c KASHMIRI LAL v. STATE OF UTTAR PRADESH September 2, 1969 (S. M. SIKRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.] Railway Stores (Unlawful possession) Act (51 of 1955), ss. 2 and 3- 'Ruilway Stores', what are-Off.ence under s. 3-Jngredienrs and proof. A large nu1nber of parts of machinery bearing railway marks, con· tained 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 un· auctionable, sugg~sting tl'tat they could not have been auctioned and law· fully 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 ins. 2, that is : (i) that the articles are the property of a railway administration (though it is not necessary to prove that they be- long 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 reason- able suspicion of the stores having been stolen or unlawfully obtained. Evidence that the goodi conformed to the railway standards, or that they were new, falls short o the requisite proof, because, an ar_ticle, though it is the property of a railway administration would not be 'railway stores' if the article has been discarded or rejected as .~sek:ss. 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]
Moya/al Rostagir v. State, 66 C.W'I. 269, approved. Observations contra in Udaya Dalai v. State, 30 Cuttack L.T. 275, dis- approved. 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. ff A. S. R. Chari, R. K. Garg, R. A. Gupta anc'. S. C. Agarwal, for the appellant.
H. R. Khanna and 0. P. Rana, for the respondent. (1970] 2 S.C.R. The Judgment of the Court was delivered by Mitter, J. In this appeal by special leave the appellant chal- lenges 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
store.>" are defined to mei> 'l any article–( a) which is the pro- perty 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 therefor. 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 impri- sonment 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 uo.ed 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 th.~ 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 bas been discarded or rejected for further use would be outside the definition of railway stores. ~ailway 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 un- serviceable or out-moded 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 unlawfu1Jy.
It is only when the burden in respect of this is dischari;ed by the prosecu- tion that the onus shifts to the accused to account satisfactorily of his possession of the same. He may, for ;nstance, show that
he bad purchased the property in op.~n market where goods of this c c KASHMIR! LAL v. U, P. STATE (Mitter, J.) !89 kind are usually sold or that he had bought them from someone bona fide in the belief that the vendor had lawfully obtained the same.
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, 2 Sub Inspector attached to the Railway Protec- tion 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 consign- ment 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 J aswant 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 a!J railway stores being parts of a railway engine. It was G1e case for the prosecution that the appellant failed to offer any satisfactory explanation of his possession of the goods. On the strength of the .ovidcncc adduced and principally on the report of Jaswant Singh along with his oral testimony the Magis- trate found him guilty and sentenced him to imprisonment for two years. The conviction was n~aintained by the Sessions Judge and the High Court.
The report made by J as want Singh she .vs that he had examin- ed 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 a'ld '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 an'1 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. 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 dif- ferent words .but only added that he had examined the . articles !Sup.C:I./70-14 (1970] 2 S.C.lt. 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 Moya/al Rostagir v. The State(') wherein it was held that in order to prove that the articles were railway stores it was neces- sacy to establish that the articles in question were not only the property belonging to a railway 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 deci- sion of the Orissa High Court in Udaya Dalai v. The State('). 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 pro.. secution to prove that the incriminating articles belong- ing 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 con- struction, 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 falls 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 use. (I) 66 C.W.N. 269. (2) 30 Cuttack Law Times, 275.
c KASHMIRI LAL v. u. P. STAT!! (Mitter, J.) lU The evidence in the case before us did not establish that the 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 appel- lant directed to be cancelled.
B V.P.S. Appeal allowed.