ORDER :

Heard Mr. Rajendra Krishna, learned counsel appearing on behalf of the petitioner along with Mr. Pratyush Lala, Advocate.

2. Heard Mr. Arup Kumar Dey, learned counsel appearing on behalf of the opposite party - State.

3. The present criminal revision is directed against the judgment dated 30.03.2012 passed by learned Additional Sessions Judge- I - cum - Special Judge, C.B.I., Dhanbad in Criminal Appeal No.197 of 2008 whereby the learned appellate court has dismissed the appeal filed by the petitioner.

4. The judgment of conviction and sentence was passed by learned Railway Magistrate, Dhanbad on 01.07.2008 in R.P Case No.19 of 2004 whereby the petitioner was convicted along with other co-accused and sentenced to undergo rigorous imprisonment of 3 years for offence under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the Act of 1966).

5. There were altogether 6 accused who faced the trial and out of them, 3 were acquitted and 3 were convicted.

Arguments on behalf of the Petitioner

6. The learned counsel for the petitioner while assailing the impugned judgments has submitted that the impugned judgments are perverse and are accordingly fit to be set-aside in revisional jurisdiction.

7. It has been submitted that the only material against the petitioner as per the first information sheet is statement of Niamul Hauqe, who was accused no.5. His confessional statement was recorded on same day i.e., 13.03.2014 in which he has not even whispered about the petitioner. In the confessional statement, Exhibit 8, said Niamul Hauqe had given the entire details. Thus, the confessional statement of Niamul Hauqe i.e., Ext.8 destroys the entire case of the prosecution against the petitioner and the petitioner was made accused on the basis of statement of same person i.e., Niamul Hauqe, but Niamul Hauqe at the time of recording of his confessional statement he did not mention the name of the petitioner.

8. The learned counsel submits that further material against the petitioner was the identification of address given by P.W.4, who had identified the petitioner on the basis of address mentioned by the co-accused Niamul Hauqe in the first information sheet. The learned counsel submits that the aforesaid fact clearly indicated that the petitioner has been arrayed as accused by Railway police with malafide intention as the petitioner happens to be the son of co-accused namely Abdul Sahmed @ Murgi Khan (accused no.3). The learned counsel has also argued that the petitioner had always denied his presence at the place of occurrence and had taken the plea of alibi since beginning.

9. Learned counsel has also submitted that the conviction of the petitioner under Section 3 (a) of the aforesaid Act of 1966 is dependent upon unlawful possession of the railway property, but in the present case, there has been no recovery of any railway property from the possession of the petitioner.

The seizure list which was marked as Exhibit 5 and Exhibit 6 did not carry the signature of the petitioner. It is submitted that the other three co-accused, who have been acquitted by the learned trial court also did not have their signature on the seizure list and accordingly, the case of the petitioner was on the same footing as that of the other 3 co-accused, who have been acquitted and the only reason for implicating the petitioner is that the petitioner happens to be the son of the accused no.3, who in turn happened to be the owner of the Vishwakarma Steel Rolling Mill where raid was conducted.

10. Without prejudice to the aforesaid submissions, it has also been argued by the learned counsel for the petitioner that the present case is the first offence of the petitioner and Section 3 (a) of the aforesaid Act of 1966 gives the choice to the court to either award punishment or impose fine or both. Clause 3 (a) is required to be seen in comparison with clause 3 (b) of the aforesaid Act of 1966 wherein the court is obligated to award impr