Revision petitioner is the 1st accused in C.C.No.238 of 1999 on the file of Additional Chief Judicial Magistrate Court, Ernakulam prosecuted along with five other accused for an offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (in short, “the Act”).
2. Gist of allegations is that during the night on 07.01.1991, accused 2 to 6 committed theft of 18 number of rail pieces from the premises of Pachalam Railway Gate. It was disposed to the revision petitioner, who is a businessman dealing with scrap iron. He disposed the same to third parties for a sum of `7,500/-. Prosecution contended that the properties involved in the theft were rails used by the Indian Railway and five fish plates belonging to Indian Railway.
3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
4. Learned counsel for the revision petitioner submitted that the conviction and sentence imposed by the courts below are legally unsustainable. According to him, the revision petitioner was in lawful possession of the property, which is wrongly alleged to be railway property. It is also contended that it was the property auctioned by the Cochin Port Trust. It is further contended that the Cochin Port Trust has power for disposal of any property within its premises. Learned Prosecutor opposed the contention saying that there cannot be a dispute that the property recovered from the possession of the revision petitioner was railway property. The contention that the properties covered in Exts.D1 to D6 belong to the Cochin Port Trust is also disputed by the prosecution. According to the learned Prosecutor, Cochin Port Trust has no authority to sell the property belonging to Indian Railway. Further, Exts.D1 to D6 will only show that certain pieces of rail were sold by the Cochin Port Trust to the revision petitioner. Even if one accepts Exts.D1 to D6 as genuine documents, the petitioner cannot account for the possession of the fish plates, which are not included in Exts.D1 to D6.
5. Sec.3 of the Act is the penal provision. It reads as follows:
“Penalty for unlawful possession of railway property.- 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 punishable-
(a) 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;
(b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine 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 two years and such fine shall not be less than two thousand rupees.”
6. The point to be considered in this revision is whether the concurrent findings of fact by the courts below are illegal, improper or incorrect.
7. Learned counsel for the revision petitioner submitted that the courts below committed a grave legal error in marking the confession of the revision petitioner and other accused, viz., Exts.P1, P3 and P7 to P10. It is true that the Act does not contain any provision permitting the marking of confession in evidence, as in the case of Customs Act and other enactments. The confession of an accused to the Police cannot be admitted in judicial proceedings by virtue of the embargo provided in Sec.25 of the Evidence Act. It is all the more relevant to note that the learned Magistrate marked the entire confession statements of the accused and relied on thereon to arrive at a conclusion. It is entirely impermissible in law. Therefore, that part of the evidence will have to be eschewed from consideration.
8. Learned counsel for the revision petitioner submitted that the oral evidence of DW1 coupled with Exts.D1 to D6 will show that the revision petitioner lawfully took the rails in auction from the Cochin Port Trust. Testimony of DW1, according to the learned counsel for the revision petitioner, would fortify the defence contention. It is also submitted that no question was put to DW1 by the prosecution to show that the Cochin Port Trust has no authority to sell the items mentioned in Exts.D1 to D6. In answer to this argument, learned Prosecutor contended that neither Exts.D1 to D6 nor testimony of DW1 would show that they sold five fish plates admittedly belonged to the Indian Railway. Ext.P6 is the certificate issued by the Permanent Way Inspector. It would show that after recovery of the stolen property, he conducted an inspection of the articles and identified the fish plates as those belonging to the Indian Railway. It is also mentioned in the certificate that the fish plates were serviceable and it could not have been auctioned. There is no challenge to this document.
9. Learned counsel for the revision petitioner submitted that the search was not in conformity with the provisions in Sec.10 of the Act. Sec.10 reads as follows:
“Issue of search warrant.-(1) If an officer of the Force has reason to believe that any place is used for the deposit or sale of railway property which has been stolen or unlawfully obtained, he shall make an application to the Magistrate, having jurisdiction over the area in which that place is situate, for issue of a search warrant.
(2) The Magistrate to whom an application is made under sub-section (1), may, after such inquiry as he thinks necessary, by his warrant authorise any officer of the Force-
(a) to enter with such assistance as may be required, such place;
(b) to search the same in the manner specified in the warrant;
(c) to take possession of any railway property therein found which he reasonably suspects to be stolen or unlawfully obtained; and
(d) to convey such railway property before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety.”
10. On a reading of Sec.10 of the Act, it can be seen that the Magistrate has power to issue a warrant authorising the Officer of the Railway Protection Force to conduct search and the power of the Magistrate is traceable to Sec.100 of the Code of Criminal Procedure. That is more evident from Sec.11 of the Act. It is settled law that even if there is an illegality or irregularity in the search conducted, the evidence gathered in such search remains admissible. Therefore, that contention cannot be accepted.
11. Learned counsel for the revision petitioner submitted that the alleged incident was in 1991. It is also seen from the judgment of the learned Magistrate that other accused persons pleaded guilty and they were let off with a sentence of fine only. That is clearly illegal. Sec.3 of the Act prescribes maximum and minimum punishment for the offence. The trial court has committed a grave illegality in not awarding the statutorily prescribed punishment in the case of other accused persons. It is not clear from the judgment whether there was any special and adequate reason for not awarding statutorily prescribed punishment. Even if that be so, the trial court should have imposed imprisonment at least for a short period. Learned counsel for the revision petitioner submitted that at this distance of time, three months imprisonment awarded on the petitioner is highly disproportionate to the offence alleged. It is true that the courts below have not stated any reason for not awarding the mandatory minimum punishment of one year to the revision petitioner. Considering the age of the petitioner as on today, the time that has elapsed from the date of occurrence to the date of hearing of this matter and also the fact that he has produced all the property to the authorities, I find that he can be directed to undergo imprisonment for three days. If the petitioner had already undergone any period of pre-trial detention, that shall be given credit to the sentence awarded.
In the result, the revision is partly allowed. The impugned conviction is confirmed. The sentence is modified and reduced to three days imprisonment and fine of `3,000/- (Rupees three thousand only). In default of payment of fine, revision petitioner shall undergo imprisonment for a period of fifteen days.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks A.HARIPRASAD, J.
Crl.R.P.No.1802 of 2002 ORDER 13th October, 2014