Madras High Court
State By Public Prosecutor vs Veerapillai on 5 July, 1985
JUDGMENT
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 MO 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 MO 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 PW 6 and the law was set in motion. The trial court, on the evidence of PWs. 3 and 4, found that the articles MOs 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 MO 1 the bagbag. P.W. 2, the Rakshak, who seized the property says that except MOs 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 Section 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 Nishit 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 -
"'Railway Stores' means any article -
(a) which is the property of any railway administration;
(b) which is used or intended to be used in the construction, operation or maintenance of railway"
The phraseology 'construction, operation or maintenance of the railway' has been deleted and has been replaced by S. 2(d) which has been extracted above. That ruling is therefore not of much help.
4. The article concerned in this case are MOs 3 and 4. MO 3 is a burnt wire roll, as seen from the mahazar Ex P 1 and Ex P 5, the certificate. P.W. 3 speaks about it. He stated that he is an Assistant Shop Superintendent of the Railway Factory at Golden Rock. He works in the Trains Lighting section. This witness is said to have proved that MO 3 is a railway property. All that he says is that wires like MO 3 are used in the railway carriages. He admitted in cross examination that wires like MO 3 are available in open market. MO 3 series are condemned articles. Beyond saying that they are used in carriages, the witness has not stated as to how he is able to identify them as railway properties, more particularly when he says that such wires are available in open market.
5. MO 4 is a push cook spindle P.W. 4 speaks about it. He is an Assistant Shop Superintendent. Ex P 6 is the certificate that he has issued. It is not known whether this witness is competent to identify these articles. He says that the spindle is used for flushing valve used for carriage lavatory in Railway carriages. There are some words as No. IRS/CLF/1902. The witness has not stated as to what these words indicate. The prosecution should have adduced evidence to show as to what these words stand for. In cross-examination, he indicated that MO 4 is not in serviceable condition. He no doubt says that such properties are not auctioned. There should be clear proof of the fact that MO 4 is a railway property before the accused could be convicted of the offence punishable under S. 3 of the Act. The fact that ten more articles are found along with MOs 3 and 4, in the bag MO 1, and that the other articles are not proved to be railway articles also show that the case of the accused that he got the property from the garbage is also quite probable. Further, this is a case of appeal against acquittal.
6. Even though the grounds given by the learned Sessions Judge for acquitting the accused appear to be not correct, yet, his acquittal, in my view, can be supported on the grounds already mentioned. The learned Sessions Judge obviously has not read the depositions properly, for he says that PW 2 is treated as hostile while it was P.W. 1 who was treated as hostile. In an appeal against acquittal, even if two views are possible, the High Court should be slow in reversing the judgment. The appeal is therefore dismissed.
7. Appeal dismissed.