JUDGMENT : Heard Mr. Shekhar Prasad Sinha, the learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Rajneesh Vardhan, the learned A.P.P. appearing on behalf of the Opposite Party- State. 3. The present criminal revision petition is directed against the Judgment dated 21.01.2003 passed by the court of learned Additional District and Sessions Judge, Fast Track Court No. 5, Dhanbad in Criminal Appeal No. 125 of 2001 whereby and whereunder the Judgment of conviction and the order of sentence dated 25.09.2001 passed against the petitioner by the learned Judicial Magistrate, Railway, Dhanbad in R.P. Case No. 138 of 1995 / T.R. No. 1181 of 2001 has been confirmed and the sentence has been modified and reduced from Rigorous Imprisonment of two years to Rigorous Imprisonment of one year. 4. The learned trial court had convicted the petitioner under Section 3(a) of the R.P. (U.P.) Act and had sentenced him to undergo Rigorous Imprisonment for two years. Arguments on behalf of the petitioner 5. In course of arguments, the learned counsel appearing for the petitioner confined his arguments on the point of sentence of the petitioner. 6. Learned counsel for the petitioner submitted that the petitioner has been convicted for the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act and the present offence is first offence of the petitioner. He further submitted that the petitioner has remained in custody for a period of 25 days and he was 28 years of age on the date of conviction i.e. on 25.09.2001 and accordingly, his present age is 48 years. Learned counsel further submitted that the offence is of the year 1995 and accordingly, 26 years have elapsed from the date of the occurrence and the allegation relates to theft of 15 pendrol clips which was valued at Rs.151 only. The learned counsel has also submitted that though the minimum sentence which has been prescribed under the RP (UP) Act for the first offence is for one year, but it also provides for imposition of fine only and accordingly, there is no impediment in modifying the sentence and imposing fine considering the facts and circumstances of this case. He submitted that accordingly the sentence be modified by imposing fine only. Arguments on behalf of the Opposite Party- State 7. Learned counsel for the State, Mr. He submitted that accordingly the sentence be modified by imposing fine only. Arguments on behalf of the Opposite Party- State 7. Learned counsel for the State, Mr. Rajneesh Vardhan opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below and no interference is called for in revisional jurisdiction of this Court. However, so far as sentence is concerned, he submitted that it is for the court to take an appropriate call in the matter of sentencing. Findings of this Court 8. After hearing the learned counsel for the parties, this Court finds that as per the prosecution case, on 18.08.1995, the informant i.e. P.W.-1 alongwith constable N.P. Singh was patrolling at Nimiyaghat Railway Station area at 04 P.M. and they noticed that to the west of the Platform Nos. 1 and 2, one person was coming with a hand bag containing some heavy material in it. On suspicion, they challenged him, but he tried to flee away, but was caught with the bag containing 15 pendrol clips for which the petitioner gave no satisfactory reply and did not show any paper and on being asked, he disclosed his name as Md. Sahid Khan and confessed his guilt. Thereafter, the petitioner alongwith seized articles was brought to RPF/Post Gomoh, where he was produced before the inspector in-charge, R.P.F. Post, Gomoh. 9. On the basis of written report, RPF Post Gomoh Case No. 48 of 1995 dated 18.08.1995 was registered under Section 3(a) of the R.P. (U.P.) Act and production-cum-seizure list was prepared. Upon completion of inquiry, the inquiry officer of the case submitted prosecution report. Consequently, cognizance under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 was taken against the petitioner on 20.12.1995. The petitioner pleaded not guilty against the charge framed under the aforesaid section and after prosecution evidence, his statement was also recorded under Section 313 of Code of Criminal Procedure wherein he was in total denial. However, he did not produce any defence witness. 10. In course of trial, altogether six witnesses were examined from the side of the prosecution. P.W.-1 is the informant of the case. P.W.-4 is the person who was posted as sub-inspector at the RPF Post, Gomoh on 18.08.1995 and P.W.-5 is the expert witness who had examined the seized materials. 11. However, he did not produce any defence witness. 10. In course of trial, altogether six witnesses were examined from the side of the prosecution. P.W.-1 is the informant of the case. P.W.-4 is the person who was posted as sub-inspector at the RPF Post, Gomoh on 18.08.1995 and P.W.-5 is the expert witness who had examined the seized materials. 11. P.W.-1, Bishwanath Pandey fully supported the prosecution case and deposed that the petitioner was caught while he was running away with 15 pendrol clips of railways in a bag and had confessed his guilt. He further deposed that the petitioner stated that he had stolen it from the Railway and was going to sell. He proved the written report as Exhibit-1. He proved his signature on the seizure list as Exhibit-2. He identified the bag containing pendrol clips and claimed to identify the petitioner. 12. P.W.-2, Raj Nandan Roy deposed that on 18.08.1995, he was posted as constable at Gomia RPF/post and on that day, at about 10 A.M., P.W.-1 and N.P. Singh had brought one person with hand bag at the post and had lodged one written report regarding the occurrence on the basis of which, K.K. Mishra prepared production-cum-seizure list of 15 pendrol clips on which he had put his signature and the same was marked as Exhibit-2/1. He also claimed to identify the petitioner and identified the bag and the seized articles i.e. pendrol clips. He further stated that the pendrol clips were counted in his presence and label was tied with the bag. 13. P.W.-3, Chandra Shekhar Singh also fully supported the prosecution case and he proved his signature on the seizure list as Exhibit-2/2. He stated that a copy of the seizure list was given to the petitioner. He identified the bag and the pendrol clips and claimed to identify the petitioner. 14. P.W.-4 is Krishna Kumar Mishra. He also supported the prosecution case. He exhibited the seizure list as Exhibit- 2/3, the first information sheet as Exhibit-3 and the site plan as Exhibit-6. 15. P.W.-5, Ramesh Kumar Saxena deposed that on 12.10.1995, he received a requisition for examination of the materials and found that these were railway materials and serviceable and they were not auctioned articles. He also deposed that after examining the materials, he had put his signature and label. He proved the expert report as Exhibit-4. 16. 15. P.W.-5, Ramesh Kumar Saxena deposed that on 12.10.1995, he received a requisition for examination of the materials and found that these were railway materials and serviceable and they were not auctioned articles. He also deposed that after examining the materials, he had put his signature and label. He proved the expert report as Exhibit-4. 16. At the stage of arguments before the learned trial court, the defence raised a plea that many witnesses like the enquiry officer and other eye-witnesses were not examined and material exhibits were not produced and there were contradictions in the evidence of the witnesses. However, the learned trial court after considering the evidences on record, found that P.W.-1 is the Complainant of the case who is an eye-witness and two witnesses of the production–cum-seizure list and P.W.-5 who prepared the production-cum-seizure list were examined and P.W.-5 was the expert who has fully supported the prosecution case and that the material exhibits were also produced before the court as was apparent from the evidence of P.Ws.- 1, 2 and 3. The learned trial court accordingly convicted the petitioner for offence under Section 3(a) of R.P. (U.P.) Act and recorded that the present case is the first conviction of the petitioner and sentenced the petitioner to undergo Rigorous Imprisonment for a period of two years. 17. So far as the learned appellate court is concerned, the learned appellate court also considered the materials on record and recorded that the prosecution witness nos. 1 to 4 have fully supported the prosecution case including the seizure of 15 pendrol clips from the possession of the petitioner and the expert witness has given his opinion that these clips are used only in the railway track. It further appears from the learned appellate court’s judgment that the value of the goods seized from the possession of the petitioner was Rs.151 only. 18. This Court finds that both the learned courts below have recorded concurrent findings and have passed well-reasoned judgments. This Court does not find any illegality or perversity or material irregularity in the impugned judgments of conviction of the petitioner and the same do not require any interference under revisonal jurisdiction and accordingly, the conviction of the petitioner under Section 3(a) of the R.P. (U.P.) Act is upheld. 19. This Court finds that it is not in dispute that the present case is the first conviction of the petitioner. 19. This Court finds that it is not in dispute that the present case is the first conviction of the petitioner. The petitioner had remained in custody for about 10 days during trial and had filed the present criminal revision petition while he was in custody as is apparent from the Vakalatnama attested by the jailor on 21.04.2003 and thereafter, he was released on bail by this Court vide order dated 07.05.2003. 20. It is further apparent that the present case is of the year 1995 and the petitioner is about 48 years of age as on date. It further appears that 26 years have elapsed from the date of occurrence and the petitioner has faced the rigour of the criminal case for a very long time. 21. The Hon’ble Supreme Court in the case of Nirmal Lal Gupta v. State of Orissa reported in 1995 Supp (2) SCC 713 has considered the manner of sentencing as provided under clause (a) of Section 3 of the aforesaid Act and the issue was whether the convicts could be released under the provisions of Probation of Offenders Act and be released on probation. It has observed as under: “3. …………….. The controversy is on the point whether the appellant could plead for release on probation. The High Court has taken the view that when there is a minimum period of imprisonment prescribed that would not get substituted by an order of release on probation. 4. Our attention may now be focussed on the provision of the section itself. As is evident, it has two clauses. Clause (a) operates to award punishment for the first offence. Clause (b) operates to award punishment for the second or subsequent offence. Both are worded differently. Whereas for clause (a) the maximum term of imprisonment which can be imposed can be upto 5 years, the minimum term of imprisonment imposable is upto one year, and there is a mandate that it shall not be for a period less than one year unless and until for some special and adequate reasons to be mentioned in the judgment of the court, a lesser period of imprisonment had been awarded. It is in this way that the sentence of imprisonment is compartmentalised. The other alternate punishment is imposition of fine. It is in this way that the sentence of imprisonment is compartmentalised. The other alternate punishment is imposition of fine. Whereas there is no maximum limit of the fine imposable, but which can in no event be excessive and unreasonable, there is, on the same analogy, a minimum of Rs 1000 fine imposable, unless and until for special and adequate reasons to be mentioned in the judgment of the court, the fine imposed was less than one thousand rupees. This too has its own compartment. Clause (a) gives a choice to the court to either award imprisonment or impose fine, or both. It is the choice of the court which determines whether imprisonment alone should be awarded or fine alone be imposed or both should be awarded. It is thus obvious that it is not obligatory on the court to always award imprisonment as a punishment. Once it is so understood it is difficult to comprehend that a minimum sentence alone thereunder is imposable to which the Probation of Offenders Act would not be applicable. (emphasis supplied) 5. The above result is also achieved when clause (a) is compared with clause (b). For the second or subsequent offence the court is obligated to award imprisonment for a term which may extend to five years and also impose fine. The awardable imprisonment however cannot be less than two years and such fine cannot be less than two thousand rupees, unless for special and adequate reasons, to be mentioned in the judgment of the court, the imprisonment of less than two years is imposed and a fine less than Rs 2000 is imposed. Here there is a compulsion to impose both kinds of sentences, unless the court exercises discretion to do away with imposing any punishment. The limited distinction in the two clauses is prominent.” 22. Considering the totality of the facts and circumstances of this case, this Court is of the considered view that the ends of justice would be served, if the sentence of the petitioner is modified by imposing fine instead of asking the petitioner to serve the sentence. Accordingly, sentence of the petitioner is hereby modified and he is sentenced with fine of Rs.20,000/- to be deposited before the learned trial court within a period of two months from the date of receipt of a copy of this judgment by the learned trial court. Accordingly, sentence of the petitioner is hereby modified and he is sentenced with fine of Rs.20,000/- to be deposited before the learned trial court within a period of two months from the date of receipt of a copy of this judgment by the learned trial court. In case of non-deposit of the fine amount within the aforesaid time-frame, bail bond furnished by the petitioner shall stand cancelled and the petitioner would serve the sentence as awarded by the learned appellate court. 23. If the aforesaid fine amount is deposited by the petitioner within stipulated time-frame, he will be discharged from his liability under the bail bond. 24. Accordingly, with the aforesaid findings and modification of the sentence of the petitioner, this criminal revision petition is hereby disposed of. 25. Pending interlocutory applications, if any, are closed. 26. Let the Lower Court Records be sent back to the court concerned. 27. Let this order be communicated to the learned court below through ‘FAX/e-mail’.