THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL NO.1430 OF 2005 JUDGMENT: The judgment of the VI Metropolitan Magistrate for Railways, Waltair dated 21.03.2005 acquitting both the accused in the said case in respect of an offence punishable under Section 143 of the Railways Act, 1989 {“the Act” for brevity}, led the prosecution to challenge the same in this appeal. Both the accused were prosecuted by the IPF, DI, CIB, Waltair, alleging that on 08.10.2002 at about 11.15 a.m., the first accused was apprehended by HC 1874, HC 5534, Constable 4029 and others, who inspected the Railway Main Reservation Complex, Visakhapatnam. One railway journey cancellation ticket, six railway journey-cum- reservation tickets, four filled up railway reservation forms and cash of Rs.6,800/- were seized from him and on his confession about procuring and selling the railway journey-cum-reservation/cancellation tickets to outsiders on commission basis since November 2000 through ‘Goodwill Travels’, Dwarakanagar, Visakhapatnam, the first accused was produced before the concerned at 1.30 p.m., for further action. In pursuance of his statement, the premises of ‘Goodwill travels’ was inspected from 4 p.m. to 5 p.m. on the same day in the presence of both the accused and they produced four railway journey- cum-reservation tickets, 32 railway cancellation tickets and current rail reservation slip book, six bundles of used railway reservation slips, four invoice cash memos, one daily procuring railway reservation ticket book, two daily cash books, nine train ticket delivery books, one daily train ticket register, 205 blank railway reservation requisition forms and train timing book of ‘Goodwill Travels’. The accused failed to produce any authority or license for procuring and selling railway reservation/cancellation tickets to outsiders in the name of ‘Goodwill Travels’ and the statement of V.Eswar Rao, an independent witness, was also recorded. The accused were forwarded to the Magistrate concerned and after verifying the documents with the railway records and after examining the officials concerned, the Investigating Officer again examined the first accused and his wife also confirmed that the first accused was running train and air ticket travel agency in the name of ‘Goodwill Travels’ without valid license. Accordingly, both the accused were prosecuted under Section 143 of the Act. After the case was taken cognizance and copies of documents were furnished to both the accused, the Enquiry Officer was examined as P.W.1 after which a charge under Section 143 of the Act was framed against the accused. The accused denied the offence and during trial, P.Ws.1 to 5 were examined and Exs.P1 to P10 and MOs.1 to 14 were marked. The accused denied the incriminating circumstances appearing in the evidence against them, when they were examined under Section 313 of the Code of Criminal Procedure, 1973, and did not produce any defence evidence. The trial Court concluded that it was only alleged by the witnesses that both the accused were found procuring and selling railway tickets at the time of the raid. The case was opined to be based solely on the alleged confession of the accused and the trial Court refused to draw any presumption or adverse inference against the accused concerning procurement and sale of railway tickets unauthorizedly, merely from the possession of the material objects marked, even if such possession were to be considered true; consequently, the trial Court gave the benefit of doubt to the accused and acquitted the accused. The grounds of appeal against the impugned judgment referred to the confirmation that should have been made when the accused were found in possession of the incriminating documents, which was proved through P.Ws.1 to 5 and the documents marked through them. Contending that the conclusions of the Magistrate were based purely on surmises, the appellant desired the judgment of acquittal to be reversed. Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor, for the appellant and Sri B.Devanand, learned counsel for the respondents-accused, are heard. The point for consideration is whether the prosecution proved the guilt of either or both the accused for an offence punishable under Section 143 of the Act beyond reasonable doubt. The Assistant Labour Officer, Circle-III, Visakhapatnam, as P.W.5, was only speaking about the registration of ‘Goodwill Travels’ as a commercial establishment and P.W.4 working as a Chief Reservation Supervisor in Visakhapatnam Railway Station at that time was referring to the seizure of 29 requisition forms by P.W.1 from their office as listed in Ex.P6. The evidence of either does not indicate the guilt of either accused directly or remotely. P.Ws.3 and 2 were speaking about the search of the premises of ‘Goodwill Travels’ on 08.10.2002 and they stated that the second accused was handling some registers at that time and stated that she was appointed by the first accused to look after the travel agency business. P.W.3 claimed that MOs.4 to 14, as per Ex.P4-seizure list, were seized by P.W.1 at that time. P.W.3 also admitted that the signatures of the accused were not obtained on any of the seized documents or other documents in his presence. The evidence of P.W.2, a Constable in CID, Waltair at that time, is also about his participation in the raid leading to the arrest of the first accused in possession of MOs.1 to 3 and their seizure under Ex.P1. He claimed that they proceeded to ‘Goodwill Travels’ at the instance of the first accused, where the second accused was present and from where MOs.4 to 14 were seized by P.W.1. P.W.2 admitted that they did not ask the persons/passengers present at the premises about any details, that they did not request them to sign as seizure witnesses and that he could not give the details of MOs.1 and 2. The statement of P.W.2 about the presence of the independent witnesses at the time of the raid and seizure and the absence of their participation in the proceedings may raise some suspicion about the entire proceedings. The alleged confession of the first accused that he was procuring and selling tickets unauthorizedly, as stated by P.W.2, was not referred to at all by P.W.3. Though P.Ws.1 and 5 are official witnesses, who were not alleged to be having any reason or motive to falsely implicate the accused, it is to be noted that even P.W.1, who spoke about the entire proceedings conducted by him, admitted that at the time of their raid, they did not notice the first accused selling or purchasing tickets to/from outsiders. His claim that they tried for independent mediators but in vain is not corroborated. It is unnatural that even a booking clerk declined to act as a mediator, as claimed by P.W.1. P.W.1 did not specifically state about the confession of either accused of procuring or selling railway tickets unauthorizedly and his claim that no person was present for purchasing the tickets at the time of the raid in the shop is exactly contrary to the claim of P.W.2. P.W.1 admitted that blank reservation requisition forms are available freely and that they could not verify the persons mentioned in the requisitions about the same. P.W.1 also admitted that he did not obtain any certificate from the railway authorities about the accused being not an authorized agent and merely depended upon either accused not producing any such authority. Section 143 of the Act provides for penalty for unauthorized carrying on the business of procuring and supplying of railway tickets and therefore, positive proof of procuring and selling railway tickets without authorization is required to penalize any person under the said provision. Any purchase or sale of tickets or attempt should be with a view to carrying on such business to make the person liable under the provision and the conclusion of the trial Court that no witness had spoken about either accused procuring or selling railway tickets unauthorizedly at the time of the raid does not appear divorced from the circumstances disclosed by the record and any suspicion arising from the production of MOs 1 to 14 or Exs.P1 to P10 cannot be equated to proof beyond reasonable doubt. The alleged confession of the accused before the police officers could not have been admissible in evidence, in the absence of such confessions leading to discovery of either procurement or sale of railway tickets unauthorisedly, which is punishable under Section 143 of the Act. Under the circumstances, the impugned judgment cannot be interfered with. Accordingly, the Criminal Appeal is dismissed. ___________________ (G.BHAVANI PRASAD, J) 2nd December 2009 RRB