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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Yogendra Saw S/o Late Nathuni Saw and Ors. – Petitioners
Versus
The State of Jharkhand - Opp. Party
Cr. Rev. No. 554 of 2012
Decided On : 24-01-2022
Railway Properties (Unlawful Possession) Act, 1966 - Section 3(a) – Affidavit – Custody - Present offence is first offence of petitioners and they have been sentenced under Section 3(a) of Railway Properties (Unlawful Possession) Act, 1966 to undergo simple imprisonment for one year - He submitted that Petitioner No.1 has remained in custody at stage of trial and thereafter, at revisional stage from i.e. for a total period of 04 months and 04 days - He also submitted that as per affidavit filed by the State, one more case is registered against Petitioner No.1 under R.P. (U.P.) Act, 1966, though it is of year - He further submitted that Petitioner No.2 had initially absconded during stage of trial and had surrendered and was enlarged on bail and during pendency of present criminal revision before this Court, he remained in custody and accordingly, he has remained in custody for a total period of 02 months 10 days and as per affidavit filed by State, no other case is pending against Petitioner No.2 – Whether article seized on basis of invalid search warrant have to be restored to appellant from whose custody they were seized - Held, Court is of considered view that ratio of judgement passed in case of Durga Prasad (supra) has no bearing in present case - Court is of considered view that there has been no violation of any of provision of aforesaid Act of 1966 while conducting search and seizure of railway property involved in present case which was conducted during course of investigation of a case and was preceded by a theft report (exhibit-8) - Court finds that both learned courts below have recorded concurrent findings and have passed well-reasoned judgments - Court finds no illegality or perversity or material irregularity in impugned judgments calling for any interference in revisional jurisdiction - Court also finds that learned courts below have already taken a lenient view while sentencing petitioners for one year only which is proper and adequate and does not call for any interference - In view of aforesaid findings, conviction and sentence of petitioners for offence under Section 3(a) of R.P. (U.P.) Act, 1966 is upheld and present criminal revision application is hereby dismissed.
JUDGMENT :
Heard Mr. Amrendra Kumar, learned counsel appearing on behalf of the petitioners.
2. Heard Ms. Mahua Palit, learned A.P.P. appearing on behalf of the Opposite Party-State.
3. The present criminal revision application has been filed for setting aside the Judgment dated 23.06.2012 passed by the learned 1st Additional Sessions Judge, Deoghar in Criminal Appeal No. 14/2011 whereby and whereunder the learned appellate court confirmed the Judgment of conviction and the order of sentence dated 26.02.2011 passed by the learned Railway Judicial Magistrate, 1st Class, Madhupur in GOCR Case No.207 of 2006/Tr. No.112 of 2011 and dismissed the criminal appeal preferred by the petitioners.
4. The learned trial court had convicted the petitioners under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and had sentenced them to undergo Simple Imprisonment for one year and the period undergone in jail custody was directed to be set off.
Submissions on behalf of the Petitioners
5. Learned counsel for the petitioners submitted that the present offence is the first offence of the petitioners and they have been sentenced under Section 3(a) of the Railway Properties (Unlawful Possession) Act, 1966 to undergo simple imprisonment for one year. He submitted that Petitioner No.1 has remained in custody at the stage of trial from 18.08.2006 to 05.10.2006 and thereafter, at the revisional stage from 04.08.2012 to 19.09.2012 i.e. for a total period of 04 months and 04 days. He also submitted that as per the affidavit filed by the State, one more case is registered against the Petitioner No.1 under the R.P. (U.P.) Act, 1966, though it is of the year 2016. He further submitted that the Petitioner No.2 had initially absconded during the stage of trial and had surrendered on 01.08.2007 and was enlarged on bail on 24.08.2007 and during pendency of the present criminal revision before this Court, he remained in custody from 04.08.2012 to 19.09.2012 and accordingly, he has remained in custody for a total period of 02 months 10 days and as per the affidavit filed by the State, no other case is pending against Petitioner No.2.
6. Learned counsel further submitted that the main point involved in the present case is that the necessary search warrant under Section 10 of the Railway Properties (Unlawful Possession) Act, 1966 was not taken and accordingly, the conviction of the petitioners cannot be sustained in the eyes of law. He referred to the judgment passed by the Hon’ble Calcutta High Court in the case of Sakti Steel Traders –Vs- Ashoke Chakraborty (1993) Cr.L.J. 969 and also the judgment passed by the Hon’ble Supreme Court in the case of State of U.P. –Vs- Durga Prasad [AIR 1974 SC 2136].
Arguments on behalf of the Opposite Party-State
7. Learned counsel for the Opposite Party-State opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below and no interference is called for in revisional jurisdiction. Learned counsel further submitted that the recovered stolen property was assessed to be valued at Rs.5,800/-.
Findings of this Court
8. The prosecution case, in brief, is that on 18.08.2006 at about 02.15 P.M., the officers and members of RPF Post alongwith police force under the leadership of the In-charge, Police Inspector of the police station post with one independent witness namely, Sukumar Mahto conducted a raid in the house-cum-godown of the Petitioner No.1 situated near the post office at Mihijam Hill Road where the petitioners were found doing some work relating to articles. After seeing the police, the Petitioner No.2 fled away, but the Petitioner No.1 was apprehended. On search of the godown-cum-house, (1) One No. HPSV lamp fitting without lamp and 6 Kg. broken pieces of HPSV lamp of aluminium, (2) About 2½ feet 100 pair PIJF telephone cable - one piece, (3) About 2’ x 2½’ insulated of 100 pair telephone cable - 15 Nos., (4) Cut pieces of removed wire from insulation of PIJF telephone cabl
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