Prosecution must prove possession and theft to secure a conviction under the Railway Property Act; absence of evidence warrants acquittal.

JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. This is an application under Section 482 of the Code of Criminal Procedure impeaching the judgment and order passed by learned Additional Sessions Judge, Coochbehar in Criminal Appeal No. 1 of 2009 affirming thereby the judgment and order of conviction passed by learned 3rd Court of Judicial Magistrate at Coochbehar in C.R. Case No. 237 of 2001 under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966, and by the impugned order the petitioner has been sentenced to suffer imprisonment for one year and to pay fine of Rs. 1000/- with a default clause.

2. Fact of the case in short is that on 19th October, 2001 at about 11.30 P.M. one Rajib Kumar Mishra received an information regarding theft in 5623 Up Cochin Express between New Coochbehar and Pundibari Railway Station, Rajib Kumar Mishra along with S.I. M. Prasad, A.S.I. N.C. Sarkar, Head Constable S.C. Roy and Constable Ali Hussain started track searching. At about one hour on 20th October, 2001, when they reached near K.M. 118/9/7-8 in between Pundibari and New Choochbehar, they noticed 4/5 persons were carrying something on their head on the right side of the railway track. They were proceeding towards Pundibari. The police party chased them and caught one of them at K.M. No. 118/9 while others managed to flee throwing away the articles they were carrying. The police personnel identified two of them as Jhola Mia of New Alipurduar and Abdul Mazid @ Uku Mia. The person apprehended introduced himself as Dinesh Barman and seized gunny bags of tea having mark as PW Bill 601632 P-3 Ex GHY-PDY via HWH/MAS dated 11th October, 2001 along with 9 bundles of resoling tyre materials in white plastic bag having railway mark PW Bill No. 573642 P/19 Ex ERS-GHY (M) 1.87 were recovered. The person could not produce any document to justify his possession and ultimately confessed he along with others committed theft from a luggage van of mail train which was going towards New Coochbehar. He was arrested and brought to R.P.F. Post where a complaint was filed against the accused persons. The properties recovered, was seized by the S.I. Rajib Kumar Mishra under a seizure list. The tea bags were found in wet condition and were sold in a public auction on 1st December, 2001 with the approval of the Hon'ble Court and a sum of Rs. 2640 was appropriated as sale proceeds. Jhola Mia and Abdul Mazid surrendered to the jurisdiction of learned Chief Judicial Magistrate, Coochbehar. Police after completion of investigation submitted prosecution report having found prima face case against three accused persons for committing offence under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966.

3. Trial was commenced and learned Chief Judicial Magistrate, Coochbehar in course of trial recorded the testimony of 12 witnesses being examined by the prosecution and recorded order of conviction which was subsequently affirmed by the learned Additional Sessions Judge, Coochbehar. To prove the charge under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 says:

“3. Penalty for unlawful possession of railway property - Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawful 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 o