Delhi District Court
State vs . Anil @ Sonu & Ors. on 1 March, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Anil @ Sonu & Ors.
CC No. 11/99
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
JUDGMENT
a) The Sl. No. of the case : 163/03 b) Date of Institution : 26.06.2003 c) Name of the complainant : IPF/RPF R.S. Maurya
d) The name & add. of accused : 1)Anil @ Sonu S/o. Sh. Nand Kishore R/o. Kachhi Jhuggi, Railway Colony, Behind Shakur Basti, Delhi.
2) Mohd. Aurangzeb, S/o. Mohd. Aktar, R/o. Vagabond, Choti Line Cement Siding Area, Shakurpur Basti, Delhi
3) Mohd. Gaji S/o. Mohd. Kalim R/o. Vagabond, Cement Siding Area, Shakur Basti, Delhi.
e) Date of commission of
offence : 31.05.1999
f) Offence complained of : U/s 3 RP (UP) Act 1966
g) Plea of accused persons : Pleaded not guilty
h) Date on which judgment
reserved : 01.03.2008
i) Final Order : Convicted
j) Date of such order : 01.03.2008
Page No. 1
BRIEF STATEMENT OF REASONS FOR DECISIONS :
1. Briefly stated the facts of the case as alleged by the prosecution against accused Anil & Mohd. Gaji are that on 31.05.1999 at about 7:50 hours at Shunting Neck Yard, Shakur Basti, Delhi, they were found in possession of seven bags of wheats which were recovered from them and seized vide memo Ex. PW1/A. The disclosure statements of the accused persons was also recorded vide memos Ex. PW1/F to Ex.PW1/H wherein they stated that they had committed theft of seven bags of wheats and pointed out towards the said bags of wheats vide memo Ex. PW1/B belonging to railway department reasonably suspected of having been stolen or unlawfully obtained and thereby accused have committed an offence punishable U/s. 3 of RP (UP) Act 1966.
2. After completion of enquiry complaint was put to the court for trial. Accused persons were summoned and copy of complaint and other documents were supplied to them.
3. In precharge Evidence prosecution examined PW1 Ct. Naresh Kumar, PW2 Sh. Kushwant Singh, PW3 Shri Sukhdev Singh Saini, Goods Supervisor and PW4 R.S. Maurya. Thereafter precharge PE was closed and on 25.11.2003 vide separate order accused persons were charged for offence punishable U/s. 3 RP (UP) Act.
Page No. 2
4. In aftercharge PE prosecution examined PW5 Chander Shekhar and PW6 HC Baljeet Singh. Thereafter PE was closed and on 25.02.2008 statement of accused Anil @ Sonu & Mohd. Gaji were recorded U/s. 313 Cr. P.C. in which they admitted all incriminating evidence led by the prosecution against them and requested to take lenient view and moved application to this effect.
5. I have heard learned APP for the RPF and accused no. 1 & 3 in person and have gone through the material on record. APP for the RPF submitted that the prosecution has examined material witnesses and proved its case against the accused as such accused may be convicted in accordance with law. On the other hand accused no. 1 & 3 have pleaded guilty for the charge leveled against them and prayed for the lenient view.
6. In this case U/s. 3 RP (UP) the following ingredients of offence has to be proved by the prosecution beyond a reasonable doubt :
(i) The property in question should be railway property;
(ii) It should be reasonably suspected of having been stolen or unlawfully obtained; and
(iii) It should be found or proved that the accused was or had been in possession of that property.
7. It is not necessary that the possession should be a Page No. 3 subsisting possession for the purposes of Section 3 of RP (UP) Act. It is sufficient if the accused was proved to have been in possession of that property at any point of time. In Halsbury's Laws of England, IVth Edn., Vol. 35 in para 1214 at p. 735 the word "possessio n" is used in various contexts and phrases, for example in the phrase "actual possession" or "to take possession" or "inter est in possession" or "estat e in possession" or " entitled in possession" . In para 1211 at p. 732, with regard to legal possession it has been stated that possession may mean that possession which is recognised and protected as such by law. Legal possession is ordinarily associated with de facto possession; and de facto possession is not always regarded as possession in law. A person who, although having de facto possession, is deemed to have possession in law is sometimes said to have constructive possession. In para 216 at p. 736 it is stated that the right to have legal and de facto possession is a normal but not necessary incident of ownership. Such a right may exist with, or apart from, de facto or legal possession, and different persons at the same time in virtue of different proprietary rights.
Possession is the objective realisation of ownership. It is the de facto exercise of a claim to certain property and a de facto counterpart of ownership. Possession of a right is the de facto Page No. 4 relation of continuing exercise and enjoyment as opposed to the de jure relation of ownership. Possession is the de facto exercise of a claim to certain property. It is external form in which claims normally manifest themselves. Possession is in fact what ownership is in right enforceable at law to or over the thing. A man's property is that which is his own to do what he likes with it. Those things are a man's property which are the object of ownership on his part. The word "possessio n" implies a physical capacity to deal with the thing as we like to the exclusion of every one and determination to exercise that physical power on one's own behalf in full consciousness.
" Supdt. and Remembrancer of Legal Affairs V. Anil Kumar Bhunja" , (1979) 4 SCC 274: 1979 Cri Lj 1390. "Possession is a polymorphous terms which may have different meanings in different contents. It is impossible to work out a completely logical and precise definition uniformly applicable to all situations." Salmond (12th Edn. p. 52). "The test for determining whether a person is in possession of any thing is whether he is in general control of it."
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 of knowledge is upon the prosecution.
Page No. 5
8. In the instant case in order to prove the case property is a railway property prosecution examined PW2 Shri Kushwant Singh, AGII (M), FCI Office, Mansa Punjab who testified verification certificate Ex. PW2/A prepared by Shri Balwant Singh Gill and dispatch report Ex. PW2/B. PW3 Shri Sukhdev Singh Sainy, Goods Supervisor testified loading of 610 bags of wheat in 39 wagons by FCI with railway from Mansa to Simoga Town after receiving forwarding note and RR No. 006607 vide loading summary Ex. PW3/A. PW5 Shri Chander Shekhar, Guard, TKD testified that on 31.05.1999 he was posted as Guard in food grain train travelling from Mansa to SMET started at 3.40 hours from SSB Yard. The train stopped for 40 minutes at Patel Nagar and stopped from 5.55 to 6.35 hours at TKD East. Thereafter he handed over the charge to guard of Central railway.
9. To prove the other ingredients prosecution examined PW 1 Ct. Naresh Kumar, PW4 R.S. Maurya, PW5 Chander Shekhar and PW6 HC Baljeet Singh. All these prosecution testified apprehension of accused persons with the unlawful possession of the case property. They also testified enquiry conducted and documents prepared during enquiry in this case.
10. On the other hand accused no. 1 & 3 have admitted all Page No. 6 allegations put against them by the prosecution and moved application in this regard.
11. The prosecution witnesses have proved the date, time and place of offence and also established the identity of accused. There are no such contradictions in the statements of prosecution witnesses so as to disbelieve the case of prosecution. Even otherwise the accused persons have also moved application to plead his guilt which is Ex. C1 and their statements have also been recorded to this effect. I also rely upon the observations held in case titled as "Sa lim Mohamed Babul Miniyar Vs. State of Maharashtra" 2001 CRL. L. J. 58, (BOMBAY HIGH COURT) DR. (Mrs.) Pratibha Upasani, J. Cr. Revn. Appl. NO. 243 of 1994 wherein it was held that : " Railway Property (Unlawful Possession) Act (29 of 1966), Ss. 3(a), 8(1) - Unlawful possession of railway property - Accused voluntarily confessed that he had purchased stolen property of railway - Confessional statement recorded by RPF officer making enquiry under S. 8(1) - Is admissible in evidence as he is not a police officer under S. 162 CR. P.C. Conviction based on said confessional statement - Not illegal."
12. I also rely upon the observation taken in case titled as Page No. 7 "Balk ishan A. Devidayal Vs. State of Maharashtra" and "State of Madhya Pradesh & Ors. Vs. Hari & Ors." 1980 CRL. L. J. 1424 (SUPREME COURT) wherein it was observed that : " U/s. 25 - Police Officer - Officer of R.P.F. making inquiry in respect of offence under S. 3 of Railway Property (Unlawful Possession) Act (1966), is not Police Officer .
The primary test for determining whether an officer is a Police Officer is : Whether the officer concerned under the Special Act, has been invested with all the powers exercisable by an officerincharge of a Police Station under Chapter XIV of the Criminal Procedure Code qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (charge sheet) under Section 173 of the Cr. P.C. of 1898. In order to bring him within the purview of the 'police officer' for the purpose of Section 25, Evidence Act, it is not enough to show that the exercises some or even many of the powers of a police officer conducting an investigation under the Code. Constitution of India, Art. 20 (3) "Pers on accused of an offence" Person arrested under S. 6 of Railway Property (Unlawful Possession) Act 1966 - Incriminating statements made by him Page No. 8 during enquiry under S. 8 - Prosecution under S. 20 (3) not available" .
13. In view of the aforesaid discussion and facts and circumstances accused no. 1 Anil @ Sonu S/o. Sh. Nand Kishore and accused no. 3 Mohd. Gaji S/o. Mohd. Kalim are hereby convicted for the offence punishable U/s 3 of RP (UP) Act 1966.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 01.03.2008. MM:DELHI.
Page No. 9
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI State Vs. Anil @ Sonu & Ors.
CC No. 11/99
PS : RPF/SSB
U/s. 3 RP (UP) Act 1966
ORDER ON SENTENCE
Present: APP for RPF.
Accused/Convict Anil @ Sonu and Mohd. Gaji in person.
Heard on the point of sentence. APP for the RPF submitted that the prosecution has examined witnesses and proved its case hence accused/convicts are liable to be sentenced in accordance with law. On the other accused persons/convicts have submitted that they belongs to a poor family. They further submitted that they have already undergone some imprisonment in judicial custody during the course of trial hence they may be released on undergone imprisonment.
Considering the nature of the offence and socio, economic condition of the accused/convict, accused Mohd. Gaji & Anil are sentenced to Three Months R.I. and fine of Rs. 5,000/ I.D. 60 days S.I. in this case U/s. 3 of RP (UP) Act 1966. Benefit U/s. 428 Cr. P.C. is also awarded to the accused.
Copy of order be given to the accused/convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 01.03.08. MM:DELHI. Page No. 10 CC No. 11/99 PS : RPF/SSB U/s. 3 RP (UP) Act 1966 01.03.08 Present: APP for RPF.
Accused Mohd. Gaji and Anil produced from J/C. Accused Aurangzeb is absent.
Vide separate Judgment and order of today accused Mohd. Gaji & Anil are convicted and sentenced for the offence punishable U/s 3 of RP (UP) Act 1966.
Issue P/W against accused Aurangzeb who is allegedly in J/C at Mahepura Jail, Patna, Bihar.
Now put up on 19.04.2008.
(S.K. Gautam) MM/Delhi (01.03.08) Page No. 11