The burden of proving that property is not railway property or that the accused is a bona fide purchaser of the property is on the accused.

This appeal has been preferred by the State against the judgment dated 26.7.85 passed by the Sessions Judge, Dibrugarh in Criminal Appeal No.3 (1) of 1985.

2. The respondents are scrap iron dealers and regular purchaser of scrap iron from Railway. On 9.9.82, one SI of Railway Protection Force along with his men search the godown and house premises of the respondents in presence of witnesses and found and recovered materials like 27 new bogie coil spring, steel flat spring (14 in numbers) buffer coil spring etc. alleged to have been stolen away. Statements were recorded by RPF personnels after the seizure of the stolen materials. In the trial the Chief Judicial Magistrate found them guilty under section 3(a) of RP (UP) Act, convicted them under the said section and sentence to suffer 1 year RI and to pay a fine of Rs. 2,000/- m default 3 months RI. In appeal, the Sessions Judge acquitted them by his impugned judgment and order as aforesaid.

3. Heard Mr. BB Narzary, learned Senior Public Prosecutor and Mr. NC Das for the respondents. I perused the judgments of the Courts below and the evidence both oral and documents on record.

4. The point for consideration before this Court is that whether the material, seized by the prosecution after search was railway property and whether the respondents were bonafide purchasers of those seized materials.

5. Prosecution's contention was that admittedly the respondents were dealers in scrap materials and admittedly they dealt in scrap material business. But the seized materials were illegally possessed, which were Railway proper ties and knowing them to be stolen properties kept those in their custody.

6. Mr. Narzary, learned Public Prosecutor submits that the cases under RP (UP) Act was special in nature and some privileges are given to the pros­ecution to prove the case. Even not proving the part of admission of the accused persons in respect to the possession of the Railway properties, prosecution was able to prove, beyond all reasonable doubt that it was a case of theft of Railway property and those Railway properties were recovered from the premises of the respondents as stolen properties.

7. From the records it is seen that prosecution witnesses clearly stated that there was report of theft of materials and those materials were mentioned in the Diary. Admittedly commission of theft was not denied by the defence. PW 1, the SDR in his evidence stated that there was report in respect to the theft and subsequently got the order of search and seized the stolen materials from the godown and premises of the respondents. PW 2 Bidya Dihingia of Assam Police Constable, PW 3 Asgar Ali, SI, Assam Police, PW 7, Smti Sakhina Gogoi, Police Constable, PW 9 - Surendra Kumar, Inspector of Railway Police Force corroborated the evidence of each other and were uni­form in their depositions in respect to search warrant, search and seizures. It was also disclosed in evidence on record that though one of the accused respondents (Arjun Shah) was absent at the time of searches (2 nos), the wife of this Arjun Shah and other accused Bhognarayan Shah, his brother was present all along and in their presence materials were seized. The view of the lower appellate Court that those materials were under lawful possession of the respondents has not been substantiated by any defence witness, nor by its suggestions. Even if we discard the confession part of the accused, the corro­borated, uniformed prosecution witnesses were sufficient to bring home the prosecution story.

8. As already discussed, the prosecution did not challenge the fact that the accused persons were the dealer of the iron scraps. But the point for consideration is whether the materials as possessed by bonafide purchase along with other materials purchased by the accused persons. As evidence on record, immediately after seizure the materials were inspected by an expert of the Railway Department. Admittedly there were no identification mark in those properties to

Click Here to Read the rest of this document