1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2117/2000 Vijaykumar Motilal Hirakhannwala PETITIONER Age 65 years, occ. Business [ORI. ACCUSED r/o 91, E-1, Cidco, Ridge Road no. 12] Mumbai  400 006 VERSUS The State of Maharashtra RESPONDENT Through The Inspector Railway Protection Force Aurangabad Shri Joydeep Chatterjee, Advocate for petitioner Shri J.S.Ghavane, APP for respondent. CORAM : A.V.NIRGUDE, J DATE : 18/7/2009 ORAL JUDGMENT 1. This Criminal Application takes exception to the judgment dt. 5/10/2000 passed by the learned Additional Sessions Judge, Aurangabad rejecting his Criminal Revision No. 31/1999 rejecting the applicant's revision application against the order passed by the JMFC, Railway Court, Aurangabad, in RCC No. 11/1993, dt. 3/2/1999, directed to 2 frame charge against him along with other accused under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 (Hereinafter referred to as the Act for the sake of brevity). The facts leading to this petition can be covered as under. 2. On 27/1/1993 the Head Clerk (Stores, Construction, etc) of Aurangabad Railway Station issued a theft memorandum stating that 279 ST Sleepers (discarded) had been stolen away from Daulatabad Railway Station. He requested the Railway Police Force to investigate into the matter. The Inspector, Railway Protection Force visiting Daulatabad Railway Station started enquiry. Ultimately, he came to a conclusion that, 279 ST Sleepers were stolen. He registered the offence and started investigation. He found the ST Sleepers stored in the premises belonging to the present petitioner. The present petitioner is the proprietor of a Firm by name "Savinay Bright Bars, General Engineering and Forging Works" situated at old MIDC Industrial Area at Jalna. During the investigation, it was found that, accused no. 1 Shaikh Pashu was the factory in-charge / 3 manager. The accused no. 2 Sanjay was the son of the petitioner who looked after the day to day business of the factory. The ST Sleepers were seized in presence of the accused no. 1 and 2. Investigation further revealed that, accused no. 3 and accused no. 4 had gone to Daulatabad Railway Station along with labourers and a truck. They, with the help of two railway employees, got the sleepers removed from the station premises with the help of forged gate pass, got them loaded in the truck. It was further revealed that they then brought the said truck on 27/1/1993 at about 7 pm at the petitioner's factory premises where the accused no. 1 and 2 received goods and got the sleepers stored in the factory premises. The investigation further revealed that accused no. 13, a railway employee, on the basis of a forged gate pass got the sleepers out of Daulatabad Railway Station. On 11/2/1993, the petitioner was arrested. The investigating officer recorded his statement, in which, he stated that, he was owner of the factory premises where the stolen railway property was found. He also revealed that, on 27/1/1993 he was in Calcutta and that on 30/1/1993 while 4 he was there his son, the accused no. 2, telephonically informed him about the raid and seizure of the stolen railway property from the premises of their factory. He also mentioned that, he was not aware that stolen property was unloaded in his factory. He also mentioned that, in his absence, accused no. 2 was looking after the business of the factory. However, he also stated that, being the owner of the factory, he was equally responsible for the possession of the railway property. 3. On the basis of this investigation, the Inspector, Railway Protection Force, filed complaint under Section 3(a) of the Act, 1966 against 15 accused, including the present petitioner which was registered as RCC NO. 11/1993 before the JMFC, Railway Court. The ld. JMFC took the cognizance of the case and tried it as Warrant Case since this was a case filed otherwise than on a police report. The JMFC recorded evidence before the charge. The complainant, Inspector of Railway Protection Force, Aurangabad, recorded his deposition and that of three more witnesses. The petitioner and other accused did not offer cross- examination. 5 The petitioner argued then there was no prima facie case against him, as at the time of seizure, he was not present in the factory premises. It was further argued that, accused nos. 1 and 2, being his agents, could be held liable for the offence but not the petitioner, who was the master. The learned JMFC rejected this argument mainly because the petitioner had admitted ownership of the factory premises. The petitioner then challenged this order before the 5th Additional Sessions Judge in Cr.Rev.NO. 31/1999. 4. The learned Additional Sessions Judge, rightly pointed out that the required criterion at the stage of framing of charge is that the court has to examine the evidence against accused and decide if the evidence remains unrebutted, would it warrant conviction of the accused? In case it does not, the accused would be entitled to discharge. Applying this formula, learned Additional Sessions Judge, interalia held that the defence of the petitioner cannot be considered at that stage and rejected the revision 6 application. The question is whether evidence against the petitioner, if remains unrebutted, would warrant his conviction in this case. The answer is in negative. The petitioner has practically admitted all the allegations made against him. The prosecution also admitted the fact that since prior to 27/1/1993 the petitioner was not present at Jalna where the factory is situated. The prosecution also admits that, on 27/1/2000 when the stolen railway property was unloaded at the factory premises of the petitioner, he was not present there. It is their case that, at that time, accused nos. 1 and 2 were in-charge of the factory premises and its day to day activity. It is, thus, clear that the prosecution admitted that the petitioner was not aware of the fact that his employee and the son had received the railway property, which was suspected to have been stolen. The question, therefore, is whether the petitioner was found in possession of the same. The answer is in negative. in order to elaborate this aspect I quote the text of Section 3 of the Act, 1966:- 7 “3. Penalty for unlawful possession of railway property :- Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable - (a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees; (b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.” It is clear that, the essential requirements of Section 3 are :- [a] the property in question should be railway property; [b] it should reasonably be suspected of having been stolen or unlawfully obtained and [c] it should be found or proved that the accused was or had been in possession of that property. 5. It is, clear that, the main ingredient of this Section is possession of railway property. From the facts 8 of this case, it cannot be said that, the petitioner was in conscious possession of the railway property when the same was unloaded at this factory premises. He was not aware when the property was being unloaded in his premises. It is not the prosecution case that, the accused nos. 1 and 2 had kept the petitioner aware of the activities that they were doing on that day when they received railway property. Can it be said that merely because the petitioner is owner of the factory premises he had constructive possession of the stolen goods, he incurred criminal liability? Section 3 does not seem to extend the criminal liability for constructively possessing the stolen railway property. The plain meaning of the text of the provision by no stretch of imagination includes even constructive one. It contemplates actual possession that is having physical custody or control of the movables. What it means is actual physical possession. In a criminal case the actual physical possession is required to be proved. Besides to acquire possession of a property two things are necessary viz.1. intention of possessing as owner; 2.corporeal possession. In this case the petitioner did not have intention to posses the stolen goods because he he was not aware of arrival of the good at his premises. 9 6. Shri Joydeep Chatterji, learned counsel for the petitioner, referred to the contents of para no. 3 of the impugned judgment "in the enquiry it was also found that the rest of the accused persons have conspired together and all of them in furtherance of their common intention committed theft of S.T. Sleepers and sold them to the accused no. 15. This observation is factually incorrect. It is not the case of the prosecution that there was a conspiracy between the petitioner and other accused. As mentioned above, the railway property- the Sleepers- were stolen away from the yard of Daulatabad railway Station with the help of certain railway employees using a forged gate pass and then property was brought to the factory of accused nos. 1 and 2 and then they accepted the same. It is not the prosecution case, as mentioned above, that the petitioner was aware of this activity and was an accomplice in the said act. The learned Additional Sessions Judge further erred in holding that the submission made by the petitioner was his defence. It was never his defence but he only pointed out facts that are alleged against him in the 10 prosecution case. In other words, the petitioner was trying to invite the attention of the learned Judge that the facts alleged against him, if remain unrebutted, would not warrant his conviction. It is, thus, clear that that the evidence against the petitioner, if remain unrebutted, would not warrant his conviction and therefore, he deserves discharge. The application is allowed. The impugned judgment passed by the learned 5th Additional Sessions Judge, Aurangabad stands quashed & set aside and the petitioner stands discharged. [A.V.Nirgude, J] sjv/cri2117-2000 11