IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 185 of 2002() ----------------------------- CRA.679/2001 of IV ADDL.SESSIONS COURT, ERNAKULAM CC.206/1997 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVISION PETITIONER: APPELLANT/ACCUSED -------------------------------------- M.ALAGARAJA,S/O.MUTHUSWAMY, VADAKEMURIPARAMBIL HOUSE,EDAPPALLY. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: RESPONDENTS/COMPLAINANTS --------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE SUB INSPECTOR,R.P.F.,ERNAKULAM 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.185 of 2002 -------------------------------------- Dated this the 15th day of October, 2008. ORDER Heard both sides. 2. Revision petitioner faced trial in the court of learned Additional Chief Judicial Magistrate, Ernakulam in C.C.No.206 of 1997 for offence punishable under Section 3(a) of the Railways Property (Unlawful Possession) Act, 1966 (for short, 'the Act'). He was found guilty, convicted and sentenced to undergo simple imprisonment for one year and pay fine of Rs.1,000/-. He preferred appeal but, conviction and sentence were confirmed. Hence, this revision. 3. It is contended that MO1 is not proved to be a railway property as defined in Section 2(d) of the Act. It is also contended that there is no sufficient evidence to show that revision petitioner was in possession of MO1. 4. Case is that on 26.2.1994 at about 11.45 p.m. revision petitioner was found carrying MO1, railway parcel kept in a gunny bag on a cycle. Offence is said to have been detected by PW1, Head Constable attached to the Railway Protection Force (for short, 'RPF'). He stated that on the relevant day, time and place he found revision petitioner carrying a gunny bag on the carrier of a cycle. Revision petitioner was proceeding from railway platform No.IV to the nearby Crl.R.P.No.185/2002 2 road. PW1 felt suspicious, intercepted the revision petitioner and checked the gunny bag when he noticed railway parcel in that gunny bag. PW1 arrested the revision petitioner and seized the said article and cycle as per Ext.P1, mahazar. MO1 is the parcel and MO2 is the cycle on which according to PW1, revision petitioner was carrying MO1. The said properties along with revision petitioner were produced in the office of the RPF. There, statement of revision petitioner was recorded by the officials which is Ext.P3. Ext.P2 is the report which PW1 handed over to the RPF. PW2 stated that on 26.2.1994 at about midnight he saw revision petitioner going with a cycle. MO1 was on the carrier of the cycle. Revision petitioner was arrested by RPF staff. PW2 is an attestor in ExtP1. PW3, Parcel Supervisor stated that he found MO1 on the railway platform on 26.2.1994. It contained the railway mark. On 27.2.1994 he found the same missing and gave report. Ext.P5 is the report. Later, he examined MO1 at the office of RPF and issued Ext.P4 (to the effect that it is railway parcel). PWs 4 and 5 are railway officials at Ernakulam Junction. They stated that MO1 belonged to the railway. According to PW4, MO1 was unloaded at Ernakulam Junction and thereon necessary entries were made in Ext.P6. PW5 proved Ext.P7, extract of unloading register. PW6 is the Chief Parcel Clerk at Muradabad. He stated that MO1 was booked by him on behalf of Balaji Metals Houses. Ext.P9 is the copy of the forwarding note. Ext.P10 is the copy of way bill. According to PW6 also, MO1 contained railway mark. PW7 is the Markman who put railway mark on MO1. PW8, Senior Commercial Clerk stated that on 30.1.1996, wagon concerned was unloaded by him. Ext.P11 is the copy of the Crl.R.P.No.185/2002 3 unloading register. Parcel No.6914 (which is MO1) was booked to Ernakulam Junction from Muradabad Station. PW9 was loading and unloading Supervisor. He stated that he unloaded the said parcel from train No.7058. Ext.P12 is the relevant extract of the register. PW11, Sub Inspector of RPF recorded the statement of revision petitioner (Ext.P3). 5. It is contended that MO1 is not a railway property as defined in Section 2(d) of the Act. Section 2(d) defines railway property as including “any goods, money or valuable security, or animal, belonging to, or in the charge or possession of, a railway administration”. It is clear from Section 2(d) of the Act that the property need not be owned by the railway but, it is sufficient thatat the relevant time it was in charge of or in possession of the railway administration. Here, evidence revealed that MO1 was booked at Muradabad to be delivered to Balaji Metals Houses at Ernakulam and the same was transported through railway. That, the said article was booked as above stated, transported to Ernakulam and unloaded at Ernakulam Railway Junction are proved by documentary and oral evidence. Necessarily therefore, MO1 was in the possession of, or at least in the charge of a railway administration during the relevant time. 6. Exts.P1 and P2 and evidence of PWs 1 and 2 show that MO1 was seized from the possession of revision petitioner. Revision petitioner has not accounted for his possession. He was not able to produce any document to show that he was authorized or entitled to possess MO1. Therefore, Section 3 Crl.R.P.No.185/2002 4 (d) of the Act applied and conviction of revision petitioner is legal and proper. 7. On the question of sentence, learned counsel made a fervent plea for leniency. Counsel submitted that revision petitioner is the only breadwinner of his family consisting of wife and two children who are studying. According to learned counsel, wife of the revision petitioner is afflicted with all sort of illness and revision petitioner, at the relevant time was working as Clerk in the railways. Now also he is working in the railways. His salary is the only source of income for the family. It is submitted that revision petitioner was aged 38 years at the time of incident and that if the imprisonment awarded to him is sustained, he will cost his job which will affect the entire family. Learned counsel submitted that an opportunity may be given to the revision petitioner to correct hmself. Learned counsel submitted that imprisonment is not mandatory since revision petitioner is only a first offender. He placed reliance on the decision in Nirmal Lal Gupta v. State of Orissa (1995 Supp (2) SCC 713) where, instead of sentencing the offender for imprisonment, he was sentenced to pay fine of Rs.3,000/-. 8. I went through the statement of the revision petitioner recorded by learned magistrate on the question of sentence. He only stated that he has a family to be maintained. Though further details are not stated by him, I find no reason to discard the submission made by the learned counsel at the Bar. It is not shown that revision petitioner is involved in any other case. In these circumstances I am inclined to think that sentence of fine of Rs.2,500/- is sufficient punishment in the ends of justice. Crl.R.P.No.185/2002 5 Resultantly, Revision Petition is allowed in part in the following lines:- Sentence imposed on revision petitioner is modified as fine of Rs.2,500/- (Rupees Two thousand and five hundred only) in default of payment of fine, to undergo simple imprisonment for two months. Bail bond is cancelled. Crl.M.P.No. 1248 of 2002 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.185/2002 6 Thomas P.Joseph, J. Crl.R.P.No.185 of 2002 ORDER 15th October, 2008