STATE Vs. SELVAM ALIAS KULLA SELVAM

JUDGEMENT

(1.) THE criminal appeal has been arising out of the judgment passed by the learned Judicial Magistrate, Arakkonam on 4.7.2001 in C.C. No. 448 of 1988, acquitting the accused-respondents under Section 3(a) of Railway Property (Unlawful Possession)Act,1966.

(2.) THE case of the prosecution is as follows: P.W.I is Amirtharaj, who is working as Sub-Inspector of Police, Railway Protection Force, Arakkonam. While he was on duty on 26.11.1980, arrested one Hanifa for keeping the railway properties unlawfully and on the basis of his confession, he had obtained search warrant from Judicial Magistrate, Thiruthani. THEreafter, on 27.11.1980 at 12 noon, he had searched the shop at Door No. 31, West Opannakara Street, Swalpet, Arakkonam, which was belonging to A2 Loganathan and A3 Prakash. At that time, the first accused-A 1 Selvam was working in the shop. During the search, M.0.1 to M.O.8 had been seized under seizure mahazar Exhibit P1 and they are as follows: M.0.1 - 45 nos. of cat rails M.0.2 - 112 nos. of 1 feet length bolt M.0.3 - Dog spikes, screw bolts, and round bolts about 1 tonnes. M.0.4 - 8 nos. of special joint bearing plates M.0.5 - 20 nos. of Meter guage bearing plates M.O.6 - 107 nos. of steel keys M.O.7 - Broken pieces of C.I. Bearing plates, (N.C.) about 1 tonnes. M.O.8 - 4 nos. of Break blocks THEn, P.W.I had prepared Exhibit P-2 observation mahazar. THEn, he arrested A1 Selvam and his confession statement has been recorded under a mahazar Exhibit P-3. THEn, P.W.1 returned to police station and registered a case in Crime No. 68 of 1980 and examined the witnesses Ramadas, Govindan, Marimuthu, Balan and their statements were marked as Exhibits P-4 to P-7. P.W.4 Sundaramoorthy, Assistant Engineer, Southern Railway had inspected all the material objects seized in respect of Crime No. 68 of 1980 on 4.1.1981. He had given a certificate Exhibit P-8, to the effect that all the material objects are belonging to Railway Department, except M.O.8. THEn, P.W.2 Shanmugam had given a certificate Exhibit P-9, after inspecting all the material objects and the statement of P.W.2 is marked as Exhibit P-10. THEn, P.W.I has examined P.W.5 Balakrishnan, Junior Assistant at Deputy Commercial Tax Department, Arakkonam, for obtaining a certificate that A2 and A3 are doing business at concerned places where the search has been made and the reports were marked as Exhibits P-12 and P-13. On enquiry, it came to know that there is no business has been conducted at Door no.46, Mettu Street, Thiruthani. But, one Varadan who has been residing there was examined and his statement was recorded as Exhibit P-14. THEn, P.W.6 Nadanakunjithapadham had recorded the confession statements of accused A2 and A3 and the same were marked as Exhibits P-15 and P-16. P.W.7 Rangasamy had recorded statements of the witnesses and the same were marked as Exhibits P-17 and P-18. THErefore, P.W.7 concluded his investigation and filed the charge sheet before the Court.

(3.) PER contra, the learned counsel for the respondents would contend that even though the Trial Court has come to the conclusion that the search is valid under law, since there is a special provision under Section 10 of the Railway Property (Unlawful Possession) Act, search has been envisaged. They are not valid as per the provision laid down in Section 10 of this Act, and hence, search is not valid. The learned counsel for the respondents would rely upon the decision Sakthi Steel Traders v. Ashoke Chakraborty and Others (1993) Criminal Law Journal 969 and submit that the search is illegal. He would further submit that search warrant was not marked before the Court and non marking of the search warrant is fatal to the case of the prosecution. He would further submit that search under Section 94 of Cr.P.C. alone has been rectified by the irregularity, as per Section 460 Cr.P.C, since there is a special provision in the said enactment. According to him, the investigating agency ought to have followed the procedure laid down in the special enactment as per the Section 10 of the Railway Property (Unlawful Possession) Act. He would also rely upon the Apex Court decision and pray for dismissal of this appeal. He would further submit that the confession of Hanifa, who is not an accused cannot be considered as an admissible evidence, since the confession statement of the co-accused is not acted against these accused. He would further submit that Hanifa and another attestor turned hostile, and hence, the alleged confession statements given by them cannot be relied upon. He would further submit that A2 Loganathan is a licenced auction purchaser of the railway property and he has participated in so many auctions and he was a successful bidder also. So, he is in possession of railway property. To prove the same, he has filed Exhibits D-1 to D-9, the receipts for taking the railway properties in auction. So, the Trial Court has considered all these aspects in proper perspective and came to the correct conclusion by examining the charges levelled against the respondents. He would further sub- in it that till the accused were found guilty, they were innocent, and hence, they were acquitted. So, the burden is heavily on the prosecution to prove that the accused were guilty in the appeal stage. He would further submit that there are two views possible and the views, in favour of the respondents-accused are to be taken into consideration and therefore, prayed for the dismissal of this appeal.