Hari Swarup, J.
1. This revision has been filed against an order of conviction qf the applicant under Section 3 of the Railway Property (Unlawful Possession) Act, I960 (hereinafter called the Act). The applicant has been sentenced to undergo rigorous imprisonment -for a period of one year. He had been found in possession of railway property which was reasonably suspected of having been stolen or unlawfully obtained.
2. Learned Counsel for the applicant contends that Section 3 of the Act is ultra vires. The relevant portion of the section runs as follows:
Whoever is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable...
(a) for the first offence with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees.
The contention is that the section is bad as it places on the accused the burden of proving that the railway property came into his possession lawfully. No law has been shown which might have placed a bar to such an enactment by the legislature. It is a matter of evidence as to who is to prove a particular fact. The law relating to evidence can always be made by the legislature in respect of any matter. Further there is no conflict between this enactment and the Evidence Act itself. The liability of proving a fact always lies on the person who has special knowledge of it. It is only the person found to be in possession of railway property who can explain how it came into his possession. Learned counsel relied on the decision in S. L. Goswami v. State of Madhya Pradesh. : 1972CriLJ511 . That case has no relevance as no such controversy was raised in that case. The provision cannot therefore be struck down on this ground.
3. The other ground of attack is that under this Act, a person who is accused of being in possession of railway property is treated differently from another who may be charged under a provision of Indian Penal Code for being in unlawful possession of any property other than railway property. There is no merit in this submission also as the two cases, will fall in different classes. An offence is what the Legislature classes as punishable. Any act or omission can be classed as an offence by the Parliament Further, there is no discrimination between two persons found in unlawful possession of railway property, Section 6 of the Act cannot, therefore, be struck down as hitting Article 14 of the Constitution.
4. Learned Counsel contended that the search made in the present case was not in accordance with law, because independent witnesses of the locality had not been examined. No such argument was raised in the court below. Both the courts below have believed the recovery witnesses particularly as their statements are corroborated by the receipt issued by the accused at the time of recovery. Further, the search was of the person of the accused and the question of bringing outsiders did not arise. The finding of recovery cannot, therefore, be set aside on this ground alone.
5. Learned Counsel then contended that the sentence awarded to the applicant was severe. Section 3 of the Act itself prescribes the minimum penalty as one year. Hence the sentence of one year awarded in this case cannot be said to be excessive.
6. Learned Counsel stated that the applicant is entitled to get the benefit of the U, P. First Offender's Probation Act. I do not think the applicant deserves the benefit of this Act. He is himself an employee of the Railway Administration and no exonerating circumstances exist in this case.
7. No case has been made out for interference. The revision Is dismissed.