NISHIT RANJAN BHADRA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioner was convicted under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, for short "the Act", and, sentenced to pay a fine of Rs. 1.000/ -. The conviction and the sentence have been upheld by the appellate court. Indeed the accused is a poor person.

(2.) THE subject -matter of the offence is 7i Kg. of "Assam raw coal", allegedly belonging to the Railway. The petitioner a boiler Khalashi was allegedly found in unlawful possession of coal on 1 -10 -1972 at about 4.30 P. M. He was found carrying two bags, in one he had "raw coal", and, in the other "an iron plate". However, there is no allegation made during the trial that the bags and the iron plate were the "railway properties". P. W. 1 Kalicharan Deka has deposed that he saw the accused coming with the bags, he suspected his movement and apprehended him. The place, he was apprehended was about 50 yards from the wall of the Loco Shed. After about 2 minutes, it is alleged, P. W. 2 Liladhar reached the place. The witness could not say whether the coal belonged to the Loco Shed or not. In fact there was no attempt made by the prosecution to establish that the coal was that of the nearby Loco Shed. The accused was apprehended and handed over to the C. R. P. F. P. Ws. 1 and 2 are Rakshaks of the Railway Protection Force. P. W. 2 did not see the accused until he was apprehended. He said that he took the accused to R. P. F. Officer. P. W. 1 Kali -charan asserted that he did not himself write the ejahar but got it written by someone whose name he could not recollect. However. P. W. 2 Liladhar contradicted P. W. 1 and stated that the ejahar was written by P. W. 1 Kalicharan. Under these circumstances, I must hold that the ejahar is not an admissible document as the same was neither proved by the writer nor by P. W. 1.

(3.) IN the instant case there is no material to hold that the property was owned by or belonged to the Railway nor is there any material to hold that the property was entrusted to the Railway for carriage or as carrier. From the totality of the evidence I am not satisfied beyond reasonable doubt that the coal was a railway property. The conviction of the petitioner under Section 3 of the Act cannot be sustained. The prosecution had the opportunity to prove (a) that the material was used by the Loco shed at the relevant time, which it did not; (b) that it was serviceable material which could be used by the Railway at all material time, which the prosecution has failed to establish; and (c) that such coal was being used at the relevant time by the Railway, by adducing at least one expert witness, which the prosecution has also failed to do. I notice that there is no evidence emanating from P. W. 3, Amalendu Sengupta that it was a serviceable and usable material for the Railway.