BHUMANI MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) TWO petitioners pray for quashing of the proceeding of Kotshila R. P. F. Post case No. 2 of 2006 dated 25-8-2006 under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 (for short, the Act) pending before the learned CJM, purlia. What is further challenged is the order dated 26th August, 2006 passed by the learned CJM, Purlia issuing warrant of arrest against the petitioners.

(2.) IT has been contended in the application that the materials seized by the RPF personnel from the factory premises of the petitioners were legally purchased by the petitioners and there is no reason to believe that they were stolen or unlawfully obtained. Section 5 of the Act makes the offence non-cognizable in nature, while Section 8 thereof postulates arrest of a person without warrant and Section 10 postulates obtaining search which was done warrant by the RPF authorities before conducting search which was done in violation of the provision of section 10 of the Act. The further ground is that the alleged confessional statements of the two accused persons on the basis of which prayer was made before the learned Magistrate for the issuance of search warrant was recorded in violation of the law and the learned Magistrare was without any jurisdiction to issue warrant of arrest against the petitioners on the basis of confessional statements of the two accused persons which were illegal because such confessional statements were not recorded in presence of two respectable and independent witnesses as is demanded of through Rule 14 (1) of Ap-pendix-X of the RPF Rules 1959.

(3.) I have heard Mr. Debashis Roy, learned Advocate appearing for the petitioner, mr. Uttam Majumder, learned Advocate for the RPF Authority (O. P. No. 2) and mr. Swapan Kumar Mallick, learned Advocate appearing for the State of West Bengal (O. P. No. 1 ).