Page No.# 1/6 GAHC010126122017 2026:GAU-AS:9295 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./112/2017 JALIL ALI S/O- LATE OSMAN ALI, R/O- VILL- KHANDIKAR, P.S- GORESWAR, DIST- BAKSHA, ASSAM VERSUS THE STATE OF ASSAM and ANR. 2:THE CSC RAILWAY PROTECTION FORCE MALILGAON GUWAHATI-1 Advocate for the Petitioner : MD.A MATLIB, MR.R DHAR Advocate for the Respondent : PP, ASSAM, SC, NF RLY,MS.M CHATTERJEE,MS.R BARUAH,MS.N R RABHA,MRS.U CHAKRABORTY,MS.M ACHARYYA BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 25.06.2026 None appears for the petitioner. 2. Ms. S.H. Bora, learned Additional P.P. appears for the respondent No. 1 Page No.# 2/6 and Mrs. U. Chakraborty, learned counsel appears for the respondent No. 2. 3. By way of the instant criminal petition, challenge has been put to the Judgment & Order dated 03.11.2014, passed by the learned Special Railway Magistrate 1st Class, Kamrup (M) at Guwahati, in C.R. Case No. 82/2007, under Section 3(a) of Railway Properties (Unlawful Possession) Act. 4. The case of the prosecution is that on 30.09.2007, at about 13:00 hours, one M.K. Das, IPF/RNY(P) while conducting an enquiry in connection with theft of Railway properties issued by SSE/P-way/RNY vide his FIR No. L/1-26 & L/1- 27 dated 20.09.07 and 25.09.07 got an information that the afore named accused/appellant had concealed some railway materials in his house cum scrap shop and he is going to dispose of those materials shortly. As the officials apprehended that if immediate action are not taken, then there is possibility of those materials disposed of, immediately proceeded to the spot along with staff without obtaining a search warrant from the court. After reaching the said village, they called two independent witnesses of that area for witnessing the search. When they reached the house of the accused, he was found absent ; then the police staff started conducting search in presence of local witnesses and they succeeded recovering the following railway materials (1) Elastic Railway Clip-44 nos., (2) metal liner-3 nos., (3) two-way key Pin- 16 nos, (4) Page No.# 3/6 Fish plate (a) one BG (b) Two MG one in condition, (5) Dog spike-4 nos., (6) Hook bolt- 1 nos., (7) Nut-6 nos, and (8) over head wire approximately 20 meters, which were found kept concealed under non-railway materials ; those materials were seized by the Inspector IPF/CIB/RNY, B. C. Das at the spot in presence of witnesses under proper seizure memo. The owner of the house was searched in the village; but he could not be traced out. 5. In reference of the above, RPF/RNY lodged the written complaint and it was endorsed to ASI RPF/RNY (P) to make enquiry into the case. After completion of enquiry, the enquiry officer submitted prosecution report against the accused U/S 3(a) of R.P (UP) Act. Finding a prima case, the learned court below took cognizance of offence and after furnishing copies to the appellant, formal charge under Section 3(a) of R.P. (UP) Act was framed. The particulars of accusation were read over and explained to accused/appellant to which he pleaded not guilty and claimed to be tried. 6. After trial, the learned Special Railway Magistrate, Kamrup (M), Guwahati passed the impugned judgment and order dated 03.11.2013 convicting the appellant/accused and sentencing him to jail term and fine as alluded to above. 7. Being aggrieved, the petitioner preferred an appeal which was dismissed by the learned Sessions Judge, Kamrup (M) thereby, confirming the Judgment & Page No.# 4/6 Sentence of the learned Trial Court. 8. The only grounds of challenge as reflected in the memo of appeal are that before making any search and seizure, there was no compliance with provisions of Sections 10 and 11 of the Cr.PC which is mandatory and secondly, that the petitioner was not given an opportunity to defend his case nor was he examined under Section 313 of Cr.PC by the learned Trial Court. 9. As far as the first ground is concerned, Sections 10 and 11 of Cr.PC have nothing to do with the search and seizure procedure which is covered by Section 100 of Cr.PC. In this regard, the learned Sessions Judge has dealt with the aspect as follows:- “This point is raised by the learned defence counsel at the time of hearing on appeal. According to him, there is a violation of provision of Section 100(4) of Cr.P.C. as though the prosecution has cited PW2 and PW3 as independent witnesses who remained present in the house of the accused at the time of search and seizure of those railway properties, but only one witness i.e. PW2 claimed himself to be present at the time of the search of the house of accused and other witness came to the spot after the seized materials were removed from the house of the accused. I find force in the submission of learned defence counsel; but am not inclined to disbelieve the testimony of PW2 and PW3 on such counts as from their evidence it stand abundantly established that they Page No.# 5/6 were independent witnesses; they were called by the RPF staff to bear witnesses to search and seizure of those railway materials from the house of the accused and though PW3 came at later stage after those articles were removed from the house of the accused but he was not challenged on the point if those articles were not taken from the house of the accused. It has further surfaced on the record that only PW2 and PW3 have stated that the room where the railway materials were kept was under lock and key; the other witness did not depose that way; neither they were challenged on such point. Even they were not challenged if the wife and mother of the accused were present at the time when the search of the house of the accused was made and what role they had played.” 10. I do not find anything perverse in the aforesaid binding. 11. As regards the second ground of non-examination of the accused under Section 313 of Cr.PC and not been given an opportunity to adduce defence evidence, a perusal of the original TCR clearly shows that the accused/petitioner was very much examined under Section 313 of Cr.PC, the record of which is found available in the TCR. Further, in response to the question, whether he would like to adduce defence evidence, the petitioner answered in negative. Therefore, the second ground also has no basis. 12. Having regard of what has been discussed above, I do not find any merit in the instant petition and accordingly, the same stands dismissed. Page No.# 6/6 13. Send back the records. JUDGE Comparing Assistant