Calcutta High Court
Janardhan Show vs The State on 18 May, 1990
Equivalent citations: 1990CRILJ2449
JUDGMENT A.M. Bhattacharjee, J.
1. I agree with the order proposed by my learned brother Nandi, J. in his judgment following hereafter and the revision would accordingly succeed and the revisionist is to be acquitted in accordance with the said order. But I would have to state a few words lest some observations made in the judgment of Nandi, J. are taken too broadly.
2. Under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, the possession of any railway property is made punishable as an offence if-- (a) the property is "reasonably suspected of having been stolen or unlawfully obtained" and (b) the possessor cannot prove "that the railway property came to his possession lawfully".
3. "Possession", an expression which has caused many headaches to the Jurists and Judges throughout the ages, is a word of such protean, varied and almost versatile significance that to look for a comprehensive definition thereof to fit in with, any and every piece of legislation is to be asking for the moon. The connotation would very often vary from legislation to legislation and the context in which the expression is used and the object sought to be achieved by and the policy behind the legislation in question are, among others, matters which are to be taken into consideration to ascertain the precise connotation of the expression.
4. Salmond in the Seventh Edition of his Jurisprudence (that being the last Edition edited by the author himself in 1924) considered that possession consisted both of a corpus possession is and an animus possidendi. But our experience during all these six decades (and even before) clearly demonstrates that the variable concept of "possession" cannot be put into any such straight-jacket and the later Editors of Salmond's Jurisprudence have accordingly struck different note.
5. Nandi, J. is inclined to think that there may not be culpable possession without animus possidendi and a mere carrier does not possess the goods consigned. I am afraid that this may be too broad a proposition and that a carrier as a bailee also acquires possession, so much so that he cannot be convicted for theft (that being an offence of removal of property from the possession of another) for removing and misappropriating the property. Since a bailee possesses property both in fact and in law and as such could not be convicted of larceny, a legislation had to be made in the English Law to provide that a bailee, though in possession of the goods bailed, can nevertheless commit larceny of the goods he possesses. But in the case at hand, since Nandi, J. has found reasons to believe that the accused, as a rikshaw-puller, was virtually acting as porter so to say in carrying the goods handed over to him, the accused, though in possession of the goods must be taken to have accounted for his lawful possession for the purpose of Section 3 of the Act.
6. Nandi, J. is also inclined to think that possession, in order to be culpable, must be conscious possession. This again, if I may say with respect, may be too wide a proposition. Section 292 of the Penal Code penalises sale or possession of obscene books etc. and the five-judge unanimous Constitution Bench decision of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 at p. 886 : (1965 (2) Cri LJ 8 at p. 13) is a clear authority for the view that a seller or possessor need not be proved to have any knowledge about the obscenity of the book and the defence of absence of scienter (knowingly doing of an act) was repelled.
7. Be that as it may, as already indicated, once Nandi, J. has found that the accused almost acted as a mere porter in carrying the articles by his rickshaw, and I find no reason to differ from that finding, the accused must be taken to have accounted for his lawful possession and the other questions raised by Nandi, J. and adverted to by me may no longer be relevant for the purpose of the case at hand.
8. I accordingly agree, though for somewhat different reasons, with the order proposed by Nandi, J. in the following judgment and would allow the revision.
Amulya Kumar Nandi, J.
9. The revisionist has been convicted Under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentenced to suffer rigorous imprisonment for a year. His appeal to the Additional Sessions Judge also failed.
10. The accused was arrested by some members of the Railway Protection Force on 1-9-79 at about 12.05 at night while he was carrying some railway articles by his Rickshaw. It is alleged that he could not account for those articles nor could he produce any document to justify his possession of those articles. The expert of the railways opined that all the seized articles found in possession of the accused excepting a few were serviceable.
11. The defence is that the real offender somehow escaped. The accused was asked by the Railway Protection Force people to carry the articles. Since he demanded the rickshaw fare Railway Police Force people falsely implicated him in this case.
12. The prosecution has succeeded in proving that at dead of night, the accused was carrying the seized Railway Properties in his Rickshaw on 1-9-79. It has further been proved that the articles belonged to the Railway and that all excepting one were serviceable. The defence cannot assail these conclusions of the two Courts below.
13. We have to examine whether in the facts and circumstances of the case the accused can be said to be in possession of the Railway properties. It is evident that the accused hired the Rikshaw from the owner. It is also not in controversy that the accused is a Rickshaw-puller. The articles were in the custody of the accused. If such custody tantamounts to possession the accused has been rightly convicted by the trial Courts. Possession is distinguished from custody. It is used in respect of the owner and custody is used to mean such a relation towards the thing as would constitute possession if the person having custody had it on his own account. In the instant case, the accused does not claim to be the owner of the property nor does he otherwise lay any claim over it. He was merely a carrier of the articles. A carrier does not possess the property. He is merely a temporary custodian of the same engaged for the sole purpose of the transport. His is no possession on his own account, if it is any possession it is on account of the hirer.
14. In the next place, possession must be conscious one. No man can be said to possess the thing without his knowledge. To make the possession culpable the accused must have a mens rea. There is no possession when there is no knowledge. Onus of proving knowledge is upon the prosecution. In Pritam Singh v. State of Punjab, AIR 1967 Punjab 50 : (1967 Cri LJ 254) some poppy husk was found in a truck. Some accused were sitting on the bags and some were in the cabin. It was held that since the accused were not in conscious possession of those articles there was no culpable possession. In that view of the matter, the accused were acquitted. The accused is not bound to prove his innocence. He can earn acquittal if he offers a defence which seems to the Court to be probable. It has transpired in evidence that the accused is a Rickshaw-puller. His defence is that he was carrying the articles. The story set-up by the defence is an acceptable story. The prosecution has failed to prove that the accused was in conscious possession of the Railway properties. In my opinion, the prosecution has not succeeded in proving the case beyond reasonable doubt. Therefore, we acquit the accused. He is released from bail bond. The seized articles be returned to the Railways.