Page No.# 1/9 GAHC010194282011 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./278/2011 JOYGURU BARMAN and 2 ORS S/O BIRU BARMAN VILL- TILAPARA, P.S. CHAPAR, DIST. DHUBRI, ASSAM. 2: PURNA ROY S/O RATNESWAR ROY VILL- BAROJHAR P.S. BASUGAON DIST. KOKRAJHAR ASSAM. 3: ABUL HUSSAIN S/O DUHA SHEIKH VILL- BILASIPARA WARD NO. 11 P.S. BILASIPARA DIST. DHUBRI ASSAM VERSUS THE UNION OF INDIA REP. BY THE GENERAL MANAGER N.F. RAILWAY MALIGAON. Advocate for the Petitioner : MR.S SARKAR, MR G S SARKAR,MR.Z HUSSAIN Advocate for the Respondent : SC, NF RLY, MS.B CHOUDHURY,MR.S DAS,MR.S C BISWAS,MRS.S D CHOUDHURY,MR. A K SARKAR BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 03-11-2025 Page No.# 2/9 Heard Mr. Z. Hussain, learned counsel for the petitioners. Also heard Mr. S.C. Biswas, learned standing counsel, Railways appearing for the respondent. 2. The present revision petition has been instituted assailing the judgment dated 20- 05-2011, passed by the learned Sessions Judge, Kamrup (M) at Guwahati in Crl. Appeal No. 44/2010, dismissing the appeal and thereby upholding the conviction of the petitioners, herein, vide judgment dated 07-06-2010, passed by the learned Special Railway Magistrate First Class, Guwahati in C.R. Case No. 29/2003 convicting and sentencing the petitioners, herein, under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the Act of 1966). 3. The prosecution case, in brief, is that on 24-06-2003 at about 12:30 Hrs., acting on source information, Sub-Inspector Sanjay Kumar Prasad along with other staff of the Railway Protection Force (RPF) intercepted one truck loaded with iron scrap material bearing registration No. AS-17/1899 at Salbari Chowk, Baitamari. The truck on being detained was brought to the RPF Post at New Bongaigaon along with the petitioners, herein. The petitioner No. 3 is the owner of the truck while the petitioner Nos. 1 and 2 are its driver and handyman, respectively. On unloading the truck as many as 20 (twenty) different types of railway materials in different quantities were recovered and the same is specified in the seizure list. In addition to the seizure of railway material, about 05 (five) Metric Tonne of non-railway iron scrap materials were also recovered. The petitioners, herein, having failed to justify the possession of the railway materials, the truck was seized along with the recovered materials. Page No.# 3/9 On completion of the enquiry, the prosecution report under Section 3(a) of the Act of 1966 was laid against the petitioners, herein. The Trial Court thereafter framed charge under Section 3(a) of the Act of 1966 against the petitioners, herein, and the same on being read over and explained to the petitioners, herein, they having pleaded not guilty and claimed to be tried, a trial ensued in the matter. During the trial, the prosecution had examined 07 (seven) witnesses. Thereafter, the petitioners were examined under Section 313 Cr.P.C. On conclusion of the trial, the learned Trial Court upon appreciating the evidences coming on record proceeded to convict the petitioners, herein, under Section 3(a) of the Act of 1966. On their said conviction, the petitioner No. 3, herein, was sentenced to undergo simple imprisonment for 01 (one) year, while the petitioner Nos. 1 and 2, who were driver and handyman, respectively, of the truck in question, were sentenced to undergo simple imprisonment for 06 (six) months each. The petitioners, herein, being aggrieved by the conviction of the learned Trial Court vide judgment dated 07-06-2010, had assailed the same before the court of learned Sessions Judge, Kamrup (M) at Guwahati by way of instituting an appeal being Crl. Appeal No. 44/2010. The learned Appellate Court upon appreciating the evidences coming on record proceeded vide judgment dated 20-05-2011 to dismiss the said appeal, thereby upholding the conviction of the petitioners by the learned Trial Court. Being aggrieved, the petitioners had instituted the present proceeding. Page No.# 4/9 4. I have heard the learned counsel for the parties and also perused the materials available on record. 5. The learned Trial Court upon appreciating the evidences coming on record during the trial had proceeded vide judgment dated 07-06-2010 to draw the following conclusions:- “4. At the very outset, let me place on record the ingredients of an offence under Section 3 of the Act. In order to bring home an accusation under Section 3 of the Act against an accused person, the followings facts are required to be proved by the prosecution: Firstly, that the property in question is a railway property; Secondly, that the accused person is found, or proved to have been, in possession of such property; Lastly, that such property is reasonably suspected of having been stolen or unlawfully obtained. Once the prosecution has established the aforesaid three facts, the burden shifts to the accused person to prove that such property came into his possession lawfully. 5. Let us begin with the first ingredient. Sri Pradip Kr. Brahma (PW5), who was working as JE-II/C & W/NBQ on the relevant date, deposed inter alia that after examining a few of the seized materials of this case (MG Brake Block and BCN Brake Block) he issued a certificate (Ext. 2) to the effect that those materials were exclusively railway materials and were not available in open market. Sri Ujjai Kr. Sanyal (PW6), who was working as Supervisor/P-Way/NBQ on the relevant date, deposed inter alia that after examining the seized P-Way materials and fittings (total 18 different types of materials in different quantities) he issued a certificate (Ext.4) to the effect that those materials were exclusively railway materials and were not available in open market. Commenting on the capacities of PWS and PW6 in examining the seized materials and issuing Ext.2 and Ext.4 respectively, all I can say is that they definitely had the capability to do so in view of their close acquaintance with the seized materials by virtue of their regular dealing with such materials in the normal course of their joo. The defence has not brought anything on record, neither in their cross-examination nor elsewhere, to question this aspect. This ultimately leaves hardly any room for doubt that the seized materials were railway properties within the meaning of Section 2(d) of the Act. 6. Proceeding now to the second ingredient, it appears from the materials on record that the testimonies of SI/ S.K.Prasad (PW1), ASI/ K.C.Talukdar (PW2), HC/ Uma Kanta Deka (PW3) and cb/Bikhyat Buragohain (PW4) are relevant and worth discussing. It transpires from their testimonies that on the relevant date, acting on source information, they intercepted one truck, loaded with iron scrap Page No.# 5/9 materials, bearing registration number AS-17-1899, at Salbari Chowk of Baitamari. They brought the truck to RPF Post/NBQ along with the driver Joyguru Barman, handyman Purna Roy and the scrap owner Abul Hussain. On unloading the truck at RPF Post/NBQ, they could recover as many as 20 (twenty) different types of railway materials in different quantities (mentioned in the seizure-list) from the truck. On being charged, the accused persons failed to account for the railway materials recovered from their possession. PW1 seized the truck and the recovered materials vide seizure-list (Ext.1). Не lodged a complaint (Ext.2) in this connection. It is, therefore, apparent from their testimonies that they have clearly, consistently and convincingly deposed that the said railway materials were recovered from the possession of the accused persons. Though the learned defence counsel cross- examined them in detail, they remained firm to what they deposed in their examinations-in chief. One significant point that the said PWS were made to confront with during their cross-examination was with respect to presence of public witnesses at the time of unloading of the said truck and seizure of materials. The PWs more or less stated that no public witness was present at the time of unloading and seizure. It would not be out of place to state that as the unloading of truck and seizure of materials were admittedly done at RPF Post/NBQ (and not at any public place), I don't think it would be right to say that public witnesses were easily available there to witness all that. Further, as regards exhibition of the seized railway materials by the prosecution side during trial, let me bring on record that the enquiring officer of this case, SI/RPF/NBQ Sri Gagan Deka (PW7), exhibited in his examination-in-chief the seized railway materials as Material Exhibits 1 to 263. But not even a single question was put to him in his cross- examination in relation to the Material Exhibits. 7. PW7 further deposed inter alia that in course of enquiry he recorded the statements of all the three accused persons (Exts. 5, 6 and 7). The accused Abul Hussain stated that he was the owner of a scrap godown at Bilasipara and besides other scrap materials he also used to collect railway materials from different vendors. And, on 24.6.03, as he was carrying his scrap materials consisting of railway materials amongst other materials by truck No.AS-17-1899 to Guwahati, the RPF intercepted the truck on the way at Salbari and later on seized the materials as well as the truck. The other two accused persons, namely Joyguru Barman and Purna Roy, who were respectively the driver and the handyman of the said truck, stated all that was stated by the accused Abul Hussain, and they also stated that the materials were loaded on the truck in their presence. It needs mention that during cross-examination of PW7, learned defence counsel did not put him any question about the confessional statements of the accused persons. Learned counsel did not even put any suggestion to him regarding the manner of recording of the confessional statements. Remarking in general on the admissibility of a confessional statement of an accused recorded by the RPF, let it be mentioned that it is no more res integra that a confessional statement of an accused recorded by the RPF officer under Section 8 of the Act cannot be excluded from evidence Page No.# 6/9 and is, therefore, admissible in evidence along with the other evidence available on record. (see Balkishan A. Devidayal -vs- State of Maharashtra, AIR 1981 SC 379). 8. Concerning the third ingredient, let me first of all state that it has come in the evidence tendered on record that the accused persons failed to account for the railway materials found in their possession. Further, it is a matter of general knowingness that railway materials are not available in open market. Of course, the railway administration, from time to time, disposes of the unserviceable railway materials by public auction. The accused persons have not taken any defence that the seized railway materials were the auctioned materials. All these factors insist me to believe that the seized railway materials must not have been acquired by lawful means. The learned defence counsel submitted that as there is no theft- memo in this case it cannot be said that the seized railway materials are stolen ones. But it would be pertinent to point out that theft-memo is not an indispensible material to establish a charge under section 3(a) of the Act as because the railway authorities may not, at times, be aware of theft of railway materials owing to the far and wide extent of the Railways. 9. The prosecution, therefore, has proved all the three ingredients of an offence under Section 3 of the Act in this case. The burden has shifted to the accused persons to prove that the property in question (seized railway materials) came to their possession lawfully. In their statements under Section 313, Cr.P.C, the accused persons, in fact, denied the fact that railway materials were recovered from their possession. So, there does not arise any question of their proving that the seized railway materials came to their possession lawfully.” 6. Basing on the said conclusion, the learned Trial Court proceeded to convict the petitioners under Section 3(a) of the Act of 1966 and sentenced them as noticed, hereinabove. 7. On an appeal being filed the learned Sessions Judge, Kamrup (M) at Guwahati, on appreciating the evidences coming on record, proceeded vide judgment dated 20-05- 2011, to draw the following conclusions:- “14. On close and careful scrutiny of the evidence on records of the prosecution it appears that P.W.-1, P.W.-4 and two others intercepted the Truck No. As-17/1899 at Salbari Chowk of Baitamari while carrying away iron scraps materials by the accused persons. The loaded truck along with the accused persons were brought to R.P.F. point New Bongaigaon and while unloading the scrap materials found about 20 items of railway materials carrying unlawfully by the accused Page No.# 7/9 persons concealing underneath the scrap materials. The seizure witnesses P.W.-2 and P.W.-3 have supported the fact of recovery of the railway materials from the loaded truck. The experts P.W.-5 and P.W.-6 have proved the fact that the materials carrying away concealing underneath the scrap materials on the loaded truck are railway materials. The confessional statements marked as Ext.-5, 6 and 7 also corroborated the evidence of P.W.-1, 2, 3 and 4. It is crystal clear from the evidence on records of the prosecution that the railway materials have been carrying away by the accused persons loading on Truck No. As-17/1899 keeping conceal with iron scrap materials and recovered from their possession. It also appears that besides the accused Abdul Hussain, the driver Joyguru Barman and handyman Purna Roy were present at the time of loading the materials on the truck and the railway materials were loaded on the truck concealing underneath the iron scrap materials. Once the prosecution has established the 3 ingredient, the burden is shifting to the accused to prove that such railway property came in to the possession of the accused lawfully. In the instant case the accused persons have failed to produce any documents to prove and show that they obtained the railway property lawfully. I find no force the submission put forward by the learned counsel for the accused/appellants. The learned court below has rightly convicted the accused persons U/S 3(a) of R.P.(U.P.) Act. I find no ground to interfere in the finding of the learned court below. The appeal has devoid of merit.” Basing on the said conclusions, the appeal came to be dismissed. 8. This Court has considered the conclusion drawn by the learned Trial Court as well as by the learned Appellate Court, in the light of the evidences coming on record. On such consideration, it is found that the conclusions so drawn by the learned Trial Court as well as by the learned Appellate Court are found to be drawn after due and proper appreciation of the evidences coming on record and no infirmity is found therein. Accordingly, the conviction of the petitioners, herein, under Section 3(a) of the Act of 1966 would not mandate interference. 9. Having drawn the said conclusion, this Court notices that the offence involved in the matter was committed by the petitioners, on 24-06-2003, around more than 22 years have lapsed since the date of commission of the said offence. The learned Trial Court vide Page No.# 8/9 proceeding to sentence the petitioners, herein, had noticed the provisions of the Probation of Offenders Act, 1958 (in short “Act of 1958”). However, the benefit, there- under, was denied to the petitioners only by noticing the nature of offence committed by the petitioners, herein. This Court also notices that the petitioners have not been alleged to have committed an offence of similar nature prior to 24-06-2003 and/ or thereafter. Further, it is found that the petitioners have been litigating in the matter for the last 22 years initially before the Trial Court and thereafter before the Appellate Court and presently before this Court in the present revision petition. Considering the said factors, this Court is of the considered view that the petitioners, herein, is entitled to be extended with the benefit of the Act of 1958. The said benefit being permissible to be extended by this Court while exercising its revisional jurisdiction, this Court directs that the petitioners, herein, be extended the benefits under the provisions of the Act of 1958. 10. Accordingly, the sentencing of the petitioners, herein, are modified and instead of directing the petitioners to undergo imprisonment, they are extended with the benefit under the Act of 1958. 11. This Court having affirmed that conviction of the petitioners, herein, and having modified their sentencing by extending them the benefits under the Probation of Offenders Act, 1958, this Court is of the considered view that a fine is also called upon to be imposed upon each of the petitioners, considering the nature of the offence committed by them. Accordingly, the petitioner No. 3 is imposed with payment of fine of Rs. 5000/- (Rupees Five Thousand), in default to undergo simple imprisonment for 01 (one) month. The petitioner No. 1 is imposed with punishment of payment of fine of Rs. 2000/- Page No.# 9/9 (Rupees Two Thousand), in default to undergo simple imprisonment for 15 (fifteen) days and the petitioner No. 2 is imposed with punishment of payment of fine of Rs. 1000/- (Rupees One Thousand), in default to undergo simple imprisonment for 07 (seven) days. 12. As such, it is directed that the petitioners, herein, will file 02 (two) sureties to the tune of Rs. 10,000/- (Rupees Ten Thousand) each, along with a personal bond before the learned Special Railway Magistrate, First Class, Guwahati and undertake to the effect that the petitioners shall keep peace and good behaviour during the period of 06 (six) months from the date of filing of such bond. The aforesaid bond shall be filed by the petitioners within a period of 02 (two) months from today, along with deposit of the fine amount as imposed by this Court, hereinabove, before the court of learned Special Railway Magistrate, First Class, Guwahati, within a period of 02 (two) months from today. 13. With the above observations and directions, the present criminal revision petition stands disposed of. 14. Registry to send back the TCR forthwith along with a copy of the present order for information and necessary action. JUDGE Comparing Assistant