S. Sankaralingam Vs. State Rep. by Inspector of Police - Court Judgment

Excerpt:
- m. karpagavinayagam, j. 1. sankaralingam, the petitioner herein has filed this application under section 482 of cr. p.c. seeking to quash the proceedings initiated against him by the respondent, the inspector of police, railway protection force (rpf) in c.c. no. 139/1999 on the file of the judicial magistrate-i, ponneri for the offence under section 3(a) of the railway property (unlawful possession) act, 1966.2. according to the prosecution, that on 1-7-1998, on receipt of reliable information, the inspector, rpf, crime intelligence branch, chennai division along with his party proceeded to sri lakshmi steel re-rolling mills, manali express highway, eranavur, chennai-600057 where railway materials are unlawfully stored, after sending advance intimation to the court and conducted investigation and found that 10 nos. of rail pieces were possessed unlawfully and recovered them. accused 1 and 2 were arrested, as they were the persons available on the spot. the statement of accused 1 and 2 were recorded. a case in crime no. 4/98 was registered under section 3(a) of the railway property (unlawful possession) act.3. during the course of search, the petitioner/3rd accused was not available. on 2-7-1998, venkatesan, section engineer, permanent way, tondiarpet (m) yard was examined. he issued a certificate stating that the rails recovered were the property of indian railways. his statement was also recorded. on 7-7-1998, mohd. ameer khan, sr. section engineer, permanent way, ponneri was examined. he also gave a statement to the effect that the rails recovered are the property that were reported to be missing on 2-7-1998. on 13-7-1998, the petitioner herein appeared and gave a statement. at that time, the petitioner could not give any satisfactory account for the possession of property seized from the said sri lakshmi steels re-rolling mills.4. in the meantime, records were collected to show that the petitioner was not a partner of m/s. sri lakshmi steels re-rolling mills. after collection of other materials against the accused, the inspector of police, thondiarpet filed a complaint against five accused who were found to have been in unlawful possession of the property that belonged to indian railways for the offence under section 3(a) of the act. this complaint was taken on file in c.c. no. 139 of 1999. challenging the proceedings and the cognizance taken by the judicial magistrate, the petitioner has filed this application.5. the counsel for the petitioner mainly argued the following points in support of his contentions:--(i) before searching the premises, no warrant had been obtained as per section 10 of the railway property (unlawful possession) act.(ii) though in the instant case, under section 165 of cr. p.c. advance intimation was sent to the court, the search and seizure without invoking section 10 of the act is illegal inasmuch as the respondent cannot be considered to be a police officer as provided under section 164 of cr. p.c. therefore, the search is illegal.(iii) consequently, no complaint could be lodged on the basis of the illegal seizure.(iv) admittedly, some of the rails contain the mark lot no. 121. the petitioner was a purchaser in an auction conducted by the railway authorities for removal of rails from one area to another as permitted by the authorities on 30-6-1998. those rails, which were delivered on the basis of auction were recovered by the inspector of police, rpf, during the seizure. as such, the offence under section 3(a) of the act is not maintainable, as they do not belong to indian railways.6. in elaboration of these four points, the learned counsel for the petitioner argued at length. he has also read out section 10 of the railway property (unlawful possession) act and section 165 of cr. p.c. he has also relied on a ruling of the supreme court reported in (balkishan a. devidayalv. state of maharashtra) and special leave petition (cri.) no. 63/1997 (state of madhya pradesh v. hari), in which it is held that officer of rpf making enquiry tinder section 8(1) of railway property (unlawful possession) act cannot be held to be a police officer. he also submits that section 2 of the railway property (unlawful possession) act would provide that the powers of a police officer could be exercised by the inspector of police, rpf only after the arrest of the accused persons. in the instant case, arrest was made only after the search and seizure. therefore, it is contended that section 8(2) of the railway property (unlawful possession) act would not apply to the present case.7. the learned government advocate, on the contrary, submits that the said decision would not apply to the facts and circumstances of the case on hand as under section 11 of the railway property (unlawful possession) act an inspector belongs to rpf could invoke the powers that are conferred to the police officer relating to search and seizure. he relied on 1999 mlj22 (m. ramesh v. state rep. by inspector of police), rpf, dindigul), wherein it is held that a rpf officer could invoke both section 165 of cr. p.c. as well as section 11 of the railway property (unlawful possession) act and as such the search conducted by the inspector of police, rpf in the instant case after sending advance intimation to the concerned court under section 165 of cr. p.c. cannot be said to be illegal. moreover, when the witnesses stated that the properties belong to indian railways, which were found to be missing, then it is for the trial court to consider whether the property is the property which was obtained under lot no. 121 through auction or the railway property which was found missing.8. i have carefully considered the rival submissions. it is true that section 10 of the railway property (unlawful possession) act would provide for the warrant on the basis of which the officer of rpf could conduct search and seize the properties belonging to indian railways which he reasonably believes to be stolen or unlawfully obtained.9. a reading of section 10(1) of the railway property (unlawful possession) act would provide that 'if an officer of the force has reason to believe that any place is used for the deposit or sale of railway properly, which has been stolen or unlawfully obtained, he shall make an application to the magistrate, having jurisdiction over the area in which that place is situate for issue of a search warrant'. in that application, the magistrate, after enquiry can pass an order permitting the officer concerned to search and seize the properties.10. according to the counsel for the petitioner, section 10(1)(2) of the railway property (unlawful possession) act is mandatory, which was not followed in this case. it is further contended that section 165 of cr. p.c. would relate to the powers of police officers alone and not the officers of rpf.11. in my view, this contention cannot be accepted, because the finding as pointed out by the counsel for the petitioner in (balkishan a. devidayal v. state of maharashtra) is that the officer of rpf cannot be a police officer or cannot be deemed to be a police officer or cannot be equated with an officer incharge of a police station only when invoking section 25 of the evidence act. in that decision, a question was raised whether the statement obtained by an officer of rpf is admissible or not. in that context, it was held that the statement obtained by the police officer cannot be admissible under section 25 of the evidence act. it was also stated that the statement obtained by the officers of rpf is admissible since they are not considered to be the police officer within the purview of section 25 of the evidence act or under section 164 of cr. p.c. therefore, in my view, this decision may not be of any use for the counsel for the petitioner to hold that the inspector, rpf cannot invoke any provisions in the cr. p.c. on the other hand, as pointed out by the learned government advocate, section 11 of the railway property (unlawful possession) act would clearly provide that 'all searches and arrests made under this act shall be carried out in accordance with the provisions of the code of criminal procedure relating respectively to searches and arrests made under that code'. so, as per this section, the officer of rpf can very well invoke the provisions of cr. p.c. relating to search and arrest under this code.12. there is no dispute that section 165 of cr. p.c. relates to the search under that code. therefore, in my view, in times of urgency, if the requirements as contemplated under section 165 of cr. p.c. are fulfilled, it is well within the right of the officer of rpf to go and search the premises after sending advance intimation to the court. further more, as indicated above, the judgment rendered by this court in 1999 mlj 22 (m. ramesh v. state rep. by inspector of police, rpf, dindigul) would reveal that the action to invoke section 165 of cr. p.c. by sending advance intimation to the court and searching the premises under section 11 of the railway property (unlawful possession) act is perfectly legal. in the said decision, a supreme court judgment was referred, which is quite relevant in this context to be extracted :--i am not convinced with the arguments. of mr. raj an that the search should be conducted before getting warrant from the magistrate. in this connection, it is relevant to refer to the decision referred by the learned government advocate in pooran mal v. director of inspection, reported in which deserves consideration, wherein, the apex court has held as follows:--in other words search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure. 13. therefore, since the authorities in the instant case have conducted a search and seizure for preventing the crime, the same cannot be held to be illegal.14. in the light of the above observations made, by the supreme court, i am of the view that there is no illegality in the search and seizure.15. further, section 11 of the railway property (unlawful possession) act provides for the powers of the officer of rpf to invoke the relevant provisions relating to searches and seizures by invoking section 165 of cr. p.c. whenever an officer is not able to obtain warrant, as contemplated under section 10 of the railway properly (unlawful possession) act, an officer of rpf is competent enough to invoke section 165 of cr. p.c. whenever emergency arises.16. regarding the properties, which were obtained through auction and inscription ,of lot no. 121 in some of the rails, i am of the view that this question has to be considered only by the trial court during the course of trial, especially when all the officers gave statements to the effect that 10 nos. of rail pieces recovered from the premises of the petitioner belonged to indian railways, that were reported missing.17. therefore, i do not find any merit in any of the contentions raised by the counsel for the petitioner. with the result, the petition is dismissed. consequently, connected crl. m.p. no. 4159 of 1999 is also closed.