GOUR MOHAN CHOWDHURY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) By this revision the accused petitioners have challenged the proceeding in connection with Howrah R.P.F. (O.E.) Post Case No. l (6) 93 dated 15.6.93 under Section 3(a) of the Railway Properties (Unlawful Possession) Act, 1966, being Case No. S.L. 84/93 pending in the court of the Judicial Magistrate, 3rd Court, Howrah.

(2.) The brief background of the case is that the petitioners are the railway employees and at all material times posted at Carshed (Stores Section) Eastern Railway. The petitioner no.l is a senior electrical foreman, petitioner No. 2 a store-keeper in the carshed and petitioners nos. 3 to 8 are railway employees and they are attached to the Carshed (Stores Section) and authorised to use stores and/or railway materials. On 15th June, 1993 at about 7-30 hours one railway lorry bearing no.WBI 7990 (loaded with railway materials) arrived at the main gate of the carshed and in that lorry three persons and the driver were found. When challenged by the R.P.F. staff on duty, P.K. Mitra, petitioner no.2 produced a gate pass in respect of the materials loaded is the said lorry. On verification it was found that some excess railway materials were there in the said lorry, which did not tally with the gate pass produced by the said P.K. Mitra and after a joint inspection with the C.I.T. (M) Sri B.B. Kolay it was found that broken suspension bearing-14 pes., without caller and 12 pes coller were in excess. So also two rolls of bare aluminium wire, 1 pc., insulated aluminium coil were found in excess. Thereafter, Sri C.R. Kaviraj, Inspector, R.P.F., Howrah, O.E. Post, lodged a complaint and on the basis of the said complaint the case being no. 1 (6) 93 dated 15th June, 1993 under Section 3 (a) of the Railway Property (Unlawful Possession) Act was started by the R.P.F., (OE) Post, Howrah, against petitioner no. 3, A.K. Chakraborty, the driver of the said lorry, P.K. Mitra, petitioner no.2, Store Keeper, Samir Dey, petitioner no. 4, Fitter, and Jainal Abedin, petitioner no. 8, another store-keeper, who were already arrested by the R.P.F. personnel. On the prayer of Sri Kaviraj, Inspector, R.P.F. (O.E.), Howrah, made before the court of the learned Sub-divisional Judicial Magistrate, Howrah, the warrant of arrest was issued against the petitioners nos.1, 5, 6 and 7. The learned Sub-divisional Judicial Magistrate, Howrah, took cognizance of the offence against all the accused persons and a case was registered being Case No. S.L. No. 84/93 which is still pending. The complaint has been made for an offence under Section 3(a) of the Railway Properties (Unlawful Possession) Act, 1966, (hereinafter referred to as the said Act). Clause (a) of Section 3 of the said Act envisages punishment for the first offence.

(3.) Appearing for the accused petitioners, learned Advocate. Mr. Milon Mukherjee contended that the seizure list does not show from whose possession the materials were seized. He further contended that no doubt the four accused persons, viz. A. K. Chakraborty, P.K. Mitra, Samir Dey and Jainal Abedin were in the truck but there is nothing on record to show that the materials were seized from their possession ; rather it was on record that the materials were loaded in the lorry, which was also railway properties. Mr. Mukherjee contended further that Section 3 of the said Act, inter alia, envisages that whoever is found or is proved to have in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable ....Mr. Mukherjee further contended that in the instant case the materials were found from the lorry and during the time of seizure nobody was found to be in possession of the materials. Seizure from the lorry of the excess materials cannot be construed notionally to be in possession of the accused persons. Unless it is recovered and seized from the person concerned the offence cannot be constituted so far as that person is concerned. Mr. Mukherjee contended that as the ingredient of the offence is absent in the instant case the proceeding against the accused petitioners under Section 3 of the said Act is not maintainable and is liable to be quashed.