STATE Vs. KADHARBASHA

JUDGEMENT

(1.) THE complainant in C.C.No. 72 of 1996 on the file of the learned Judicial Magistrate, Tambaram is the appellant. The complainant prosecuted the respondent for having committed offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.

(2.) THE case of the prosecution as per the charge sheet is that on 10.10.1995 when the shop belonging to the respondent was searched by the complainant, they found 6 Nos of C.I. Crossing Blocks and 9 Cast Iron Lugs belonged to the Railway and the respondent was keeping them unlawfully and therefore, he committed the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.

(3.) THE learned Additional Public Prosecutor for the appellant / complainant submitted that the prosecution examined 8 witnesses and PW.1 is the Sub -Inspector of Police who conducted search and recovered the properties belonged to the Railways from the shop of the respondent. PW.2 and PW.3 are the Senior Engineer and Maintenance Engineers respectively and they have identified the properties recovered from the shop of the respondent. PW.4 is the Signal Inspector who gave the certificate that 135 pieces of cast iron lugs were found missing. PW.6 is the owner of the shop where the respondent was doing business. PW.7 and PW.8 are the witnesses to search. As per the evidence of PW.1, PW.2, and PW.4, the prosecution proved the case that the properties belonged to the Railways and they were recovered from the shop of the respondent and PW.2 identified MO.2(Series), namely, 9 cast iron found stolen as per the evidence of PW.4 and Ex.P.10 and when they were found in the shop of the respondent were also identified by PW.2. In the absence of any explanation given by the respondent how he came to be in possession of the property lawfully, the prosecution has proved his case and without appreciating the same, the trial Court acquitted the respondent on the ground that the stock register was not maintained and produced before the Court. He submitted that there is no need to produce stock register and that would also not prove the missing properties and PW.4 has given a report even on 25.7.1995 about missing of 135 numbers of cast iron lugs and he also gave a certificate to that effect during investigation and those were marked as MO.2 (Series) and PW.2 identified the same in Court also. Therefore, in respect of missing of 135 cast iron lugs, the prosecution has proved the case and that was not properly appreciated by the trial Court. He further submitted that the trial court also erred in holding that the search was illegal on the ground that the search was conducted on the next day after receipt of warrant. He submitted that as per Ex.P.1, Warrant was dated 9.10.1995 but it was issued on 10.10.1995 and it is seen from the seal affixed in the Ex.P.1 and also the signature found in the Warrant and therefore, on 10.10.1995 after the receipt of warrant search was conducted in the presence of PW.7 and PW.8 and articles were recovered and therefore, it cannot be contended that the search was illegal by reason of delay. He also submitted that even assuming that the warrant was issued on 9.10.1995, the search conducted on 10.10.1995 would not be vitiated on the ground of laches. He therefore submitted that the judgment of the trial Court is liable to be set aside. The accused is liable to be convicted.