Point of Law: Once the government order specifically provides the applicant to be the resident of the same village where the shop has to be allotted, no such allotment can be made to an outsider.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

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

2. Heard Mr. Rajneesh Vardhan, learned counsel appearing on behalf of the opposite party-State.

3. The instant criminal revision application is directed against the judgment and order dated 04.06.2003 passed by the learned Additional District and Sessions Judge-III, Dhanbad in Cr. Appeal No. 23/1996, whereby the learned appellate court has dismissed the appeal preferred by the petitioner and upheld the judgment of conviction and order of sentence dated 15.02.1996 passed by the learned Special Judicial Magistrate, 1st Class, Eastern Railway, Dhanbad in R.P. Case No. 126/82, Trial No. 124/1996.

4. The learned trial court has convicted the petitioner for offence under Section 3(a) of the Railway Property (Unlawful Possession) Act [hereinafter referred to as the R.P. (U.P.) Act] and sentenced him to undergo rigorous imprisonment for one year under the same section.

Arguments on behalf of the petitioner

5. Learned counsel for the petitioner has confined his argument on the point of sentence.

6. The learned counsel has submitted that the incident is of the year 1982 and about 39 years have elapsed from the date of the incident. The petitioner has been convicted for the offence under Section 3(a) of the R.P. (U.P.) Act and present offence is the first offence of the petitioner. Learned counsel has further submitted that the petitioner has remained in custody for a period from the date of surrender i.e. on 21.01.1983 and thereafter he was released on bail by the learned trial court on 24.02.1983 and during the pendency of the present revision also, he has remained in custody for a period of one month. Learned counsel submits that considering the fact that about 39 years have elapsed and the present age of the petitioner is more than 59 years, sentence of the petitioner be modified to fine.

7. Learned counsel for the petitioner has relied upon a judgment passed by this Court in Cr. Revision No. 183/2012 dated 19.07.2021 to submit that it is open to the court to punish the convict with imprisonment for a term which may extend to 5 years or with fine or with both. He submits that there is an option with this Court to punish the petitioner by imposing fine only. Learned counsel submits that considering the facts and circumstances of this case, fine amount may be imposed instead of sending the petitioner to jail after a long lapse of time.

Arguments on behalf of the opposite party-State

8. Learned counsel appearing on behalf of the State, on the other hand, has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below and the conviction as well as the sentence may be upheld. However, he submits that in case, this Court is inclined to modify the sentence, the fine amount may not be less than Rs. 25,000/-.

Findings of this Court

9. The prosecution case, in brief, is that on getting source informant that the accused persons have committed theft of OHE copper wire in between Sindri Block and Rakhitpur Railway Station some days back and some part of stolen OHE copper wire were kept in bushes on the south side of the Sindri Marshalling Yard level crossing gate, which was likely to be disposed of soon by the accused persons. Consequently, the Railway Protection Force (R.P.F.) officers and staffs of Dhanbad R.P.F. Post made an ambush watch near said level crossing gate on 02.12.1982 and during such watch duty, the R.P.F. men arrested two persons, namely, Fatik Chand Dutta with 5 pieces of contact copper wire of OHE of Railways of approximate length of 10” each and Ashok Thakur in possession of 4 pieces of OHE contact copper wire of Railways of about 10” in length each at the spot while the other accused fled away from there, but two of them were identified by the R.P.F. men as Kailash Dubey and Sheonath Thakur. On being asked, the arrested persons confessed their guilt and further disclose