IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.396 of 2003 State Rep. by Sub-Inspector Railway Protection Force Arakkonam. (Crime No. 2/1991) .. Appellant Vs. Loganathan .. Respondent Prayer: Criminal Appeal filed under Section 378 Cr.P.C. praying against the Judgment dated 30.09.2002 in C.C. No. 194 of 1994 on the file of 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 respondent : Mr. A. Shivkumar ----- J U D G M E N T The criminal appeal has been arising out of Judgment passed by the learned Judicial Magistrate, Arakkonam on 30.09.2002 in C.C. No. 194 of 1994 acquitting the accused under Section 3(a) of Railway Property(Unlawful Possession)Act. 2. The case of the prosecution is as follows: On the basis of the confession given by the accused one Munusamy, after giving intimation to the concerned Judicial Magistrate, Arakkonam, P.W.1 Anandaraj, Inspector, Railway Protection Force, Arakkonam, made a search in the shop of accused-respondent Loganathan on 20.04.1991 at https://hcservices.ecourts.gov.in/hcservices/ 8.45 a.m. to 11.00 a.m. in the presence of P.W.5 Jafar Ali and P.W.7 Christopher and seized the following M.O.1 to M.O.8 under Ex.P1. M.O.1 - 3 nos. B.G. 54 gauge nails M.O.2 - 50 nos. steel keys M.O.3 - 4 nos. CST 9 sleepers M.O.4 - 17 nos. railway Canted bearing plates M.O.5 - 4nos. axle box covers M.O.6 - 5 nos. stainless steel washbasin M.O.7 - 8 nos. AC bearing plates M.O.8 - 2 nos. name boards At that time, the statement of the accused-respondent Loganathan has been recorded and it was marked as Ex.P2. The witnesses, Rajagopal and Sukumar were examined and their statements were marked as Exs. P3 and P4. The statement of Thiruselvam was marked as Ex.P5 and the statement of P.W.5 Jafar Ali and P.W.7 Christopher were marked as Exs.P6 and P7. Then, P.W.1 had obtained a certificate Ex.P8 from Deputy Commercial Tax Officer who had stated that the accused was doing business in the place where the search has been made. P.W.8 Vasudevan had given a certificate Ex.P9, in which, he has stated that the material objects belong to Railway Department. His statement was obtained and the same was marked as Ex.P10. P.W.2 Gleeson had given a certificate Ex.P11, in which, M.O.5, M.O.6 and M.O.8 has been examined and the same belong to the Railway Department and his statement was marked as Ex.P12. Then, P.W.1 obtained a certificate from the Municipal Commissioner which was marked as Ex.P13. Then, he examined the accused one Shanmugam and another Srinivasan and then, he examined the accused Munusamy and recorded their statements which were marked as Exs.P16 and P18. After completing his investigation, P.W.1 Inspector filed the charge sheet against the accused. 3. After examination of the prosecution witnesses, the learned Judicial Magistrate, Arakkonam posed questions on the accused under Section 313 Cr.P.C. about incriminating circumstances found against the accused in the evidence of the prosecution witnesses and he denied the same. The accused examined himself as D.W.1 and Exs. D1 to D8 were marked on the defence side. The Trial Court on perusal of the entire material available on record and after hearing the arguments advanced on either side found the accused not guilty under Section 3(a) of Railway Property(Unlawful Possession)Act and acquitted him. Challenging the order of acquittal made by the Trial Court, this appeal has been filed before this Court. 4. While advancing the arguments on behalf of the appellant, the learned Government Advocate (Criminal Side) would submit that the Trial Court has committed an error in acquitting the accused. Even the Trial Court has come to the conclusion that search is legal as per the decision reported in 1999 MLJ Criminal page 22 (M.Ramesh and others v. State by Inspector of Police, R.P.F., Dindigul and https://hcservices.ecourts.gov.in/hcservices/ another). He further submits that on the basis of the evidence of P.W.5 and P.W.7, the Trial Court acquitted the accused stating that there is no evidence to show that the material objects have been seized from the shop of the accused. He further submits that the statements of the witnesses have been marked as Exs.P6 and P7, which would clearly prove that the material objects have been seized from the shop of the accused. Hence, the possession of the railway property by the accused has been proved by the prosecution beyond reasonable doubt. Hence, he prayed for the conviction of the respondent. 5. Per contra, the learned counsel for the respondent would contend that the Trial Court has not committed any error in coming to the conclusion that the search is legal in view of the decision reported in 1999 MLJ Criminal page 22. But, Apex Court has held that there is no special enactment, that the investigating agency ought to have followed the procedure laid down in the special enactment not a common law in Criminal Procedure Code. So, he relied upon the decision reported in AIR 1965 Supreme Court page 1 (Nilratan Sircar v. Lakshmi Narayan Ram Niwas), since P.W.1 Inspector has not followed the procedure laid down under Section 10 of the Act in 1993 Criminal Law Journal page 969 (Sakthi Steel Traders v. Ashoke Chakraborty and others). Hence, the learned counsel for the respondent prays for the dismissal of the appeal. 6. At this juncture, it is appropriate to consider the decision of this Court relied on by the learned Government Advocate reported in 1999 MLJ Criminal page 22 (M.Ramesh and others v. State by Inspector of Police, R.P.F., Dindigul and another) in which, it was held 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 https://hcservices.ecourts.gov.in/hcservices/ with Section 165 of Cr. P.C. nor I could find any delay in conducting the investigation." So, the Trial Court has come to the conclusion that the search is valid, in view of the said decision reported in 1999 MLJ Criminal page 22. 7. It is true that the prosecution has not followed the procedure under Section 10 of the Act. In this regard, it is appropriate to consider the decisions relied on by learned counsel for the respondent-accused, which are as follows: (a) In AIR 1991 Supreme Court 236 (Kusum Lata Singhal v. Commissioner of Income-tax, Rajasthan, Jaipur and others), it was held by the Supreme Court 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. 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." https://hcservices.ecourts.gov.in/hcservices/ (b) In 1993 Criminal Law Journal page 969 (Sakthi Steel Traders v. Ashoke Chakraborty and others), in Paragraphs-6,7,9 and 11, it was held by Calcutta High Court 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 to dispose thereof in some place of safety." (Emphasis added) S.11 says- "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. "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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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." (C) In AIR 1979 Supreme Court 711= CDJ 1979 Supreme Court 145 (K.L. Subbayya v. State of Karnataka), the Apex Court held 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 https://hcservices.ecourts.gov.in/hcservices/ 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 Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him. Appeal allowed." (d) In AIR 1954 Supreme Court page 415 (Wazir Chand v. State of Himachal Pradesh and the District Magistrate, Chamba), the Apex Court held as follows: "11. For the reasons given above we allow this appeal, set aside the order of the Judicial Commissioner and direct an appropriate writ to issue directing the restoration to the petitioner of the goods seized by the police." (e) In 1983 Law Weekly Criminal 59 (State by Sub-Inspector, R.P.F., Royapuram, Madras v. Ramasamy(M)), this Court held as follows: "Duty of prosecution to prove that the stolen property belonged to the railway, mere indication of a manufacturing concern's name or of a railway engine emblem not sufficient." So, I am forced to conclude that the search made by P.W.1 is illegal, as per the decisions of AIR 1991 SC 236, 1993 Cri.L.J 969, AIR 1979 SC 711=CDJ 1979 SC 145, AIR 1954 SC 415 and 1983 L.W.(crl)59. 8. Now, this Court has to decide whether the prosecution has proved that the property has been seized from the shop of this accused. The respondent-accused has denied that the property marked before the Court was not seized from his shop and to prove the same the prosecution has examined P.W.5 Jafar Ali and P.W.7 Christopher who are the attestors of the seizure mahazar Ex.P1. While considering the evidence, they turned hostile and they are not supporting the case of the prosecution. In such circumstances, it is unsafe to https://hcservices.ecourts.gov.in/hcservices/ conclude that the material objects marked before the Court were seized from the shop of the accused. It is pertinent to note that admittedly, accused is a licenced auction purchaser of the railway property and to prove the same, he has filed Exs.D1 to D8. To prove that in the earlier proceeding, he proved that he is a licenced auction purchaser of the railway property and he took some of the property in auction. Even though he was cited as accused in C.C. Nos.418 of 1980, 328 of 1991, 41 of 1992 and as per Ex.D4, the High Court has given a direction to return the property which shows that the acquittal has been confirmed and the order of return of property seized from the respondent made by the appellant get stands confirmed. It shows that he is in possession of railway property which was taken by the auction conducted by the Railway Department. So, the burden is heavily on the appellant to prove that the properties were seized only from the accused shop. But, as already stated, P.W.5 and P.W.7 turned hostile, even though P.W.1 has stated in his evidence that no independent witness has been examined. Even neighbours of the shop has not been examined before the Court to show the properties M.O.1 to M.O.8 were seized from the shop of the accused. In such circumstances, the Trial Court has considered the same and came to correct conclusion that there is no evidence to show that the M.O.1 to M.O.8 were seized from the accused shop, even though the properties were belonging to Railway Department. In fact, the properties were seized from the shop of the accused, has not been proved by the prosecution beyond reasonable doubt. Furthermore, in paragraph-18 of the Judgment, the Trail Court came to conclusion that the respondent-accused is a iron scrap vendor and the properties have been assessed to tax. Moreover, the Commercial Tax Department has also given a certificate that he is doing business and obtained Tamil Nadu Sales Tax registration for conducting the business in the premises. In such circumstances, the Trial Court has come to the correct conclusion. I do not find any infirmity or illegality in the order passed by the Trial Court. Hence, I concur with the findings of the Trial Court. Since the respondent himself admitted that the properties are not belonging to him, the same are ordered to be returned to the appellant herein. 9. In fine, * The Criminal Appeal is dismissed. * The Judgment of acquittal of the respondent-accused by the Trial Court is hereby confirmed. * The respondent-accused is acquitted of the charge. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ j To 1. The Judicial Magistrate, Arakkonam. 2. The Sub-Inspector Railway Protection Force,Arakkonam. 3.The Public Prosecutor High Court, Madras. 1 cc To Mr.A.Shivakumar, Advocate, SR.8828 CRL.A.No.396 of 2003 SSJ(CO) sra 05/03/2010 https://hcservices.ecourts.gov.in/hcservices/