STATE Vs. VEERAPILLAI

JUDGEMENT

(1.) This appeal by the State is directed against the judgment of the Sessions Judge, Tiruchirapalli, reversing the judgment of the Additional Judicial First Class Magistrate, Tiruchirapalli, who has convicted the accused of an offence punishable under S. 3 of the Railway Property (Unlawful Possession) Act 1966 (hereinafter referred to as the Act), and who has inflicted a fine of Rs. 100.

(2.) On 3-2-1978, at about 5.30 p.m. the accused was apprehended by P. W.2, a Rakshak attached to the Railway Protection Force, Tiruchirapalli, from tools and plant depot of Golden Rock, Tiruchirapalli. The accused was carrying a bag M O 1, containing certain articles. P. W. 2 seized them under a mahazar Ex P 1, as he had a reasonable suspicion that they were stolen properties. Thereupon, he was produced before the Sub Inspector, P. W. 6, with a report Ex P 4, and when examined the accused gave a statement, Ex P 2, wherein he stated as to how he came by the articles which he was carrying in M O 1. His case was that he had picked them from the garbage in the railway yard which is to the West of the factory. A case was registered by P W 6 and the law was set in motion. The trial court, on the evidence of P Ws. 3 and 4, found that the articles M Os 4 and 5 are railway properties and further found that the explanation given by the accused was not acceptable, convicted him as aforesaid and sentenced him to a fine of Rs. 100. In appeal, the learned Sessions Judge acquitted him. Against that order of acquittal, the State has preferred this appeal.

(3.) A perusal of Ex P. 1, mahazar, shows that there were 12 articles inside M O 1 the bagbag. P. W. 2, the Rakshak, who seized the property says that except M Os 3 and 4, there were no other articles. This creates some doubt about the actual seizure of the articles enumerated in Ex P 1. On the top of it, P. W. 2 and P. W. 5 who have attested the mahazar, have turned hostile, and have not supported the prosecution case. We are, therefore, left with the evidence of P. Ws. 3 and 4, the employees of the railway to find out whether the properties in question are railway properties. The inclusive definition of 'railway property' under Sec. 2(d) of the Act says that 'Railway property' includes any goods, money valuable security or animal, belonging to, or in the charge or possession of, a railway administration. My attention was invited to a ruling in Mishit Ranjan v. State of Assam 1982 Cri LJ 2253 (Gau), where Lahiri J. of Gauhati High Court has taken the view that before anyone can be convicted under S. 3 of the Act, it must be established that he was in possession of the railway property which is used or intended to be used in the construction, operation or maintenance of the railway and the prosecution must prove that like article was being used or intended to be used by the railway and that an article which is the property of the railway administration, but which has been discarded or rejected for further use would be outside the definition of the railway property. With respect to the learned Judge, I am unable to agree, for the simple reason that the learned Judge obviously had in mind the definition of the railway property under S. 2(b) of the Railway Stores (Unlawful Possession) Act, 1955 which reads as follows-