State Of West Bengal vs Santosh Kumar Karmakar
2022 Latest Caselaw 2327 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION


Form No. J(1)

Present: The Hon'ble Justice Biswajit Basu

       Government Appeal No.6 of 1987

          State of West Bengal                  - Appellant/Petitioner
                 -versus-
          Santosh Kumar Karmakar

Mr. Bidyut Kumar Roy,
Ms. Sima Biswas,                       ... for the Appellant/Petitioner

Mr.   Kallol Mondal,
Mr.   Krishan Ray,
Mr.   Souvik Das,
Mr.   Anamitra Banerjee,                     ... for the respondent.

Heard on      : April 26, 2022.

Judgment on: April 26, 2022.

The Court :

Biswajit Basu, J. :

1. This is an appeal by the State of West Bengal against the order

of acquittal dated February 28, 1986 passed by the 6th Court of

learned Judicial Magistrate, Midnapore (Undivided) in U.R. Case No.

204/81 (T.R. No. 173/82).

2. The respondent was charged with an offence under Section 3(a)

of the Railway Property (Unlawful Possession) Act, 1966 on the

allegation that huge quantity of Railway goods were recovered from his

possession. The respondent denied the said allegation. His specific

defence was that the godown wherefrom the said goods were recovered

did not belong to him.

3. The learned Magistrate acquitted the respondent from the

charge holding that mandatory provisions of Section 165 and 166 of

the Code of Criminal Procedure, 1973 in conducting the search was

not followed, the seizure list was prepared in violation of the provision

of Section 100 of the Code. The identification of the accused by the

P.W.2 was not believed by the learned Magistrate as the said witness

claimed that he saw the accused from behind. The learned Magistrate

in the impugned judgment has held that there is clear doubt about

the actual place of search and seizure of the articles since the P.W.5 in

his evidence stated that the search was conducted in the godown of

one Suresh Karmakar and not in the godown of the accused Santosh

Karmakar.

4. Mr. Bidyut Kumar Roy, learned counsel for the appellant

submits that the learned Magistrate has acted illegally and with

material irregularity in holding that the search in the godown of the

accused/respondent was not made in accordance with the provisions

of Section 165 and Section 166 of the Code of Criminal Procedure as it

was established beyond doubt that the raid and search was duly

conducted in the godown of the accused under the supervision of the

Sub-Divisional Police Officer.

5. Mr. Kallol Mondal, learned counsel for the respondent on the

other hand submits that the alleged place of occurrence was within

the jurisdiction of Kharagpur (Town) Police Station but the Police

Officer who conducted the said search was not of the said police

station but of the G.R.P.S. Kharagpur, but there is no evidence on

record to show that the Officer-in-charge of the G.R.P.S. Kharagpur

duly intimated the Officer-in-charge of the Police Station within whose

jurisdiction the said godown is situated about the said search and

took his approval or sent a list of seized articles to him, such

irregularities in conducting the search, offends the mandatory

provisions of Section 165 and Section 166 of the Code of Criminal

Procedure, as rightly held by the learned Magistrate.

6. Mr. Mondal further submits that the P.W.5 in his evidence has

stated that on the call of Officer-in-charge, G.R.P.S. Kharagpur, the

said witness went to Nayapara, Choto Ayama at Suresh Karmakar's

iron shop where the police officer who was conducting the search, the

P.W.2 showed him the seized articles as railway properties. He refers to

the evidence of P.W.4 where the said witness stated that the police

took him to the place of occurrence, which was railway area. Mr.

Mondal concludes his argument by submitting that on these

evidences on record, the learned Magistrate has rightly held that the

prosecution has miserably failed to prove that the seized articles were

recovered from the possession of the respondent, therefore the order

under challenge does not call for any interference.

Heard the learned counsel for the parties, perused the

materials-on-record.

7. The prosecution case is that, on June 18, 1981, Officer-in-

Charge, G.R.P.S., Kharagpur along with others went out for search of

alamat in connection with G.R.P.S. Case No. 7, dated June 18, 1981

under Sections 379/353 of the Indian Penal Code under the

supervision of S.D.P.O., Kharagpur at the godown of accused Suresh

Karmakar at Choto Ayama, which is under the jurisdiction of

KGP(T)P.S. On search, in presence of local witnesses, huge quantity of

Railway goods were recovered from the said godown and which could

not be converted with the said case and as those were absolutely

Railway properties, those articles were handed over to the Officer-in-

Charge, Railway Yard, RPF post for necessary action, the accused

Santosh Karmakar fled away from the place of occurrence. The

Officer-in-Charge, Railway Yard, took up the case and Mr. C.R. Nandy,

S.I. of RPF investigated the case and initiated the said proceedings

against the accused.

In defence, the accused on examination under Section 313 of

the Code denied all the charges. The defence case is that he had no

godown at Choto Ayama and nothing was recovered from his

possession as alleged.

8. The Learned Magistrate in deciding the case, considered the

following points:

i. Are the alleged seized properties absolutely belonged to

Railway?

ii. Whether the seized alamats were recovered from the

possession of accused as alleged?

iii. Whether these articles reasonably been suspected as stolen

articles and accused person fails to account for?

iv. Is the accused persons liable for charge under Section 3(a) of

R.P.(UP) Act?

9. The prosecution cited as many as nine witnesses. P.W.8,

however, was declared hostile witness. P.W.1 is one of the members of

the search party. P.W.2 is Mansur Ali Mir, S/I of concerned Police

Station who conducted the search and prepared the seizure list. P.W.3

is a technical expert who examined the seized alamats and gave

opinion that all the seized materials are absolutely Railway property.

P.W.4 and P.W.5 are the witnesses to the seizure list. P.W.6 is the

Enquiry Officer. P.W.8 and P.W.9 are the driver and Khalashi of the

Truck by which the said alamats were brought to the office of RPF

Post Railway Yard from the godown wherefrom those alamats were

seized. P.W.7 was a technical expert who examined some of the seized

alamats.

10. The learned Magistrate found that the search and seizure of the

godown wherefrom the said railway properties were allegedly seized is

situated within the jurisdiction of Kharagpur (T) Police Station but the

search and seizure was conducted by the Officer-in-Charge of

G.R.P.S., Kharagpur (local) Police Station without giving any

information to the Officer-in-charge of the Police Station within whose

jurisdiction the said godown is situated and held that such

irregularity had vitiated the entire process of search and seizure as it

offended the provisions of Sections 165 and Section 166 of the Code.

11. Section 166 of the Code mandates that if the place to be

searched is beyond the limit of concerned police station then the

officer-in-charge of the other police station where the search is to be

made, has to be requested to make or cause to be made the search

within the limits of the said police station, no doubt in certain

exigencies when the police officer, who takes up the search, has

reason to believe that delay would be caused by requiring the officer-

in-charge of the other police station to cause the search, resulting in

destruction or concealment of evidence of the commission of offence,

he may then himself search or cause to be searched any place even

outside his own jurisdiction but in doing so, the said police officer has

to record reasons in writing before proceeding to make such search in

the limits of another police station.

12. In the present case, there is no material-on-record to suggest

that the Officer who conducted the search and seizure had followed

the said mandate of Section 166 of the Code, therefore, the learned

Magistrate has rightly held that the search and seizure was vitiated for

non-compliance of the provisions of Section 166 of the Code. That

apart, the provision of Section 100 of the Code in preparing the

seizure list has not been strictly followed as signature of respectable

persons of the locality as independent witnesses of the said list were

not obtained.

13. The prosecution did not prove the identity of the accused

beyond reasonable doubt. The learned Magistrate has rightly refused

to believe the evidence of the Investigating Officer, the P.W.2 who

claimed that he saw the accused from behind when he was fleeing

away from the place of occurrence. No T.I. parade to identify the

accused was conducted, therefore the finding of the learned

Magistrate that the identity of the accused has not been proved,

cannot be faulted. Moreover, the prosecution has failed to prove

beyond reasonable doubt that the godown wherefrom the articles were

seized belonged to the accused.

The learned Magistrate, therefore, has rightly held the

respondent is not guilty of the offence charged with. Therefore, the

order of acquittal of the accused from the charge under Sections 3(a)

of the Railways Property (Unlawful Possession) Act, 1966 does not call

for any interference.

The Government Appeal No. 6 of 1987 is therefore dismissed

without any order as to costs.

Let the Lower Court Records be sent down to the Court below

forthwith.

Criminal Section is directed to supply the urgent Photostat

certified copy of this judgment and order, if applied for, to the parties

as early as possible.

(Biswajit Basu, J.)

P.Jana