State of Kerala vs M. Ramadasan and Another

Padmanabhan, J.—P.W. 4, the Panchayat Executive Officer, issued Ext, P-8 certificate and gave evidence that the disputed building and rice mill belong to the first Respondent and in continuation of the licence for previous periods he is the licensee of the mill for the period in question also. P.W. 1, the Sub Inspector attached to the Railway Protection Force (for short R.P.F.) after obtaining search warrant from Court searched the premises in the presence of P.W. 2 and others on information that Railway properties are kept and possessed there unlawfully. With the attestation of P.W. 2 he prepared Ext. P-1 search list and Ext. P-2 mahazar recovering nine serviceable dianamo belts belonging to the Railway administration possessed in the mill. It is proved that first Respondent is the owner and licensee of the mill and second Respondent was his operator. Second Respondent was present and first Respondent was brought and the search and seizure were in their presence. After seizure P.W. 1 recorded Exts. P-3 and P-4 statements signed by Respondents and attested by P.W. 2 stating that these items were possessed in the mill on being purchased by the first Respondent from unknown persons. These facts were spoken to by P.Ws. 1 and 2. All these were done in an enquiry u/s 8(1) of the Railway Property (Unlawful Possession) Act. P.W. 3, Electrical Chargeman of the Railways (recently retired), examined the dianamo belts (M.O. 1 series). He issued Ext. P-7 certificate and gave evidence that these are serviceable dianamo belts exclusively manufactured for and owned and possessed by the Railways and they are not auctionable or available for purchase in the open market and there is no lawful means of coming by possession of it by strangers. Most of the dianamo belts contained the Railway emblem, engine marks and the inscription "Bharathiya Rail Sampathi" meaning that they are Indian Railway properties. Some contained emblem alone. There was no contention that the emblems, marking or inscriptions were artificially made or possession was by any lawful means. Except the suggestion in the cross examination of P.W. 1 that Exts. P-3 and P-4 were prepared and got signed in the R.P.F. post, that suggestion itself was not pursued further and there was no case even in 313 statement that Exts. P-3 and P-4 were the result of inducement.

Respondents were prosecuted for an offence punishable u/s 3(a) of the Railway Property (Unlawful Possession) Act in C.C. 174 of 1983, hut the Judicial First Class Magistrate, Tirur acquitted them on the grounds: (1) Possession by the Respondents was not proved beyond doubt (2) Properties are not proved to be Railway properties; an Presence of the first Respondent at the time of seizure and status of the second Respondent as Operator were not proved. Finding on the third point is a clear misreading of the evidence because the evidence of P.Ws. 1 and 2 clearly revealed the presence of both Respondents and status of the second Respondent as well as the farther fact that Exts. P-3 and P-4 were obtained from them then and there. State has come up in appeal.

The ingredients to be proved by the prosecution for substantiating an offence u/s 3 of the Railway Property (Unlawful Possession) Act are: (1) the property in question is Railway property, (2) the accused were in possession, and (3) it is reasonably suspected of having stolen or unlawfully possessed. The learned Magistrate relied on a Single Bench decision of the Madras High Court in State v. Ramaswami 1984 M.L.J. 22 wherein it was held that mere railway emblem will not make it Railway property because anybody could have an emblem likewise and there must be evidence of purchase and possession by the Railways. With due respect I may say that these propositions are not applicable for the purpose of our case. Here there is no case that the emblem, markings or inscriptions were made in some properties not belonging to the Railways or possession was lawfully obtained. In this case, there are sufficient materials to show the properties are Railway properties and at least the first Respondent was in possession. The gravamen of the offence is ''possession'' of ''railway property''. Present possession itself is not necessary. The wordings are "is found, or proved to have been in possession". Proof of past possession itself is sufficient. It was so held in State of Maharashtra Vs. Vishwanath Tukaram Umale and Others, .

In the process of proving that it is Railway property the prosecution may have additionally to prove, in case of dispute, that they are used or intended to be used in the construction, operation or maintenance of a railway and they are serviceable items. That is because articles which are properties of the railway administration but which have been rejected or discarded for further use would be outside the definition of Railway stores. The article must satisfy the definition of Railway stores and cause for reasonable suspicion of the stores being stolen or unlawfully obtained must be established. The specific purchase or ownership of any particular railway administration need not be established. What is required is only that it must be established by some evidence that the articles were the property of the Railway administration and they were in serviceable condition. Evidence that the goods are of the kind used by the Railway administration itself may be sufficient. In case of goods not put to use evidence to establish that they were manufactured for such use will be sufficient Kashmiri Lal Vs. The State of Uttar Pradesh, . The evidence in this case satisfies all these tests and it is not disputed also.

''Reasonable suspicion of having been stolen or unlawfully obtained'' is abstract and it should be based on sound footings free from personal prejudice. Each case will depend upon its facts. But generally it could be said that any deviation from common course of natural events gives rise to reasonable suspicion. Property, the possession of which has been transferred by theft or extortion or robbery or property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed is stolen property. If the person in possession obtained it through any of the means of Section 410 of the Indian Penal Code it would be stolen property and possession is unlawful. ''Unlawfully'' means contrary to law. Illegal possession covered by Section 410 Indian Penal Code and whatever other means covered by the term "unlawfully" is there. Possession not covered by Section 410 Indian Penal Code also will be unlawful if it is obtained violating some other law. What is required is possession and reasonable suspicion in these respects.

"Proved to have been" in Section 3 includes proof by circumstances also. A fact is said to be proved when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Possession only implies physical capacity to deal with it as one likes to the exclusion of others. When once possession is proved and it is also proved to be serviceable railway property not available in open market, reasonable suspicion is there and burden shifts to the accused to prove that he came into possession lawfully. It is true that the burden could be discharged by preponderance of probabilities even from the prosecution evidence. It could be shown that the items are non-serviceable railway properties abandoned and available without unlawful means. It could also be shown that they are properties sold by the Railway or otherwise available by lawful means. In this case, the evidence is that the items are serviceable railway properties not sold nor otherwise available in open market and there is no defence that they are not railway properties or possession was obtained by lawful means. Reasonable suspicion contemplated in Section 3 is thus there and the burden of the accused is not even attempted to be discharged especially when possession is proved.

The only other contentions to be answered are (1) P.W. 1 is a Police Officer who was conducting an investigation and Exts. P-3 and P-4 amount to confessions made to him and therefore hit by Section 25 of the Evidence Act, and (2) Exts. P-3 and P-4 offend Article 20(3) of the Constitution. These two contentions also cannot stand. Even though a faint attempt was made to invoke Section 24 of the Evidence Act, that attempt must necessarily fail in the light of the defence and the prosecution evidence.

Now it is well established that members of the R.P.F. are not police officers. The primary test in this respect is whether the officer concerned under the Special Act has been invested with all the powers exercisable by an officer in charge of a police station. Under Chapter XIV of the Code of Criminal Procedure in the matter of investigation the power of officers include the power to initiate proceedings by submitting a charge u/s 173. In order to bring within the inhibition to a ''police officer'' u/s 25 of the Evidence Act it is not sufficient that some or even many of the powers of police officers conducting investigation are exercisable. An officer of the R.P.F. making an inquiry u/s 8(1) of the Railway property (Unlawful Possession) Act is not having many of the important attributes of an officer in charge of a police station conducting an investigation. The inquiry u/s 8(1) of the Act is entirely different from an investigation under the Code. The status and powers of the members of the R.P.F. differ drastically on material aspects from those of police officers conducting investigation under the Code. They have no power to initiate proceedings culminating in the filing of a charge sheet before Court u/s 173 of the Code. That is a clinching attribute of police officers alone and therefore any confessional or incriminating statement made to a members of the R.P.F. m the course of an inquiry u/s 8(1) cannot be excluded from evidence u/s 25 of the Evidence Act Balkishan A. Devidayal Vs. State of Maharashtra, . The question whether such a statement by itself could form the basis of conviction or whether it could be taken only along with some other items of acceptable evidence does not arise for consideration because Exts. P-3 and P-4 are not the only acceptable item of evidence available.

The same decision is authority to reject the second contention as well. The mere fact that P.W. 1 said in cross examination that at the time of making Exts. P-3 and P-4 the Respondents were in his custody will not attract Article 20(3). Whether a person is accused of any offence will depend on whether at the time when he made the self incriminatory statement, a formal accusation of the commission of an offence was there against him. Formal accusation is only by the F.I.R. or complaint against the specific individual. Only on making a formal accusation Article 20(3) becomes operative. What Article 20(3) says is "no person accused of any offence shall be compelled to be a witness against himself". The Arte conditions are (1) Protection is available only to a person accused of any offence'' (2) Protection is only against compulsion ''to be a witness'', and (3) Protection avails only ''against himself''. The accusation must in the normal course result in his prosecution. Only when such a formal accusation is made the applicability of Article 20(3) arises affording protection against testimonial compulsion. An inquiry u/s 8(1) of the Railway Property (Unlawful Possession) Act does not involve accusation. It is only a process of getting information to ascertain unlawful possession and the identity of the person in order to file a complaint before Court. P.W. 1 said that the complaint was filed only much later and this is clear from the evidence of P.W. 5 who filed the complaint. Exts. P-3 and P-4 made at an earlier stage cannot be said to be by persons against whom there was accusation of an offence. Exts. P-3 and P-4 are therefore not hit by Article 20(3) also.

So far as the first Respondent is concerned, the evidence is clinching. He is proved to have been in possession of Railway properties reasonably suspected to have been stolen or unlawfully possessed and he has not discharged the burden shifted on to him. But the second Respondent was only an employee of the first Respondent and there is nothing to show that the mill was operating at the time of seizure. Second Respondent cannot be said to have possessed the items. Acquittal of the 2nd Respondent must stand.

The section says that in the absence of special and adequate reasons, imprisonment shall not be less than one year for the first offence. The Counsel was not able to point out and I was not able to find any special and adequate reason. So also I was not able to find any circumstance justifying the application of the provisions of the Probation of Offenders Act also.

While confirming the acquittal of the second Respondent and dismissing the appeal as against him, the appeal as against the first Respondent is allowed and his acquittal is set aside. First Respondent is convicted for the offence punishable u/s 3(a) of the Railway Property (Unlawful Possession) Act and sentenced to undergo simple imprisonment for one year. The learned Magistrate will take steps forthwith to execute the sentence.