IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 185 of 2002()
1. M.ALAGARAJA,S/O.MUTHUSWAMY,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/10/2008
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P. No.185 of 2002
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Dated this the 15th day of October, 2008.
ORDER
Heard both sides.
2. Revision petitioner faced trial in the court of learned Additional
Chief Judicial Magistrate, Ernakulam in C.C.No.206 of 1997 for offence
punishable under Section 3(a) of the Railways Property (Unlawful Possession)
Act, 1966 (for short, ‘the Act’). He was found guilty, convicted and sentenced to
undergo simple imprisonment for one year and pay fine of Rs.1,000/-. He
preferred appeal but, conviction and sentence were confirmed. Hence, this
revision.
3. It is contended that MO1 is not proved to be a railway property as
defined in Section 2(d) of the Act. It is also contended that there is no sufficient
evidence to show that revision petitioner was in possession of MO1.
4. Case is that on 26.2.1994 at about 11.45 p.m. revision petitioner
was found carrying MO1, railway parcel kept in a gunny bag on a cycle. Offence
is said to have been detected by PW1, Head Constable attached to the Railway
Protection Force (for short, ‘RPF’). He stated that on the relevant day, time and
place he found revision petitioner carrying a gunny bag on the carrier of a cycle.
Revision petitioner was proceeding from railway platform No.IV to the nearby
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road. PW1 felt suspicious, intercepted the revision petitioner and checked the
gunny bag when he noticed railway parcel in that gunny bag. PW1 arrested the
revision petitioner and seized the said article and cycle as per Ext.P1, mahazar.
MO1 is the parcel and MO2 is the cycle on which according to PW1, revision
petitioner was carrying MO1. The said properties along with revision petitioner
were produced in the office of the RPF. There, statement of revision petitioner
was recorded by the officials which is Ext.P3. Ext.P2 is the report which PW1
handed over to the RPF. PW2 stated that on 26.2.1994 at about midnight he
saw revision petitioner going with a cycle. MO1 was on the carrier of the cycle.
Revision petitioner was arrested by RPF staff. PW2 is an attestor in ExtP1.
PW3, Parcel Supervisor stated that he found MO1 on the railway platform on
26.2.1994. It contained the railway mark. On 27.2.1994 he found the same
missing and gave report. Ext.P5 is the report. Later, he examined MO1 at the
office of RPF and issued Ext.P4 (to the effect that it is railway parcel). PWs 4
and 5 are railway officials at Ernakulam Junction. They stated that MO1
belonged to the railway. According to PW4, MO1 was unloaded at Ernakulam
Junction and thereon necessary entries were made in Ext.P6. PW5 proved
Ext.P7, extract of unloading register. PW6 is the Chief Parcel Clerk at
Muradabad. He stated that MO1 was booked by him on behalf of Balaji Metals
Houses. Ext.P9 is the copy of the forwarding note. Ext.P10 is the copy of way
bill. According to PW6 also, MO1 contained railway mark. PW7 is the Markman
who put railway mark on MO1. PW8, Senior Commercial Clerk stated that on
30.1.1996, wagon concerned was unloaded by him. Ext.P11 is the copy of the
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unloading register. Parcel No.6914 (which is MO1) was booked to Ernakulam
Junction from Muradabad Station. PW9 was loading and unloading Supervisor.
He stated that he unloaded the said parcel from train No.7058. Ext.P12 is the
relevant extract of the register. PW11, Sub Inspector of RPF recorded the
statement of revision petitioner (Ext.P3).
5. It is contended that MO1 is not a railway property as defined in
Section 2(d) of the Act. Section 2(d) defines railway property as including “any
goods, money or valuable security, or animal, belonging to, or in the charge or
possession of, a railway administration”. It is clear from Section 2(d) of the Act
that the property need not be owned by the railway but, it is sufficient thatat the
relevant time it was in charge of or in possession of the railway administration.
Here, evidence revealed that MO1 was booked at Muradabad to be delivered to
Balaji Metals Houses at Ernakulam and the same was transported through
railway. That, the said article was booked as above stated, transported to
Ernakulam and unloaded at Ernakulam Railway Junction are proved by
documentary and oral evidence. Necessarily therefore, MO1 was in the
possession of, or at least in the charge of a railway administration during the
relevant time.
6. Exts.P1 and P2 and evidence of PWs 1 and 2 show that MO1 was
seized from the possession of revision petitioner. Revision petitioner has not
accounted for his possession. He was not able to produce any document to
show that he was authorized or entitled to possess MO1. Therefore, Section 3
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(d) of the Act applied and conviction of revision petitioner is legal and proper.
7. On the question of sentence, learned counsel made a fervent plea
for leniency. Counsel submitted that revision petitioner is the only breadwinner
of his family consisting of wife and two children who are studying. According to
learned counsel, wife of the revision petitioner is afflicted with all sort of illness
and revision petitioner, at the relevant time was working as Clerk in the railways.
Now also he is working in the railways. His salary is the only source of income
for the family. It is submitted that revision petitioner was aged 38 years at the
time of incident and that if the imprisonment awarded to him is sustained, he will
cost his job which will affect the entire family. Learned counsel submitted that
an opportunity may be given to the revision petitioner to correct hmself.
Learned counsel submitted that imprisonment is not mandatory since revision
petitioner is only a first offender. He placed reliance on the decision in Nirmal
Lal Gupta v. State of Orissa (1995 Supp (2) SCC 713) where, instead of
sentencing the offender for imprisonment, he was sentenced to pay fine of
Rs.3,000/-.
8. I went through the statement of the revision petitioner recorded by
learned magistrate on the question of sentence. He only stated that he has a
family to be maintained. Though further details are not stated by him, I find no
reason to discard the submission made by the learned counsel at the Bar. It is
not shown that revision petitioner is involved in any other case. In these
circumstances I am inclined to think that sentence of fine of Rs.2,500/- is
sufficient punishment in the ends of justice.
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Resultantly, Revision Petition is allowed in part in the following lines:-
Sentence imposed on revision petitioner is modified as fine
of Rs.2,500/- (Rupees Two thousand and five hundred only) in default of
payment of fine, to undergo simple imprisonment for two months. Bail bond is
cancelled.
Crl.M.P.No. 1248 of 2002 shall stand dismissed.
THOMAS P.JOSEPH,
JUDGE.
cks
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Thomas P.Joseph, J.
Crl.R.P.No.185 of 2002
ORDER
15th October, 2008