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1985 DIGILAW 277 (MAD)

State by Public Prosecutor v. Vijayan

1985-06-26

SENGOTTUVELAN

body1985
Judgment This is an appeal against the judgment of VIII Metropolitan Magistrate, George Town, Madras, in C.C.No. 9336 of 1979 releasing the accused herein under section 4(1) of the Probation of Offenders Act, in respect of an offence under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. 2. The accused herein was found to be in possession of three iron couplings, the value of which is not known, belonging to the Railway, and on being charged under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, he pleaded guilty to the charge, and P.W.1, Sub Inspector of Railway Protection Force, who is the complainant, was also examined, to bring home the guilt of the accused. The learned Magistrate invoked section 4(1) of the Probation of Offenders Act and released the accused on condition that he should keep good behaviour for a period of one year on his executing a bond for Rs.1,000/-. 3. The contention of the learned Public Prosecutor is that the judgment of the lower Court is not sustainable on account of the following reasons: 1. Under section 14 of the Railway Property (Unlawful Possession) Act, 1966, the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. In view of this section, the provisions of Probation of Offenders Act are not applicable to proceedings under theRailway Property (Unlawful Possession) Act, 1966. 2. In any event, section 3 of the Railway Property (Unlawful Possession) Act, 1966 provides for a minimum sentence of imprisonment even for the first offence, and as such, the release of the accused under section 4(1) of the Probation of Offenders Act is illegal. 4. The Railway Property (Unlawful Possession) Act, 1966 is a special enactment passed by the Legislature to prevent theft of railway property and it contains special provisions which outweighs the other provisions contained in the other laws. 4. The Railway Property (Unlawful Possession) Act, 1966 is a special enactment passed by the Legislature to prevent theft of railway property and it contains special provisions which outweighs the other provisions contained in the other laws. Section 14 of the Railway Property (Unlawful Possession) Act, 1966 is as follows: “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.” In view of the exclusion contained in section 14 of the aforesaid Act, the provision contained in section 4(1) of the Probation of Offenders Act cannot be said to be applicable to proceedings under the abovesaid Act, viz.,The Railway Property (Unlawful Possession) Act, 1966. The Supreme Court in the case reported in Superintendent of Central Excise v. Bahubali Superintendent of Central Excise v. Bahubali (1979) Crl.L.J. 862:( 1979) 1 S.C.J. 259:(1979) MLJ. (Crl.) 241: (1979) 1 S.C.R. 1104 : (1979) 2 S.C.C. 279 :(1979) S.C.C. (Crl.) 447:A.I.R. 1979 S.C. 1271, concluded that in such cases where the other enactments are excluded, the benefit of sections 3 ,4 and6 of the Probation of Offenders Act cannot be invoked. In view of the pronouncement of the Supreme Court, we will have to conclude that the lower court erred in releasing the offender, viz., the accused herein under section 4(1) of the Prevention of Offenders Act. 5. The second contention on behalf of the appellant is that section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 provides for a minimum sentence even in the case of first offence, and in any event that sentence will have to be imposed in view of the fact the accused has pleaded guilty to the charge. Section 3(a) and (b) of the Railway Property (Unlawful Possession) Act, 1966 is as follows: “3. Section 3(a) and (b) of the Railway Property (Unlawful Possession) Act, 1966 is as follows: “3. Whoever is found, or is proved to have been 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- (a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees; (b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.” In view of section 3(a) of the aforesaid Act, even in the case of first offence, the minimum sentence of imprisonment for a term which may extend to five years or fine or both will have to be imposed in the absence of special and adequate reasons to be mentioned in the judgment and such imprisonment shall not be less than one year and the fine shall not be less than rupees one thousand. In view of this special provision, the contention is that the lower Court on the accused pleading guilty to the charge ought to have imposed a sentence that is warranted under the circumstances of the case. 6. The judgment of the lower Court is not sustainable in view of both the aforesaid grounds. However, taking into consideration that only three couplings, the value of which is not even given in the certificate Ex.P-5, this is a fit case where leniency will have to be shown in the matter of sentence. Taking into consideration the entire circumstances, the ends of justice will be met by directing the accused to pay a fine of Rs.300/-. Accordingly, the judgment of the lower Court is set aside and this appeal is allowed and a fine of Rs.300/- is imposed. Taking into consideration the entire circumstances, the ends of justice will be met by directing the accused to pay a fine of Rs.300/-. Accordingly, the judgment of the lower Court is set aside and this appeal is allowed and a fine of Rs.300/- is imposed. The accused is directed to pay the fine amount within two months from the date of receipt of records in the lower Court. In default of payment of fine, the accused will have to undergo rigorous imprisonment for a period of three months. B.S. ----- Appeal allowed.