R.L. Narasimham, C.J.
1. The two petitioners were convicted under Section 3 of the Railway Stores (Unlawful Possession) Act, 1955 and sentenced to uudergo rigorous imprisonment for four months each, by the Sub-Divisional Magistrate, Chatrapur and their appeal was also dismissed by the learned Sessions Judge.
2. The prosecution case was that on 18-2-1981 at about 1 a.m. the A. S. I. of Police, Rambha with some of his staff, detected a bullock cart coming on the road accompanied by the 2 petitioners. The bullock cart was immediately seized and railway materials consisting of iron sleepers, tie bars etc. were found in the cart. They were then sent up for trial for the aforesaid offence and convicted.
3. So far as the seizure of the materials from the bullock carts is concerned, there is ample evidence on the side of the prosecution which has been believed by the two Courts, The evidence of A. S. I. of Police is amply corroborated by that of the village Munsif Gadadhar P. W. 1 and the Talavari, P. W. 2 who stated that they saw the two petitioners sitting on the cart and also found the Railway materials there.
The petitioners, however, put forward a plea that they were innocent cartmen, taking the bullock cart towards Ranpur and that the A. S. I. Compelled them to pat the iron materials in the cart and then entangled them in this false criminal case.
The story was rightly disbelieved by the two. lower Courts in view of the clear testimony of the prosecution witnesses including P. Ws. 1 and 2. It must therefore be held that they were detected while remaining in possession of the bars and iron sleepers, and that they have given no satisfactory explanation to account for their possession.
4. It is true, as urged by Mr. Murty, that before the petitioners can be convicted under Section 3 of the Railway Stores (Unlawful Possession) Act 1955, the prosecution must affirmatively establish that (i) the articles were the property of any railway administration and (ii) they were used or intended to be used in the construction, operation or maintenance of a railway (see Section 2 of the Act). If these ingredients are established and the prosecution further proves that the accused persons were in possession of such articles then by virtue of Section 3 of that Act, the burden would shift on the accused persons to account satisfactorily as to how they came into possession of the same.
The prosecution sought to discharge their duty in this case by examining P. W. 5 who was a Permanent Way Inspector of the Railway at Rambha on. 18-2.1961, The seized articles were produced before-him and he stated that the tie bars and iron sleepers, belonged to the Railway. He further stated that these materials were made according to Indian, Railway. Standards and that they can never be available in the local market. The petitioners themselves, during their cross-examination of this witness, brought out from him a further statement that these seized articles were all 'brand new materials.'
It is true that neither he nor any other prosecution witness has stated that these articles belonged to any particular railway or else that they were found missing from any railway station. But Section 2 of the Act does not require the prosecution to prove that the incriminating articles belonged to a particular Railway. From the evidence of P. W. 5 it can be reasonably inferred that as the seized articles were found to conform to the specifications of the Railway standards they may be reasonably held to belong to any of the railways in India. His further evidence that they were 'brand new' is also sufficient to show that they were intended to be used in the construction operation or maintenance of the Rail-way. He has stated that the tie bars were necessary to keep the iron sleepers firm on the ground. Thus, the necessary ingredients to prove the charge are found, in this case, and as the petitioners did not give any explanation to account for their possession their conviction was justified.
5. Mr. Murty then relied on some observations in Moyalal Rostagtr v. The State 66 Cal W N 269. But that case is clearly distinguishable. There old and rusted and Unserviceable railway articles were found in the possession of the accused persons who were also dealers in scrap iron materials, There was also evidence to show that the Railway used to sell those articles at public auction. The learned Judge there-fore held that the mere fact that these materials were once used in the Railway was not sufficient to prove tie charge against the accused persons.
6. The conviction and sentence passed on the petitioners were therefore justified and I see no reason to interfere. But I should point out that the learned Magistrate should not have directed confiscation of bullock carts and the bullocks. While therefore maintaining the conviction and sentence passed on the two petitioners and dismissing the revision petition I further direct that the order of the Magistrate directing the confiscation of the bullocks and the bullock carts should be set aside. They should be returned to the petitioners.