STATE Vs. LOGANATHAN RESPONDENT

JUDGEMENT

(1.) THE criminal appeal has been arising out of Judgment passed by the learned Judicial Magistrate, Arakkonam on 30.09.2002 in C.C. No. 194 of 1994 acquitting the accused under Section 3(a) of Railway Property(Unlawful Possession)Act.

(2.) THE case of the prosecution is as follows: On the basis of the confession given by the accused one Munusamy, after giving intimation to the concerned Judicial Magistrate, Arakkonam, P.W.1 Anandaraj, Inspector, Railway Protection Force, Arakkonam, made a search in the shop of accused-respondent Loganathan on 20.04.1991 at 8.45 a.m. to 11.00 a.m. in the presence of P.W.5 Jafar Ali and P.W.7 Christopher and seized the following M.O.1 to M.O.8 under Ex.P1. M.O.1 - 3 nos. B.G. 54 gauge nails M.O.2 - 50 nos. steel keys M.O.3 - 4 nos. CST 9 sleepers M.O.4 - 17 nos. railway Canted bearing plates M.O.5 - 4nos. axle box covers M.O.6 - 5 nos. stainless steel washbasin M.O.7 - 8 nos. AC bearing plates M.O.8 - 2 nos. name boards At that time, the statement of the accused-respondent Loganathan has been recorded and it was marked as Ex.P2. THE witnesses, Rajagopal and Sukumar were examined and their statements were marked as Exs. P3 and P4. THE statement of Thiruselvam was marked as Ex.P5 and the statement of P.W.5 Jafar Ali and P.W.7 Christopher were marked as Exs.P6 and P7. THEn, P.W.1 had obtained a certificate Ex.P8 from Deputy Commercial Tax Officer who had stated that the accused was doing business in the place where the search has been made. P.W.8 Vasudevan had given a certificate Ex.P9, in which, he has stated that the material objects belong to Railway Department. His statement was obtained and the same was marked as Ex.P10. P.W.2 Gleeson had given a certificate Ex.P11, in which, M.O.5, M.O.6 and M.O.8 has been examined and the same belong to the Railway Department and his statement was marked as Ex.P12. THEn, P.W.1 obtained a certificate from the Municipal Commissioner which was marked as Ex.P13. THEn, he examined the accused one Shanmugam and another Srinivasan and then, he examined the accused Munusamy and recorded their statements which were marked as Exs.P16 and P18. After completing his investigation, P.W.1 Inspector filed the charge sheet against the accused.

(3.) PER contra, the learned counsel for the respondent would contend that the Trial Court has not committed any error in coming to the conclusion that the search is legal in view of the decision reported in 1999 MLJ Criminal page 22. But, Apex Court has held that there is no special enactment, that the investigating agency ought to have followed the procedure laid down in the special enactment not a common law in Criminal Procedure Code. So, he relied upon the decision reported in AIR 1965 Supreme Court page 1 (Nilratan Sircar v. Lakshmi Narayan Ram Niwas), since P.W.1 Inspector has not followed the procedure laid down under Section 10 of the Act in 1993 Criminal Law Journal page 969 (Sakthi Steel Traders v. Ashoke Chakraborty and others). Hence, the learned counsel for the respondent prays for the dismissal of the appeal.