State vs Subbian Chettiar and Shanmugham

Swamikkannu, J.—This is an appeal u/s 378, Crl.P.C., filed by the State against Judgment, dated 20th May, 1981 in C.C. No. 28127 of

1978 on the file of the Court of the learned VI Metropolitan Magistrate, Egmore, Madras finding Al and A2 (Respondent herein) not guilty u/s

3(a) of the Railway Property (Unlawful Possession) Act, 1966 and acquitting them u/s 248(1), Crl.P.C.

The case of the prosecution is that on 21st August, 1978 at about 11:30 A.M. of No. 19,Tiruvallur High Road, there were found in unlawful

possession of the railway properties, viz., railway fittings, reasonably suspected to have been stolen or fraudulently obtained and for the possession

of which they could not account for satisfactorily. On behalf of the prosecution, P.W.1 Nadanakunjithapatham, P.W.2, Murthi, P.W.3 Muthu and

P.W.4 Devaraja were examined. Ex. Pl search list, Ex.P2 confession statement of A.l, Ex.P3 confession statement of A.2, and Ex.P4 certificate

issued by P.W.2 were also filed on behalf of the prosecution before the lower court. On behalf of the accused-Respondent herein, A.2

Shanmugham had examined himself as D.W.. Ex.D1 series receipts and delivery orders, dated 19th August, 1977 relating to the properties that

were taken on auction, D.2 series receipts and delivery orders relating to the properties that were taken on auction on 19th June, 1978, D.3 series

receipts and delivery orders relating to the properties that were taken on auction on 27th October, 1977, D.4, series receipts and delivery orders

relating to the properties that were taken on auction on 19th August, 1977 and D.5 series receipts and delivery orders relating to the properties

that were taken on auction on 23rd September, 1977 were filed on behalf of the accused-Respondents before the trial court. The prosecution

produced M.O.1 to M.0.29 before the Court below, and it is as per Ex.P1 that above 29 M. Os. were produced before the lower court.

When questioned u/s 313, Code of Criminal Procedure relating to the incriminating evidence let in by the prosecution, A.1 (first Respondent

herein ) had stated that he had no connection with the shop and A.2 (second Respondent herein) had stated that he had taken the Material objects

that were seized from his shop on auction from the Railways. In this regard A.2 had also produced the relevant receipts before the railway police

As already seen, Exs. D1 series to D5 series were filed in this case on behalf of the accused-Respondent herein before the lower court.

It is also relevant to note that A.2 had examined himself as D.W.1 and had stated in his evidence that he is conducting a shop dealing in iron

articles at Avadi and that the said shop is situate in Madras-Tiruvallur High Road. He has further stated that he is actually in charge of the entire

administration of the said shop. On 21st August, 1977 when the railway police searched his shop, he was not available in the shop. Thereafter he

informed the railway police that the properties that were seized from his shop were purchased in auction from the railways. His further evidence is

that when he stated the explanation regarding the properties seized to the railway police, they informed him that already prosecution had been

launched against him and as such he could file the relevant documents into court and that if he had to be released on bail he should sign in a blank

white paper. He had specifically stated in his evidence that the seized properties were purchased from the railway authorities on auction as per

Exs.D1 series to D5 series. At the time when his shop was searched, he had gone to Bangalore for attending a marriage and Ex.D6 is the marriage

invitation.

On the question whether the prosecution had proved its case against the accused-Respondents beyond all reasonable doubt, the learned VI

Metropolitan Magistrate, Egmore, has held that the properties (M.O.1 to M.O. 29) that were produced before him were dismantled articles from

the railway boxes and that they were unserviceable. He has further specifically held that from the contents of Exs.D1 series to D5 series it is clear

that A.2 had purchased M.O. 1 series to M.O.29 series (altogether 816 items) in an auction held by the Railway prior to the date of the search of

the shop owned by A.2. The learned Magistrate has held so in Paragraph 17 of his judgment.

Mr. A.N. Rajan, learned Government Advocate, contends that the lower court has not properly appreciated the evidence available on record

and had wrongly held that the offence had not been made out against the accused-Respondents.

The point for consideration in this appeal is whether the prosecution has proved its case against the accused-Respondents herein beyond all

reasonable doubt.

The evidence of P.W.1 is that on information that there were stolen properties kept in the premises bearing No. 19, Tiruvallur High Road, he

had obtained a search warrant and went to the premises in question along with, his men and conducted search of the premises in question from 11-

30 a.m. to 1 p.m. on 21st August, 1978. Ex.P1 is the search list. The copy of the search list was furnished to A.1, who was present in the shop at

that time. A.1 had been examined in the police station and the statement given by him to the police is Ex.P2. On 30th August, 1978 A.2 was

arrested and was brought to the police Station, A.2 also gave Ex.P3 confessional statement, P.W.2 examined the properties that were seized. The

certificate issued by P.W.2 was obtained and thereafter the complaint was filed against the accused-Respondents herein.

As already seen, A2 in his evidence as D.W.1 stated that the shop is conducted in his name and that on the day of the search he had gone to

Bangalore to attend a marriage and that the properties that were seized as per Ex.P1 were purchased by him in auction conducted by the railways.

In this regard A2 had filed Exs.D1 series to D5 series when he had examined himself as D.W.1.

P.W.1 after obtaining the search warrant from the learned Judicial First Class Magistrate, Tiruvallur, conducted search of the shop belonging to

A2. Section 11 of the Railway Property (Unlawful Possession) Act, 1966 reads as follows:

All searches and arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898

(See now the Code of Criminal Procedure, 1973 (Act 2 of 1974.), relating respectively to searches and arrests made under that Code.

S.100 of the Crl.P.C, reads as follows:

100, Persons in charge of closed place to allow search:- (1) Whenever any place liable to search or inspection under this Chapter is closed, any

person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant and on production of the

warrant, allow him free ingress thereto, and afford all reasonable, facilities for a search therein.

(2) If ingress into such place cannot be so obtained the officer or other person executing the warrant may proceed in the manner provided by sub-

S.(2) of Section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search be made, such

person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter the officer or other person about to make it shall call upon two or more independent and

respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is

available or is willing to be a witness to the search to attend and witness the search and may issue an order in writing to them or any of them so to

do.

(5) The search shall be made in their presence and a list of things seized in the course of such search and of the places in which they are

respectively found shall be prepared by such officer or other person and signed by such witness; but no person witnessing a search under this

section shall be required to attend the Court as a witness of the search unless specifically summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall in every instance, be permitted to attend during the search, and a copy

of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person.

(7) When any person is searched under Sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be

delivered to such person.

(8) Any person, who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so

by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under S..187 of the I.P.C. (45 of 1860).

It is relevant to note that P.W.3 Village Munsif who had been examined for the seizure had admitted in his cross-examination that he had been

suffering from blood-pressure for about three or four years and that at the time of search and seizure of the articles in question, he was lying down

outside the shop which was searched and that he had signed only in the list which was prepared and shown to him. He had also admitted in his

evidence that he did not know the number of the articles that were available with respect to 29 items of properties that were seized under Ex.P1.

In the instant case before us, it is seen that Ex.P1 had been signed by P.W.1 who is a railway officer. From the evidence of P.W.3 it is clear that

he was not present at the time of the actual search and seizure of the articles mentioned in Ex.P1. It is also seen that the police did not make any

attempt to call for any independent witness residing in their locality. In the instant case, it is also relevant to note that the prosecution could not give

the details relating to the place where the alleged theft of the articles had taken place, or filed any list showing that M. Os. 1 to 29 belonged to the

railways and that they were not auctioned. No doubt, it is mentioned in Ex.P1 that items 1 to 29 were checked by P.W.2 C.T.K. Murthi and that

he has certified that the said items were not auctioned. It is relevant to note that through P.W.2 no registers maintained by the railway authorities

were produced in order to specifically establish that M. Os. 1 to 29 (816 articles) were not auctioned properties of the railways during the relevant

time. On the other hand, on behalf of the accused, D.W.1 had produced Exs. D1 series to D5 series to establish his case that the properties

mentioned in Ex.P1 were purchased by him from the railways in auction. Under the circumstances, the evidence of P.W.2 of his endorsement in

Ex.P1 to the effect that M. Os. 1 to 29 are serviceable and that they were not auctioned, cannot be given much importance, especially when the

railway administration had not chosen to produce any document to the effect that the properties seized were not auctioned. It is not specifically

stated by the prosecution as to the place from which the seized articles were stolen. Ex.D1 series show that A.2 had purchased cylinders on 19th

August, 1977 to the tune of Rs. 5,592. He had also purchased as per Ex.D2 series wagons to the tune of Rs. 64,860 on 19th June, 1977. On

27th October, 1977 as per Ex.D3 series A2 had purchased dismantled articles belonging to the railways to the tune of Rs. 1,515-20. On 19th

August, 1977, A2 had purchased as per Ex.D4 series eight bogi trucks to the value of Rs. 1,120. As per Ex.D5 series, A.2 had purchased

cylinders in an auction on 23rd September, 1977 to the tune of Rs. 3,096.

Thus, on a careful and anxious scrutiny of the entire evidence available on record, both oral and documentary, I find that the learned VI

Metropolitan Magistrate, Egmore, is correct in coming to the conclusion that the prosecution had not established its case against both A1 and A2

(Respondents herein) and had rightly acquitted them u/s 248(l), Code of Criminal Procedure There is no infirmity in the judgment of acquittal

rendered by the lower court. Hence there is no merit in the appeal and the same is hereby dismissed.