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2014 DIGILAW 726 (CAL)

Kaji Majid v. State of West Bengal

2014-08-07

JOYMALYA BAGCHI

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JUDGMENT Joymalya Bagchi, J. Judgment and order dated 31.01.2012 passed by the learned Additional Sessions Judge, 3rd Court, Bankura modifying the judgment and order dated 11.10.2010 passed by the learned Judicial Magistrate, 4th Court, Bankura, convicting the petitioner for commission of offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, herein after referred to as “RP(UP) Act”, and sentencing the petitioner to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/-, in default simple imprisonment for two months, has been assailed. The prosecution case against the petitioner is that on 05.10.2008, S.I. Hemendra Malik along with others went for an ambush watch near a village named Saldogra (Salboni-Kharagpaur Road towards No. 2 Taxal Gate) at 11.00 hours; at about 11.20 hours they noticed a person with a heavy jute bag on his left shoulder was coming towards Salboni Kharagpur main road from the direction of Taxal gate; on suspicion he was intercepted; the gunny bag was searched; on search raiding party found four numbers of pandrol clips, five numbers of angles of various sizes total length of six feet and one railway channel of three feet; on demand the person failed to produce any paper or document in support of his possession of such articles; the person disclosed his name as Kazi Majid; on suspicion that the seized articles are railway properties, the said person was arrested for committing offence punishable under Section 3(a) of RP(UP) Act; articles were seized under proper seizure list and seizure label. During the course of enquiry, petitioner admitted his guilt to the enquiry officer. In course of trial, prosecution examined six witnesses and exhibited a number of documents. The only defence of the petitioner was that he was innocent and falsely implicated. In conclusion of the trial, learned Magistrate by judgment and order dated 11.10.2010 convicted the petitioner for commission of offence punishable under Section 3(a) of the RP(UP) Act and sentenced him to suffer three years rigorous imprisonment and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for two more months. In appeal, the appellate court by judgment and order dated 31.01.2012 affirmed the conviction but modified the sentence and directed that the petitioner shall suffer one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for two months more. In appeal, the appellate court by judgment and order dated 31.01.2012 affirmed the conviction but modified the sentence and directed that the petitioner shall suffer one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for two months more. Such order has been assailed in the revision petition. Mr. Mitra, learned counsel appearing on behalf of the petitioner submits that enquiry was conducted by P.W. 1 who was the head of the raiding party. In support of his contention he has placed reliance on AIR 1976 SC 985 . He further submits that seizure has not been proved by independent witness and in view of Section 100(4) of the Code of Criminal Procedure, benefit of the doubt ought to be extended to the petitioner. In this regard, he placed reliance on 2003 SCC (Cri) 1774. Mr. Mitra further submits that seized articles did not have railway markings and the expert, P.W. 6, also does not have any certificate to that effect. There is inordinate delay in examination of the seized articles. He finally submits that learned courts below erred in law in convicting the petitioner on mere suspicion. He placed on reliance on 2005 SCC (Cri) 1468. Learned counsel appearing on behalf of the Railway Administration, opposes the application. He placed reliance on (2008) 2 SCC 236 . I have gone through the evidence on record. There is nothing on record to show that prejudice was caused to the accused on the score that P.W. 1 is the enquiry officer. No such suggestion was given by the witnesses, particularly P.W. 1, to probabilise as to how the petitioner was prejudiced by such enquiry conducted by P.W. 1. In State Vs. V. Jayapaul, (2004) 5 SCC 223 the Apex Court after considering AIR 1976 SC 985 (Bhagwan Singh Vs. State of Rajasthan) held as follows : “6. Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who 'lodged' the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack.” Similar view is expressed in S. Jeevanantham Vs. State, (2004) 5 SCC 230 (para 3 & 4). Accordingly, I am unable to accept the contention of Mr. Mitra that because as the P.W. 1 was a member of the raiding party enquiry conducted by him would vitiate the prosecution case. Secondly, with regard to the fact that independent evidence had not been adduced to prove the seizure, I am of the considered view that although it is desirable to examine independent witnesses as required under Section 100(4) of the Code of Criminal Procedure, mere failure to do so would not render the seizure invalid. In the instant case, recovery of articles was admitted by the petitioner in course of enquiry which has been exhibited as Exbt.-6 in course of trial. In the instant case, recovery of articles was admitted by the petitioner in course of enquiry which has been exhibited as Exbt.-6 in course of trial. In view of such corroborative evidence as to seizure, failure to examine independent witnesses would not render the seizure improbable. Reliance placed on 2003 SCC (Cri) 1774 is, therefore, misplaced as the cited case is factually different from the present one. I find that seized articles comprised of pandrol clips and railway channel. The nature of the said articles clearly give rise to the irresistible conclusion that those articles are railway properties. That apart, evidence of P.W. 6, who is an Assistant Engineer of Railway Administration having considerable experience also establishes such fact beyond any realm of doubt. Mere absence of railway markings on the seized articles cannot be a ground to come to a conclusion that those articles are not railway properties in the face of the very nature of the seized articles. The articles were labelled at the spot and lables were identified in trial ruling out any chance of substitution while in the custody of enquiry officer. I am also unable to accept the contention of Mr. Mitra that the lower courts below have come to a finding of guilt on the basis of mere suspicion. Evidence led by the prosecution witnesses is conclusive as to the factum of possession of railway properties by the petitioner. Petitioner has failed to explain such possession. Under such circumstances, the Courts below have rightly come to a finding of guilt. Such finding is based on elaborate analysis of facts and is informed with adequate reasons. In the revisional application I am loath in interfering with concurrent findings of facts by the learned Courts below. On the ground of sentence, I find minimum sentence has been imposed. Therefore, the same also does not call for any interference. For the aforesaid reasons, I constraint to dismiss the revisional application. The petitioner is directed to surrender before the learned Magistrate within a month from date and serve out the sentence in accordance with law. Lower Court records be sent down immediately.