Page No.# 1/7 vs The Union Of India
2025 Latest Caselaw 7480 Gua

Gauhati High Court

Page No.# 1/7 vs The Union Of India on 19 September, 2025

                                                                       Page No.# 1/7

GAHC010012462013




                                                                 2025:GAU-AS:12980

                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./429/2013

            PARIMAL CH. BHOWMIK
            S/O- LT. MAKHAN CH. BHOWMIK, VILL.- JHARGAON, P.O.- ROWTA
            CHARIALI, P.S. and DIST.- UDALGURI, ASSAM.

            VERSUS

            THE UNION OF INDIA
            REP. BY THE STANDING COUNCIL RAILWAY.

Advocate for the Petitioner   : MR.S ISLAM, MS.M KONCH,MS.A A LASKAR,MR.A
CHOUDHURY

Advocate for the Respondent : MR.S C BISWAS, MS.S D CHOUDHURY,SC, NF RLY,MR.A K
SARKAR




                                  BEFORE
                 HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

                                          ORDER

Date : 19-09-2025

Heard Mr. A. Choudhury, learned counsel for the petitioner. Also heard Mr. S.C. Biswas, learned Standing Counsel, N.F. Railway appearing for the respondents.

2. The petitioner by way of instituting the present revision petition has presented a challenge to the judgment and order dated 08.08.2013 passed by the learned Additional Sessions Judge (FTC) No.3, Kamrup, Guwahati in Criminal Page No.# 2/7

Appeal No.26/2011 upholding the judgment and order dated 12.04.2011 passed

by the learned Special Railway Magistrate, 1 st Class, Kamrup, Guwahati in C.R. Case No.26/2005 convicting and sentencing the petitioner, herein, to undergo simple imprisonment for 3(three) months under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short, "Act of 1966").

3. The prosecution story as unfolded during the trial is that in pursuance to theft memos dated 25.03.2005 and 02.04.2005 issued by the SE/Tele/RPAN in connection with theft of overhead wire and telecommunication materials between Rowta and Udalguri and also acting on a source information, a search was conducted in the scrap shop of the petitioner herein situated at Rowta, Jhargaon. It was further projected that during such search, 150 Kgs of G.I. wire, about 30 Kgs of copper wire in cut pieces and 12 numbers of telephone post brackets were recovered from the said scrap shop of the petitioner herein. It is projected that the petitioner could not have been in lawful custody of the same and had also not produced any materials to demonstrate that the said materials recovered were being lawfully possessed by him. Accordingly, when the matter reached the learned Trial Court, a charge under Section 3(a) of the Act of 1966 came to be framed.

4. The prosecution in support of his case has examined 11(eleven) numbers of witnesses while the petitioner has examined 2(two) defense witnesses.

5. On conclusion of the trial, the learned Special Railway Magistrate, 1 st Class, Kamrup, Guwahati, while appreciating the evidences coming on record, had drawn the following conclusions:-

"8. Let me make an attempt to find out as to whether the prosecution has been successful in proving all the necessary ingredients, as discussed above, Page No.# 3/7

so as to sustain conviction against the accused person in the instant case. Speaking about the first ingredient, it was deposed by all the PWs that telecommunication materials (of the Railways) like G.I. Wire about 150 kg, copper wire about 30 kg in cut-pieces and telephone post brackets 12 nos were recovered from the scrap-shop of the accused. Further, PW3 deposed that the materials were used in railway communication. It is also worth mentioning that PW3, as per his testimony, had issued theft-memos regarding the theft of all such materials from Rowta-Udalguri section. All these facts tend to establish that the recovered materials fell within the ambit of railway property as defined in Section 2(d) of the Act as they were unquestionably in charge or possession of the railway administration. Coming to the second ingredient, it was deposed by the PWs that the above materials were recovered from the scrap-shop of the accused person in his presence. This goes to establish that the accused was found in possession of the said materials at the relevant point of time. Lastly, as regards the third ingredient, it needs mention that PW3, in his testimony, deposed that the seized materials examined by him were the ones in respect of which he had issued theft-memos. It will be pertinent to state here that u/s 114, lustration (a), of the Evidence Act, the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Referring to the theft-memos issued regarding theft of the railway telecommunication materials in the instant case, it is apparent from the evidence on record that some of the said telecommunication materials were recovered from the house of the accused just after a few days. Admittedly, the accused could not account for his possession of the said materials. Thus, in view of the lustration (a) referred to above, an inference is drawn against the accused that either he committed the theft of the said materials or received the said articles knowing them to be stolen. Thus, there remain no doubt that the prosecution has been successful in establishing in this case that the property in question was reasonably suspected of having been stolen or unlawfully obtained.

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9. The prosecution, therefore, has proved all the three ingredients of an offence under Section 3 of the Act in this case. The burden has shifted to the accused to prove that the property in question came to his possession lawfully. In his statement under Section 313 Cr.P.C, the accused stated inter alia that

the materials in question were kept by the side of his godown by a 4 th Grade employee of the Telephone Department, Sri Bhupen Barman. Later, Sri Bhupen Barman took away about half of those materials. The RPF recovered the remaining materials on the relevant date. Thus, according to the accused, the alleged offence was not committed by him as the materials were not found in his possession. Admittedly, the accused has not adduced any evidence in this case to prove the facts stated by him in his examination under Section 313, Cr.P.C. Further, no suggestion to that effect was put to any of the PWs by the learned counsel for the accused. Situated thus, the explanation given by the accused is not worth acting upon.

10. PW11, the Inquiring Officer, further deposed in his testimony that in course of inquiry he recorded the statement of the accused person (Ext.7) wherein the latter confessed that he had collected the seized materials in his shop from various vendors and had kept them stored in his shop. It is a well- settled proposition of law, as held by the Hon'ble Supreme Court in Balkishan A. Devidayal -vs- State of Maharashtra, AlR 1981 SC 379, that the confessional statement of the accused recorded in course of an inquiry u/s 8(1) of the Act cannot be excluded from evidence. In the instant case, the confessional statement of the accused has brought into evidence the fact that he was found in possession of the seized railway telecommunication materials. Evidently, this fact is totally consistent with the testimonies of the PWs in this case."

6. Basing on the said conclusions, the learned Trial Court proceeded to convict the appellant herein under Section 3(a) of the Act of 1966 and after appreciating the extenuating circumstances proceeded to sentence him to Page No.# 5/7

undergo simple imprisonment for 3(three) months.

7. The petitioner being aggrieved by the said conviction and sentence as awarded by the Railway Trial Court, assailed the same by way of instituting Criminal Appeal No.26/2011. The Appellate Court, upon appreciating the evidences coming on record, was pleased vide judgment and order dated 12.04.2011 to uphold the conviction and sentencing of the appellant under Section 3(a) of the Act of 1966, as over the learned Trial Court.

Being aggrieved, the appellant has instituted the present proceeding.

8. This Court has heard the submissions of the learned counsels for the parties and have also perused the materials available on record.

9. The conclusions as drawn by the learned Trial Court, extracted herein above, has been perused by this Court in the light of the evidences coming on record during the trial. On a perusal of the said evidences, this Court finds that the conclusion drawn by the learned Trial Court in the matter is in conformity with the evidences coming on record and no infirmity has been found with regard to the said conclusion found by the learned Trial Court.

10. It is found that the railway materials that were seized from the scrap shop of the petitioner herein and he had not accounted for the fact that the said materials were being possessed by him lawfully. Accordingly, the conclusions drawn by the learned Trial Court, in the considered opinion of this Court, suffer from no infirmity and accordingly the conviction of the appellant under Section 3(a) of the Act of 1966 would not mandate interference.

11. Having drawn the above conclusion, this Court would examine the conclusions drawn by the learned Trial Court, vide the judgment and order dated 12.04.2011 in the appeal. On a perusal of the conclusions so drawn by the learned Trial Court, this Court also finds that the learned Trial Court on Page No.# 6/7

appreciation of the evidences coming on record during the trial had also found that the railway materials that were recovered from the possession of the petitioner herein were being so possessed by him without any legal document.

12. Accordingly, this Court is of the considered view that the conclusions drawn by the learned Appellate Court, vide judgment and order dated 12.04.2011, would not mandate any interference.

13. Having drawn the said conclusion, this Court notices that the incident in the matter is of 2005 and around 20(twenty) years have elapsed since then. The petitioner herein has been litigating the matter initially before the learned Trial Court, thereafter before the learned Appellate Court and now the present revision petition.

14. The petitioner herein was convicted under the provisions of Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. The provisions of Section 3(a) of the aforesaid Act being relevant, is extracted herein below:-

"3(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;"

15. The provisions of Section 3(a) of the Act of 1966 provides for penalty for theft, dishonest misappropriation or unlawful possession of railway property. It mandates that whoever commits theft, or dishonestly misappropriates or 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 for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both.

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16. On a perusal of the provisions of Section 3(a) of the Act of 1966 and admittedly the petitioner herein being a first time offender in the matter and there being no allegation, he has been also involved in similar offences earlier, the provisions of Section 3(a) of the Act of 1966 also mandating imposition of fine, this Court is of the considered view that the sentencing of the appellant on his conviction under Section 3(a) of the Act of 1966, as awarded by the learned Trial Court, would suffice the interest of justice if the same is modified to that of payment of a fine of Rs.2,000/- (Rupees Two Thousand only). Accordingly, while maintaining the conviction of the appellant under Section 3(a) of the Act of 1966, he is sentenced to pay a payment of fine of Rs.2,000/- (Rupees Two Thousand only).

17. The petitioner shall appear before the Special Railway Magistrate, 1 st Class at Guwahati within a period of 30(thirty) days from today and deposit the fine amount before the said Court.

18. With the above observations and directions, the present revision petition stands disposed off.

19. Registry to send down the records of the case along with a copy of this

order to the Court of the learned Special Railway Magistrate, 1 st Class at Guwahati for information and necessary action.

JUDGE

Comparing Assistant