SEKH GUNNY Vs. STATE

JUDGEMENT

(1.) The petitioner was convicted under S.3(a), Railway Property (Unlawful Possession) Act, 1966 (for short, the Act) for illegal possession of about 40 kgs. of raw coal (Bengal coal) and sentenced to undergo R.I. for one month. The conviction was maintained in appeal but the sentence was converted to fine of Rs. 200/- in default to undergo R.I. for one month. The petitioner has moved this Court in revision for reversal of the conviction and the sentence.

(2.) The facts leading to the prosecution case are that on 18-8-79 at about 9.30 a.m. the petitioner was apprehended by P.Ws. 1 and 2, two Sub-Inspectors of R.P.F. inside the railway marshalling yard of Khurda Road railway station carrying about 30 kgs. of coal in a gunny bag in the carrier and 10 Kgs. of coal in another bag hanging from the handle of the bicycle. The petitioner could not satisfactorily explain the possession of the coal and had also no authority to enter inside the marshalling yard even though he was a temporary substituted Token Porter of the railways then. He was brought to the R.P.F. station Where the coal was seized by P.W. 1 under Ext. 2 and thereafter investigation was taken up by P.W. 5 who Collected samples of the coal from the wagon in the marshalling yard and got the coal tested by P.W. 3 along with the Sample collected on 3-9-79 and his opinion having been obtained, the prosecution report was Submitted.

(3.) Mr. S.N. Satpathy, learned counsel appearing for the petitioner in assailing the conviction has urged that the coal in question was never proved to be the railway property and also the element of reasonable suspicion having existed of such property having been stolen was never established to bring home the charge under S.3(a) of the Act against the petitioner. It is his contention that the seizure of the coal was not effected at the spot where the petitioner was supposed to be apprehended but was made inside the R.P.F. station. The coal was never properly tested by the expert and P.W. 3 could not be called an expert and that only the bag containing 10 Kgs. of coal was produced before the court but no other bag alleged to have contained 30 Kgs. of coal was produced and that the seal of the M.O. produced was found to have been broken which circumstances, according to him, make the prosecution case liable to be thrown out as not acceptable.