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CASE NO.: Appeal (crl.)  145 of 2008

PETITIONER: Om Prakash

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 22/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Crl.) No.6188 of 2007) DR. ARIJIT PASAYAT, J:   1.              Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Allahabad High Court dismissing  the revision petition filed by the appellant under Section 397,  read with Section 401 of the Code of Civil Procedure, 1973 (in  short ‘the Code’).

3.      Challenge in the revision was to the order passed by  a learned Sessions Judge in Criminal Appeal No.2060 of 1990  by which the order of conviction and sentence, as recorded by  the learned Additional CJM, was confirmed.

4.      Background facts in a nutshell are as follows:

       On getting information on 22.01.1990 that one Truck  No.UP-93, 1665 of Minakshi Traders was being loaded at scrap  yard of Jhansi with Cast Iron Grade-I illegally with the Cast  Iron Grade-II, the inspector R.K. Rajput, along with Dy.  Superintendent M.U. Farooki went to the spot and found a  Truck No.UP-93-1665 near the Auction Hall which was loaded  with Cast Iron Grade II.  Superintendent Incharge called the  Head Constable 878 Taradat Sati and DSK Lala Ram. They  were asked to climb up the truck and take a look, and after  examining, they reported that some Cast Iron Grade-I was  loaded in the truck.  At that point of time, the Contractor, the  present appellant was also present near the Truck along with  some persons.   The Contractor called his labourers and  unloaded the Cast Iron Grade-I from the truck.  It was found  that 22 carat Cast Iron Grade-I were without Tie Bars. Inside  the truck approximately, 7 Tons of Cast Iron Grade-II were  loaded. It was accepted that no Cast Iron Grade-I could have  been loaded.  Necessary examination was done and it was  found that the railway property, i.e. Cast Iron Grade-I was  unauthorizedly being transported.  A complaint was lodged  and after analysing the evidence on record, learned Additional  Chief Judicial Magistrate, Jhansi found the appellant guilty  under Section 3 of the Railway Property (Unlawful Possession)  Act, 1966 (in short ‘the Railway Act’) and sentenced him to  undergo imprisonment for one year with fine of Rs.1,000/-  with default stipulations.   

5.      As noted above, an appeal before the learned  Sessions Judge, Jhansi did not bring any relief to the  appellant and so also was the revision before the High Court.         

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6.      Learned counsel for the appellant took the stand that  the appellant was not the owner of the articles and he was  only a labourer.  It was also submitted that the appellant has  already undergone sentence of more than eight months and  since the sentence is only one year, the same may be reduced  to the period already undergone by the appellant.          7.      From the evidence on record, it was found that the  presence of Cast Iron Grade-I has not been disputed. The  stand presently taken is that somebody else was the auction  purchaser and the appellant had no role to play.  But at all  stages, it appears that the appellant was present near the  truck, he was described as the contractor and in his presence  the analysis was done, and from the material available on  record, it is also clear that he, as the contractor, was asked to  unload the articles and he had called his labourers to unload  the articles.   

8.      Therefore, the finding that he was in unlawful  possession of Cast Iron Grade-I is a finding which does not  warrant interference.  Railway property, as defined in Section  2, clause (d) of the Act reads as follows:          \023Section 2(d)        \023railway property\024 includes  any goods, money or valuable security or  animal, belonging to, or in the charge or  possession of, a railway administration.\024          9.      Section 3 deals with penalty for unlawful possession  of railway property.  The same reads as follows:

       \0233.  Whoever is found, or is  proved to have been, in possession of any  railway property reasonably suspected of  having been stolen or unlawfully obtained  shall, unless he proves that the railway  property came into his possession lawfully, be  punishable-         (a)     for the first offence, with  imprisonment for a term which may extend to  five years, or with fine, or with both and in the  absence of special and adequate reasons to be  mentioned in the judgment of the court, such  imprisonment shall not be less than one year  and such fine shall not be less than one  thousand rupees;         (b)     for the second or a  subsequent offence, with imprisonment for a  term which may extend to five years and also  with fine and in the absence of special and  adequate reasons to be mentioned in the  judgment of the court, such imprisonment  shall not be less than two years and such fine  shall not be less than two thousand rupees.\024 10.     In State of Maharashtra vs. Vishwanath Tukaram (1979 (4)  SCC 23), it was observed that the following ingredients are  necessary to bring in application of Section 3:

(i)     The property in question should be  railway property; (ii)    It should be reasonably suspected of  having been stolen or unlawfully obtained; and (iii)   it should be found or proved that the  accused was or had been in possession of that  property.

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11.     In the instant case, all the ingredients have been  established.  So far as the sentence is concerned, for offence  committed for the first time, a minimum punishment of one  year has been prescribed.  That being so, the courts below  have rightly imposed sentence of one year.                12.     Above being the position, there is no merit in this  appeal which is, accordingly, dismissed.