MAGADHA LAHOR Vs. STATE OF ORISSA

JUDGEMENT

(1.) - The petitioners stood trial under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the Act) and were sentenced to R.I. for six months. The appeal against the conviction and sentence having been dismissed, the petitioners have preferred this revision. The facts of the prosecution case arc that on 4.10.1984 there was theft of fish plates from the railway track in between Kalunga and Rourkela for which on the next day the Railway Protection Force proceeded to Kalunga for detection. They received information from a spy about possession of railway properties by the petitioners in their blacksmith shop. They raided the shop in the presence of the witnesses and recovered 11 items of railway property. Thereafter the prosecution report was filed against the petitioners and me Bina Pradhan who was disclosed by the witnesses as having sold the articles to them. The plea of the petitioners was one of complete denial. The prosecution to establish the case of which P.W.1 examined six witnesses, the S.I. of R.P.F. was the complainant and was also the Investigating Officer, r. w. 2 was the Havildar of R.P.F. P.W. 3 was an independent witness to the seizure P. W. 4 was another Havildar of R.P.F., P.W. 5 was the Carriage Funding who examined the articles seized and report those to be railway properly and P.W. 6 was the permanent Way Inspector of Railways. The petitioner also examined two witnesses of whom D.W. 2 was accused Bina Pradhan himself who has since been acquitted.

(2.) Mr. Mohanty, the learned counsel appearing for the petitioners has urged. in assailing the conviction and sentence, that section 10 of the Act made the provision that if an officer of the Force has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, he shall make an application to the Magistrate, having jurisdiction over the area in which that place is situate, for issue of a search warrant and the Magistrate is whom an application, is made, may, after such inquiry as he thinks necessary, by his warrant authorise any officer of the Force to search and seize any railway property. Section of the Act makes the provision for search and arrest to be carried out in accordance with the provisions of the Code of Criminal Procedure. It is the submission of Mr. Mohanty that the provisions of sections 10 and 11 were not followed inasmuch as no warrant has been obtained from the Magistrate to conduct search and seizure and as such there was no conclusive fact of railway property having been found from the possession of the petitioner. The submission is totally misconceived In the first instance there does not appear anything from record that the warrant had not been obtained for the search and seizure. Such fact does not appear from the judgment nor such a question was raised before the appellate court. As a matter of fact Mr. Mohanty frankly concedes that such a question is being raised for the first time in the revision petition. At the second place, a mere illegality in the search and seizure does not vitiate the trial. Such position of law has been well settled by a series of authorities of the Apex Court all of which have been noted in (Nilambar Sahuv. State of Orissa) dealing with section 74 of the Bihar and Orissa Excise Act, 1915 wherein the requirement is that where excise staff are of the opinion that immediate search is to be made and there is no time for obtaining the warrant from the Magistrate, they could, after recording the grounds of their belief that an offence has been committed, proceed to search and seize. Similar view was taken in Criminal Revision No. 600 of 1992 decided on 14.5.1993.Which arose out of an offence under the N.D.P.S. Act where the F.I.R. had been lodged by an A.S.L upon his own search and seizure. The argument advanced was that since the A.S.L was not an authorised person under that Act, not only the search and seizure but also the F.I.R. lodged by the unauthorised person were illegal and hence the F.I.R. and the consequent investigation were liable to be quashed. The argument was negative. Section 465, Cr. P.C. also provides that merely because of an error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code or any error, or irregularity in any sanction for the prosecution, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal or revision, unless a failure of justice has in fact been occasioned thereby. The trend of reasoning running through all such decisions is that taking cognizance of a case and trial therefore is not necessarily dependent upon the illegality in the lodging of the F.I.R or in the conduct of search and seizure, butis based upon the evidence led in the court and that unless prejudice has been shown to have been caused, the onus to establish which is upon the accused, a judgement is not to be set aside. This submission of Mr. Mohanty must hence fail.

(3.) The further submission raised by Mr. Mohanty is that P.W. 5, the Carriage-Foreman who identified the articles as railway property, was not an expert. Apart from the fact that such a question is raised here for the first time, there is also no foundation for the same, copies of the depositions of the witnesses having not been filed. The submission has no substance and hence is rejected.