IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1199 of 2001 State By Sub-Inspector Railway Protection Force Arakkonam Rep. by Public Prosecutor High Court, Madras. (Crime No. 68 of 1980) .. Appellant/Petitioner Vs. 1.Selvam @ Kulla Selvam 2.Loganatha Achari 3.Prakash .. Respondents/Respondents Prayer: Criminal Appeal filed under Section 378 Cr.P.C. praying against the Judgment dated 04.07.2001 in C.C. No.448 of 1988 on the file of Learned Judicial Magistrate, Arakkonam to set aside the order of acquittal and convict the accused as charged. For appellant : Mr. I.Paul Noble Devakumar Govt. Advocate (Crl. Side) For respondents: Mr. A. Shivkumar J U D G M E N T The Criminal Appeal has been arising out of the Judgment passed by the learned Judicial Magistrate, Arakkonam on 04.07.2001 in C.C. No. 448 of 1988, acquitting the accused-respondents under Section 3 (a) of Railway Property(Unlawful Possession)Act,1966. 2. The case of the prosecution is as follows: P.W.1 is Amirtharaj, who is working as Sub-Inspector of Police, Railway Protection Force, Arakkonam. While he was on duty on 26.11.1980, arrested one Hanifa for keeping the railway properties unlawfully and on the basis of his confession, he had obtained search warrant from Judicial Magistrate, Thiruthani. Thereafter, on 27.11.1980 at 12 noon, he had searched the shop at Door No.31, West Opannakara Street, https://hcservices.ecourts.gov.in/hcservices/ Swalpet, Arakkonam, which was belonging to A2 Loganathan and A3 Prakash. At that time, the first accused-A1 Selvam was working in the shop. During the search, M.O.1 to M.O.8 had been seized under seizure mahazar Ex.P1 and they are as follows: M.O.1 - 45 nos. 0f cat rails M.O.2 - 112 nos. of 1 feet length bolt M.O.3 - Dog spikes, screw bolts, and round bolts about 1 ½ tonnes. M.O.4 - 8 nos. of special joint bearing plates M.O.5 - 20 nos. of Meter guage bearing plates M.O.6 - 107 nos. of steel keys M.O.7 - Broken pieces of C.I. Bearing plates, (N.C.) about 1 ½ tonnes. M.O.8 - 4 nos. of Break blocks Then, P.W.1 had prepared Ex.P2 observation mahazar. Then, he arrested A1 Selvam and his confession statement has been recorded under a mahazar Ex.P3. Then, P.W.1 returned to police station and registered a case in Crime No.68 of 1980 and examined the witnesses Ramadas, Govindan, Marimuthu, Balan and their statements were marked as Exs.P4 to P7. P.W.4 Sundaramoorthy, Assistant Engineer, Southern Railway had inspected all the material objects seized in respect of Crime No.68 of 1980 on 04.01.1981. He had given a certificate Ex.P8, to the effect that all the material objects are belonging to Railway Department, except M.O.8. Then, P.W.2 Shanmugam had given a certificate Ex.P9, after inspecting all the material objects and the statement of P.W.2 is marked as Ex.P10. Then, P.W.1 has examined P.W.5 Balakrishnan, Junior Assistant at Deputy Commercial Tax Department, Arakkonam, for obtaining a certificate that A2 and A3 are doing business at concerned places where the search has been made and the reports were marked as Exs.P12 and P.13. On enquiry, it came to know that there is no business has been conducted at Door no.46, Mettu Street, Thiruthani. But, one Varadan who has been residing there was examined and his statement was recorded as Ex.P14. Then, P.W.6 Nadanakunjithapadham had recorded the confession statements of accused A2 and A3 and the same were marked as Exs.P15 and P16. P.W.7 Rangasamy had recorded statements of the witnesses and the same were marked as Exs. P17 and P18. Therefore, P.W.7 concluded his investigation and filed the charge sheet before the Court. 3. After examining the witnesses, the incriminating evidence against the accused-respondents and posed before them, they denied the same. On the side of the defence, A2 Loganathan has been examined as D.W.1. Through him, Exs.D1 to D9 have been marked. The Trial Court has considered the oral and documentary evidence of both the counsels and acquitted these accused by holding that they were not found guilty under Section 3(a) of Railway Property(Unlawful Possession)Act. Against the order of acquittal made by the Trial Court, the present appeal has been preferred by the State. https://hcservices.ecourts.gov.in/hcservices/ 4. Challenging the acquittal of the accused-respondents, the learned Government Advocate (Criminal Side) would contend that the Trial Court has committed an error that the search is illegal and the warrant has not been obtained from the Court which has jurisdiction of the case. It is further submitted that the Trial Court has committed an error in considering Exs.D1 to D9 and came to the conclusion that A2 Loganathan has a licence to take auction for the railway property and hence, the possession of the property is not fatal. It is also submitted that the witnesses for the conviction of A2 and A3, Hanifa and another were turned hostile and hence, the Trial Court erred in considering these evidence and acquitted them, but it is against law. According to the learned Government Advocate, Exs.D1 to D9 were not pertaining to those properties which were seized under the search, and the Search is valid under law as per the decision reported in 1999 Madras Law Journal Page 22 (M.Ramesh and others v. State by Inspector of Police, R.P.F., Dindigul and another) which reads as follows: "42. I am not convinced with the arguments of Mr. Rajan that the search should not be conducted before getting warrant from the Magistrate. In this connection, it is relevant to refer the decision referred by the learned Government Advocate in Pooran Mal v. Director of Inspection, (1974)1 S.C.C. 345 which deserves consideration, wherein, the Apex Court has held as follows: " In other words search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure." Therefore, since the authorities in the instant case have conducted a search and seizure for preventing the crime, it cannot be held illegal. 43.That apart, I am also satisfied that the respondents have complied with the procedure contemplated under Sections 10 and 11 of the Act read with Section 165 of Cr. P.C. nor I could find any delay in conducting the investigation." It is also submitted that while perusing the documents, Exs.D1 to D9, it came to know that they were not related to these material objects seized from the shop of A2, and that factum has not been considered by the Trial Court. Hence, the learned Government Advocate prayed for the conviction of these respondents. It is further submitted that the search is valid under law against A3 as he is having his head office at Thiruthani and branch office at Arakkonam, and hence, the warrant obtained from the learned Judicial Magistrate, Thiruthani is valid under law. It is also submitted that the https://hcservices.ecourts.gov.in/hcservices/ evidence of P.W.1 Amirtharaj, P.W.2 Shanmugam, P.W.4 Sundaramoorthy has clearly proved that the accused were in possession of the railway property, and hence, they are guilty under Section 3(a) of Railway Property(Unlawful Possession)Act. 5. Per contra, the learned counsel for the respondents would contend that even though the Trial Court has come to the conclusion that the search is valid under law, since there is a special provision under Section 10 of the Railway Property(Unlawful Possession)Act, search has been envisaged. They are not valid as per the provision laid down in Section 10 of this Act, and hence, search is not valid. The learned counsel for the respondents would rely upon the decision reported in 1993 criminal law journal page 969 (Sakthi Steel Traders v. Ashoke Chakraborty and others) and submit that the search is illegal. He would further submit that search warrant was not marked before the Court and non marking of the search warrant is fatal to the case of the prosecution. He would further submit that search under Section 94 of Cr.P.C. alone has been rectified by the irregularity, as per Section 460 Cr.P.C., since there is a special provision in the said enactment. According to him, the investigating agency ought to have followed the procedure laid down in the special enactment as per the Section 10 of the Railway Property(Unlawful Possession)Act. He would also rely upon the Apex Court decision and pray for dismissal of this appeal. He would further submit that the confession of Hanifa, who is not an accused cannot be considered as an admissible evidence, since the confession statement of the co-accused is not acted against these accused. He would further submit that Hanifa and another attestor turned hostile, and hence, the alleged confession statements given by them cannot be relied upon. He would further submit that A2 Loganathan is a licenced auction purchaser of the railway property and he has participated in so many auctions and he was a successful bidder also. So, he is in possession of railway property. To prove the same, he has filed Exs.D1 to D9, the receipts for taking the railway properties in auction. So, the Trial Court has considered all these aspects in proper perspective and came to the correct conclusion by examining the charges levelled against the respondents. He would further submit that till the accused were found guilty, they were innocent, and hence, they were acquitted. So, the burden is heavily on the prosecution to prove that the accused were guilty in the appeal stage. He would further submit that there are two views possible and the views, in favour of the respondents-accused are to be taken into consideration and therefore, prayed for the dismissal of this appeal. 6. The first limb of the arguments advanced by both the counsels that whether the search conducted by P.W.1 is in accordance with Section 10 of the Railway Property(Unlawful Possession)Act and valid in law under Section 94 Cr.P.C., which is a common law under the special enactment of Railway Property (Unlawful Possession)Act. Once https://hcservices.ecourts.gov.in/hcservices/ there is a special enactment, the investigating agency ought to have followed the procedure laid down in the special enactment. It is true, that Section 94 Cr.P.C. deals with search which reads as follows: "Section-94: Search of place suspected to contain stolen property, forged documents, etc.-- (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable-- (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies---" Although S.94 of the Code as well as S.10 of the Act have the same object, i.e. to authorise police officer or any member of the force to search any place on basis of a search warrant, but there is a fundamental and basic difference at the same time. Whereas Sec.94 does not prescribe any territorial limitation so far jurisdiction of the Magistrate is concerned Section 10 does. It says in clear and unambiguous words that application for issuance of search warrant has to be made "to the Magistrate having jurisdiction over the area in which that place is situate." If any irregularity committed during the search under Section 94 Cr.P.C., as per Section 460 Cr.P.C., the said irregularity is to be rectified. But, here, there is a special enactment, which is to be decided, is appropriate to consider. Section 10 of Railway Property (Unlawful Possession)Act reads as follows: "10. Issue of search-warrant-(1) if an officer of the force has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, he shall make an application to the Magistrate, having jurisdiction over area in which that place is situate, for issue of a search-warrant. (2) The Magistrate to whom an application is made under Sub-Section (1), may, after such inquiry as he thinks https://hcservices.ecourts.gov.in/hcservices/ necessary, by his warrant authorize any officer of the Force- (a) to enter, with such assistance as may be required, such place; (b) to search the same in the manner specified in the warrant; (c) to take possession of any railway property therein found which he reasonably suspects to be stolen or unlawfully obtained; and (d) to convey such railway property before a Magistrate, or to guard the same of the spot until the offender is taken before a Magistrate, otherwise to dispose thereof in some place of safety." In that the learned counsel appearing for the respondents would focus mainly upon his argument that he shall make an application to the Magistrate, having jurisdiction over the area in which that place is situate and would submit that the search has been conducted at Arakkonam. The learned Judicial Magistrate, Arakkonam, alone is having jurisdiction in that area. But, no search warrant has been obtained from learned Judicial Magistrate, Arakkonam, who is having jurisdiction over the said area. Hence, the same is fatal to substantiate his arguments. The learned counsel for the respondents would rely upon the decision reported in 1993 Criminal Law journal Page 969 (Sakthi Steel Traders v. Ashoke Chakraborty and others), Paragraphs-6,7,9 and 11 are as follows: "6........ S.10, which is relevant in the present case, is as follows: 10. Issue of search-warrant-(1) if an officer of the force has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, he shall make an application to the Magistrate, having jurisdiction over area in which that place is situate, for issue of a search-warrant. (2) The Magistrate to whom an application is made under Sub-Section (1), may, after such inquiry as he thinks necessary, by his warrant authorize any officer of the Force- (a) to enter, with such assistance as may be required, such place; (b) to search the same in the manner specified in the warrant; (c) to take possession of any railway property therein found which he reasonably suspects to be stolen or unlawfully obtained; and (d) to convey such railway property before a Magistrate, or to guard the same of the spot until the offender is taken before a Magistrate, otherwise https://hcservices.ecourts.gov.in/hcservices/ to dispose thereof in some place of safety. (Emphasis added) 11. Search and arrests how to be made-- All searches and arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating respectively to searches and arrests made under that Code. S.14 gives an overriding effect to the provisions of the Act and the same reads as follows: 14. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. From reading S.10 it appears that if an officer of the Force has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, he has to make an application to the Magistrate "having jurisdiction over the area in which that place is situate" for issue of a search warrant. It may be pointed out that S.10 of the Act and S.94 of the Code, both are similar provisions vesting power in the Magistrate to issue search warrant authorising any member of the Force/any police officer to enter into any place and to search the same if there are reasons to believe that any such place is being used for deposit or sale of stolen railway property/stolen property. The relevant part of S.94 of the Code is as follows: 94: Search of place suspected to contain stolen property, forged documents, etc.-- (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable-- (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies--- "7. Although S.94 of the Code as well as S.10 of the Act have the same object, i.e. to authorise police officer or any member of the force to search any place https://hcservices.ecourts.gov.in/hcservices/ on basis of a search warrant, but there is a fundamental and basic difference at the same time. Whereas Sec.94 does not prescribe any territorial limitation so far jurisdiction of the Magistrate is concerned Section 10 does. It says in clear and unambiguous words that application for issuance of search warrant has to be made "to the Magistrate having jurisdiction over the area in which that place is situate." "9. If it held that S.10 of the Act is not inconsistent with S.94 of the Code, in respect of issuance of search warrant, then there should not be any difficulty in accepting the finding recorded by the learned Judge. But as has already been pointed out above, S.10 requires the application to be made for issuance of search warrant only to the Magistrate "having jurisdiction over the area in which that place is situate" and only such Magistrate has been empowered by Sec.10 to issue a search warrant. This part of S.10 of the Act is clearly inconsistent with S.94 of the Code which does not prescribe any such limitation on the power of the Magistrate concerned to issue a search warrant. Section 14 of the Act has a non obstante clause saying that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The importance of a non obstante clause need not be impressed. It is well-settled that any enactment having a non obstante clause will operate and be applicable to the exclusion of any other provisions operating in the same or similar field. Reference in this connection may be made to the Judgments of the Supreme Court in the case of Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369; in the case of A.V.Fernandez v. The State of Kerala, AIR 1957 SC 657 and in the case of South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum, AIR 1964 SC 207. It has been pointed out that effect of a non obstante clause is to obliterate any other provisions in any other Act within the area where the provisions of the Act were applicable." "11....Section 10 of the Act applies at the stage of issuance of the search warrant itself; whereas S.11 becomes applicable at the stage of conducting the search. As such if there is any inconsistency between S.10 of the Act and S.94 of the Code, that cannot be solved or harmonised with reference to S.11 of the Act. The procedure for search may be common and consistent https://hcservices.ecourts.gov.in/hcservices/ so far the Act and the Code are concerned, but if the provisions for issuance of search warrant are inconsistent in S.10 of the Act with S.94 of the Code, then the procedure prescribed in S.10 of the Act shall override S.94 and shall be applicable at the stage of issuance of the search warrant. In view of the admitted position that the sub-divisional Judicial Magistrate, Serampore had no jurisdiction over the area in which the godown of the petitioner was situated, the issuance of the search warrant by him shall amount to exercise of power without authority in law." 7. The learned counsel for the respondents further submits that the entire search is without jurisdiction, so the accused is entitled to be acquitted. He further submits that the seizure of the goods from the possession of the respondents or their servants amounted to an infringement of their fundamental rights both under Articles 19 and 31 of the Constitution of India and the relief should have been granted to them under Article 226 of the Constitution of India. He further relies upon AIR 1991 Supreme Court page 236 (Kusum Lata Singhal v. Commissioner of Income-tax, Rajasthan, Jaipur and others) in which, paragraphs-8 and 9 read as follows: "8. Our attention was also drawn to the observations of this Court in Commissioner of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver, AIR 1968 SC 59 in support of the proposition that when a search was found illegal, the goods should be returned. Normally speaking, that would be so. This proposition is unexceptional but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this case. 9. Mr. Agarwal further contended that if the proceedings under S. 132(5) for the original search were held to be invalid then all proceedings thereafter would be invalid and, therefore, the proceedings initiated as a result of that search even against the husband, would be invalid and such a statement of the husband recorded cannot be utilised any further. In the instant controversy we are not concerned whether the proceedings against the husband under Section 132 (5) of the Act are valid or not but irrespective of the validity of the proceedings, the evidence or testimony as mentioned hereinbefore, wherein he has asserted the ornaments and jewellery to be his, cannot be wiped out and does not become non-existent. After all, we are concerned with the contention of the husband that the jewellery in question belongs to him, in this case. https://hcservices.ecourts.gov.in/hcservices/ The aforesaid being the fatual matrix, the High Court, in our opinion, was pre-eminently justified in declining to direct return of these identical jewellery and other items to the wife. If that is the position then it cannot be said that the High Court has committed any error in law which requires rectification by this Court." In this citation, an Income-tax Department raid has been conducted and it is governed by special enactment in which the procedure has not been followed. In such circumstances, the Apex Court has held that the search is illegal and the goods were to be returned. It is reported in CDJ 1979 Supreme Court Page 145 (K.L. Subbayya v. State of Karnataka) which reads as follows: "This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution of harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of Section 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of