J.M.L. Sinha, J.
1. This appeal arises out of the judgment and order D/- 16th of December, 1969 passed, by Sessions Judge, Gorakhpur, acquitting the respondent of the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.
2. The facts leading up to the present appeal can briefly be stated as under:
The respondent, during the period in question, was employed as aLoco-shed Driver in the North Eastern Railway at Gorakhpur. On 24th of September 1968 Sri S.L. Mehta and Sri R.S. Pandey, Sub-Inspectors, C.I.D. took a search of his house and recovered a Large amount of property, which according to the prosecution belonged to the railway administration. It included a green dari (Exh. II), a mosquito curtain (Exh. III), four pillow cases (Exhs. V to VIII), 33 Engine headlight bulbs of 250 Watts (Exh. XIII), 5 bulbs of 32 Watts (Exh. XIV), 11 bulbs of 24 Watts (Exh. XV), 2 stainless tumblers (Exh. XVIII) and I bucket (Ext. XIX), all of which carried the I.R. (Indian Railways) mark. A memo was prepared in evidence of that recovery. A charge-sheet in due course was submitted for the prosecution of the respondent for the offence under Section 3 of the Railway Property (Unlawful Possession) Act.
The respondent in his statement in the trial court first denied the entire prosecution case and said that he had enmity with .Indra Bahadur Singh, Driver, and a Constable of the R.P.F. and that both of them had colluded to get him falsely implicated in this case. At the stage of Section 342, Criminal Procedure Code the respondent stated that the entire recovered property was planted on him in collusion with Indra Bahadur Singh, Driver and the Constable of the R. P. F.
3. The prosecution examined nine witnesses in the case. Sri S.L. Mehta, S.I. (P. W. 1) and Rama Shanker Pandey, S.I. (P. W. 2) deposed about the recovery of the aforesaid articles from the possession of the respondent. Prahlad (P. W. 3), Dina Nath (P. W. 4) and Ram Vriksh (P. W. 5) were also examined to prove the same fact but they turned hostile and did not support it. Shambhu Nath (P. W. 6) gave evidence about the articles that were issued to the respon dent from the locoshed. Sri R. P. Srivastava (P. W. 7) and Sri S.N. Datta (P. W. 8) were examined to prove that the articles recovered from the possession of respondent were railway property. Uma Shanker Upadhya (P. W. 9) gave evidence of a purely formal nature.
The respondent did not examine any witness in his defence.
4. The trial court on a consideration of the evidence on record held that the articles mentioned earlier were recovered from the possession of the respondent and were railway property that were stolen or unlawfully obtained and accordingly convicted the respondent under Section 3(a) of the Act and sentenced him to one year's R. I. Feeling dissatisfied with his conviction and sentence the respondent filed an appeal in the court of sessions at Gorakhpur. The learned Sessions Judge accepted the finding of the trial Court regarding the recovery of the earlier mentioned articles from the possession of the respondent. The plea of the respondent that the articles had been planted on him in collusion with Indra Bahadur Singh, Driver and the Constables of the Railway Protection Force was also negatived by the Sessions Judge. The Sessions Judge however, came to the conclusion that the bulbs (Ex's. XIII, XIV and XV), Fog-signals (Exh. XVII) and bucket (Exh. XIX) had been entrusted to the respondent by the Railway Administration itself and consequently it could not be said with regard to those articles that they were stolen property or that they had been unlawfully obtained. According to the learned Sessions Judge, therefore, possession of the aforesaid articles with the respondent could not constitute an offence under Section 3 of the Act. With regard to dari (Exh. II), the learned Sessions Judge observed that even though it carried the I. R. mark and was railway property, such properties are often auctioned and the respondent may have come into possession thereof in consequence of such an auction, without knowing that it was stolen property. The learned Sessions Judge, therefore, held that the possession of dari with the respondent also could not constitute an offence under Section 3 of the Act. The learned Sessions Judge, however, did not say anything with regard to the four pillow covers, two stainless tumblers and the mosquito curtain, all of which carried the T. R. mark. In consequence of the aforesaid conclusion the learned Sessions Judge acquitted the respondent.
5. Feeling dissatisfied with the decision of the learned. Sessions Judge the State of U. P. has preferred this appeal. There is concurrent finding of the two courts below that the dari (Exh. II), mosquito curtain (Exh. VII), four pillow cases (Exhs. V to VIII), 33 Engine headlight bulbs (Exh. XIII), 5 bulbs of 32 Watts (Exh. XIV), 11 bulbs of 24 Watts (Exh. XV), 12 fog-signals (Exh. XVII), 2 stainless tumblers (Exh. XVIII) and a bucket (Exh. XIX) were recovered from the possession of the respondent. The plea of the respondent that they had been planted on him in collusion with the driver and the railway protection force was consistently negatived by both the courts. That finding of the two courts below is based on the consistent evidence of Sri S.L. Mehta (P. W. 1) and Sri R.S. Pandey (P. W.). We have failed to find any infirmity in the evidence of the two sub-inspectors. It is true that the three independent witnesses, who were examined as witnesses of recovery, turned hostile and did not support the prosecution. Both the courts below have however given good reasons for ignoring that fact, we are in agreement with the courts below that all the aforesaid articles were recovered from the possession of the respondent. According to Sri Shambhu Nath Pandey, Head Clerk (P. W. 6), 17 engine headlight bulbs were issued to the respondent. It can also be said on the basis of the extracts filed by Sri Shambhu Nath Pandey that some bulbs of 32 watts and some bulbs of 24 watts (exceeding in number than those actually recovered from the respondent) were also issued to him. It is also apparent from his evidence that a case of fog-signals and a bucket were also issued to him. However, the maximum that can be said on the basis of the statement of Sri Shambhu Nath Pandey and the papers filed by him is that the possession of 17 engine headlight bulbs, five bulbs of 32 watts, 11 bulbs of 24 watts and 12 fog-signals and the bucket by the respondent would not be covered by Section 3 of the Railway Property (Unlawful Possession) Act. It cannot, however, be ignored that the evidence of Sri Shambhu. Nath Pandey docs not account for !he remaining 16 engine headlight bulbs. Since one of the bulbs was fused and four did not carry J. R. mark, we can reduce the number to 11. The evidence of Sri Shambhu Nath Pandey also does not give any explanation for the possession of Dari (Exh. II), mosquito curtain (Exh. III), four pillow cases (Exhs. V to VIII) and two stainless tumblers (Exh. XVIII). Section 3 of the Railway Property (Unlawful Possession) Act reads as follows:
3. Penalty for unlawful possession of railway property. :
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 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.
(b) For the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine 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 two years and such fine shall not be less than two thousand rupees.
From the above, it would appear that once the prosecution succeeds in proving that an accused was in possession of railway property about which a reasonable suspicion exists that it had either been stolen or unlawfully obtained and the accused fails to prove that the property came into his possession in a lawful manner, he has to be held guilty of the offence under that section. Now, according to the evidence, as accepted by both the courts below and also accepted by us, the dari, the pillow cases, the mosquito curtain, 11 unaccounted for engine headlight bulbs and two stainless tumblers carried I. R. (Indian Railways) marks and it should, therefore, be presumed that those articles belonged to the railway department. The respondent also did not controvert this fact. The evidence of Shambhu Nath Pandey (P. W. 6) shows that they were never issued to the respondent. It could therefore be reasonably suspected that they had either been stolen or unlawfully obtained. The onus thereafter lay on the respondent to prove that the property had been obtained by him in a lawful manner, if it were really so.
6. Learned Counsel for the respondent contended that to discharge the burden placed on the respondent under Section 3 of the Act, all that he has to do is to show that the possession of the aforesaid earlier mentioned articles with him could as well be lawful, and that it could be shown from the material elicited in the cross-examination of the prosecution witnesses. Learned Counsel said that the mere fact that the statement made by the respondent does not contain any explanation for the possession of the earlier-mentioned incriminating articles should he held to be immaterial. It was further argued by him that so far as the remaining 11 or 12 engine headlight bulbs are concerned, it is quite likely that they were the left over of the total No. of bulbs issued to the respondent during the last two or three years. Regarding the other articles, namely the Dari the pillow cases, the mosquito curtain and the stainless tumblers, the learned Counsel urged that it is quite likely that they were purchased by the respondent from an auction. Reference in that connection was made to the evidence of Rama Shanker Pandey (P. W. 2), who admitted in cross-examination that some railway property was put to auction through the stores department of the railways. We have given our careful thought to the argument raised, but we are unable to accept the same.
7. Section 3 of the Act has already been reproduced earlier. According to the language contained in the opening part of Section 3, once the prosecution has succeeded in proving that a person is in possession of jrailway property which can reasonably be suspected of having been stolen or unlawfully obtained, he must be held guilty and punished unless that person proves that the property came into his possession lawfully. That is obvious by the word 'shall' occurring therein. A provision almost analogous to Section 3 of the Railway Property (Unlawful Possession) Act is contained in Section 4 (1) of the Prevention of Corruption Act, which reads as follows:
4. Presumption where public servant accepts gratification other than legal remuneration: (1) Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code (or of an offence referred to in Clause (a) or Clause (b) of Sub-Section (1) of Section 5 of this Act punishable under Sub-Section (2) thereof), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
Section 4 (1) of the Prevention of Corruption Act came in for consideration in the case Sailendranath Bose v. The State of Bihar AIR 1968 SC 1292 : 1968 Cri L.I 1484 and it was observed:
But. under Section 4 (1) the court is bound to draw the presumption mentioned therein. The presumption in question will hold good unless the accused proves the contrary. In other words the burden of proving the contrary is squarely placed on the accused. A fact is said to be proved when after considering the matters before it the court either believes it to exist or considers its existence was so probable that a prudent man ought under the circumstances of the particular case to act on the supposition that it exists. The proof given by the accused must satisfy the aforementioned conditions. If it does not satisfy those conditions then he cannot be said to have proved the contrary.
The Supreme Court then referred to the case Dhanvantrai v. State of Maharashtra AIR 1964 SC 575 : (1964) 1 Cri LJ 437 wherein the nature of the proof required to be given by the accused under Section 4 (1) was considered and it was held that the burden resting on the accused person in such a case would not be as light as that placed on him under Section 114 of the Evidence Act and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible (underlining is by us). The Supreme Court then, after making a reference to the case V. D. Jhingan v. State of Uttar Pradesh AIR 1966 SC 1762 : 1966 Cri LJ 1357, observed that the burden resting on the accused will be satisfied if the accused person establishes his case by a preponderance of probability. The Court observed that it is not necessary for an accused to establish his case by the test of proof beyond reasonable doubt.
8. In our opinion the burden imposed on an accused by Section 3 of the Railway Property (Unlawful Possession) Act cannot be lighter than that imposed by Section 4 (1) of the Prevention of Corruption Act. Coming to the facts of the case before us, it is significant to find that the respondent in the instant case did not even offer an explanation for the possession of the earlier mentioned articles. During his examination at the start he denied the entire prosecution case and said that he had been falsely implicated. At the stage of Section 342, Criminal Procedure Code, however, he said that the entire property had been planted on him by Indra Bahadur Singh and the constables of the R.P.F. It would thus appear that in the instant case there does not exist even an explanation of the accused regarding the property proved to have been recovered from his possession, much less any proof of the fact that the property came into his possession in a lawful manner. He had, therefore, to be held guilty under Section 3 of the Railway Property (Unlawful Possession) Act and punished thereunder.
9. The argument raised by learned Counsel for the respondent that the respondent must have been issued engine headlight bulbs during the years preceding 1967 to 1969 and that 11 or 12 unaccounted for bulbs should be presumed to be the balance in hand of the respondent out of the bulbs issued to him during the last several years cannot be accepted because the respondent himself did not set up such a plea. The argument raised by learned Counsel for the respondent that as regards dari, mosquito curtain and stainless tumblers, it should be presumed that the respondent may have purchased them during an auction of railway property can also not be taken into consideration because the respondent did not take up such a plea. It may further be pointed out that even if the respondent had taken such a plea, it may not have been sufficient, for according to the language contained in Section 3, he had to prove that he came into possession of the property in question in a lawful manner. A mere plea without proof was insufficient. If the respondent wanted to contend that the remaining 11 or 12 engine headlight bulbs were the surplus left with him out of the supplies made to him during the preceding years, he should have set up such a plea and should have proved that fact either by summoning the relevant records through Shambhu Nath Pandey (P. W. 6) or through some other witness, to be examined in his defence. Similarly if the respondent wanted to contend that the Dari, the mosquito-curtain and the tumblers were purchased by him at an auction of the railway property, he should have set up that plea and should have either elicited proof of that fact in the cross-examination of the prosecution witnesses or should have adduced evidence about it in his defence. He did neither. It cannot, therefore, be presumed that the 11 or 12 unaccounted for engine headlight bulbs, which were in possession of the respondent, is surplus out of the bulbs issued to him during the last several years, nor could it be presumed that the dari, the mosquito curtain and the stainless tumblers were purchased by the respondent at some auction.
10. The learned Sessions Judge has given a finding about the dari to the effect that it may have been obtained by the respondent in an auction without knowing that it was stolen property or property obtained in an unlawful manner. Since, however, the respondent himself did not take up that plea, it was not open to the learned Sessions Judge to invent that explanation for him.
11. To sum up, since the respondent was proved to have been in possession of 11 engine headlight bulbs (not accounted for), dari, mosquito-curtain and two stainless tumblers, about which it could reasonably be suspected that they were either stolen or unlawfully obtained, and since the respondent failed to prove that the aforesaid properties came into his possession by a lawful manner, he was clearly guilty under Section 3(a) of the Railway Property (Unlawful Possession) Act and was rightly convicted of that charge by the trial Court. The conclusion arrived at by the learned Sessions Judge was erroneous and should be set aside.
12. Learned Counsel for the State urged that in view of the language contained in Section 3(a) of the Act, the accused should have been convicted, in the absence of special and adequate reasons to be mentioned in the judgment, to imprisonment not less than one year, together with fine not less than one thousand rupees. According to learned Counsel for the State, the trial Court committed an error in sentencing the respondent to one year's R. I. without awarding him the sentence of fine of rupees one thousand. We do not agree with that interpretation of Section 3(a). In the opening part of Clause (a) of Section 3 it is clearly stated that for the first offence an accused can be sentenced to imprisonment which may extend to five years, or with fine, or with both. It is thereafter that clause states that 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. In our opinion, this only means that in case a court decides to sentence an accused only to imprisonment, and there do not exist any, special and adequate reasons for giving a lesser sentence, the sentence of imprisonment should not be less than one year. Similarly, if the court in a particular case chooses to sentence an accused to fine only, and there are no special or adequate reasons to reduce the fine, the fine should not be less than one thousand rupees. To interpret the latter part of Clause (a) of Section 3 to mean that the sentence of imprisonment and fine both are obligatory would be inconsistent with the opening part of Clause (a). In our opinion, therefore it was not necessary for the trial court to have also sentenced the respondent to fine along with the sentence of imprisonment of one year's R. I. awarded to him.
13. This appeal is accordingly allowed. The judgment and order dated 16-12-1969 passed by the Sessions Judge acquitting the respondent of the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act is set aside and the judgment and order of the trial court dated 13th October, 1969 convicting the respondent under the aforesaid charge and sentencing him to one year's R. I. are restored. The respondent shall be taken into custody and sent to jail to serve out his sentence.