Bombay High Court
Ranjitji S/O Gambhirji Thakur And ... vs The State Of Maharashtra on 20 December, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1132 OF 2016
1. Ranjitji s/o Gambhirji Thakur
Age : 2 Yrs., Occ. : Business,
R/o : Palej, Thakurvas,
Dist. Mhisana (Gujrat),
P.S. Santhal, Dist. Mhisana.
2.
ig Mitesh s/o Chandrakant Patel
Age : 32 Yrs., Occ. Business,
R/o : 1935/60, Niranjan
Society, Rajkot (Gujrat). .. PETITIONERS
VERSUS
The State of Maharashtra
Through G.R.P. Police
Station Officer, Railway
Police Station, Bhusawal,
Tq. Bhusawal, Dist. Jalna. .. RESPONDENT
.............................
Mr. S.G.Ladda, Advocate for Petitioners.
Mr. A.B.Girase, Public Prosecutor for Respondent
..............................
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CORAM : Z.A.HAQ, J.
DATE OF JUDGMENT :20th DECEMBER, 2016
.............................
ORAL JUDGMENT :
01. Heard Mr. S.G.Ladda, learned Advocate for
the petitioners and Mr. A.B.Girase, learned Public
Prosecutor for the Respondent - State.
02. Rule. Rule made returnable forthwith.
03. The petitioners have challenged the
Judgment passed by the learned Additional Sessions
Judge dismissing the Criminal Revision Application
filed by the petitioners and upholding the order
passed by the learned Magistrate rejecting the
application filed by the petitioners u/s 457 of the Code
of Criminal Procedure.
04. The Constable of Railway Police Protection
Force lodged complaint on 22/12/2015 stating that on
21/12/2015 at about 10.00 p.m. when he was on
3 Cr.W.P. 1132.2016 - [J]
duty along with other Officers, the policemen found
that the movements/behaviour of Ranjitji Gambhirji
Thakur [petitioner No. 1] were suspicious and,
therefore, his belongings were checked and in a bag,
currency notes of ` 500/- and ` 1,000/- worth ` 22
Lakhs were found and on being enquired, Ranjitji
Gambhirji Thakur was not able to give satisfactory
answers. ig With these accusations, the complaint was
lodged asserting that Ranjitji Gambhirji Thakur was
harboring the bag after stealing it from some
passenger. The concerned policemen undertook
consequential exercise, drew panchanama, seized the
amount and registered non-cognizable case against
Ranjitji Gambhirji Thakur.
05. The petitioner No. 2 filed an application u/s
457 of the Code of Criminal Procedure before the
Magistrate, Bhusawal [Railway] seeking interim
custody of the property [amount of ` 22 Lakhs]. The
petitioner No. 2 claimed that the amount belongs to
him. According to the petitioner No. 2, he is a
businessman, dealing as an agent in the business of
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cotton and betel-nuts having office at Rajkot and
Surat, that the petitioner No. 1 is working under him,
that the petitioner No. 1 was sent along with the
amount of ` 22 Lakhs on 20/12/2015 to Akola for
purchasing cotton, but the transaction could not take
place and when the petitioner No. 1 was returning
from Akola to Surat, on 22/12/2015, the amount was
seized between Bhusawal and Jalgaon.
ig The application was opposed on behalf of
the respondent on the grounds as recorded in para
Nos. 4 and 5 of the Order passed by the learned
Magistrate, which are as follows :
"4. Ld. A.P.P. opposed to the
application on the ground that,
applicant has given any
appointment letter of accused. He
argued that, the seized amount is
huge, therefore, applicant ought to
have given bank details but he did
not give any bank details. He
argued that the C.A. is private
person and only on his certified
documents whole reliance can not
be placed unless and until applicant
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gives the account of seized cash
amount.
5. I.O. opposed in his say
and stated that, it was revealed
during the investigation that
accused obtained amount from
Akola and Amravati and he was
carrying that amount to Surat and it
is stated that, as per contention of
ig applicant, such seized amount was
sent with accused from Gujrat and
he was returning as transaction
could not take place. "
The learned Magistrate accepted the
submissions made on behalf of the respondent and
rejected the application filed by the petitioner No. 2.
06. The petitioner No. 2 challenged the above
order in Revision Application before the Sessions
Court, which is dismissed by the impugned Judgment.
07. Considering the tenor of the objections
raised by the respondent to the prayer of the
petitioners, it is clear that the respondent is reeling
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under the mis-conception that the Railway Protection
Force and the police have the power and authority to
seize the property if the policemen feel that the
person from whom the property is seized is not able
to account for it. When the matter was argued for
some time on 15/12/2016, the learned Additional
Public Prosecutor made submissions relying on the
stand taken before the sub-ordinate Courts and based
on the provisions of Sections 11, 12 and 14 of the
Railway Protection Force Act, 1957 [hereinafter
referred to as 'Act of 1957'], Rule 41.2 (vii) of the
Railway Protection Force Rules, 1987, Section 41 (i)
(d), Section 102 (i) of the Code of Criminal Procedure
and section 124 of the Maharashtra Police Act. I
thought that it would be appropriate that the stand of
the respondent is on record in the form of an affidavit
and an order was passed to the effect. The
respondent filed affidavit sworn on 16/12/2016 by
Police Sub Inspector, Railway Police Station,
Bhusawal, district Jalgaon.
08. Mr. A.B.Girase, learned Public Prosecutor,
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relying on the affidavit filed on behalf of the
respondent has submitted that the powers conferred
by Sections 11 and 12 of the Act of 1957 are wide
enough and enable any Officer or Member of the
Railway Protection Force to take action as referred
under the provisions of Sections 11 and 12 of the Act
of 1957 in the contingencies as mentioned in those
provisions. ig It is submitted that the petitioners have
nowhere controverted the accusations made against
the petitioner No. 1 that he was found in suspicious
state, because of which the policemen felt it
necessary to conduct a checking of his belongings and
when huge amount of ` 22 Lakhs was found in his
bag, he failed to give satisfactory answers and to
account properly for it. Referring to the statement of
the petitioner No. 1 which was recorded on
22/12/2015 and the contents of the application filed
by the petitioner No. 2 u/s 457 of the Code of
Criminal Procedure, it is submitted that the
discrepancies in the statements/stand of the
petitioners and the failure on their part to account for
the huge amount, justify the action of the policemen.
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It is submitted that the sub-ordinate Courts have
properly considered all the relevant aspects and the
impugned Judgment and order does not suffer from
any perversity and illegality necessitating the
interference by this Court in the extra-ordinary
jurisdiction.
09. ig Per contra, Mr. S.G.Ladda, learned
Advocate for the petitioners has submitted that the
amount is illegally seized from the petitioner No. 1
without any justification. It is argued that the
reliance on the provisions of Section 124 of the
Maharashtra Police Act by the respondent to justify
the seizure of the amount is mis-placed. It is argued
that the powers u/s 124 of the Maharashtra Police Act
can be exercised only if there is reason to believe that
the acquisition of property is by fraudulent manner or
the property is stolen property and as, in the present
case, there is nothing on record to show that the
policemen were satisfied that the pre-requisites for
exercising the powers u/s 124 of the Maharashtra
Police Act existed, it should be held that the seizure of
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property is illegal. To support the submission, reliance
is placed on the Judgment given by this Court in the
case of Pratap B.Bhosale Vs. State of
Maharashtra reported in 1970 Mh.L.J. 729. It is
prayed that the impugned Judgment and Order be set
aside, the application filed by the petitioner No. 2 u/s
457 of the Code of Criminal Procedure be allowed and
the proceedings registered against the petitioner No.
1 be quashed.
10. After considering the contents of the
complaint and the submissions made on behalf of the
respondent, I find that the basis for the seizure of the
amount is that huge amount was found in the bag of
the petitioner No. 1, that the petitioner No. 1 failed to
give satisfactory answers justifying the custody of the
amount and the petitioner No. 1 could not account for
the amount. As recoded earlier, the respondent relies
on the provisions of Sections 11 and 12 of the Act of
1957 and Section 124 of the Maharashtra Police Act
to justify the seizure of the amount.
Section 11 (b) (d) of the Act of 1957
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enables every superior Officer and Member of the
Railway Protection Force to protect and safe-guard
railway property, passenger area and passengers and
to do any other act conducive for the better protection
and security of railway property, passenger area and
passengers.
Section 12 (ii) of the Act of 1957 enables
any Member of the Railway Protection Force to arrest,
without an order from the Magistrate and without a
warrant, any person against whom a reasonable
suspicion exists of his having been concerned in or
who is found to taking precautions to conceal his
presence under circumstances which afford reason to
believe that he is taking such precautions with a view
to commit a cognizable offence which relates to
railway property, passenger area and passengers.
Section 12 (iii) of the Act of 1957 further empowers
any Member of the Railway Protection Force to arrest,
without an order from the Magistrate and without a
warrant, any person found taking precautions to
conceal his presence within the railway limits under
circumstances which afford reason to believe that he
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is taking such precautions with a view to commit theft
of, or damage to the railway property, passenger area
and passengers.
11. It is clear that the provisions of Sections 11
and 12 of the Act of 1957 enables any Member of the
Railway Protection Force to take action if railway
property, passenger area and passengers are to be
protected. The above provisions do not confer power
on the Member of the Railway Protection Force to
cause arrest of any person or to seize any property
from the person if the Member of the Railway
Protection Force believes that the
movements/conduct of the person were suspicious or
if the Member of the Railway Protection Force finds
that the person from whom the property is seized has
not been able to account for the property.
In the present case, there is no accusation
in the complaint that the petitioner No. 1, from whom
the amount is seized, gave an impression or
conducted himself in such a manner that he posed a
threat to railway property, passenger area or
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passengers. Moreover, the Member of the Railway
Protection Force can exercise his powers u/ss 11 and
12 of the Act of 1957 if there is reason to believe that
the person against whom action is taken, may commit
a cognizable offence which relates to railway
property, passenger area and passengers. Simplicitor
belief or perception of the Member of the Railway
Protection Force that the person was conducting
himself in a suspicious manner is not sufficient to
enable the Member of the Railway Protection Force to
take action u/s 11 or u/s 12 of the Act of 1957. The
belief of the Member of the Railway Protection Force
should be supported by reason which is sine qua non
for exercising the powers u/s 11 and/or u/s 12 of the
Act of 1957. There is nothing on the record to show
that at the time when the amount is seized from the
petitioner No. 1, such circumstances prevailed that
the Members of the Railway Protection Force had
reason to believe that the petitioner No. 1 was
conducting in such a manner that action was required
to be taken against the petitioner No. 1 to protect
railway property, passenger area and passengers.
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12. The provisions of Section 124 of the
Maharashtra Police Act lay down that a person is
liable for conviction if he fails to account for
possession of property regarding which there is
reason to believe to be stolen property or property
fraudulently obtained. The conviction of the person
u/s 124 of the Maharashtra Police Act can be if he
fails to account for such possession.
ig The conviction
can not be if the person from whom the property is
seized, fails to account for the property. The powers
to investigate on the ground that the person in whose
possession the property was, can account for the
property is with other authorities and not with the
Railway Protection Force. The respondent has mis-
understood the provisions of Section 124 of the
Maharashtra Police Act and has seized the property on
the ground that the petitioner No. 1 failed to account
for the property. The petitioner No. 1 stated before
the Members of the Railway Protection Force that the
property [the amount of ` 22 Lakhs] belongs to the
petitioner No. 2, the petitioner No. 2 claimed that the
property belongs to him and justified his ownership by
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producing documentary evidence i.e. Income Tax
returns and Balance Sheets.
In the above facts, the seizure of the
amount without any reason and justification, in
exercise of the powers u/ss 11 and 12 of the Act of
1957 and Section 124 of the Maharashtra Police Act is
illegal and in colourable exercise of powers. The sub-
ordinate Courts have failed to appreciate this aspect
and, therefore, the Judgment and Orders passed by
them are unsustainable.
Hence, the following order :
(i) The Judgment passed by the learned
Additional Sessions Judge, Bhusawal in Criminal
Revision Application No. 23/2016 on 02/03/2016 is
set aside.
(ii) The Order passed by the learned
Magistrate, Bhusawal [Railway] on Misc. Application
No. 01/2016 on 03/02/2016 is set aside.
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(iii) The application filed by the petitioner No. 2
u/s 457 of the Code of Criminal Procedure is allowed.
The respondent is directed to return the
amount of ` 22 Lakhs seized from the petitioner No.
1, to the petitioner No. 2 forthwith.
According to the respondent, the amount
of ` 22 Lakhs which was seized from the petitioner
No. 1 on 22/12/2015 was in the currency notes of
` 500/- and ` 1,000/-. Because of the
demonetization of currency notes of ` 500/- and
` 1,000/- from 08/11/2016, it is directed that the
respondent shall return the amount of ` 22 Lakhs to
the petitioner No. 2 by Demand Draft.
The respondent shall take necessary action
for complying with the directions, immediately.
(iv) The proceedings of S.C.C. No. 584/2016
pending before the Judicial Magistrate First Class,
Bhusawal [Railway] against the petitioner No. 1 are
quashed.
(v) Rule Made absolute in the above terms.
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(vi) In the circumstances, the parties to bear
their own costs.
(vii) In my view, it would be appropriate that
the Director General of Railway Protection Force
issues certain guide-lines for the guidance of the
Officers and the Members of the Railway Protection
Force for exercising their powers u/ss 11 and 12 of
the Act
ig of 1957 so that the innocent
passengers/people are not put to any hardships and
inconvenience.
(viii) The office of the Public Prosecutor, High
Court, Bench at Aurangabad shall ensure that the
copy of this Judgment is sent to the Director General
of Railway Protection Force.
[Z.A.HAQ, J.]
KNP/Cr.W.P. 1132.2016 - [J]
