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2008 DIGILAW 157 (CAL)

Bhabani Mukherjee v. STATE OF WEST BENGAL

2008-02-05

PARTHA SAKHA DATTA

body2008
ORDER :- 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 Appendix-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). 4. The first ground that there is no reason to believe that the properties seized were railway properties because of the petitioners having allegedly purchased the same cannot be gone into here in this revisional jurisdiction on the ground that it is basically a question of fact and the point can be agitated only at the appropriate stage of the proceeding in the trial Court. It is not a case where a non-cognizable offence has been made a subject matter of investigation by the police. It is not a case where a non-cognizable offence has been made a subject matter of investigation by the police. The RPF officers who are entrusted with the task of investigation/enquiry are not police officers and when after investigation or enquiry they submit a report alleging commission of offence under Section 3(a) of the Act is comes to be a complaint case triable by warrant procedure and non-cognizable nature of the case is of no consequence. Section 6 of he Act enables any superior officer or member of the force to arrest any person without an order from a Magistrate and without a warrant of arrest only when the person has been concerned in an offence punishable under the Act or against whom a reasonable suspicion exists of his having been so concerned. Therefore, so far as arrest of an offender is concerned authority of the Magistrate is not required. A person can be arrested without warrant when there exists a reasonable suspicion of his having been concerned in an offence punishable under the Act. Section 10 of the Act enjoins upon an officer of the Force to make an application to the Magistrate having jurisdiction over the area for issue of a search warrant when the officer has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained. Sub-section (2) of Section 10 speaks of the Magistrate's power to issue warrant authorizing an officer of the force to enter into any plea, search the place in the manner as may be specified in the warrant and to take possession of any railway properties reasonably suspected to be stolen or unlawfully obtained. Thus there is a marked difference between Section 10 and Section 94 of the Cr. P.C. which has been explained in the decision in Sakti Steel Traders v. Ashoke Chakraborty. 1993 C Cr LR (Cal) 175 : 1993 Cri LJ 969. Section 10 has territorial limits, which bar does not appear to be there in Section 94 of the Cr. P.C. We are not on that. Two points have been canvassed. P.C. which has been explained in the decision in Sakti Steel Traders v. Ashoke Chakraborty. 1993 C Cr LR (Cal) 175 : 1993 Cri LJ 969. Section 10 has territorial limits, which bar does not appear to be there in Section 94 of the Cr. P.C. We are not on that. Two points have been canvassed. The first is that without the authority of the Magistrate seizure was made and the second is that the confessional statements of the two accused persons on the basis of which warrant of arrest was prayed for against the two petitioners before the learned Magistrate was illegally recorded because of absence of two respectable and independent witnesses at the time of recording such statements. The factual matrix of the case is that pursuant to source information an ambush watch cum raid was made by the OC RPF, Kotshila in assistance with other RPF Personnel on 25-8-2006 at a plea under Purlia (MFS) Police Station at 9-35 hrs, and the truck bearing No. WB 55 0525 was detected and upon search some scrap iron materials were found and seized. The driver of the vehicle could not account for possession of the materials but he was detained while another person fled away but was identified as Jamal Ansari. Now the driver disclosed that he and his brother Jamal Ansari brought the materials from Farriwallas and he was going to sell the materials to the iron factory of the petitioner No. 1 herein. The articles were seized under a seizure list and the occupant of the lorry was arrested under Section 6 of the Act. This is one aspect of the matter. Now the driver Irfan Ansari who was arrested at the spot made statement recorded by the O.C., RPF, Kotshila on 25-8-2006. Pursuant to his statement the officer concerned along with other officers came to the compound of Purulia Metal Casting Pvt. Ltd. owned by the petitioner No. 1 and the petitioner No. 2. Since no sufficient time was there to obtain a search warrant from the Magistrate search was conducted to prevent further disposal of the alleged stolen railway properties and in course of search and seizure a good amount of railway properties was seized as found concealed under the stack of scrap materials. Since no sufficient time was there to obtain a search warrant from the Magistrate search was conducted to prevent further disposal of the alleged stolen railway properties and in course of search and seizure a good amount of railway properties was seized as found concealed under the stack of scrap materials. The owner of the factory was not present but a manager i.e. Rafique Ansari was present but he failed to produce any authority or challan in support of the possession of the railway properties. On a reasonable suspicion that the properties might have been stolen or unlawfully obtained the officers seized the entire properties in presence of the available witnesses and arrested the manager/munshi i.e. Rafique Ansari under Section 6 of he Act for commission of offence under Section 3 (a) of the RPF Act. Rafique Ansari also made a statement which was recorded by the officer. The owners of the factory are the present petitioners and before the learned Magistrate prayer was made by the officer concerned for issuance of warrant of arrest against the petitioners and also one Jamal Ansari. Learned Magistrate on the prayer of the RPF Authority issued warrant of arrest against the accused persons including the present petitioners by his order dated 26-8-2006. With respect to the argument that without complying with the provision of Section 10 of the Act search was conducted and seizure was effected in the compound of the present petitioners, it has been submitted by Mr. Uttam Majumdar, learned advocate for the RPF Authorities that in the circumstances in which search was conducted and seizure was effected there was no time left to rush to the Magistrate at Purulia so as to obtain a search warrant under Section 10 of the Act because the officers were under the belief that if seizure was not effected immediately upon search the properties might be disposed of. Mr. Swapan Kumar Mallick, learned advocate appearing for the State of West Bengal adopts the submission. Section 8(2) of the Act has vested the officer of the Force with all the powers of a police officer while investigating into an offence. By necessary implication the powers contained in Chapter XII of the Cr. P.C. would also be available to the officer of the Force where he can take search under Section 165 and 166 of the Cr. P.C. Section 165 of the Cr. By necessary implication the powers contained in Chapter XII of the Cr. P.C. would also be available to the officer of the Force where he can take search under Section 165 and 166 of the Cr. P.C. Section 165 of the Cr. P.C. empowers the police officer to make a search without warrant subject, of course, to certain safeguards. Search must be necessary for investigation, reasonable grounds must exist for believing that the thing required will be found in a place, there would be undue delay in getting the thing done in any other way. In the petition before the Magistrate it was averred by the officer of the RPF that there was no sufficient time to obtain search warrant from the Magistrate which is why search was conducted to prevent further disposal of stolen railway properties. Therefore, non-compliance with the provision of Section 10 does not make the search or seizure illegal. In H. N. Rishubad v. State, AIR 1955 SC 195 the law has been laid down by the Supreme Court to the effect that the irregularity in search would not affect the merit of the case unless prejudice is caused to the accused. Prejudice must not be a slogan. In terms of Section 8(2) an officer of the RPF may exercise power as is conferred upon a police officer under Section 165 and 166 of the Cr. P.C. The central point canvassed by the learned advocate for the petitioner is that prayer was made before the Magistrate by the officer of the RPF for issuance of warrant of arrest against the two petitioners on the basis of the alleged statements of Rafique Ansari, the munshi and the driver Irfan Ansari. According to the learned Advocate since the statements of these two persons have not been recorded in presence of two respectable independent witnesses they had become illegal and in consequence of illegality in the recording of the statements allegedly revealing the involvement of the two petitioners no prayer could have been made before the learned Magistrate rightly praying for issuance of search warrant against them. It is submitted that Rule 14(1) Appendix IX of the Railway Protection Post Rules, 1959 makes it clear that statement has to be recorded in presence of two respectable and independent witnesses. I am unable to accept the argument. It is submitted that Rule 14(1) Appendix IX of the Railway Protection Post Rules, 1959 makes it clear that statement has to be recorded in presence of two respectable and independent witnesses. I am unable to accept the argument. Even if, for the sake of argument it is assumed that statements revealing involvement of the two petitioners were recorded in absence of the two respectable and independent persons prayer for issuance of warrant of arrest against them does not per se become illegal. As is laid down in Badku Jyoti Sevant case, (1966) 3 SCR 698 : 1966 Cri LJ 1353 a RPF Inspector could not be deemed to be a police officer within the meaning of Section 25 of the Evidence Act and confessional or incriminating statement recorded by him in course of an enquiry under Section 8(1) of the Act cannot be excluded from evidence under the Section. This point was earlier made clear in U. P. v. Durga Prasad, 1974 Cri LJ 1465 : ( AIR 1974 SC 2136 ) and Srilal Shaw v. State of W.B., 1975 Cri LJ 423 : ( AIR 1975 SC 393 ). Neither in the Act nor in the Rules framed therein it has been specified as to the manner of recording of a confessional statement or incriminating statement by an officer of the RPF empowered to record such statement. In revisional application a Rule has been referred to as Rule 14(1) of Appendix IX of the Railway Protection Post Rules 1959, but no Rule 14(1) of Appendix IX of the Railway Protection Post Rules 1959 could be shown to me. What was shown to me is Appendix VIII containing some instructions by the Railway Board concerning enquiry into offences under the Railway Property (Unlawful Possession) Act 1966 and there is item No. 14(1) wherein it has been stated that the confessional statement should be recorded in presence of two respectable and independent witnesses. Whether the statements of Rafique and Irfan Ansari are at all confessional statements or not is a matter of deliberations. It is not a statement of the two petitioners. The statement of Irfan Ansari was recorded by the RPF Officer pursuant to interrogation of the said driver Irfan Ansari. And then the officers came to the premises of the petitioners and found out allegedly the materials which according to the officers were railway properties. It is not a statement of the two petitioners. The statement of Irfan Ansari was recorded by the RPF Officer pursuant to interrogation of the said driver Irfan Ansari. And then the officers came to the premises of the petitioners and found out allegedly the materials which according to the officers were railway properties. Statement of Rafique Ansari was recorded at the premises of the two petitioners. Secondly, what is called Rule 14(1) is not a Rule under the RPF Rules 1987 not a provision of the Act. It is a mere instruction the Railway Board upon the RPF officers in the matter of guidelines in connection with enquiry into offences under the Act 1966. Another aspect of the matter is that where Section 6 of the Act gives the power to the RPF officer to arrest any person who has been concerned in an offence punishable under the Act without an order and without warrant of arrest from a Magistrate, prayer for issuance of warrant of arrest before the Magistrate was of no consequence. Even if, no warrant of arrest was obtained from the Magistrate the RPF officers could have arrested the two petitioners in terms of the provision of the Act. My attention has been drawn to an unreported decision of this Court (CRR 1720 of 1995) wherein an Hon'ble Judge of this Court was shown the Rule 14(1) of Appendix VIII of the Act. This decision was in a different fact situation not similar to ours and there also the Hon'ble Judge did not quash the proceeding but directed the Magistrate to consider the matter afresh. 5. In the circumstances I find no merit in the revisional application. I dismiss it. The order of the learned Magistrate is confirmed. 6. A copy of the order shall be sent to the learned CJM, Purulia for information and necessary action in connection with RPF Kotshila case No. 2 of 2006 under Section 3(a) of the R.P. (UP) Act, 1966. 7. Xerox certified copies of this order, if applied for, be given to the parties as expeditiously as possible. Application dismissed.