MO.2 (Series) were also seized from the shop of the respondent.

As stated supra, initial burden is on the prosecution to prove that the properties seized from the respondent/accused belonged to the railways and in this case, as far as MO.1 (Series) is concerned, no proof was adduced, and MO.2 (Series) also, having regard to the evidence of PW.2, the prosecution failed to prove that the properties which were recovered from the shop of the respondent belonged to the Railways. Therefore, when the prosecution failed to prove that the properties seized belonged to the Railways, the respondent cannot be convicted for the said offence. Though this aspect was not considered by the learned trial Judge, according to me, having regard to the findings given above, I am not inclined to interfere with the acquittal order of the learned trial Judge.

In the result, I do not find any merit in the Appeal. The judgment of the trial Court is sustained and the Criminal Appeal is dismissed.