Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1250 (GAU)

Raj Kumar Gupta v. Union of India (NF Railway)

2017-09-07

HITESH KUMAR SARMA

body2017
JUDGMENT & ORDER : 1. This revision petition is filed, under Section 397, read with Section 401 of the Code of Criminal Procedure, against the judgment and order dated 30-11-2007, passed by the learned Additional District and Sessions Judge (FTC) No. 2, Kamrup, Guwahati, in Criminal Appeal No. 89/2005, dismissing the criminal appeal and upholding the judgment and order, dated 26-07-2005, passed by learned Special Railway Magistrate, Guwahati, in CR Case No. 122C/1999, convicting the accused-petitioner No. 1, under Section 3 of the Railway Properties (Unlawful Possession) Act, 1966 (hereinafter referred to as ‘the RPUP Act’) and sentencing him to suffer rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 5,000/-, in default, to suffer further simple imprisonment for 3 (three) months. The accused-petitioner Nos. 2 to 12 were sentenced to pay a fine of Rs.500/- and in default, simple imprisonment for 1 (one) month each. 2. I have heard Mr. BM Choudhury, learned counsel appearing on behalf of accused-petitioners. None appears for the NF Railways. I have perused the judgments aforesaid as well as the records of the learned trial Court including the evidence of the witnesses. 3. The prosecution case, in brief, is that the complainant, Sri Bilal Hussain, ASI of Railway Protection Force/RPAN lodged an FIR alleging, inter alia, that on 25-10-1999, while he conducted a surprise check at Rangapara Railway Station Yard, he found a truck bearing registration No. AR-01-3846 with some CST-9 Pot railway properties along with the accused-persons. On the basis of such fact, FIR was lodged and after investigation was made, prosecution report was submitted against the accused petitioners. The learned Railway Magistrate framed a formal charge against the accused-petitioners, under Section 3 of the RPUP Act. 4. Now, the question is: Whether the accused-petitioners unlawfully possessed the Railway properties, i.e. CST-9 Pot and as such committed offence, under Section 3 of the RPUP Act. 5. To substantiate the accusation, the prosecution examined as many as 8 witnesses. The defence examined two witnesses. In his statement, under Section 313 of the Cr.P.C., the accused-petitioners denied the accusations levelled against them. 6. 5. To substantiate the accusation, the prosecution examined as many as 8 witnesses. The defence examined two witnesses. In his statement, under Section 313 of the Cr.P.C., the accused-petitioners denied the accusations levelled against them. 6. The complainant, Billal Hussain, was examined as PW1, who deposed that on 25-10-1998, he along with some other Railway Police, went for conducting surprise visit at Rangapara RPF Post, and found a truck bearing No. AP-01-3846 along with the accused-petitioners, who were carrying away CST-9 Pot without any valid documents. The truck was seized along with the materials loaded and accused persons were arrested and thereafter, he lodged the FIR, vide Ext. 1. 7. PW2, Keshov Ch. Swargiary, is found to have deposed that the aforesaid materials were loaded in the truck by the accused-petitioners, on instructions of accused-petitioner, Raj Kr. Gupta, who was the Contractor. Since he could not produce any valid documents, the materials were seized and the accused persons were arrested. 8. PW3, Ganesh Kr. Das, is the person, in whose custody the aforesaid seized materials were kept by the informant. No evidence is led by PW4 against the accused-petitioners. 9. The evidence of PW5 is that the truck was seized with 223 numbers of CST-9 Pot, vide Ext. 2, and he was a witness of the seizure. 10. PW6, Kumud Ch. Das, deposed that the challan was seized vide Ext. 4. 11. PW7, Raisuddin Ahmed, is the Investigating Officer, who seized the materials as already deposed as the accused persons could not produce any document for procuring the materials from the Railways and for loading them in the truck. 12. PW8 has not implicated the accused persons. 13. The defence examined two witnesses. The evidence of the defence is that the materials were loaded in the truck and for that they had valid document, which the learned trial Court did not believe; therefore, found taking away of materials by loading in the truck and holding the same to have been stolen, as such in the unlawful possession of the accused-petitioners. The evidence on record makes it clear, particularly, the Ext.4, that there was a challan, issued to the accused-contractor, Raj Kr. Gupta, to take the materials from the godown for replacement of the slippers of the Railway track as he got a contract there for. What this Court notices, on examination of Ext. The evidence on record makes it clear, particularly, the Ext.4, that there was a challan, issued to the accused-contractor, Raj Kr. Gupta, to take the materials from the godown for replacement of the slippers of the Railway track as he got a contract there for. What this Court notices, on examination of Ext. 4, is that while the first page of the challan was filled up with the particular of materials to be lifted, the fourth page thereof was left blank to be filled up at a later point of time, although signature of the competent authority of Railway Department was there with impression that it will be filled in after lifting of materials from the godown of the Railways. But it does not necessarily mean that the accused-contractor did not have the valid authority to lift the materials from the Railway Department since his contract was for replacement of slippers of the Railway tracks. 14. It appears from the seizure list that the materials seized were all not mentioned in the challan and some of the materials were found to have been lifted without their names being mentioned in the challan. Therefore, the materials, which were lifted without there being specific mention in the challan, were lifted without authority. 15. That being so, the accused-petitioner, Raj Kumar Gupta, who lifted the materials, is found guilty of the offence under Section 3 of the RPUP Act. So far as the remaining accused-petitioner Nos. 2 to 13 are concerned, they were all labourers engaged by the accused-petitioner No. 1, contractor, for loading the materials in the truck. They did not commit theft of the articles and as such it was not in their unlawful possession, and if at all, it was in the possession of any of the accused-petitioners, it was Raj Kr. Gupta, at whose instance the materials were lifted for loading in the truck. Therefore, in the considered view of this Court, the revision petitioner Nos. 2 to 13 deserve to be acquitted. 16. In the result, the petitioner Nos. 2 to 13 of this petition are acquitted of the charge levelled against them. 17. Gupta, at whose instance the materials were lifted for loading in the truck. Therefore, in the considered view of this Court, the revision petitioner Nos. 2 to 13 deserve to be acquitted. 16. In the result, the petitioner Nos. 2 to 13 of this petition are acquitted of the charge levelled against them. 17. So far as the accused-revision petitioner No. 1, Raj Kumar Gupta is concerned, he has been convicted under Section 3 of the Railway Properties (Unlawful Possession) Act, 1966 and sentenced to suffer rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 5,000/-, in default, to suffer further simple imprisonment for 3 (three) months. In the considered view of this Court, considering the facts and circumstances of the case, while upholding the conviction of the accused-revision petitioner No.1, Raj Kumar Gupta, he is sentenced to pay a fine of Rs. 3,000/-, in default, to suffer further simple imprisonment for 1 (one) months 18. Accordingly, this revision petition is partly allowed. 19. Send down the LCR along with a copy of this judgment and order.