The absence of independent witnesses during the seizure process significantly impacted the prosecution's case, leading the court to modify the initial sentencing to a fine only.

JUDGEMENT :

SUSMITA PHUKAN KHAUND, J.

1.Heard learned counsel Mr. A.K. Gupta for the petitioner Ashok Jha who has filed this application under Section 401 r/w Section 397 of the Code of Criminal Procedure, 1973, challenging the legality and propriety of the order dated 20.02.2015 passed by the learned Additional Sessions Judge -1 (FTC), Tinsukia in Criminal Appeal No.9 (2)/2012 dismissing the appeal by upholding the judgment and order 30.03.2012 passed in SRCR Case No. 36/2011 by the trial court, whereby the petitioner was convicted under Section 143 1 (b) of the Railways Act, 1989 (the Act of 1989 for short) and sentencing him to undergo simple imprisonment for two months and to pay a fine of Rs.3000/- with default stipulation.

2. Heard Mr. S.C. Biswas, learned Senior Special Counsel, Railways for the respondent Nos. 1 and 2.

3. The legality and propriety of the order impugned has been challenged and it is submitted that both the courts have committed gross illegality and the orders are liable to be set aside. It is contended that the search and seizure was conducted in absence of independent witnesses, which is bad in law. The railway tickets were allegedly seized from the petitioner in absence of independent witnesses. The courts below were inclined towards the submission of the prosecution. It is contended that the prosecution failed to bring on record that the public present in the busy area were not willing to be witnesses to the seizure of the railway tickets. The railway tickets were booked in the name of Sri B Saikia of PRL Jorhat and Subhash Ch. Jha of Thana Road, Jorhat, which was ignored by the prosecution as well as by the courts. The extra-judicial confession was allegedly made in the presence of a police officer and which cannot be accepted as evidence. The courts have failed to appreciate that the petitioner had no previous criminal antecedent and he was entitled to be released on probation.

4. Per contra, the learned Senior Special Counsel for the Railways has submitted that there is no infirmity in the orders passed by the courts below as impugned by the petitioner. The petitioner was caught red handed while selling railway tickets illegally. The petitioner is liable to be punished under law and a lenient sentence was passed by the trial court.

5. The genesis of the case was that on 05.01.2011 at about 8.10 hours, when the Constable Ananda Doley was on duty at JTTN Station, he apprehended a suspected tout at Jorhat PRS and thereafter informed the matter to the complainant, namely Subhan Hazarika, ASI/RPF(OP)/JTTN. Thereafter, the complainant Subhan Hazalika, respondent No.2, rushed to the spot and nabbed the petitioner along with two computerized tickets, which were found in his possession. On being confronted, the petitioner could not give satisfactory reply on being in possession of those tickets. He was immediately arrested and those tickets were seized and the petitioner was produced before the IPF, MXN. The present case was registered as RPF/POST/MXN case No.2/2011 under Section 143 of the Railways Act. Investigation commenced and witnesses were examined, and finally, charge sheet was submitted.

6. During trial, four witnesses including the complainant were examined whereas the accused did not tender any evidence in defence. His statements were recorded under Section 313 CrPC and his plea was of total denial. The evidence of the constable Ananda Doley as PW-2 and the evidence of the informant as PW-1 clearly depicts that on 05.01.2011, at about 8 am, the petitioner was found selling two Tatkal Seva Railway Reservation tickets. On being confronted, he could not give satisfactory reply regarding the