The definition of railway property under the Railway Property (Unlawful Possession) Act, 1966, is wider than that of railway stores under the Railway Stores (Unlawful Possession) Act, 1955.

( 1 ) STATE of U. P. has come up in appeal against the judgment of Additional District and Sessions Judge, Bareilly, dated 19-1-1971 allowing the appeal of Ram Das and setting aside the judgment of the Special Railway Magistrate 1st Class dated 10th August, 1970 convicting him for an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966.

( 2 ) BRIEFLY stated the case for the prosecution was that on 12-3-1969, at about 1-45 A. M. accused Ram Das was searched at workshop gate by Rakshak Varma Singh and Head Rakshak Kripal Singh and 5 Kg. of copper dust mixed with white metal dust belonging to the railway, was recovered from inside a bag which he was carrying. The recovery was made in the presence of witnesses and after preparing the recovery memo the recovered material was sealed at the spot. Thereafter, the accused, along with recovered material was taken to the police station where a report was lodged, and in due course a complaint under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 was filed and Ram Das was prosecuted accordingly.

( 3 ) IN support of its case the prosecution examined ten witnesses in all. But of them P. W. 1 T. P. Srivastava, P. W. 2 Varma Singh, P. W. 3 Prakash Chand and P. W. 4 Kripal Singh are witnesses of fact, P. W. 5 S. R. Gangoli Incharge Loco Workshop Railway deposed that he examined metal dust recovered from the possession of Ram Das and found it to be railway property. The remaining witnesses produced in the case were more or less of a formal nature.

( 4 ) RAM Das pleaded not guilty and stated that he had been falsely implicated in this case due to enmity. He examined five witnesses in his defence. The learned Magistrate relying on the prosecution evidence and disbelieving the defence case, came to the conclusion that the prosecution had succeeded in establishing its case against Ram Das. In the result he convicted him for an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and sentenced him to one years rigorous imprisonment and a fine of Rs 1,000.

( 5 ) IN appeal, the learned Sessions Judge held that so far as recovery of the metal dust belonging to the railway from the possession of Ram Das was concerned, there was no reason to disbelieve the prosecution witnesses. According to him the learned Magistrate had given cogent reasons for believing them and he did not see any reason to differ from the conclusion arrived at by him. However, relying upon a decision of the Supreme Court in the case of Kashmiri Lal v. State of U. P. 1970 All WR (SC) 500 : 1970 Cri LJ 1647 (SC), he held that as there was no evidence to show that the recovered article, i. e. copper dust mixed with white metal dust, was used or intended to be used in construction, operation or maintenance of railway it could not be said that an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 had been made out. In the result he allowed the appeal and made an order setting aside the conviction and sentence passed against Ram Das.

( 6 ) IN our opinion reliance by the learned Sessions Judge on the case of Kashmiri Lal v. State of U. P. 1970 All WR (SC) 500 : 1970 Cri LJ 1647 (SC) was misplaced. That was a case under Section 3 of the Railway Stores (Unlawful Possession) Act, 1955 and not under the Railway Property (Unlawful Possession) Act, 1966. Section 3 of that Act provided that if any person was found to be in possession of any article of railway stores, reasonably suspected of being stolen or unlawfully obtained and for the possession of which he could not offer a satisfactory explanation, he was to be punished with imprisonment for a term which may extend to five years or with fine or with both. Section 2 defined the railway store as meaning any article which is the property of any railway administration and which is used or intended to be used in the construction, operation or maintenance of railway. It was because of