Sunil Karmakar vs The State Of West Bengal
2022 Latest Caselaw 1881 Cal

Form J(2)          IN THE HIGH COURT AT CALCUTTA
                      Criminal Appellate Jurisdiction
                               Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                           CRR 1724 of 2003

                           Sunil Karmakar
                                 -Vs.-
                      The State of West Bengal

For the Appellant              :     Mr. Prabir Majumder, Adv.


Heard & Judgment on            :     07.04.2022.

Bibek Chaudhuri, J.

In Complaint Case No. 498/1995 under Section 3(a) of the

Railway Property (Unlawful Possession) Act, 1966 the petitioner was

convicted and sentenced to suffer imprisonment for one year and fine

of Rs.1,000/-, in default, to undergo imprisonment for one month

more. The petitioner challenged the said order of conviction and

sentence in appeal before the Learned Additional Sessions Judge, 3 rd

Court at Nadia in Criminal Appeal No. 17/1999. The said appeal was

disposed of on 7th July, 2003 affirming the judgment and order of

conviction and sentence passed by the Learned Sub-Divisional Judicial

Magistrate, Krishnagar at Nadia.

The petitioner has preferred the instant criminal revision

challenging the concurrent finding of both the Courts below.

At the outset, Mr. Majumder, Learned Advocate for the

petitioner frankly submits that in the instant revision there is no scope

for the revisional Court to appraise the evidence-on-record afresh

because the power of the revisional Court is only limited to consider

as to whether the impugned order passed by the Learned Additional

Sessions Judge, 3rd Court at Nadia in Criminal Appeal No. 17/1999

suffers from any illegality, impropriety or material irregularity. It is

also submitted by Mr. Majumder that the evidence-on-record is

sufficient to warrant conviction against the petitioner. Therefore, he

does not wish to challenge the order of conviction passed by both the

Courts below. However, Mr. Majumder submits that the petitioner is

a blacksmith by profession. On 6 th September, 1994, Police

conducted raid in his shop-cum-workshop and found only three iron

materials which were subsequently proved to be Railway properties.

Section 3 stipulates penalty for unlawful possession of Railway

property. It runs thus:-

"3. Penalty for unlawful possession of railway property. -

Whoever is found or is proved to have been in possession of any

railway property reasonably suspected of having been stolen or

unlawfully obtained shall, unless he proves that the railway property

came into his possession lawfully, be punishable, -

(a) for the first offence, with imprisonment for a term which

may extend to five years, or with fine or with both and in

the absence of special and adequate reasons to be

mentioned in the judgment of the Court, such

imprisonment shall not be less than one year and such

fine shall not be less than one thousand rupees;

(b) for the second or subsequent offence, with imprisonment

for a term which may extend to five years and also with

fine and in the absence of special and adequate reasons

to be mentioned in the judgment of the Court, such

imprisonment shall not be less than two years and such

fine shall not be less than two thousand rupees".

So far as Section 3(a) of the RP(UP) Act is concerned, the

statute provides punishment for the first offence with imprisonment

for a term which may extend to five years or with fine or with both

and in the absence of special or adequate reasons to be mentioned in

the judgment of the Court such imprisonment shall not be less than

one year and such fine shall not be less than one thousand rupees.

In the instant case, the petitioner is facing a criminal case in

different forums of judiciary since 1994. Almost 28 years have

elapsed in the meantime. The petitioner has suffered tremendous

mental agony during all these years due to the pendency of a

proceeding under Section 3(a) of the RP(UP) Act. This is undoubtedly

the first offence of the petitioner. Since the petitioner is a blacksmith

by profession he collected some iron materials on good faith to

prepare some other household articles with the said iron materials

which were subsequently found to be Railway properties. The

petitioner had no mens rea to commit the offence under the Act.

Therefore, his sentence may be reduced by imposing only fine instead

of custodial detention.

This Court concurs with the submission made by Mr. Majumder.

After 28 years of the occurrence, this Court is of the view that the

petitioner shall be adequately punished if only sentence of fine be

imposed against the petitioner for committing offence under Section

3(a) of the RP(UP)Act.

Accordingly, the instant criminal revision is disposed of

modifying the order of sentence directing the petitioner to pay fine of

Rs.2,000/-, in default, to suffer imprisonment for three months for the

offence punishable under Section 3(a) of the RP(UP) Act.

Let a copy of this order be sent to the Court below along with

the Lower Court Record.

The petitioner is directed to surrender before the Trial Court and

pay fine within three weeks from the date of communication of this

order to the Trial Court. In default, the petitioner shall suffer

sentence as mentioned above.

The petitioner is at liberty to act on the server copy of the

order.

[Bibek Chaudhuri, J.]

Srimanta A. R. (Court)