Sundaram vs State by the Sub Inspector of Police, Erode Railway Protection Force, Police Station, Erode

David Annoussamy, J.—This is a revision-petition against the conviction and sentence for an offence u/s 3 (a) of the Railway Property (Unlawful Possession) Act, 1956.

The case of the prosecution is that when upon the confessional statement of one Natesan, the house of the accused was searched on 20th March, 1979, a Railway sleeper worth Rs. 100 was found and was recovered by the Railway Sub Inspector of Police under cover of mahazar attested by the Village Munsif and Thalayari.

The accused''s case was that the sleeper was found on the bed of the Amaravathi River after 1979 flood. This case was not accepted by the trial Court which convicted the accused and sentenced him to imprisonment for two years. Against the said conviction, an appeal was preferred and the appellate Court confirmed the convictions; but reduced the sentence to one of Rule I. for one year. It is against such order of conviction, that the present revision is preferred.

In the present case, it is worth noting that at the very beginning when the Sub Inspector of Police questioned the accused about the origin of the sleeper, he came out with the explanation that he found it on the bank of the river after the flood. When the accused took such a plea, the Sub Inspector should have given due consideration to that and if he was not satisfied, he should have shown why such a version could not be accepted. The prosecution did not take that course. Both the courts below have acted on the assumption that once an article is proved to belong to Railway and is found in possession of a third party, that would constitute by itself an offence because there will be a presumption that it would have been stolen. But Section 3 does not read in that manner. It reads, on the contrary, as follows:

Whoever is found or is proved to have been, in possession of any Railway property reasonably suspected of having been stolen or unlawfully obtained.

Therefore, there is clearly a separate ingredient disclosed by the words "Reasonably suspected that the article has been stolen or unlawfully obtained." If an article bears the Railway mark, it shows only that it belongs to the Railways; it may of course raise in the mind of the common man a suspicion, but the reasonable suspicion in the mind of the court that the article has been stolen or unlawfully obtained is something different; it should be based on the elements of record; and in that respect there should be a clear statement by the Court. So something more than the possession of an article bearing the Railway mark is necessary. When a person at the very beginning comes out with a version, that version has to be given due consideration because it cuts at the root the suspicion prone to glide into the mind. In such a case, the prosecution has to show that the explanation given is not acceptable. No such effort was taken by the prosecution in this case. Therefore, the ingredient of reasonable suspicion is not established in this case.

In the result, the revision petition is allowed. The conviction and sentence are set aside.