ASHOK JHA Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned counsel Mr. A.K. Gupta for the petitioner Ashok Jha who has filed this application under Sec. 401 r/w Sec. 397 of the Code of Criminal Procedure, 1973, challenging the legality and propriety of the order dtd. 20/2/2015 passed by the learned Additional Sessions Judge -1 (FTC), Tinsukia in Criminal Appeal No.9 (2)/2012 dismissing the appeal by upholding the judgment and order 30/3/2012 passed in SRCR Case No. 36/2011 by the trial court, whereby the petitioner was convicted under Sec. 143 1 (b) of the Railways Act, 1989 (the Act of 1989 for short) and sentencing him to undergo simple imprisonment for two months and to pay a fine of Rs.3000.00 with default stipulation.

(2.) Heard Mr. S.C. Biswas, learned Senior Special Counsel, Railways for the respondent Nos. 1 and 2.

(3.) The legality and propriety of the order impugned has been challenged and it is submitted that both the courts have committed gross illegality and the orders are liable to be set aside. It is contended that the search and seizure was conducted in absence of independent witnesses, which is bad in law. The railway tickets were allegedly seized from the petitioner in absence of independent witnesses. The courts below were inclined towards the submission of the prosecution. It is contended that the prosecution failed to bring on record that the public present in the busy area were not willing to be witnesses to the seizure of the railway tickets. The railway tickets were booked in the name of Sri B Saikia of PRL Jorhat and Subhash Ch. Jha of Thana Road, Jorhat, which was ignored by the prosecution as well as by the courts. The extra-judicial confession was allegedly made in the presence of a police officer and which cannot be accepted as evidence. The courts have failed to appreciate that the petitioner had no previous criminal antecedent and he was entitled to be released on probation.