BIRBAL Vs. STATE
LAWS(ALL)-1980-2-13
HIGH COURT OF ALLAHABAD
Decided on February 08,1980

BIRBAL Appellant
VERSUS
STATE Respondents


Referred Judgements :-

SAM AUTAR V. STATE OF U. P. [REFERRED TO]
RAM NARAIN TIWARI V. STATE OF U. P. [REFERRED TO]


JUDGEMENT

P.N.Bakshi - (1.)THE applicants have been convicted u/Sec. 3 of the Railway Property (Unlawful Possession) Act and sentenced to 1 Year's R. I. and fa fine of Rs. 1000/- by the trial court. In default of payment of fine, they have been directed to further undergo 3 months R. I. THEir conviction and sentence have been maintained in appeal by the Sessions Judge, Varanasi, hence this revision.
(2.)I have heard learned counsel for the applicant at great length and have also perused the impugned orders. According to the prosecution case Rajendra Upadhyay and others were patrolling in the Up marshalling Yard, Moghal Sarai at about 11. 20 P. M. on 18th March, 1975. When they reached between the lines nos.10 and 11 in the Yard, they saw two accused-persons standing on line no. 11 towards the north of a Goods Train Wagon. One of the accused was taking out something from the railway wagon and passing on to the other who was standing nearby. The raiding party challenged the accused and flashed torch. Both the accused- applicants were arrested by Satya Narain Singh who was one of the raiding party. these two accused are Rakshaks of the Railway Protection Force, Moghalsarai. Three pairs of Bata Chappals were recovered from the possession of Birbal and 7 pairs of Bata Chappals were recovered from the possession of Sudama. A seizure memo (Ex. Ka. 1) was prepared on the spot by Ram Adhar Ram (P. W. 2) which was signed by the accused. Thereafter, the accused with the recovered aricles were taken to the R. P. F. post where the report was lodged and recovered articles were sealed. On these allegations, the applicants have been prosecuted and convicted as above. Both the courts below on a consideration of the evidence on the record and the circumstances of the case have held the guilt of the accused fully established. I do not find any illegality or perversity in the finding of fact recorded concurrently by both the subordinate courts to warrant interference in revision.
The applicants counsel has argued that the prosecution has failed to prove that the recovered property belonged to Railway Administration. In support of his submission, he cited two decisions of this court, one is, Ram Narain Tiwari v. State of U. P., 1978 CrLJ NOC 203, the other is, Sam Autar v. State of U. P., 1978 ACrR 414. The facts of both these cases are totally different to the facts of the present case and the observations made therein do not apply at all. Railway property has been defined thus under Sec. 2 (d) of the Railway Property (Unlawful Possession) Act. "2 (d). "Railway property" includes any goods, money or valuable security or animal belonging to, or in the charge or possession of a Railway Administration."

It is evident from this definition that Railway property includes two types of properties, one is that property, of which the railway itself is the owner and the other is that property of which the Railway itself is not the owner but is in charge or possession, obviously in the course of its transit from one place to other. The Rulings which have been relied upon by the applicants counsel would be applicable in the first case where the railway claims to be the owner of the property and not in the second case where the railway is not owner of the property. In the instant case in order to prove charge and possession of the railway administrations, Sri Kauleshwar P. W. 5, T. P. clerk has been produced. He has definitely stated that he has checked the goods in the wagon in question and he found that 28 pairs of Chappals were missing. He has also stated that according to the lables 60 pairs of foot wares should have been found in the package which was in the possession of the railway in the wagon in question and was being conveyed through the railway-administration, but only 32 pairs were found there. Thus there was a clear shortage of 28 pairs of Chappals as per the statement of Kauleshwar. The ten pairs of Chappals recovered from the accused- applicants, -mentioned above, were a part of this consignment. There is further evidence on the record to show that the wagon had been broken and both the accused were caught red-handed on the spot. Three pairs of Chappals were recovered from one and 7 pairs of Chappals from another. One accused was seen in the wagon taking out the Chappals and passing them on to the other accused who was standing nearby. All this evidence conclusively established that the Chappals in question were in the possession of the Railway on the relevant date and time and that they found removed by the accused from the railway wagon standing in the goods shed without any authority.

(3.)THE applicant's counsel has urged that clear receipt has been given by the consignee of the package of chappals and therefore, it should be presumed that there is no shortage of chappals. This argument is too farfetched to be accepted. Whether a consignee can make a claim against the railway administration after giving a clear receipt is a different question altogether with which an offence under Sec. 3 of the Railway Property (Unlawful Possession) Act is not connected. What a court has. to see in the circumstances of the present case is whether the goods in the possession of the Railway which were being conveyed and in due course of transit, have been unlawfully stolen or removed by the accused-applicants from the wagons in which the packages containing the chappals had been kept. THEse circumstances are quite sufficient for upholding the conviction of the accused] under Sec. 3 of the Railway Property (Unlawful Possession) Act.
Learned counsel for the applicant has urged that the pairs of Chappals recovered from the accused should have been sealed on the spot. I have already mentioned above that a seizure memo was prepared on the spot by Ram Adhar Ram P. W. 2. This seizure memo has been signed by the accused. There is other oral evidence on the record to prove the recovery of Chappals and the preparation of the Seizure memo on the spot. After this formality was completed, the accused were taken to the R. P. F. post where the report was lodged and the articles/sealed. In these circumstances, I do not find any reason to doubt the correctness and the authenticity of the seizure of the Chappals in question from the possession of the applicants.

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