SAWANT,J. - (1.) THIS is a revision application filed by the original accused No. 3 against the order of the Additional Sessions Judge, Thana, in Criminal Appeal No. 34 of 1976, confirming his conviction for the offence under Rule 46(5) read with Rule 36(7) of the Defence of India Rules, 1971, (hereinafter referred to as the said Rules), and sentencing him to rigorous imprisonment for five months and to pay a fine of Rs. 1,000 and in default to undergo simple imprisonment for two months.
(2.) THE revision -petitioner was at the relevant time working as Director, Physical Education in Sonopant Dandekar College of Arts at Satpati, taluka Palghar, District Thana. He was residing at Satpati which is about five miles from the Palghar Railway Station. At about 11 -30 p.m. on December 7, 1975, police Head Constable Ramchandra Jadhav (P.W. No. 2) attached to the Palghar police station received information from his constable that some anti -Government posters were freshly pasted on the platform of the Palghar Railway Station. Head Constable Jadhav who was then in charge of the police station, therefore, rushed to the spot with members of his staff including constable Jadhav (P.W. No. 3). They saw three boys i.e. the original accused Nos. 1, 2 and 4 doing something near the side of the bridge on platform No. 2 of the station. They approached the boys stealthily and saw that the boys were actually busy in sticking gum to the posters and pasting the posters on the platform. When the policemen went to catch these boys, two boys were caught unawares while they were sitting, while the third boy who was standing, ran away. He was later on arrested. It appears that when the police accosted the two boys who were arrested, the police learnt that the petitioner -accused was the person who supplied them the said anti -Government posters. Hence the policemen caught the petitioner -accused who was also standing on the platform itself. Soon thereafter, two panch witnesses including Kher (P.W. No. 1), were called at the police station and in their presence the accused No. 3 i.e. the petitioner was searched. It is alleged that one cloth bag known as Shabnam bag was hanging over the shoulders of the accused No. 3 and during the search of the bag, two posters which have been described in the panchanama as slips, bearing hand -written words 'Anibani Muradabad' were found. They were seized under the panchanama exh. 12. There were other posters or slips found with others with which we are not concerned in the present revision application. Head Constable. Ramchandra Jadhav (P.W. No. 2) immediately lodged a complaint exh. 14 against the accused alleging that the posters were a prejudicial report. After investigation, all the four accused were charge -sheeted and tried before the learned Judicial Magistrate, First Class (Railways) Virar, for offences under Rules 36(7), 43(1), 46(1) read with 43(5) and 46(5) of the said Rules. At the trial, original accused Nos. 1, 2 and 4 pleaded guilty and they were convicted for the offences under Rule 36(7), 43(1) and 46(1) read with 43(5) and 46(5) of the said Rules, and sentenced. However, only accused No. 3 i.e. the present revision -petitioner denied the offence with which he was charged and claimed to be tried. The prosecution led evidence among others, of the panch Kher (P.W. No. 1), P.H.C. Ramchandra Jadhav (P.W. No. 2), P.C. Prabhakar Jadhav (P.W. No. 3) and R.P.F. Rakshak Chaudhari (P.W. No. 4), and on their evidence the learned Magistrate came to the conclusion that the prosecution had proved that the posters in question amounted to 'prejudicial report' and the said report was an incitement to the commission of the prejudicial act within the meaning of Rule 36(7) of the said Rules. He therefore convicted accused No. 3 for the offences under Rules 36(7), 43(1), 46(1) read with 43(5) and 46(5) of the said Rules and sentenced him to suffer R.I. for two months and to pay a fine of Rs. 1,000 and in default to suffer R.I. for two months, on all counts. Aggrieved by the said decision of the learned Magistrate, the accused No. 3 preferred an appeal to the Additional Sessions Judge, Thana. The learned appellate Judge held that the only offence which was proved against accused No. 3 was that under Rule 36(7) read with Rule 46(5) of the said Rules and therefore convicted him of the said offence and sentenced him to undergo R.I. for five months and to pay a fine of Rs. 1,000 and in default to undergo S.I. for two months. He set aside the conviction of the accused for the other offences. It is this order dated May 11, 1976 which is challenged by the petitioner -accused No. 3 in this revision application. Mr. Kamerkar, the learned Counsel appearing for the petitioner -accused No. 3, made three -fold submissions. His first contention was that the two posters or slips which were alleged to have been found in the possession of the petitioner -accused No. 3 were not on record and therefore it should be held that he was in fact not in possession of the same. His second submission was that assuming that the petitioner -accused No. 3 was found in possession of the said posters, the only words which according to the panchanama were written on the same were 'Anibani Muradabad'. These words did not constitute 'prejudicial report' within the meaning of Rule 36(7) of the said Rules and therefore the accused was not guilty of the offence alleged against him, His last submission was that even assuming that the said posters contained the said words, the mere possession of the said posters would not constitute 'prejudicial report' within the meaning of the said Rule. He therefore submitted that for all these reasons the accused was entitled to be acquitted of the offence with which he was charged. As against this, Mr. Kamat the learned public prosecutor contended that there was evidence on record which showed that the said two posters or slips were in fact shown to panch Kher (P.W. No. 1) while he was in the witness box and he had admitted that they were the same which were seized under the panchanama. For some reason, they remained to be marked as exhibits and unfortunately they were also not found in the record of the Court papers. However, that does not mean that there was no evidence to show that in fact the accused was not found in possession of the said two posters. With regard to the second submission, he contended that the words 'Anibani Muradabad' were not the only words written on the said two posters, but as deposed to by the panch, there were further words 'Anibani Radda Kara'. Taken together, both these sets of words constituted 'prejudicial report' within the meaning of Rule 36(7) of the said Rules and therefore, the accused was guilty of the offence. As regards the third submission advanced on behalf of the defence, he submitted that under Rule 46(1)(b) of the said Rules, a person in possession of any document containing any prejudicial report was guilty of the offence under Rule 46(5) and therefore the accused was rightly convicted for being in possession of the said two posters.
(3.) AS regards the first submission advanced on behalf of the defence that there is no evidence to show that the accused was in possession of the said two posters, I find that the said submission is not well founded. The panchanama exh. 12 which is on record mentions that two posters which the panch in his deposition has described as slips, were seized from the cloth bag called Shabnam bag which was on the person of the accused. Panch Kher (P.W. No. 1) has admitted the contents of the said panchanama as true. It also further appears from the notes of evidence on record that these two posters which were Articles 2 and 3, were shown to panch Kher while he was in the box and he admitted that those were the posters which were so seized from the cloth bag carried by the accused. It is true that there is no mention in the record that thereafter these two posters were given any exhibit numbers. Unfortunately it is noticed that the said two posters are also not on record. However these two circumstances viz. the absence of record to show that these two posters were given any exhibit numbers and further the absence of the posters themselves from the record will not go to show that in fact the same were not seized from the petitioner -accused as alleged by the prosecution. The evidence of the panch, the panchanama exh. 12 as well as the evidence of the other prosecution witnesses in that behalf has not been shaken and it will have therefore to be held, as has been held concurrently by both the Courts below, that the two posters were in fact seized from the cloth bag carried by the petitioner -accused. I am therefore unable to agree with the said contention advanced on behalf of the accused that in fact the accused was not in possession of the two posters.;