ANWAR UDDIN Vs. STATE

JUDGEMENT

(1.) THIS revision has been listed before us as notice for enhancement of sentence was issued by Parekh, J. The applicant Anwaruddin has been convicted under Section 3 of the Railway Property (Unlawful Possession) Act XXIX of 1966 and sentenced to one year's R. I. and a fine of Rs. 1,000/- by the trial court. In Criminal Appeal No. 78 of 1971, the Addl. Civil and Sessions Judge, Agra by his judgment dated 1-2-1972 maintained the conviction of the applicant but reduced the substantive sentence to six months' R. I, and to pay a fine of Rs. 500/instead of Rs. 1,000/- and in default of payment of fine, the applicant was to undergo further R. I. for three months. The learned single Judge, who heard the revision at the earlier stage, took the view that the minimum sentence was prescribed under Section 3 of the said Act and any reduction in the minimum sentence was not permissible as special and adequate reasons had not been given by the Addl. Civil and Sessions Judge. The revision was argued on merits also before us.

(2.) THE prosecution case is that S. I. Imam of Railway Protection Force received information that Anwaruddin the applicant was in possession of railway property, viz, Dynamo belts at his Ara machine. He, therefore, obtained the warrant for search from the City Magistrate and proceeded to the shop of the applicant situated in Nalband Ka Chauraha Pachquiyan, P. S. Lohamandi, Agra. He reached there on 18-1969 at about 6. 45 p. m. He had taken along with him S. I. Brijendra Singh of police Chauki Gokulpura and constable Mahraj Singh. He had also taken with him two other persons Bahadur Singh and Gopal from the railway station to witness the search. He conducted search in the presence of these persons and recovered ten Dynamo belts which appeared to belong to the railway. Some of them were in use while others stored in a wooden box. He prepared the recovery memo which was signed by the witnesses and sealed them in a bundle. These belts were then examined by Gopal Das (P. W. 2) Assistant Electrical Foreman, who gave his report which is Ext. Ka-2a According to his report eight out of ten belts bore railway markings IR and as such belonged to the railway being the railway property.

(3.) THE applicant was duly prosecuted. He denied the prosecution allegations and stated that he was falsely implicated in this case on account of enmity with one Asharfi Lal constable of the R. P. F. He examined Shyam Sunder (D. W. 2) and Bhika Ram (D. W. 3) to show that the constable Asharfi Lal had gone to the applicants's Ara machine and demanded two Payas (cot legs) which he refused to give and as such there was an altercation.