STATE Vs. SHUBRATI AND OTHERS

JUDGEMENT

(1.) The respondents were tried for the offence punishable under Sec. 3 of Railway Property (Unlawful Possession) Act and acquitted on 25.5.1982 by Judicial Magistrate Ist Class, North Eastern Railway, Lucknow. It is against this order of acquittal that the present appeal has been filed.

(2.) The prosecution story in brief is that upon being arrested on 25.5.1976 by S.I. Rajender Prasad Srivastava, Surendra and Jalil told him that stolen Railway property is being sold by them to respondent No. 1, Shubrati. In pursuance of this information S.I. Rajendra Prasad Srivastava, alongwith other police officers and constables reached the godown of Shubrati where, Bhola, Sant Lal and Bharat Singh were found who opened the door of the godown. They also told him that Hafiz, Munshi of Shubrati was present but upon seeing the police party has fled away. The godown of Shubrati was searched, and from this godown 19 armatures of railway fans wrapped in a gunny bag were found, in another gunny bag 21 armatures of railway fans, in the third bag 54 pieces of aluminium window shutters and in fourth bag 80 ball-bearing big and small, 5 Railway basis marked N.R. were recovered. The defence of Shubrati accused was that the recovered properties were purchased by him in an auction held by the Railways and that they were not stolen property.

(3.) The trial Court acquitted the respondents on the ground that there were irregularity in the recovery, no search warrant was obtained and that none of the accused was present at the time of recovery and therefore, they cannot be held guilty for being in possession of the Railway properties. The report of expert was also called who was of the opinion that the armatures recovered were not in working order. In support of his contention that these articles were purchased by him in e year 1973 Shubrati, respondent, examined D.W. I Sri R.D. Sharma senior erk of the Railways who stated that similar properties as recovered from the Respondents were auctioned in the year 1973 by the Railways, and that one of the persons who purchased the properties in this auction was Shubrati. He brought delivery register and on the basis of entries made therein gave his statement. The Trial Court on the basis of the material placed on record came to the conclusion that on 12.5.1973 discarded fan weighing 331 tons were auctioned and on 28.4.1973 3l tons of fans were auctioned and on 26.5.1973 another lot of discarded Railway property was auctioned. On the basis of this evidence, the Trial Court came to the conclusion that the property recovered from respondent Shubrati was not a stolen Railway property but it was purchased by him in auction.