IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE UDAY KUMAR

CRR 1825 OF 2022

MANJUR SK. @ MANJUR SHAIKH

-VS-

STATE OF WEST BENGAL & ANR.

For the Petitioner : Mr. Sabir Ahmed

Mr. Dhiman Banerjee

For the State : Ms. Purnima Ghosh

For the Respondent No.2 : Mr. Rajendra Banerjee

: Mr. Souvik Ganguly

Hearing concluded on : 23.03.2026

Judgment on : 17.04.2026

UDAY KUMAR, J.: –

1. INTRODUCTION, THE FACTUAL MATRIX AND

PROCEDURAL HISTORY

1.1. This Revisional Application, preferred under Section 401 read

with Section 482 of the Code of Criminal Procedure, assails the

judgment and order dated 28th April, 2022, passed by the

Learned Additional Sessions Judge, 2nd Court, Jangipur,

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Murshidabad, in Criminal Appeal No. 04 of 2014. By the

impugned judgment, the Learned Appellate Court affirmed the

conviction and sentence passed by the Learned Judicial

Magistrate, 1st Court, Jangipur, in C.R. Case No. 353 of 1992

on 23rd July, 2014, whereby the Petitioner Manjur Sk., was

found guilty of an offence punishable under Section 3(a) of the

Railway Property (Unlawful Possession) Act, 1966 and was

sentenced to undergo simple imprisonment for one year along

with a fine of Rs.5,000/-, in default to undergo further simple

imprisonment for two months.

1.2. The trajectory of this litigation, spanning an extraordinary

period of over three decades, traces back to the early morning

of November 26, 1990.Acting on specific source information, a

specialized raiding party of the Railway Protection Force (RPF),

led by PW1 Satya NarayanChatterjee, conducted a search at a

shop-cum-godown situated at Omarpur More. It is alleged that

the Petitioner exercised control and occupation over the said

premises, from which thirteen distinct items of Railway

Property, including Pandrol clips, fish plates, signal wheels,

and track materials, were purportedly recovered from the

"conscious possession" of the Petitioner and a co-accused,

BasarMolla.

1.3. Upon the Petitioner’s failure to produce valid authority for the

possession of these prohibited articles, he was arrested at the

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spot. A formal seizure list was prepared in his immediate

presence, which he acknowledged by affixing his signature.

Subsequently, during the statutory inquiry, the RPF recorded a

confessional statement (Exhibit 4) from the Petitioner, wherein

he allegedly admitted to purchasing the articles from unknown

thieves.

1.4. To establish the identity and nature of the property, the

prosecution relied upon technical examinations conducted by

PW2, PW3, and PW11. These experts, possessing over twenty

years of experience, unequivocally certified the items as

"serviceable" Railway Property manufactured exclusively for

the Railways and not available in the open market. Based on

these findings, a Prosecution Report was submitted, and the

Learned Judicial Magistrate took cognizance and framed

charges under Section 3(a) of the Act.

1.5. During the trial, the prosecution examined eleven witnesses to

establish the "three-link chain" of the RP(UP) Act, i.e., the

identity of the property, the factum of possession, and the

reasonable suspicion of theft. However, a significant

procedural lacuna emerged that the Petitioner was not only

restrained from cross-examining the witnesses regarding the

genuineness of his signature on the seizure list but was also

denied a meaningful opportunity to explain the incriminating

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circumstances during his examination under Section 313 of the

Code of Criminal Procedure.

1.6. Consequently, the Trial Court invoked the statutory

presumption against the Petitioner and passed the judgment of

conviction. Curiously, on the same set of evidence, the co-

accused, Basar Molla, was acquitted on the ground that the

evidence against him was "sketchy" and that the Petitioner’s

confession, treated as an accomplice statement, lacked

material corroboration under Section 114(b) of the Evidence

Act.

1.7. Aggrieved by this verdict, the Petitioner preferred Criminal

Appeal No. 04 of 2014, highlighting a fundamental

contradiction in the testimony of PW4, who identified the

"Murarai Railway Path" as the place of seizure rather than the

alleged "Omarpur More Godown." Nevertheless, the Learned

Appellate Court dismissed the appeal on April 28, 2022,

characterizing this discrepancy as a mere "clerical slip" that did

not outweigh the Petitioner's signed acknowledgment and the

expert testimony.

1.8. The Petitioner now moves this Revisional Court, contending

that the "Locus Contradiction" by PW4 destroys the very

substratum of the search; that the failure to put the confession

and expert reports to the accused under Section 313

constitutes a terminal procedural illegality; and that the

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"Broken Chain of Custody" rendered the identification

speculative. In its final assessment, this Court observes that

the "warp and weft" of this case, the interlacing of statutory

presumption with evidentiary failure, that presents a tapestry

weathered by a thirty-six-year delay, requiring a determination

as to whether the concurrent findings are so perverse as to

warrant judicial interference.

2. POINTS FOR DETERMINATION

I. Whether the Appellate Court committed a patent error

of law by dismissing the contradiction between a

"Private Godown" and a "Public Railway Path" as a mere

clerical slip, thereby vitiating the foundational finding of

"conscious possession."

II. Whether a signature on a Seizure List can legally

override material contradictions in oral testimony

regarding the site of recovery, especially where the

nexus between the Petitioner and the premises is not

established by documentary evidence.

III. Whether the failure to confront the Petitioner with the

Expert Reports and the Confessional Statement

constitutes a breach of Natural Justice and a terminal

error of procedure that renders the conviction

unsustainable.

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IV. Whether the "Reverse Burden" under Section 3(a) of the

RP(UP) Act was triggered without the Prosecution first

proving the foundational facts beyond reasonable doubt.

V. Whether the conviction of the Petitioner is legally

maintainable when the co-accused was acquitted on the

same set of inseparable evidence, rendering the

impugned judgment discriminatory and perverse.

2.1. These points seek to determine if the concurrent findings of

both Courts are anchored in legal evidence or if they suffer

from such "error of jurisdiction" that warrants the intervention

of this Revisional Court.

3. SUBMISSIONS ON BEHALF OF THE PETITIONER

3.1. Mr. Sabir Ahmed, Learned Counsel for the Petitioner

strenuously argued that the prosecution failed to establish the

most basic foundational fact of "Locus Delicti" or the specific

location of recovery.It is submitted that while the seizure list

mentions a "private godown," the testimony of PW4, a

member of the RPF raiding party, unequivocally places the

recovery on the "Murarai Railway Path." Mr. Ahmed contended

that a "path" is a public thoroughfare, and in the absence of

any rent deed, trade license, or tax receipt linking the

Petitioner to the alleged Omarpur More godown, the

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prosecution has failed to prove that the Petitioner exercised

"exclusive and conscious possession" over the site. Reliance is

placed on 1995 CCRLR (Cal) 53, the Petitioner asserting that

when the place of occurrence is shifting, the benefit of doubt

must accrue to the accused.

3.2. It was further argued that the Learned Appellate Court’s

dismissal of this contradiction as a "clerical slip" is a gross

perversity, as a "Railway Path" is public property, and no

nexus can be established between the Petitioner and articles

found in an open, public space.

3.3. With regard to the procedural integrity of the trial, the

Petitioner mounts a rigorous challenge against the validity of

the trial on the ground of non-compliance with Section 313 of

the Cr.P.C. It is submitted that the Trial Court failed to

specifically confront the Petitioner with the technical expert

reports (PW2, PW3, and PW11) and his own purported

confessional statement (Exhibit 4). Mr.

Ahmed argued that these were the only incriminating

circumstances used to sustain the conviction. Citing Samsul

Haque v. State of Assam (2019) 18 SCC 161 , it is contended

that any incriminating circumstance evidence not put to the

accused during his examination under Section 313 of the

Cr.P.C. is "dead evidence" and must be excluded from judicial

consideration. The Petitioner contended that this omission

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deprived him of his mandatory right to explain the "guilty

knowledge" attributed to him, thereby vitiating the entire trial

and rendering the conviction a nullity.

3.4. It is further contended that the Courts below erred in law by

invoking the "Reverse Burden" under Section 3(a) of the

RP(UP) Act prematurely. Mr. Ahmed submits that as per the

ratio in State of Maharashtra v. Vishwanath (AIR 1979 SC

1825), the prosecution must first prove "possession" beyond

reasonable doubt before the onus shifts to the accused. Since

the location of recovery was in dispute and the Petitioner’s link

to the premises was never established through documentary

evidence, the "Foundational Facts" remained unproven, and

the statutory presumption remained dormant.

3.5. Finally, the Petitioner highlights a manifest perversity in the

outcome of trial that the co-accused, Basar Molla, was

acquitted on the exact same set of evidence. Mr. Ahmed

argues that if the testimony of the raiding party was deemed

"sketchy" for one, it cannot be deemed "clinched" for the

other. The Petitioner asserts that the evidence in this case is

common and inseparable; therefore, based on the Principle of

Parity and the ratio in Javed Shaukat Ali Qureshi v. State of

Gujarat (2023) 9 SCC 164 , the Petitioner is entitled to the

same acquittal as his co-accused.

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3.6. Mr. Ahmed also highlighted the "Broken Chain of Custody"

regarding the physical alamats, noting that the experts

admitted during cross-examination that identification labels

were missing and the items were not produced in Court for

inspection. Consequently, it is submitted that the findings of

the courts below are based on judicial surmise rather than

legal proof, and given the thirty-six-year delay in justice, the

Petitioner is entitled to an order of acquittal.

4. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY

(RAILWAY)

4.1. Countering the contentions of the Petitioner, Mr. Rajendra

Banerjee, Learned Counsel for the Opposite Party/ Railway

submitted that the concurrent findings of the courts below are

based on a meticulous appreciation of the specialized

provisions of the Railway Property (Unlawful Possession) Act,

1966. It is submitted that the search and seizure were

conducted following specific source information and in the

presence of the Petitioner. He argued that the Petitioner’s

undisputed signature on the seizure list serves as a

contemporaneous acknowledgment of the factum and site of

recovery from the godown. Regarding the discrepancy on place

of seizure in PW4’s testimony, it is contended that in a trial

spanning several decades, minor variations in oral evidence

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are natural. Such a "clerical slip" or "lapse of memory" by one

witness does not override the documented seizure list and the

consistent testimonies of the leader of the raiding party (PW1)

and other members. He further maintained that as per Section

464 of the Cr.P.C., such minor contradictions do not cause

"material prejudice" to the accused, especially when the search

was conducted based on specific source information and the

Petitioner was found in "conscious possession" of a massive

cache of prohibited national assets within the godown.

4.2. Regarding the admissibility and use of the Confessional

Statement (Exhibit 4), Mr. Banerjee, Learned Counsel for the

Railway asserted that the Confessional Statement (Exhibit 4) is

a potent piece of evidence. Mr. Banerjee relied on the settled

law in State of U.P. v. Durga Prasad (AIR 1974 SC 2136) and

Balkishan A. Devidayal v. State of Maharashtra (AIR 1981 SC

379), asserting that RPF officers are not "Police Officers" within

the meaning of Section 25 of the Evidence Act; therefore, a

confession recorded by them during an inquiry is fully

admissible. It is further argued that the Petitioner failed to

demonstrate any "material prejudice" caused by the nature of

the Section 313 examination, as he offered only general

denials, although, the substance of the incriminating evidence

was sufficiently placed before the Petitioner. He argued that

under the "Reverse Burden" framework, the accused has a

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heightened duty to explain his possession of prohibited goods.

Mere denial or silence during the 313 examination is legally

insufficient to rebut the statutory presumption of guilt. On the

impact of acquittal of co-accused in the concurrent findings of

the appellate court, Mr. Banerjee submitted that it does not

automatically entitle the Petitioner to parity, as the evidence of

"conscious possession" and the act of handling the materials

were specifically and uniquely attributed to the Petitioner at

the time of the raid. In light of these submissions, the

Opposite Party prays for the dismissal of the revision and the

upholding of the conviction.

4.3. Mr. Banerjee submitted that the concurrent findings of the

courts below are based on a meticulous appreciation of Section

3(a) of the Railway Property (Unlawful Possession) Act, 1966.

Mr. Banerjee submitted that the prosecution successfully

established the three essential ingredients, i.e., the property

was identified as Railway Property by technical experts (PW2,

PW3, and PW11), the property was found in the possession of

the Petitioner, and the circumstances of the recovery at a

private godown raised a reasonable suspicion of unlawful

procurement. Once these foundational facts were established,

the "Reverse Burden" shifted to the Petitioner to prove lawful

acquisition, which he failed to do.

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4.4. It is submitted that the acquittal of the co-accused, Basar

Molla, was based on the specific finding that the confession of

a co-accused requires corroboration for another, whereas it

remains substantive evidence against the maker (the

Petitioner). Counsel emphasizes that the scope of Revisional

Jurisdiction is limited; since the Trial Court and the Appellate

Court have concurrently found the Petitioner guilty based on

signatures and expert reports, this Court should not interfere

with such findings of fact unless they are demonstrably

perverse.

5. DISCUSSION AND FINDINGS

5.1. The Nexus between Contentions and Judicial Scrutiny

5.1.1. Having meticulously recorded the rival submissions and

scrutinized the evidentiary record, this Court is now tasked

with the duty of evaluating whether the concurrent findings

of the courts below are anchored in legal proof or steered by

judicial surmise. The Petitioner’s challenge is built upon the

premise of "procedural and factual fragility," while the

State’s defence relies on the "sturdiness of statutory

presumption." To resolve this impasse, the Court must filter

these arguments through the lens of the points for

determination framed hereinabove.

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5.2. On the Materiality of the Locus Delicti

5.2.1. The primary challenge mounted by the Petitioner centers on

the identity of the Place of Occurrence (PO), a jurisdictional

fact that serves as the bedrock of any prosecution under

the Railway Property (Unlawful Possession) Act, 1966. It is

a fundamental principle of criminal jurisprudence that for a

conviction to stand, the prosecution must establish the site

of the alleged recovery with pinpoint accuracy. This

requirement is even more stringent in cases where

"conscious possession" is the sole basis for shifting the

burden of proof onto the accused.

5.2.2. In the present case, the prosecution narrative is critically

bifurcated. While the Seizure List and the leader of the

raiding party (PW1) assert that the recovery took place at a

"Private Godown" in Omarpur More, PW4—a member of the

same specialized RPF raiding party—categorically deposed

during cross-examination that the materials were recovered

from the "Murarai Railway Path." This is not a trivial

discrepancy; it represents two legally distinct environments.

A "Private Godown" implies a confined space under the

exclusive dominion of an occupier, whereas a "Railway Path"

is a public thoroughfare accessible to any passerby.

5.2.3. In addressing this contradiction, this Court must look to the

mandate of Section 3 of the RP(UP) Act, which states:

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"3. Penalty for unlawful possession of railway property.

— Whoever is found, or is proved to have been, in

possession of any railway property reasonably suspected

of having been stolen or unlawfully obtained shall,

unless he proves that the railway property came into his

possession lawfully, be punishable..."

The phrase "is found... in possession" necessitates that

the prosecution proves, beyond a shadow of doubt, the

exact location where the accused was "found" exercising

control over the property. If the property was indeed

found on a public path, as suggested by PW4, the

prosecution’s burden to prove that the Petitioner had

"exclusive and conscious control" over the materials

becomes an insurmountable legal hurdle.

5.2.4. This Court has meticulously analyzed the ratio in 1995 CCRLR

(Cal) 53, cited by the Petitioner, which posits that where the

place of recovery is shifting, ambiguous, or contradictory,

the benefit of such doubt must percolate to the accused.

Furthermore, the Hon'ble Supreme Court in State of

Maharashtra v. Vishwanath (AIR 1979 SC 1825), while

discussing the foundational facts required to trigger the

"Reverse Burden," observed at Paragraph 4:

"...the prosecution has to establish that the property in

question is railway property and that it was found in the

possession of the accused... the burden then shifts to

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the accused to prove that he came into possession of

the same lawfully."

5.2.5. Distinguishing the facts of the present case, it is evident that

the prosecution failed to establish the first limb of the

Vishwanath (supra) test. There is zero documentary

evidence, neither a trade license, nor a rent receipt, nor a

deed of tenancy, to link the Petitioner to the Omarpur More

godown. When this lack of documentary nexus is coupled

with the oral testimony of PW4, who explicitly placed the

recovery at a geographically different location, the chain of

"conscious possession" is effectively severed.

5.2.6. The Learned Appellate Court dismissed this discrepancy as a

"clerical slip" caused by the lapse of time. This Court finds

such a conclusion to be legally perverse. A "clerical slip"

refers to a minor typographical error, not a fundamental

contradiction in the description of the Locus Delicti. In a

criminal trial, when two conflicting versions of the place of

recovery emerge from the prosecution’s own witnesses, the

version favorable to the accused must be preferred.

5.2.7. After a thorough perusal of the record, this Court arrives at

the conclusion that the contradiction regarding the site of

recovery is material and fatal. Following the mandate of

Vishwanath (supra), since the foundational fact of

"possession at a specific premises" was not proven with

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certainty, the statutory presumption under Section 3 could

not have been legally triggered. Consequently, the first

question is determined in the affirmative for the Petitioner,

undermining the very substratum of the prosecution’s case.

5.3. Analysis of Point II: On the Evidentiary Weight of the

Seizure List vs. Oral Contradictions

5.3.1. The second pivot of this revision concerns the legal finality of

a signed Seizure List. The prosecution’s case rests heavily on

the fact that the Petitioner affixed his signature to the seizure

memo, arguing that this act constitutes a "deemed

admission" of both the recovery and the location. However,

this Court must determine if a signature, often obtained in

the coercive atmosphere of an RPF raid, can legally "seal" a

factual gap created by the prosecution’s own contradictory

oral evidence.

5.3.2. A Seizure List is a contemporaneous record prepared under

the spirit of Section 100 of the Code of Criminal Procedure.

While it serves as prima facie evidence of the articles seized,

its validity is inextricably linked to the integrity of the search.

If the "where" of the search is fundamentally challenged by a

member of the raiding party (as discussed in Point I), the

Seizure List cannot be used as a "curative" document to

override such a material contradiction.

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5.3.3. The Hon’ble Supreme Court in State of Punjab v. Baldev

Singh (1999) 6 SCC 172, while dealing with the sanctity of

search and seizure, observed at Paragraph 28:

“...the legitimacy of a recovery is inextricably linked to

the integrity of the search itself. If the search is

conducted in a manner that creates doubt as to the

source or location of the recovery, the evidentiary value

of the seized articles is significantly diminished.”

5.3.4. In the instant case, the prosecution failed to produce a single

shred of documentary evidence, such as a trade license,

electricity bill, or tenancy agreement, to establish a legal

nexus between the Petitioner and the Umarpur More godown.

In the absence of such a link, the Petitioner’s signature on

the Seizure List proves, at best, his physical presence during

a search, but it does not, in law, prove "conscious

possession" of the premises. If the premises are not proved

to be under the Petitioner's dominion, the mere recovery of

items in his presence does not satisfy the requirements of

Section 3(a) of the Act.

5.3.5. Furthermore, the Learned Appellate Court’s reliance on the

signature as a "waiver" of the Petitioner’s right to challenge

the location is a flawed application of the law of evidence. In

a criminal trial, the burden never shifts to the accused to

"disprove" a signature until the prosecution has established

a consistent and credible version of the search. When PW4

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(a prosecution witness) contradicts the Seizure List by

placing the recovery on a public path, the "integrity of the

search" as per Baldev Singh (supra) is compromised.

5.3.6. Logically, oral testimony given under oath in Court and

subjected to cross-examination (PW4) carries a higher

judicial weight than a document prepared by an

investigating agency during a raid. The contradiction

between the document and the oral testimony creates a

lacuna that cannot be bridged by the mere presence of a

signature.

5.3.7. This Court finds that the signature on the Seizure List cannot

override the material contradiction regarding the site of

recovery. In the absence of independent documentary

evidence linking the Petitioner to the premises, the oral

testimony of PW4 creates a reasonable doubt regarding the

site of the seizure. Following the principle that the benefit of

doubt must accrue to the accused when the prosecution's

documentary and oral evidence are at loggerheads, this

Court holds that the recovery from the "conscious

possession" of the Petitioner has not been proven beyond

reasonable doubt. Therefore, this point is determined in

favour of the Petitioner.

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5.4. The Procedural Integrity of Section 313 Cr.P.C.

5.4.1. The third point of determination shifts the focus from factual

discrepancies to a fundamental procedural mandate. This

Court must evaluate whether the mechanical manner in

which the Petitioner was examined under Section 313 of the

Code of Criminal Procedure, specifically the omission of core

incriminating evidence, vitiates the entire trial.

5.4.2. The mandate of Section 313(1)(b) Cr.P.C. is not a mere

procedural formality; it is an embodiment of the principle of

Audi Alteram Partem. It requires the Trial Court to put every

incriminating circumstance appearing in evidence to the

accused, enabling him to offer an explanation. In a trial

under the RP(UP) Act, where the prosecution relies on

technical expertise to identify "Railway Property" and on

"Confessions" to establish guilty knowledge, these elements

form the very "spine" of the conviction.

5.4.3. Upon a perusal of the 313 examination record, it is manifest

that the Petitioner was never pointedly confronted with the

Expert Reports (PW2, PW3, and PW11) which certified the

goods as "serviceable railway property," nor was he asked to

explain the contents of his purported Confessional Statement

(Exhibit 4).

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5.4.4. The Hon'ble Supreme Court in Samsul Haque v. State of

Assam (2019) 18 SCC 161, has laid down the law with

clinical clarity at Paragraph 22:

"It is a settled principle of law that as a part of the

powers and duties of the Court under Section 313 CrPC,

it must put to the accused any important incriminating

piece of evidence... If an incriminating circumstance is

not put to the accused, the same cannot be used

against him and must be excluded from consideration."

Further, in Indra kunwar v. State of Chhattisgarh (2023), the

Apex Court reiterated at Paragraph 30 that the failure to put a

material circumstance to the accused results in its exclusion

from the record.

5.4.5. Applying this ratio to the present revision, the Expert Reports

and the Confessional Statement were the only links

connecting the Petitioner to the alleged crime. By failing to

confront the Petitioner with these documents, the Trial Court

deprived him of his right to explain how he came into

possession of those specific items or to challenge the

voluntariness of the confession during the examination. This

is not a "curable irregularity"; it is a terminal procedural error

that strikes at the root of a fair trial.

5.4.6. The Learned Appellate Court brushed aside this contention by

stating that no "material prejudice" was caused since the

Petitioner gave "general denials." This Court finds such an

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observation to be legally unsustainable. Prejudice is inherent

when a citizen is convicted based on evidence that he was

never formally invited to rebut. Following the mandate in

Samsul Haque (supra), once the expert reports and the

confession are excluded due to the faulty 313 examination,

the prosecution’s case collapses like a house of cards.

5.4.7. This Court finds that the non-compliance with the mandatory

provisions of Section 313 Cr.P.C. in this case is not a mere

technicality but a substantive breach of Natural Justice. The

failure to put the foundational incriminating circumstances to

the Petitioner has rendered the evidence inadmissible for the

purpose of conviction. Consequently, the conviction based on

such "excluded" evidence is legally unsustainable. Therefore,

this point is determined in favour of the Petitioner.

5.5. The Legal Trigger of Statutory Presumption and the

"Reverse Burden"

5.5.1. The fourth point for determination involves the application of

the rule of evidence unique to the Railway Property (Unlawful

Possession) Act, 1966. This Court must scrutinize whether

the Learned Courts below correctly applied the "Reverse

Burden" of proof under Section 3(a), or if they erroneously

shifted the onus onto the Petitioner before the prosecution

had fulfilled its initial obligations.

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5.5.2. Unlike traditional criminal trials where the "presumption of

innocence" remains unshaken throughout, Section 3(a) of

the Act introduces a statutory presumption. However, this

presumption is conditional, not absolute. It only awakens

once the prosecution establishes the "Foundational Facts"

beyond a reasonable doubt. These facts include:

a. That the property in question is "Railway Property";

b. That it was recovered from the possession of the

accused;

c. That the circumstances of recovery create a

reasonable suspicion of it being stolen or unlawfully

obtained.

5.5.3. The Hon’ble Supreme Court in State of Maharashtra v.

Vishwanath (AIR 1979 SC 1825), while defining the

boundaries of this statutory shift, held at Paragraph 4:

"The primary burden of proving the foundational facts

remains on the prosecution. It is only after the

prosecution has established that the property is

railway property and was found in the possession of

the accused, that the burden shifts to the accused to

prove that he came into possession of the same

lawfully."

This principle was further fortified in Om Prakash v. State of

U.P. (2008) 11 SCC 347, where the Court cautioned that the

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"Reverse Burden" does not absolve the prosecution of its

initial duty to prove possession with certainty.

5.5.4. In the present case, as determined in the findings for Point I

and Point II, the prosecution's evidence regarding

"possession" was contradictory and lacked documentary

support. When the very site of recovery is in dispute (Railway

Path vs. Private Godown) and the nexus between the accused

and the premises is unproven, the "possession" limb of the

Vishwanath (supra) test is not satisfied. Logically, if the

prosecution fails to prove where and how the accused was in

possession, the statutory presumption cannot be triggered.

5.5.5. Furthermore, a substantial portion of the "reasonable

suspicion" relied upon by the lower courts was derived from

the Confessional Statement (Exhibit 4). As this Court has

already ruled in Point III that this confession must be

excluded from consideration due to the procedural failure

under Section 313 Cr.P.C., the third foundational fact,

"reasonable suspicion," also loses its evidentiary support.

5.5.6. It appears the Courts below operated under a circular logic:

they used the presumption to bridge the gaps in the

prosecution's evidence, whereas the law requires the

prosecution's evidence to be complete before the

presumption can be used. One cannot use the result of a

presumption to prove the facts necessary to invoke it.

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5.5.7. This Court finds that the foundational facts were not

established beyond a reasonable doubt. The contradiction in

the place of occurrence and the procedural inadmissibility of

the confession created a legal vacuum where the statutory

presumption under Section 3(a) could not have been lawfully

triggered. The Learned Courts below, therefore, committed a

manifest error of law by shifting the burden of proof to the

Petitioner prematurely. Accordingly, this point is determined

in favour of the Petitioner.

5.6. The Principle of Parity and Logical Consistency

5.6.1. The final consideration for this Court involves the Principle of

Parity and whether the conviction of the Petitioner is legally

maintainable in light of the acquittal of the co-accused, Basar

Molla, on the same set of prosecution evidence. This Court

must determine if the differential treatment of two similarly

situated accused persons, based on an identical recovery

memo and common witnesses, constitutes a logical

perversity that warrants the exercise of revisional

intervention.

5.6.2. It is a settled tenet of criminal law that while the acquittal of

one accused does not lead to an automatic acquittal of

another, the rule of "parity of evidence" applies where the

roles and the evidence are inseparable. If the prosecution

narrative places two individuals at the same site, during the

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CRR 1825 OF 2022

same search, and under the same seizure list, the Court

cannot "sieve" the evidence to convict one and acquit the

other unless there is a distinct, legally admissible

incriminating factor against the former.

5.6.3. The Hon’ble Supreme Court in Javed Shaukat Ali Qureshi v.

State of Gujarat (2023) 9 SCC 164 observed at Paragraph

15:

“When the case of all the accused stands on the same

footing, and the evidence against them is common and

inseparable, it would be a travesty of justice to convict

some while acquitting others on the same set of facts.

In such cases, the benefit of doubt given to one must

necessarily be extended to the others.”

Furthermore, the Apex Court in Lallu Manjhi v. State of

Jharkhand (2003) 2 SCC 401 emphasized that “if the

prosecution case is found unreliable in respect of some

accused, the Court must be extremely cautious in relying on

that same evidence to convict the remaining accused, unless

there is specific and distinguishing incriminating evidence

against them.”

5.6.4. In the case at hand, both the Petitioner and Basar Molla were

allegedly found at the Omarpur More shop-cum-godown. The

Seizure List, the primary documentary evidence, was singular

and applied to both. The witnesses were common. The expert

testimonies of PW2, PW3, and PW11 applied to the same

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CRR 1825 OF 2022

cache of materials. The Learned Trial Court acquitted the co-

accused Basar Molla on the ground that the evidence against

him was "sketchy." Logically, if the evidence of the raiding

party regarding the recovery was "sketchy" for the co-

accused, it remains equally "sketchy" for the Petitioner,

particularly given the material contradiction regarding the

Locus Delicti (Railway Path vs. Godown) discussed in Point I.

5.6.5. The only "distinguishing features" used by the Trail and

appellate courts to convict the Petitioner were his signature

on the seizure list and his confession. However, this Court

has already determined that:

i. The signature cannot override the fundamental doubt

regarding the site of recovery (Point II).

ii. The confession must be excluded from consideration

due to the terminal failure of the Section 313 Cr.P.C.

examination (Point III).

5.6.6. Once these two legally infirm pillars are removed, the

evidence against the Petitioner is identical to the evidence

against the acquitted co-accused. To maintain a conviction

against the Petitioner while the co-accused stands acquitted

on the same "sketchy" evidence is not only discriminatory

but logically perverse. It results in a judicial paradox where

the same search is deemed unreliable for one person but

conclusive for another.

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CRR 1825 OF 2022

5.6.7. This Court finds that there is no legally sustainable

"distinguishing feature" to justify the Petitioner's conviction.

Following the mandate in Javed Shaukat Ali Qureshi (supra),

the benefit of doubt arising from the prosecution’s

inconsistent evidence must be extended to the Petitioner on

the principle of parity. The failure of the courts below to

recognize this inseparable nature of evidence has resulted in

a manifest miscarriage of justice. As such this point is also

determined in favour of the Petitioner.

6. JUDICIAL DETERMINATIONS AND CONCLUSION

6.1. Following the detailed analysis of the evidentiary record and

the specialized legal framework governing railway property,

this Court summarizes its findings and proceeds to the final

determination.

6.2. This Court holds that the statutory "Reverse Burden" under

Section 3(a) of the RP(UP) Act is not an automatic starting

point for the prosecution. It is a dormant provision that only

awakens once the prosecution proves the "foundational facts"

beyond a reasonable doubt. The hallmark of these facts is the

establishment of the Petitioner’s exclusive and conscious

control over the property. In the present case, the

prosecution's narrative suffered a terminal fracture regarding

the Locus Delicti. By vacillating between a "private godown"

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CRR 1825 OF 2022

and a public "railway path," and failing to provide any

documentary nexus (such as a lease or license) between the

Petitioner and the premises, the prosecution failed to cross the

evidentiary threshold. Without proving where and how the

Petitioner was "found" in possession, the legal trigger for

shifting the burden of proof was never activated.

6.3. It is further concluded that the examination of the accused

under Section 313 of the Cr.P.C. is a fundamental safeguard of

Natural Justice, rather than a mere procedural formality. This

Court finds that the failure of the Trial Court to pointedly

confront the Petitioner with the Expert Reports and the

Confessional Statement rendered these core incriminating

materials "dead evidence." A conviction anchored in

circumstances that the accused was never formally invited to

explain or rebut is a procedural nullity. No statutory

presumption, however strong, can override the constitutional

right of an accused to be heard on the specific evidence used

against him.

6.4. Finally, this Court observes a manifest perversity in the

differential treatment of the accused persons. The evidence

against the Petitioner and his acquitted co-accused was

common and inseparable, derived from the same search and

the same seizure memo. Where the prosecution’s evidence is

found "sketchy" or unreliable for one individual, it cannot, by a

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CRR 1825 OF 2022

leap of logic, be deemed "clinching" for another similarly

situated person. In the absence of a legally admissible

distinguishing feature, the benefit of doubt that led to the

acquittal of the co-accused must, as a matter of parity and

logical necessity, be extended to the Petitioner.

6.5. In light of the collapsed evidentiary foundation and the

terminal procedural fallacies identified herein, this Court finds

that the concurrent findings of the Courts below are plagued

by manifest illegality and perversity. To allow a conviction to

stand on such a fragile basis would be to sanction a

miscarriage of justice. Consequently, this Court finds it

necessary to exercise its revisional jurisdiction to set aside the

impugned judgments.

7. ORDER AND DIRECTIONS

7.1. The Revisional Application being C.R.R. No. 1825 of 2022 is

hereby allowed.

7.2. The judgment and order of conviction and sentence dated July

23, 2014, passed by the Learned Judicial Magistrate, 1st

Court, Jangipur, and the affirming judgment dated April 28,

2022, passed by the Learned Additional Sessions Judge, 2nd

Court, Jangipur, are hereby set aside.

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CRR 1825 OF 2022

7.3. The Petitioner, Manjur Sk., is hereby acquitted of the charges.

He is discharged from his bail bonds and shall be set at liberty

forthwith.

7.4. Consequential Directions:

i. The fine amount of Rs.5,000/-, if already deposited,

shall be refunded to the Petitioner upon proper

identification within a period of four weeks.

ii. The seized railway materials shall remain in the custody

of the Railway Protection Force (RPF) for internal

utilization or disposal as per Railway regulations.

iii. Any entries in the RPF’s prosecution registers or the

Petitioner’s criminal antecedents pertaining specifically

to this case shall be updated to reflect this acquittal to

prevent future administrative prejudice.

iv. The Registry is directed to transmit this judgment along

with the Lower Court Records (LCR) to the Courts below

immediately for information and compliance.

7.5. Urgent certified copies of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite

formalities.

7.6. Ordered Accordingly.

(Uday Kumar, J.)