214 apeal 226-04

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 226 OF 2004

The State of Maharashtra

..Appellant

V/s.

Amirali Mohanbhai Daradia

..Respondent

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Mr. S.H. Yadav, APP for the Appellant/State

None for the Respondent.

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CORAM : C.V. BHADANG, J.

DATE : 06 DECEMBER, 2021

JUDGMENT

1.

By this Appeal, the State is challenging the acquittal of the

Respondent from the offence punishable under Section 3(a) of the

Railway Property (Unlawful Possession) Act, 1966

2.

The prosecution case is that on 19.05.1994 a truck bearing

No. MST-7171 had met with an accident beyond Virar on Mumbai-

Ahmadabad Highway. That truck was found carrying railway

property namely 11,880 metric tons of break blocks. Precisely

according to the prosecution, the truck was found carrying 7 tons of

new break blocks and about 3 tons of old break blocks. Upon

receipt of the said information, the officers visited the spot and

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found that the Respondent was shifting the break blocks from the

truck which had met with the accident in another truck bearing No.

MRL-7125. The truck was brought to Railway Police Force (RPF)

Matunga and a panchnama was drawn in the presence of panchas.

On the basis of the complaint lodged by ASI Dubey PW-3, attached

to the Crime Branch, an offence came to be registered and after

investigation, the Respondent was chargesheeted before the learned

Metropolitan Magistrate at Mumbai.

3.

The learned Magistrate framed charge under Section 3(a) of

the Railway Property (Unlawful Possession) Act, 1966. The

Respondent pleaded not guilty and claimed to be tried. According to

the Respondent, he had purchased the said material in an auction

and he has been falsely implicated.

4.

At the trial, the prosecution examined in all five witnesses

namely PW-1 Kunwarpal Singh, PW-2 Arunkumar Nigam, PW-3

Hiraral Dubey, PW-4 Madhukar Rama Patil and PW-5 Damodar

Trimbak. The Respondent examined himself in his defence and he

produced invoice at Exh. D-2 about purchase of 30 tons of the

railway property in an auction as scrap material.

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5.

The learned Metropolitan Magistrate by a Judgment and

Order dated 17.11.2003 in Criminal Case No. 155/S/1994 has

acquitted the Respondent. Hence, this appeal.

6.

I have heard the learned APP Mr. Yadav for the Appellant.

None appears for the Respondent. With the assistance of the

learned APP, I have gone through the record.

7.

It has come on record that truck bearing No. MST-7171 had

met with an accident beyond Virar and said truck was found to be

carrying property which is subject matter of the present prosecution

which are essentially the Railway break blocks. According to the

prosecution, the Respondent was found loading the said property

from the ill fated truck to another lorry bearing No. MRL-7125. This

incident had happened on 19.05.1994. The truck in which the

property was being loaded was brought to RPF Matunga and a

panchnama was drawn. The prosecution has produced a certificate

dated 01.07.1994 (Article – A) which is signed by Mr. D.D. Lakade,

Shop Superintendent of Iron Foundary of Parel Workshop, which is

also signed by PW-2 Arunkumar Nigam (Exh. P12). It shows that

the property was examined and was found to be break blocks both

new and old ones. Even the new ones were found to be having

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cracks. Although, it is the prosecution case that the new blocks are

not auctioned. The certificate shows that they were damaged an