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PETITIONER: KASHMIRI LAL

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 02/09/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M. REDDY, P. JAGANMOHAN

CITATION:  1970 AIR 1868            1970 SCR  (2) 187  1969 SCC  (2) 706

ACT: Railway Stores (Unlawful possession) Act (51 of 1955), ss. 2 and  3-’Railway  Stores’,  what  are-Offence  under  s.   3- Ingredients and proof.

HEADNOTE: A large number of parts of machinery bearing railway  marks, contained  in  bags of metal scrap booked for  transport  by lorry by the appellant, was seized by the Railway police and the appellant was charged with an offence under s. 3 of  the Railway  Stores (Unlawful Possession) Act, 1955. The  expert on  railway  machinery parts certified that the  goods  were unactionable,  suggesting  that  they could  not  have  been auctioned and lawfully purchased by any third party, but  in court,  he  gave evidence and made a  categorical  statement that he could not say if the articles were auctioned in  the market  or  not.   The  appellant  was  convicted  and   the conviction was confirmed by the High Court. In appeal to this Court,     HELD:  Before  anyone can be charged  with  the  offence under s. 3, the prosecution must show  that the articles  in his possession are ’railway stores’ as defined in s. 2, that is:  (i)  that the articles are the property  of  a  railway administration  (though  it is not necessary to  prove  that they  belong to any particular railway administration);  and (ii)  that  they  are used or intended to  be  used  in  the construction,  operation or maintenance of a  railway.   The prosecution  must  also  show  that  there  was  cause   for reasonable  suspicion  of the stores having been  stolen  or unlawfully  obtained. Evidence that the goods  conformed  to the railway standards, or that they were new, fails short of the  requisite proof, because, an article, though it is  the property  of a railway administration would not be  "railway stores’  if  the article has been discarded or  rejected  as useless.  Since the evidence in this case did not  establish that  the  goods  were used or intended to be  used  in  the construction,  operation  or maintenance of  a  railway  the charge must fail. [188 D---F, E--H; 189 F--H] Moyalal Rostagir v. State, 66 C.W.N. 269, approved.     Observations contra in Udaya Dalai v. State, 30  Cuttack

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L.T. 275, disapproved.

JUDGMENT: CRIMINAL   APPELLATE  JURISDICTION:Criminal  Appeal No.  65N of 1968.     Appeal  by  special leave from the judgment  and  order, dated  October 5, 1967 of the Allahabad High Court,  Lucknow Bench in Criminal Revision No. 152 of 1966.     A.S.R.  Chari, R.K. Garg, R.A. Gupta and  S.C.  Agarwal, for the appellant. H.R. Khanna and O.P. Rana, for the respondent. 188 The Judgment of the Court was delivered by     Mitter,  J.   In  this  appeal  by  special  leave   the appellant  challenges  his  conviction under  s.  3  of  the Railway Stores (Unlawful Possession) Act, 1955.     The Act is a measure providing for punishment of persons in   unlawful  possession  of  railway  stores  who   cannot satisfactorily  account  how  they  came by  the  same.   By section   2  "railway  stores"  are  defined  to  mean   any article---(a)   which  is  the  property  of   any   railway administration,  and  (b)  which is used or intended  to  be used  in  the construction, operation or  maintenance  of  a railway.  Section 3 defines the offence as also the  measure of punishment therefore.  It reads:                      "If  any person is found, or is  proved               to  have been in possession of any article  of               railway  stores  reasonably     suspected   of               being  stolen  or  unlawfully obtained,    and               cannot    account   satisfactorily   how    he               came      by   the  same,    he    shall    be               punishable   with   imprisonment  for  a  term               which may  extend to five years, or with fine,               or with both."     Before anyone can be charged with the offence under s. 3 it must be shown that he was in possession of railway stores which  by  the definition of section does  not  include  all articles   which   are’   the   property   of   a    railway administration but only those which are used or intended  to be  used in the construction, operation or maintenance of  a railway.   Mere unlawful  possession of the property of  any railway  administration is not an offence.  The  prosecution must  also prove that the articles were being actually  used or  were intended to be used for by the railway.   Thus  any article  which is the property of a  railway  administration but  which  has been discarded or rejected for  further  use would be outside the definition of railway stores.   Railway stores may be new or old and an offence may be committed  in respect   of  stores  of  either  kind.   If   the   railway administration has no further use of them be they new or old as  in  the case  where they have  become  unserviceable  or outmoded no  person can be  charged with an offence under s. 3  in respect thereof. It is only when the articles  satisfy the definition of railway stores that the prosecution can be successfully   launched  against  a  person   in    unlawful possession  thereof.  Even in such a case.  the  prosecution must first adduce evidence to show that there was cause  for reasonable   suspicion  of  the  stores   being  stolen   or obtained unlawfully.  It is only when the burden in  respect of  this  is  discharged by the prosecution  that  the  onus shifts  to  the  accused to account  satisfactorily  of  his possession of the same.  He may, for instance, show that  he had  purchased  the property in open market where  goods  of

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this 189 kind  are  usually  sold or that he  had  bought  them  from someone bona fide in the belief that the vendor had lawfully obtained the     The facts in this case are as follows.  On  the strength of  some information received on 28th July, 1964  that  some stolen  railway  property  was being  sent  out  of  Lucknow through  a motor transport agency, a Sub Inspector  attached to  the  Railway  Protection Force along  with  another  Sub Inspector  of  Police  searched the premises  of  the  motor transport  company  at Lucknow the same night.   The  search which  took place in the presence of the appellant  and  the manager  of  the transport  company  revealed that  a  large number  of parts  of  railway  machinery  (railway  engines) bearing  railway marks were contained in  23 bags  of  metal scrap  booked the same day by the appellant for  consignment to  Jullunder.  The usual formality of preparing a  recovery memo  and  the sealing of goods in bags in the  presence  of witnesses was gone through.  One Jaswant Singh, described as an  expert of railway machinery parts and Foreman and  Chief Inspector of N.E. Kotwali Chowk, Lucknow, examined the goods said  to  be railway stores and kept in 11 bags and  made  a report to the effect that they were all railway stores being parts  of  a  railway  engine.  It  was  the  case  for  the prosecution  that  the  appellant   failed   to  offer   any satisfactory explanation of his possession of the goods.  On the strength of the evidence adduced and principally on  the report  of Jaswant Singh along with his oral  testimony  the Magistrate   found   him  guilty  and   sentenced   him   to imprisonment  for two years.  The conviction was  maintained by the Sessions Judge and the High Court. The report made by Jaswant Singh shows that he had  examined the  material  which  he  classified  under  38  heads   and described the same as unauctionable property.  Against  each item he put a remark either "O" or "N", ’O’  signifying  old goods  and   ’N’  meaning new ones.   The  report  seems  to suggest  that the goods being  unauctionable a  third  party could   not   lawfully  obtain  possession  of   the   same. Curiously in his testimony before the court although he said that he had prepared’ the report and signed the same he made no  statement to the effect that the contents of the  report were correct.  His definite averment was:                  "Railway   engine  is   auctioned  in   the               market.   I    cannot say if  these   articles               were   auctioned in the    market.   I  cannot               say  if  these articles were  auctioned     Or               not." In  his cross examination he repeated the same  averment  in ’different  words  but only added that he had  examined  the articles 1Sup. C.I./70--14 and  they were parts of an engine and that railway  articles were  mixed  with  other  goods  in  the  bags.   From   his deposition  it is not possible to spell out any averment  to the effect that the items mentioned in his report were  used or  intended  to be used in the construction,  operation  or maintenance of a railway.     In  our view there was no evidence before the courts  to prove  that the articles seized were railway  stores  within the meaning of s. 2 of the Act.  Our attention  was drawn to the case of Moyalal Rostagir v. The State(1) wherein it  was held  that in order to prove that the articles were  railway stores  it was necessary to establish that the  articles  in question  were not only the property belonging to a  railway

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administration but they were used or intended to be used for the  construction  or  operation of a railway.  Counsel  for the  respondent however cited a decision of the Orissa  High Court  in Udaya Dalai v. The  State(2). The material  seized in  that  case were tie-bars and iron  sleepers  which  were brand  new.   According to the learned Judge of  the  Orissa High Court:                      "  ....  section 2 of the Act does  not               require  the  prosecution to  prove  that  the               incriminating   articles   belonging   to    a               particular  railway.   From the   evidence  of               P.W.  5 it can be reasonably inferred that  as               the  seized articles were found to conform  to               the  specifications  of  the  Indian   Railway               Standards they held that they belonged to  any               of   the  railways  in  India.   His   further               evidence  that they were ’brand new’  is  also               sufficient to show that they were intended  to               be  used  in the  construction,  operation  or               maintenance of the railway." In  our view although the prosecution is not called upon  to prove  that  the  goods belong  to  any  particular  railway administration  it has to establish that the  articles  were the  property of a railway administration.  Evidence to  the effect  that  the goods conformed to the  Railway  Standards fails  short  of such proof.  In most cases  the  burden  of proof in this respect may be discharged by leading  evidence about   the  identifying  marks  on  the  goods   or   some, peculiarity  of  the goods not to be found in cases  of  non railway  goods. Again the mere description of the  goods  as new  would not fulfil the  requirements of s.   2(b).   Some evidence will have to be led to the effect that the goods of the   kind   were   being  actually  used   by   a   railway administration  and  that the goods were  in  a  serviceable condition.   In the case of goods which had not been put  to use evidence would have to be led to establish that they had been manufactured for such us,. (1) 66 C.W.N.  269.                (2) 30 Cuttack Law  Tims, 275. 191     The  evidence ’in the case before us did  not  establish that goods were railway stores within the meaning of s. 2 of the  Act and as such the question of punishment under  s.  3 did not arise. The appeal will there be allowed and the bail bond of the appellant directed to be cancelled. V.P.S.                                     Appeal allowed. 192