UMASHANKAR Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure, 1973, for quashing the proceeding under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, against the petitioner pending in the Court of Railway Magistrate, Jabalpur, in Criminal Case No.2592/81. The petitioner along with 8 others is being prosecutor the aforesaid offence in the said case.

(2.) ACCORDING to the petitioner he is an industrialist and businessman residing at Nagpur in the State of Maharashtra. He is the managing director of a public limited company known as Ferro Alloys Corporation Limited (hereinafter referred to as FACOR). The company carries on business of manufacturing metal alloys and. has a factory at Garividi in the State of Andhra Pradesh. "Under leave and licence the company has taken over Vidarbha Iron and Steel Corporation Limited (hereinafter referred to as VISCO) having its factory at M.I.D.C., Industrial Estate at Hingna Road, Nagpur, as per arrangement sanctioned by the Nagpur Bench of the Bombay High Court in a company proceeding against the said VISCO. The VISCO is producing steel ignots and rolled products by melting iron scraps which are purchased from the open market. The company is required to maintain minimum stock of 1500 metric tonnes of iron and steel scrap as the daily consumption of such scrap is about 70 M.T. The stock is stored in the six acre compound of the company in its premises at Nagpur. The petitioner, as the Managing Director of FACOR, is overall in charge of the company having its plant at Garividi and at Nagpur. The company has sales offices at various places i.e. Bombay Calcutta, Delhi, Madras etc. The petitioner as the Managing Director is responsible for taking decisions and formulating policies for the company. In connection with the divorce business, the petitioner is required to visit different places all over India and he is rarely stays at Nagpur. The company has appointed various purchase Officers for purchase of scrap from different sources. There is, a separate, department of the company for these purchaser and Assistant Works Manager Subrato Rai is overall in charge of these purchases. On the basis of a search warrant, the Railway Protection Force searched the premises of VISCO at Nagpur on 24 -10 -80 in the presence of Subrato Rai and seized 390 Kgs. of Railway scraps from the heaps kept in the premises of VISCO. Assuming that the seized property is a stolen railway property, yet the petitioner as Managing Director cannot be said to be in conscious possession and is not liable for the same as he was neither present at Nagpur when the same were purchased nor he negotiated the said purchase nor he was present at the time of the search and so he committed no offence. Therefore, his prosecution in the said case is really an abuse of the process of the Court and the said proceedings need to be arrested by this Court by invoking its inherent powers. The prosecution is resulting in harassment of the petitioner who committed no offence.

(3.) SECTION 3 of the aforesaid Act punishes anyone who is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen property came into his possession lawfully. For establishing an offence under this section, the prosecution has got to prove: (i) that the accused has been in possession of the railway property, (ii) that the property seized from the accused is railway property, and (iii) the said property is reasonably suspected of having been stolen or unlawfully obtained. If these ingredients are proved, then the burden shifts on the accused to show that he came in possession of the railway property lawfully. Section 4 punishes any occupier or owner of land or building or his agent in charge of the management of that land or building who willfully connives at an offence against the provisions of this Act. To prove the offence under this section, owner or occupier or his agent or the agent of much owner or occupier in charge of that land or building must willfully connive at an offence against the provisions of this Act. Clearly, therefore, to make a person liable under sections 3 and 4 the person concerned must be in conscious possessions of the railway property and that is why the words reasonably suspected to be stolen property" in section 3 and the words "willfully connives" in section 4 have been used. Existence of mens rea or guilty knowledge is sine qua -non for conviction for possession of railway property. The possession necessarily involves consciousness or knowledge of the existence of the article and that it is a stolen railway property. Therefore, when these offences require a certain knowledge as an ingredient of them, it is for the prosecution to prove the existence of the knowledge, other wise the offence cannot be said to have been proved. The Supreme Court in Nathulal v. State of M.P.1 has held as under: "Mens rea is an essential ingredient of a criminal offence. A statute may exclude the element of mens rea, it is, however, a sound rule of construction which is adopted in England and also accepted in India, to construe a provision which creates an offence in conformity with the common law rather than against it except where the statute expressly or by necessary implication excludes mens rea. Of the question whether the element of guilty mind is excluded from the ingredients of an offence the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is not by itself decisive. Only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated that mens rea may, by necessary implication, be excluded from a statute. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof." Clearly, mens rea is an essential ingredient of the offence under the present Act.