STATE OF KERALA Vs. RAMADASAN

JUDGEMENT

(1.) PW 4, the Panchayat Executive Officer, issued Ext. P8 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 licence of the mill for the period in question also. PW 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 pretence of PW 2 and others on information that Railway properties are kept and possessed there unlawfully. With the attestation of PW 2 he prepared Ext. P1 search list and Ext. P2 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 PW 1 recorded Exts. P3 and P4 statements signed by respondents end attested by PW 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 PWs 1 and 2. All these were done in an enquiry under S.8(1) of the Railway Property (Unlawful Possession) Act. PW 3, Electrical Chargeman of the Railways (recently retired), examined the dianamo belts (MO 1 series). He issued Ext. P7 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 "Bharathrya Rail Sampathi" meaning that they are Indian Railway properties. Some contained emblem alone. There was no 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 PW 1 that Exts. P3 and P4 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 P3 and P4 were the result of inducement.

(2.) Respondents were prosecuted for an offence punishable under S.3 (a) of the Railway Property (Unlawful Possession) Act in C.C 174 of 1983, but 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; and (3) 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 PWs 1 and 2 clearly revealed the presence of both respondents and status of the second respondent as well as the further fact that Exts. P3 and 4 were obtained from them then and there. State has come up in appeal.

(3.) The ingredients to be proved by the prosecution for substantiating an offence under 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. Ramaswamy (1984 MLJ 22) wherein it was held that mere railway emblem will not make it Railway property because anybody could have an emblem like wise 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 that the properties are Railway properties and atleast 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 v. Vishwanath Tukaram Umale and others ( AIR 1979 SC 1825 ).