JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. Heard Mr. Birendra Kumar, learned counsel appearing on behalf of the petitioner.

2. Heard Ms. Vandana Bharti, learned A.P.P. appearing on behalf of the Opposite Party- State.

3. This criminal revision application has been filed against the judgment dated 06.09.2014 passed by the learned District and Additional Sessions Judge-XII, Dhanbad in Criminal Appeal No. 104 of 2014 whereby the learned appellate court below has been pleased to affirm the judgment and order of conviction dated 21.07.2014 passed by the learned Railway Judicial Magistrate, Dhanbad. The petitioner was convicted and held guilty of the offence under Section 3 of Railway Property (Unlawful Possession) Act in R.P. Case No. 54 of 2004/Trial no. 2005 of 2014 and was sentenced to undergo simple imprisonment for one year with a fine of Rs. 2,000/- and in default of payment of fine, he was directed to undergo simple imprisonment of one year. The learned appellate court upheld the judgment and sentence, but modified the period of simple imprisonment which the petitioner has to undergo in case of default in payment of the fine amount and reduced it to simple imprisonment of three months only.

4. During the course of arguments, it transpired that the petitioner was convicted for a period of one year and the petitioner had filed his case before this Court by filing Vakalatnama from jail and the petitioner was never enlarged on bail by this Court. Accordingly, it is not in dispute that the petitioner has already served the sentence.

5. The counsel for the petitioner submits that in spite of the fact that the petitioner has already served the sentence, he would still press the present petition as the conviction itself is bad in law.

Arguments of the petitioner

6. The learned counsel for the petitioner submits that he has two points to argue in this case which according to him are pure questions of law. The learned counsel has referred to the evidence of PW-3 and submitted that PW-3 had prepared the report on examination of the seized articles and in cross-examination, PW-3 had stated that he does not possess any certificate for expert examination. The learned counsel submitted that in absence of certificate of expert examination, the evidence of PW-3 could not have been relied upon. Accordingly, he submitted that the conviction cannot be sustained in the eyes of law. The learned counsel for the petitioner has relied upon a judgment passed by the Hon’ble Patna High Court reported in (2001) 3 PLJR 803. The learned counsel has relied upon para-9 and 10 of the aforesaid judgment.

7. On the second point, the learned counsel for the petitioner submitted that there is mandatory provision regarding preparation of particular register of the Malkhana of the Railways and Malkhana register having not been exhibited, the conviction of the petitioner cannot be sustained. He has relied upon the page 2 of the judgment passed by a co-ordinate Bench of this Court in Criminal Revision No. 804 and 801 of 2014. He submits that the said judgment is based on the judgment passed by the Hon’ble Delhi High Court in the judgment reported in The State/Railway Protection Force vs. Raju, 2014 SCC Online Del. 575, wherein it has been held that the procedures outlined under Railway Protection Force Rules, 1987, are mandatory.

Arguments of the Opposite Party-State

8. Learned counsel for the Opposite Party-State, on the other hand, has submitted that the date, time, manner and the place of occurrence in the instant case has been fully established by the prosecution. She also submitted that there are concurrent findings of fact recorded by the learned courts below after scrutinizing the evidences on record. There is no illegality or perversity calling for any interference in the impugned judgments in revisional jurisdiction. She also submits that alleged violation of Railway Protection Force Rules, 1987 cannot be permitted to be raised for the first time in revisional jurisdict