Kashmiri Lal Vs. State of Uttar
Pradesh [1969] INSC 216 (2 September 1969)
02/09/1969 MITTER, G.K.
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 L.T. 275, disapproved.
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 the 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 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 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 fulfill
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.
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