KAJI MAJID Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) JUDGMENT and order dated 31.01.2012 passed by the learned Additional Sessions Judge, 3rd Court, Bankura modifying the judgment and order dated 11.10.2010 passed by the learned Judicial Magistrate, 4th Court, Bankura, convicting the petitioner for commission of offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, herein after referred to as "RP(UP) Act", and sentencing the petitioner to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/ -, in default simple imprisonment for two months, has been assailed.

(2.) THE prosecution case against the petitioner is that on 05.10.2008, S.I. Hemendra Malik along with others went for an ambush watch near a villagenamed Saldogra (Salboni -Kharagpaur Road towards No. 2 Taxal Gate) at 11.00 hours; at about 11.20 hours they noticed a person with a heavy jute bag on his left shoulder was coming towards Salboni Kharagpur main road from the direction of Taxal gate; on suspicion he was intercepted; the gunny bag was searched; on search raiding party found four numbers of pandrol clips, five numbers of angles of various sizes total length of six feet and one railway channel of three feet; on demand the person failed to produce any paper or document in support of his possession of such articles; the person disclosed his name as Kazi Majid; on suspicion that the seized articles are railway properties, the said person was arrested for committing offence punishable under Section 3(a) of RP(UP) Act; articles were seized under proper seizure list and seizure label. During the course of enquiry, petitioner admitted his guilt to the enquiry officer. In course of trial, prosecution examined six witnesses and exhibited a number of documents. The only defence of the petitioner was that he was innocent and falsely implicated. In conclusion of the trial, learned Magistrate by judgment and order dated 11.10.2010 convicted the petitioner for commission of offence punishable under Section 3(a) of the RP(UP) Act and sentenced him to suffer three years rigorous imprisonment and to pay fine of Rs.1,000/ - in default to suffer simple imprisonment for two more months. In appeal, the appellate court by judgment and order dated 31.01.2012 affirmed the conviction but modified the sentence and directed that the petitioner shall suffer one year rigorous imprisonment and to pay a fine of Rs.1,000/ - in default to suffer simple imprisonment for two months more. Such order has been assailed in the revision petition.Mr. Mitra, learned counsel appearing on behalf of the petitioner submits that enquiry was conducted by P.W. 1 who was the head of the raiding party. In support of his contention he has placed reliance on BHAGWAN SINGH v. STATE OF RAJASTHAN, 1976 AIR(SC) 985 He further submits that seizure has not been proved by independent witness and in view of Section 100(4) of the Code of Criminal Procedure, benefit of the doubt ought to be extended to the petitioner. In this regard, he placed reliance on 2003 SCC (Cri) 1774. Mr. Mitra further submits that seized articles did not have railway markings and the expert, P.W. 6, also does not have any certificate to that effect.

(3.) THERE is inordinate delay in examination of the seized articles. He finally submits that learned courts below erred in law in convicting the petitioner on mere suspicion. He placed on reliance on ANJLUS DUNGDUNG v. STATE OF JHARKHAND, 2005 SCC(Cri) 1468.