DAYANIDHI MALLIK Vs. STATE

JUDGEMENT

(1.) The present revision petition has been filed by the petitioners against the-judgment and order dated 18/07/1992 passed by the Additional Sessions Judge, Balasore arising out of the judgment and order dated 21-10-1989 passed by Sri S. C. Rath, J.M.F.C. Balasore in S. 2(c) C.C. 21/83 convicting the petitioners under S. 3(a) of the Railway Property (Unlawful Posses sion) Act, 1966 (for short 'the Act'). The submis sion of the learned counsel for the petitioners is that in this case, other two accused persons Kamalakanta Sahoo and Abhiram Mallik were acquitted but the present petitioners were found guilty and sentenced to undergo R.I. for one year.

(2.) The case of the petitioners is not different from the one who were acquitted. The further submission is that as property seized were not seized from the possession of the petitioners but were seized from water. It cannot be said that the petitioners were in possession of the same. The prosecution has also the knowledge of the prop erty being there. Moreover, the circumstantial evidence taken into consideration against the pe titioners is not valid, legal and proper. The courts below have not taken into consideration the fact that such circumstances must be true. For this he has relieved on AIR 1957 SC 637(Sarwan Singh Rattan Singh v. State of Punjab) and also AIR 1984 SC 1622 (Sharad Birdhichand Sarda v. State of Maharashtra). For the confessionary statement, Exts. 7 and a relied on by the prosecution in this case, the learned counsel has relied on the prin ciples laid down in 1992 Cri LJ 1888 (N.S.R. Krishna Prasad v. Directorate of Enforcement. Loknayak Bhawan Khan Market, New-Delhi) wherein it has been held that the warning must be given to the person giving such confessionary statement. The further submission is that this confessionary statements recorded after the pe riod of about 15 days from the date of arrest are of no value and were obtained under duress.

(3.) The learned counsel for the State vehe mently opposes the submission of the learned counsel for the petitioners. He relies on the prin ciples laid down in AIR 1981 SC 379(Balkishan A. Devidayal v. State of Maharashtra) and AIR 1981 SC 635 (State of Uttar Pradesh v. Vyas Tewari). For the principle that the officers are two but enquiry under S. 3 of the Railway Property (Unlawful Possession) Act, 1966 (for short 'the Act') is not the Police Officer, the person arrested under S. 6 of the Act incriminating statements made by him during enquiry under S. 8, the protection under S. 20(3) of the Constitution of India is not avail able to him.