B.N. Maitra, J.
1. The allegation is that on 8-8-1975, Sub-Inspector, Arun Kumar Paul, along with others went to 25/B, P. K. Tagore Street, Calcutta, and seized certain articles from the factory of Ajanta Aluminium Company. The allegation is that huge quantity of railway goods were recovered. The accused could not satisfactorily explain their possession of such goods. Some witnesses were examined and thereafter charge was framed against the two accused under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. Hence these two Rules at the instance of the two accused.
2. The learned Advocates appearing on behalf of the accused have stated that the identity of the goods in question has not been established. Moreover, the evidence of the investigating officer shows that the articles are all in broken and damaged condition and are not in serviceable condition. The argument is that since the identity of the articles has not been established and since the same are not In serviceable condition, charge should not have been framed against the accused. Reference may be made to the Bench decision in (1962) 66 Cal WN 269 to show that if the allegation is that there was unlawful possession of railway property, the prosecution must establish that the same is in serviceable condition. If the property is not in serviceable condition the prosecution must fail. This principle was approved by Mr. Justice G. K. Mitter in the case of Kashmiri Lai v. State of U. P. in : 1970CriLJ1647 . It has been stated that it must be proved by the prosecution that the property belonged to the railway and It was used or intended to be used for construction, operation or maintenance of the railway administration.
3. P. W. 12 J. N. Sen Gupta, who inquired into the case, has stated in his evidence that the articles seized are old and are in broken and damaged condition. He also says that the same are not in serviceable condition. He cannot say whether such articles are easily available from the scrap dealers. He further says that the articles do not bear the labels which were put and he cannot say whether he produced those articles to the expert for his examination and opinion. P. W. 8 Sailendra Nath Karmakar is the expert regarding the Railway properties. He has admitted that he did not put any identifying mark or signature on the articles which had been examined by him. In this view of the evidence given by these two prosecution witnesses, charge should not have been framed under Section 3(a) of the Act. Since it is admitted that the identification of the goods is not possible and as they are not in serviceable condition charge was illegally framed under Section 3(a) of the Act.
4. The Rules are made absolute and the impugned proceedings quashed.