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1999 Supreme(Cal) 359
HIGH COURT OF CALCUTTA
DEBIPRASAD SENGUPTA, J.
Gopal Prasad Show & Anr.
Vs.
The State of W.B. & Anr.
Criminal Revision C.R.R. No. 43 of 1999
Decided on: July 14, 1999
Advocate Appeared:
Soumen Ghosh, Abhijit Basu for the petitioner;
Barindra Nath Roy for the State.
The search and seizure conducted by the RPF officers was legal and within their competence because it was conducted in the course of an enquiry into the case and section 165 of the Cr.P.C. has been made applicable to RPF officers during an enquiry under the R.P. (U.P.) Act by virtue of section 8(2) of the said Act.
Headnote:
RAILWAY PROPERTY (UNLAWFUL POSSESSION) ACT, 1966 - SECTION 3(A), 4, 10, 13, 165 - SEARCH AND SEIZURE - PROCEDURE - RAILWAY PROTECTION FORCE - POWER TO CONDUCT SEARCH AND SEIZURE - CONDITIONS - SEARCH WARRANT - NECESSITY - DELAY IN TRIAL - DISCHARGE OF ACCUSED - FUNDAMENTAL RIGHT TO SPEEDY TRIAL - ARTICLE 21 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The petitioner was accused of conniving with offenders for his personal gain by charging high rent for the storage and handling of Railway iron materials unlawfully obtained by the accused persons in his godown. A search and seizure operation was conducted by the Railway Protection Force (RPF) officers without a search warrant, leading to the recovery of stolen Railway materials from the petitioner's godown. The petitioner challenged the legality of the search and seizure, arguing that it was conducted in violation of section 10 of the Railway Property (Unlawful Possession) Act, 1966 (R.P. (U.P.) Act).
Finding of the Court:
The court held that the search and seizure conducted by the RPF officers was legal and within their competence. It reasoned that section 10 of the R.P. (U.P.) Act empowers RPF officers to conduct a house search when they are not enquiring into any case, but in this case, the search was conducted in the course of an enquiry into the case, and therefore, the question of obtaining a search warrant before conducting the search did not arise. The court also held that section 165 of the Code of Criminal Procedure (Cr.P.C.) has been made applicable to RPF officers during an enquiry under the R.P. (U.P.) Act by virtue of section 8(2) of the said Act, and therefore, RPF officers can also conduct a house search during an enquiry under the Act without a search warrant under certain conditions laid down under section 165 Cr.P.C.
Issues: 1. Whether the search and seizure conducted by the RPF officers was legal and within their competence? 2. Whether the petitioner was entitled to discharge under section 245(3) of the Cr.P.C. due to the delay in trial?
Ratio Decidendi: 1. The court held that the search and seizure conducted by the RPF officers was legal and within their competence because: a) Section 10 of the R.P. (U.P.) Act empowers RPF officers to conduct a house search when they are not enquiring into any case, but in this case, the search was conducted in the course of an enquiry into the case, and therefore, the question of obtaining a search warrant before conducting the search did not arise. b) Section 165 of the Cr.P.C. has been made applicable to RPF officers during an enquiry under the R.P. (U.P.) Act by virtue of section 8(2) of the said Act, and therefore, RPF officers can also conduct a house search during an enquiry under the Act without a search warrant under certain conditions laid down under section 165 Cr.P.C. 2. The court did not decide the issue of discharge under section 245(3) of the Cr.P.C. because the entire order-sheet was not annexed to the revisional application, and therefore, it was not possible to determine at whose instance the delay in trial was caused.
Final Decision: The court dismissed the revisional application, upholding the legality of the search and seizure conducted by the RPF officers.
Debiprasad Sengupta, J.
1. This revisional application is for quashing of a proceeding arising out of Bally R.P.F. Post Case No. 2(11)91 under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.
2. The fact of the case, as it appears from the Enquiry Report submitted by the Enquiry Officer of the case, is that on 8.11.91 at about 9.30 hours Sub-Inspector U.B. Biswal along with other officers apprehended one' absconder accused in connection with Bally R.P.F. Post Case No.5 (5)91 dated 21.5.91 under section 3 (a) RP. (U.P.) Act. During interrogation of the said accused he made a confession that he disposed of stolen Railway materials in the shop-cum-godown of one Bala Gupta, which he would identify, On the basis of such statement the officers of Bally R.P.F. Post along with officers of the local police station conducted a raid in the said godown. During search one Madan Gupta and two others were arrested while they were engaged in unloading Railway iron materials from a truck bearing No. W.M.K. 2126 which was parked inside the premises of the said godown. Other two persons were also arrested while they were cutting rail pieces with the help of gas-cutter inside the said godown. During search of the said godown huge quantity of Railway iron materials were recovered from the godown and the truck with the said materials were seized under proper seizure list. During enquiry it could be ascertained that the godown in question is registered in the name of one Sushila Devi and the management of the same is looked after by his son Gopal Prasad Show (present petitioner No. 1). It was alleged that Gopal Prasad Show was having full knowledge about the storage and handling of Railway iron materials unlawfully obtained by the accused persons in his godown and for this illegal act he was charging high rate of rent from the accused persons. Therefore, he had connived with the offenders for his personal gain which is punishable under section 4 R.P. (U.P.) Act, 1996. During enquiry a prima facie case was made out against all the accused persons and accordingly the enquiry report (complaint) was filed before the learned Magistrate with a prayer for taking cognizance of the offence under sections 3(a)/4/13 of the R.P.(U.P.) Act.
3. On receipt of the said complaint the Sub-Divisional Judicial Magistrate, Howrah by his order dated 17.12.93 took cognizance of the offence.
4. Mr. Soumen Ghosh, learned Advocate appearing for the petitioner submits that the search and seizure under the R.P. (U.P.) Act can only be made under section 10, which will prevail over the Code of Criminal Procedure, and there is no other provision for the search and seizure. He further submits that the Sub-Inspector of Railway Protection Force had no competence or authority to seize and as such the same is void ab initio and is a nullity. Mr. Ghosh relies on a Division Bench judgment of this court reported in 1993 Cal. Cr.L.R. (Cal) 175, wherein it was held that whenever a search of any premises is to be made in connection with deposit or sale of railway property in respect of which there is reason to believe that they are stolen or unlawfully obtained, then the search warrant must be issued in accordance with the requirement of section 10 of the R.P. (U.P.) Act.
5. The R.P.F. Officers starts an enquiry under section 8(1) of R.P. (U.P.) Act when any person has been arrested under section 6 by an officer of the Force or he has been arrested by any other member of the Force under section 7 and is forwarded to the R.P.F. Officer. Such arrest can be made by either of them when any person has committed or is reasonably suspected to have committed the offence under sections 3 and 4 of R.P. (U.P.) Act.
6. Section 165 of the Code of Criminal Procedure provides the circumstances in which the Officer-in-Charge of a police station or the investigating officer not below the rank of Sub-Inspector can conduct the house search without a search warrant during the investigat
