SUBRATA TALUKDAR, J. - (1.) IN this appeal u/s 378 of the Code of Criminal Procedure the Eastern Railway through Sub -Inspector/ R.P.F./ Post/ BWN have challenged the Order dated 19th December, 2013 passed by the ld. Chief Judicial Magistrate (for short C.J.M.) at Burdwan in CR case no.139 of 2012 u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short the 1966 Act).
(2.) ACCORDING to the case of the prosecution as recorded in the impugned judgment, on the 20th of February, 2012 an information was received from Security Control, Howrah to the effect that an unknown person was carrying one Exide battery in the compartment of Purbanchal Express. On examination of the information by the Railway staff one 12 Volt Exide battery was found in the Guard Lobby being carried by the accused, who is the opposite party in this appeal. Since the accused failed to produce any valid document in support of possessing the said 12 Volt Exide battery, he was arrested. The prosecution examined several witnesses namely, PWs 1 to 5. Prosecution also marked documents being Exh. 1 to 6. The seized battery was marked as Material Exh. 1. The defence got the opportunity to cross examine the PWs after framing of charge and the Ld. Magistrate upon consideration of the matter found the following: - a) That the prosecution has failed to prove by positive evidence that the property was Railway property and that the accused was found in possession of such property. b) The onus with regard to proving the case of the prosecution lies with the prosecution itself and does not shift to the accused for the purpose of adducing evidence as to the manner in which the property was obtained by him. c) With reference to proof of a charge u/s 3 of the 1966 Act, the same must be proved beyond reasonable doubt. The Ld. Magistrate also relied upon a decision of the Hon'ble Apex Court in State of Maharashtra Vs. Vishwanath Tukaram Umale, 1979 4 SCC 23 which had specified the ingredients of the offence u/s 3 of the 1966 Act. d) With regard to consideration of the fact as to what constitutes stolen property, the Ld. Magistrate was pleased to notice Section 410 of the Indian Penal Code defining stolen property. e) The Ld. Magistrate held that when the article of goods are to be found in the open market and, are common in nature such as an Exide battery, it becomes incumbent on the prosecution to establish that the alleged stolen good is Railway Property as defined under the 1966 Act and, further it was picked up and stolen from the Railway Stores. f) The Ld. Magistrate noticed that the prosecution could not place the stock register of the godown from where it could be ascertained that the Exide battery belonged to the said godown. Importantly, the property found in possession of the accused is not the same as having been stolen from the Railways. The said Exide battery did not have the relevant Railway markings namely, the IR mark.
(3.) IN this connection the cross examination of PW1, one Kripa Sindhu Mukherjee was usefully recorded by the Ld. Magistrate and the same is reproduced as follows: - "The Exide battery is available in market. I do not have knowledge regarding the battery factory owned by railway. There is no monogram of railway in the seized Exide battery. The Exide battery is easily available in the open market. It is not possible on my part to say as to whether this battery attached with the railway department. The driver and guard did not put their signature on the seizure list due to want of time. Burdwan Railway Station is quite busy station and each plat form is highly congested and passengers, hawkers etc. are found running immensely on each plat form. I did not inquire about the place of procurement of the battery. The battery was kept in a wooden box. The said box was not labelled." ;