The main legal point established is that the choice of the court in determining the punishment under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 allows for the applicability of the Probation of Offenders Act, even in cases where imprisonment is not obligatory.

JUDGMENT :

R.K. Patra, J. - The Petitioners have been convicted u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and released u/s 3 of the Probation of Offienders Act, 1958.

2. By order dated 26-10-1992, a learned Single Judge of this Court issued to the Petitioners calling upon them to show Cause as to why the direction for their release under the Probation of Offenders Act shall not he substituted by substantive sentence because the provisions of Probation of Offenders Act, 1958 are not applicable to the offence punishable under the Railway Property (Unlawful Possession) Act, 1966.

3. The Petitioners along with three others (since acquitted) were placed on trial in the court of the Sub-divisional Judicial Magistrate, Pan posh in 2(c) C.C. No. 245 of 1985/Trial No. 3088/86 on the allegation that they were in unlawful possession of the railway property. It was alleged that in the night of 19-5-1.985 the Railway Protection Force,staff of Bondamunda R.P. F. Post No. 1 were on patrol duty in the marshalling yard of Bondamunda railway station. At about mid-night they found some persons moving in and around railway wagon No. 56-3797 (Ex Mungligaon to Shalimar). The R.P. F. staff rushed to the Spot and found that those persons were removing Harad dal from the said wagon. The Petitioners were \caught red handed and each of them was found carrying gunny bag containing 30 Kgs. of Harad dal. The other three accused persons fled away throwing their Harad dal bags.

4. The plea of the Petitioners was one of complete denial. According to them they were working as skid porters under the local railway administration and at the relevant time there was change of shift duty and thus they were talking with'ne another and the case was falsely foisted at the instance of the R.P. F. staff.

5. In order to prove the case, prosecution.examined six witnesses. The Petitioners also examined one witness on their behalf. P. w. 1 was the Sub-Inspector of R.P. F.. He was on patrol duty along with others. He stated that the Petitioners were caught red handed with gunny bags containing Harad dal. 'In his cross-examination, he admitted that the Petitioners and their co-accused persons were working as railway porters in the marshalling yard and were on duty at the relevant time. This evidence of p. w. 1 does not help the Petitioners in any way inasmuch as the- mere fact that they were porters and were on duty as the relevant time cannot absolve them of the charge. P. w. 1 has clearly stated that the Petitioners were found carrying one gunny bag each containing 30 K. gs. of Harad dal. There is no reason as to why p. w. 1 would falsely implicate the Petitioners. P. w. 4 is the Carriage Bitter working under the local railway administration. He stated that on being called by p. w. 1 he went to the spot and found that five bags of Harad daI were lying scattered on the ground. This indicates that the wagon was tampered with and Harad daI bags were removed from it unautho- risedly. Although prosecution cross-examined p. w. 4 u/s 154 of the Evidence Act,nothing was brought out to discredit his aforesaid statement. P. w. 5 was the R.P. F. constable. In his evidence, be corroborated the evidence of p. w. 1. P. w. 6 was the Investigating Officer and was a witness to the occurrence. His evidence is to the effect that some persons were found coming carrying some materials and they were chased. Out of them Petitioners fell prey from whom two bags containing 30 K. gs. of Harad dal each were recovered. In the face of the evidence of p. ws. 1,4, 5 and 6 and in absence of any other material to suggest that the Harad dal (railway property) came, into Petitioners' possession lawfully. the learned trial Judge and the learned Additional Sessions Judge in appeal have rightly found the Petitioners guilty u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966.

6. The learned Magistrate instead of awarding the Petitioners substantive sentence directed their release u/s