Mumtaj Ali vs The State Of Jharkhand
2021 Latest Caselaw 2772 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   Criminal Revision No.477 of 2012

          Mumtaj Ali, Son of Abdul Samad, resident of at - Uchkagaon,
          Post Office & Police Station - Uchkagaon, District - Gopalganj
          (Bihar)                           ...    ...     Petitioner
                                 Versus
          The State of Jharkhand               ......      Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through Video Conferencing

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06/09.08.2021 Heard Mr. Rajendra Krishna, learned counsel appearing on behalf of the petitioner along with Mr. Pratyush Lala, Advocate.

2. Heard Mr. Arup Kumar Dey, learned counsel appearing on behalf of the opposite party - State.

3. The present criminal revision is directed against the judgment dated 30.03.2012 passed by learned Additional Sessions Judge- I - cum - Special Judge, C.B.I., Dhanbad in Criminal Appeal No.197 of 2008 whereby the learned appellate court has dismissed the appeal filed by the petitioner.

4. The judgment of conviction and sentence was passed by learned Railway Magistrate, Dhanbad on 01.07.2008 in R.P Case No.19 of 2004 whereby the petitioner was convicted along with other co-accused and sentenced to undergo rigorous imprisonment of 3 years for offence under Section 3

(a) of Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the Act of 1966).

5. There were altogether 6 accused who faced the trial and out of them, 3 were acquitted and 3 were convicted. Arguments on behalf of the Petitioner

6. The learned counsel for the petitioner while assailing the impugned judgments has submitted that the impugned judgments are perverse and are accordingly fit to be set-aside in revisional jurisdiction.

7. It has been submitted that the only material against the petitioner as per the first information sheet is statement of Niamul Hauqe, who was accused no.5. His confessional statement was recorded on same day i.e., 13.03.2014 in which he has not even whispered about the petitioner. In the confessional statement, Exhibit 8, said Niamul Hauqe had given the entire details. Thus, the confessional statement of Niamul Hauqe i.e., Ext.8 destroys the entire case of the prosecution against the petitioner and the petitioner was made accused on the basis of statement of same person i.e., Niamul Hauqe, but Niamul Hauqe at the time of recording of his confessional statement he did not mention the name of the petitioner.

8. The learned counsel submits that further material against the petitioner was the identification of address given by P.W.4, who had identified the petitioner on the basis of address mentioned by the co-accused Niamul Hauqe in the first information sheet. The learned counsel submits that the aforesaid fact clearly indicated that the petitioner has been arrayed as accused by Railway police with malafide intention as the petitioner happens to be the son of co-accused namely Abdul Sahmed @ Murgi Khan (accused no.3). The learned counsel has also argued that the petitioner had always denied his presence at the place of occurrence and had taken the plea of alibi since beginning.

9. Learned counsel has also submitted that the conviction of the petitioner under Section 3 (a) of the aforesaid Act of 1966 is dependent upon unlawful possession of the railway property, but in the present case, there has been no recovery of any railway property from the possession of the petitioner. The seizure list which was marked as Exhibit 5 and Exhibit 6 did not carry the signature of the petitioner. It is submitted that the other three co-accused, who have been acquitted by

the learned trial court also did not have their signature on the seizure list and accordingly, the case of the petitioner was on the same footing as that of the other 3 co-accused, who have been acquitted and the only reason for implicating the petitioner is that the petitioner happens to be the son of the accused no.3, who in turn happened to be the owner of the Vishwakarma Steel Rolling Mill where raid was conducted .

10. Without prejudice to the aforesaid submissions, it has also been argued by the learned counsel for the petitioner that the present case is the first offence of the petitioner and Section 3 (a) of the aforesaid Act of 1966 gives the choice to the court to either award punishment or impose fine or both. Clause 3

(a) is required to be seen in comparison with clause 3 (b) of the aforesaid Act of 1966 wherein the court is obligated to award imprisonment, but there is no such mandatory requirement to award imprisonment if a person is found guilty under Section 3 (a) of the aforesaid Act of 1966.

11. The learned court has overlooked the distinction between occurrence under Section 3 (a) and 3 (b) of the aforesaid Act of 1966 and directly sentenced the petitioner for rigorous imprisonment of 3 years. The learned courts below have not considered releasing the petitioner on bond under the provisions of Probation of Offenders Act, 1958 Act.

12. The learned counsel for the petitioner has referred to the judgment passed by Hon'ble Supreme Court reported in 1995 supp (2) SCC 713 (Nirmal Lal Gupta Vs. State of Orissa) to submit that in the said case, the Hon'ble Supreme Court had given the benefit of Probation of Offenders Act, 1958 to the accused as offence was within the purview of Section 3 (a) of the aforesaid Act of 1966. The learned counsel has also referred to another judgment passed by this Court in Criminal Revision No.183 of 2012 dated 19.07.2021 (Md. Mausham Ansari Vs. State of Jharkhand) whereby the judgment passed

by the Hon'ble Supreme Court in the case of Nirmal Lal Gupta Vs. State of Orissa (supra) has been referred.

13. The learned counsel also submits that the petitioner has faced the rigors of criminal case since 13.03.2004 and accordingly more than 17 years has elapsed and the present age of the petitioner is 48 years. It is submitted that the petitioner has remained in custody in relation to the present case for a total period of 12 days when the petitioner surrendered before the learned court below during the pendency of the present case on 16.07.2012 and was directed to be enlarged on bail on 24.07.2012 and thereafter, sometime must have been taken for the petitioner to furnish the bail bond.

Arguments on behalf of the State.

14. The learned counsel appearing on behalf of the State, on the other hand, has opposed the prayer and has submitted that there are concurrent findings recorded by the learned courts below after scrutinizing the materials on record and the petitioner has not been convicted on the basis of the statement of the co-accused Niamul Hauqe, but P.W.4 had seen the petitioner committing the offence whereby other two co- accused namely Abdul Sahmed @ Murgi Khan and Niamul Hauqe were arrested and the petitioner fled away from the place of occurrence. The learned counsel submits that it is not in dispute that the petitioner is son of the co-accused namely Abdul Sahmed, who is the owner of Vishwakarma Steel Rolling Mill from where the railway property was seized. The learned counsel submits that the manner in which the present offence has been committed, it does not call for any lenient view in favour of the petitioner.

Finding of this Court

15. The prosecution case in brief is that R.P.F post, Sita Rampur, got information that some Rail pieces of 52 kgs rail

have been stolen by miscreants in the night of 12/13.03.2004. The accused persons carried the rail material on truck. It was also alleged that the miscreants assaulted some railway employees also while committing theft of the Railway property. The R.P.F proceeded to apprehend the said truck by following the marks of the truck and during the follow up action, the R.P.F collected information that the said truck has entered the premises of Vishwakarma Steel Rolling Mill. A raid was conducted with the assistance of local police and it was seen that the rail pieces from truck was being unloaded. Some miscreants were caught by R.P.F. personnel they were namely Abdul Sahmed and Niamul Hauqe. The rail materials were seized and seizure list was prepared. Enquiry was done and the prosecution report was submitted against all the accused persons. The accused persons pleaded not guilty and the charge was framed against them for offence under Section 3 (a) of the aforesaid Act of 1966 which they denied and claimed to be tried.

16. The prosecution examined altogether 10 witnesses. P.W. 1 deposed that on 13.03.2004. He was posted at Kalubathan at the post of J.E. 1. On that day, he heard that the accused persons tied up two chowkidars and committed theft of railway properties. He sent the message to R.P.F post which was in writing and was marked as Ext. 1. He did a joint inspection and submitted an inspection report which was marked as Ext. 2. The signature of witness on the inspection report was marked as Ext. 2/1. He lodged a report in Kalubathan police station in his writing and signature which was marked as Ext. 3. He has also stated that on 15.03.2004, he had also checked the recovered railway material which was having length of 136.20 meters and KAO was written on the material in white paint. He opined that these articles were railway property. Prepared a report and was marked as Ext. 4.

The railway line measured 52 kgs per meter. This witness has identified the material produced before the court which was marked as material Ext.1 and his signature on the label was marked as Ext. 1/1. This witness was thoroughly cross- examined from the side of the defence.

17. P.W.2 has also supported the prosecution case and has deposed that on 13.03.2004 he was posted at R.P.F post Sitarampur as A.S.I. He got information from P.W.4, the inspector incharge of R.P.F post about the incident of stealing away of railway lines and he also told that P.W.3 had informed him that the stolen railway lines were kept at Govindpur. The P.W.2 further deposed that accordingly a raid was conducted in the premises of Vishwakarma Steel Rolling Mill and they found that a truck was standing there and the labourers were unloading the railway materials from the truck. He has deposed that the co-accused Abdul Sahmed @ Murgi Khan was arrested there. Two co-accused persons were about to flee but one of them namely Niamul Hauqe was arrested there and another accused namely Mumtaz Ali (petitioner) fled away. He also deposed that the railway lines along with hexa blades were recovered for which the accused could not show any paper. Two seizure lists were also prepared on the spot. One was prepared by P.W.3 which was marked as Ext. 5. The other seizure list which contained his signature was marked as Ext.5/1. The hexa blade was exhibited before the learned court below as material Ext.2 and sabal was produced before the court as material Ext.3. This witness was also thoroughly cross-examined from the side of the defence.

18. P.W.3 is Harendra Prasad Singh. He has also fully supported the prosecution case. He was also a part of the raiding team. He has also stated that accused persons had cut the railway line and carried the same by truck and they

assaulted the patrolling party and tied them with a tree. He has stated that he found the tire mark of the truck and followed the marks towards bypass road and gather information that a truck has turned towards Dhanbad when he came to Govindpur and came to Vishwakarma Steel Rolling Mill where fresh mark of the tire was present and came to the local police station and informed the matter to the R.P.F. post and also raided the said Vishwakarma Steel Rolling Mill. This witness has also categorically stated that when the raiding party entered into the rolling mills, the labours fled away. One accused namely Murgi Khan was apprehended there. Two accused persons were trying to flee by motorcycle, but one of them was caught and railway property was seized on the spot. Murgi Khan was the owner of the Rolling Mill and the other accused person who was caught was Niamul Hauqe, who claimed to be the Munshi of Murgi Khan. He has also stated that the seizure list was prepared.

19. P.W. 4 has also fully supported the prosecution case and has narrated the entire incident. He has also stated that at the time when the raiding party entered the rolling mill, 3 accused were standing near the truck and as soon as they entered, 2 accused persons raided the motorcycle and rushed towards the gate and one of them was arrested along with the motorcycle. He has categorically stated that the accused who escaped was identified as Mumtaz Ali (petitioner). He has also stated that Murgi Khan and his Munshi was arrested and the railway properties were seized. This witness has further stated that the accused Abdul Sahmed @ Murgi Khan and Mumtaz Ali (petitioner) and members of Abdul Sahmed were known to this witness prior to the occurrence because they used to come at the time of auction. They used to purchase the material of railway in auction.

20. P.W. 5 has also supported the prosecution case including the manner in which the offence has been committed and the manner in which the stolen property of railway was recovered from the truck in the premises of Vishwakarma Steel Rolling Mill. P.W.6 has also supported the prosecution case, but nothing was recovered in his presence. He had heard some noise of iron at the time and place of occurrence. P.W.7 was the constable who was a part of the raiding party and has fully supported the prosecution case. He has stated that 2 accused persons were caught at the spot namely Abdul Sahmed @ Murgi Khan and the labourers fled away. P.W.9 was also the part of the raiding team. He has also fully supported the prosecution case. He has clearly stated that two accused persons namely Abdul Sahmed and Niyamul Haque were arrested and accused Mumtaz Ali (petitioner) fled away. P.W. 10 also supported the case and was a part of the raiding team.

21. P.W.8 was the person who enquired the case. He has stated that he took the statements of accused Abdul Sahmed @ Murgi Khan and Niamul Hauqe which were marked as Ext. 8 and Ext.8/1. He had prepared a site plan marked as Ext. 9. He prepared another site plan where the railway lines were cut which was marked as Ext.9/1. He collected the theft report and obtained the report of the expert. He also recorded the statement of another co-accused Rahmat Ali which was marked as Ext.8/2. He exhibited the prosecution report. He also took the statement of accused persons, but the statements were not recorded under Section 164 Cr.P.C. He took the statement of the gate man and another person namely Suresh Paswan. He has also stated that the owner of Vishwakarma Steel Rolling Mill i.e., Murgi Khan had told him that he had purchased the material from Moti Steel Traders, but the statement was found to be false on verification.

22. After considering the aforesaid materials, the learned trial court considered the submission of the parties and found that the search and seizure of materials is an admitted fact. The specific case of the accused Abdul Sahmed was that these materials were obtained from Anwar Ansari and he had produced some paper issued on behalf of Moti Steel Traders, however this plea was rejected after considering the materials on record.

23. The learned trial court recorded that Abdul Sahmed had filed 4 documents. Ext. A i.e., the receipt issued by Moti Steel Traders carbon copy for weight of 52 kgs rail scrap and Ext. B is the receipt of payment, both were carbon copies. The learned trial court also recorded that normally the purchaser has the original copy, but here the purchaser had filed the carbon copy of the receipt. The learned trial court also recorded that the accused Abdul Sahmed had deposed as a witness and stated that the receipt was issued by Ali Hussain, the defence did not produce Ali Hussain before the court. The learned court also recorded that the purchase railway scrap was 12.360 meters and the recovery was more from the alleged purchase of rail scrap.

24. The learned trial court also recorded the case of the petitioner that on 13.03.2004, he was present at Samastipur i.e., his plea of alibi. The learned court was of the view that the burden and onus was on the petitioner to prove his plea of alibi. The learned trial court considered the Ext. D filed by the petitioner in support of his plea of alibi and also Ext. C which was the certificate issued by Superintendent of Depo, Samastipur to show that he was present there on 12.03.2004. The learned trial court rejected the plea of alibi of the petitioner by considering the materials on record.

25. The learned trial court recorded its ultimate finding as follows:

"Having regards to fact and circumstances, I am of the opinion that the prosecution has to prove that the seized materials belonged to the property of railway and the defence taken by accused Abdul Samad failed to prove that he obtained the said material from Moti Steel Traders. The witnesses had stated categorically, that some noise were heard and the accused persons assaulted two chowkidars. They cut the railway line and carried the same. The place of occurrence is Kalubathan and a mark of KAO was found on the seized articles which indicate Kalubathan. The accused did not produced any paper of auction of the said material. The witnesses have stated mainly three names Abdul Samad, Naimul Haque and Mumtaj Ali. No witnesses have stated the names of any other accused persons and in these circumstances accused Anwar Ansari, Rahmat Ali and Md. Sabir Sheikh are acquitted and discharged from their liabilities of bail bonds.

Accused Abdul Samad alias, Murgi Khan, Niamul Haque and Mumtaj Ali are held guilty for the offence punishable u/s 3 (a) R.P. (U.P) Act, 1966."

26. The learned appellate court also considered all the materials on record and dismissed the appeal.

27. This Court finds that there is consistent evidence on record that railway line was stolen after cutting the rail line and at the time of committing theft, 2 railway personnel were assaulted and the miscreants loaded the railway property on the truck and escaped. The miscreants were ultimately found at Vishwakarma Rolling Mill belonging to the co-accused Murgi Khan @ Abdul Samat and the petitioner is admittedly son of Murgi Khan @ Abdul Samat. Upon raid of Vishwakarma Rolling Mill, the stolen railway property were seized from the truck and two persons were caught on the spot namely the owner of the Vishwakarma Rolling Mill i.e. Murgi Khan and his Munshi namely Niamul Hauqe and the petitioner fled away from the spot. The witnesses had also

seen the petitioner fleeing away from the spot and the P.W.4 had also identified the petitioner and P.W.4 has clearly deposed that he knew the petitioner from before as the petitioner along with others used to come at the time of auction of railway property. Considering the aforesaid facts and circumstances including the evidence of the eye witness P.W-4 who had seen the petitioner fleeing away from the place of seizure this Court is of the considered view that there is no illegality or perversity in the impugned order convicting the petitioner under Section 3 (a) of the aforesaid Act of 1966.

28. The argument of the learned counsel for the petitioner that the petitioner was made accused only on the basis of the confessional statement of the co-accused is devoid of any merit as the petitioner was identified by the witnesses at the time of fleeing away when raid was conducted in Vishwakarma Rolling Mill from where the railway property was ultimately seized.

29. While considering the argument of the argument of the petitioner that no case was made out as the railway property was not seized from the physical possession of the petitioner, this Court finds that as per the provisions of Section 3 of the aforesaid Act of 1966, the basic requirement under the said section is that the person who commits theft or dishonestly misappropriate or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained is guilty of the offence. The term or is found or is proved to have been in possession of any railway property itself indicates that the recovery of the railway property from physical possession of the accused is not a condition precedent. What is required to be seen as to whether the accused had been in possession of any railway property.

30. Considering the facts and circumstances of this case and the evidences on record, it is clear that the petitioner had been in possession of the railway property and when the raid was conducted and seizure was done, he fled away from the place of occurrence. Accordingly, there was no occasion for his signature on the seizure list.

31. This Court is of the considered view that not only the person, who has been physically found in possession of the stolen Railway Property, but also the person, who is proved to have been in possession of any stolen Railway Property, both are covered by Section 3 of the aforesaid Act of 1966. As per the findings recorded by the learned Court below, it was the petitioner who used to commit theft of the Railway Property and hand it over to the other co-accused persons, from whose godown / premises, the Railway property was physically recovered and seized. In view of the aforesaid, merely because the Railway Property was not seized from physical possession of the petitioner, does not take him out of the purview of Section 3 of the aforesaid Act, 1966. Accordingly, the Railway property having not been seized from the physical possession of the petitioner, is not fatal to the prosecution case and the learned Courts below have rightly convicted the petitioner for the offence under Section 3 of the aforesaid Act 1966.

32. The aforesaid view is supported by the judgement of the Hon'ble Supreme Court reported in AIR 1979 SC 1825 (The State of Maharashtra vs. Vishwanath Tukaram Umale and Others) which has also been followed in the judgement

reported in AIR 2008 SC 1112 (Om Prakash vs. State of U.P.).

33. So far as the sentence is concerned, this Court is of the considered view that it is not in dispute that the petitioner has been convicted for offence under Section 3 (a) of the aforesaid Act of 1966 and the present offence is his first offence and

further there is no doubt that there is a discretion available with the court as to punish him by imprisonment which may extend to 5 years or with fine or both and in absence of any special and adequate reason, the imprisonment shall not be less than one year and such fine shall not be less than Rs.10,000. In the present case, the railway line was cut and was taken away which was ultimately recovered. The learned courts below have sentenced the petitioner only to the extent of 3 years although 5 years is the maximum sentence imposable under Section 3 (a) of the aforesaid Act of 1966. This Court finds that the sentence awarded by the learned court below is adequate and appropriate and no interference is called for even on the point of sentence. This Court is also of the considered view considering the facts and circumstances of the present case that 17 years have elapsed, and the same does not call for any lenient view in favour of the petitioner. So far as the plea of the petitioner to release him under Probation of Offenders Act is concerned, this Court is of the considered view that the manner in which the present offence has been committed, the petitioner is not entitled to such relief and has been rightly sentenced.

34. As a cumulative effect of the aforesaid findings, this Court does not find any illegality or perversity or material irregularity in the impugned judgements calling for any interference in the impugned judgements of conviction and sentence of the petitioner.

35. Accordingly, the present revision is hereby dismissed.

36. Interim order, if any, stands vacated.

37. The bail bond furnished by the petitioner is hereby cancelled.

38. Pending interlocutory application, if any, is dismissed as not pressed.

39. Let the Lower Court Records be immediately sent back to the court concerned.

40. Let this order be communicated to the learned court below through FAX/E-mail.

Saurav/                                  (Anubha Rawat Choudhary, J.)