K. Lahiri, J.
1. The petitioner was convicted under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, for short 'the Act', and, sentenced to pay a fine of Rs. 1.000/-. The conviction and the sentence have been upheld by the appellate court. Indeed the accused is a poor person.
2. The subject-matter of the offence is 7i Kg. of 'Assam raw coal', allegedly belonging to the Railway. The petitioner a boiler Khalashi was allegedly found in unlawful possession of coal on 1-10-1972 at about 4.30 P. M. He was found carrying two bags, in one he had 'raw coal', and, in the other 'an iron plate'. However, there is no allegation made during the trial that the bags and the iron plate were the 'railway properties'. P. W. 1 Kalicharan Deka has deposed that he saw the accused coming with the bags, he suspected his movement and apprehended him. The place, he was apprehended was about 50 yards from the wall of the Loco Shed. After about 2 minutes, it is alleged, P. W. 2 Liladhar reached the place. The witness could not say whether the coal belonged to the Loco Shed or not. In fact there was no attempt made by the prosecution to establish that the coal was that of the nearby Loco Shed. The accused was apprehended and handed over to the C. R. P. F. P. Ws. 1 and 2 are Rakshaks of the Railway Protection Force. P. W. 2 did not see the accused until he was apprehended. He said that he took the accused to R. P. F. Officer. P. W. 1 Kali-charan asserted that he did not himself write the ejahar but got it written by someone whose name he could not recollect. However. P. W. 2 Liladhar contradicted P. W. 1 and stated that the ejahar was written by P. W. 1 Kalicharan. Under these circumstances, I must hold that the ejahar is not an admissible document as the same was neither proved by the writer nor by P. W. 1.
3. However, in the instant case the crucial question is that even if the prosecution story is accepted and believed in its entirety so far as the apprehension of the accused and the recovery of the material, whether they go to establish that the property was owned by or belonged to the Railway or the property was entrusted to it for carriage or as carriers. In this regard P. W. 1 has clearly stated that he could not say if the coal was of the nearby Loco Shed or not. He did not say a word that it was Railway property. P. W. 2 also did not claim that the property belonged to the Railway. Nor did the Investigating Officer, P. W. 4 R. C, Chakravarty made any assertion to that effect. The faint attempt of the prosecution to establish that the property belonged to the Railway emanates from P. W. 3 Amalendu, a Loco Foreman. He is not an expert witness. He claims that the material was sent to him for examination and he opined that such coal was also used in the Railway engines. However, even the police officer investigating the case did not state that he got the material object examined by P. W. 3. Amalendu. Rather, he claimed that it was examined 'by an expert'. But where is that expert? P. W; 3 frankly admitted that he was not an expert, he also admitted that he had no technical qualification. So his opinion is not admissible. He described the coal as 'Assam raw coal' and admitted that such coal was freely available in markets. He had to say that he could not give any reason, that is data, why he bad expressed the opinion that it belonged to the railways. Further, the prosecution has omitted to examine any person from the Loco Shed to testify that it was of the same or similar quality of coal that was used for the railway engines at all relevant time. Further, the prosecution did not obtain the expert opinion. The evidence of P.W. 3 Amalendu is not conclusive and convincing to reach a high degree of certainty that the coal was the property of the Railway. He is neither competent to speak about the quality as an expert nor did he testify that the property belonged to the Railways. Before anyone can be convicted under Section 3 of 'the Act' it must be established that he was in possession of Railway property, which is used or intended to be used in the construction, operation or maintenance of a railway. The prosecution must prove that like article was being used or intended to be used by the Railway. An article which is the property of the railway administration but which has been discarded or rejected for further use would be outside that limit of the definition of the Railway property.
4 In the instant case there is no material to hold that the property was owned by or belonged to the Railway nor is there any material to hold that the property was entrusted to the Railway for carriage or as carrier. From the totality of the evidence I am not satisfied beyond reasonable doubt that the coal was a railway property. The conviction of the petitioner under Section 3 of the Act cannot be sustained. The prosecution had the opportunity to prove (a) that the material was used by the Loco shed at the relevant time, which it did not; (b) that it was serviceable material which could be used by the Railway at all material time, which the prosecution has failed to establish; and (c) that such coal was being used at the relevant time by the Railway, by adducing at least one expert witness, which the prosecution has also failed to do. I notice that there is no evidence emanating from P. W. 3, Amalendu Sengupta that it was a serviceable and usable material for the Railway.
5. It will be seen that coal is a very common article, which is found in open market. Further the small quantity of coal found with the accused was an indigenous product, namely, 'Assam Raw Coal'. When such articles are found everywhere in plenty, the nature of proof that such common article say, water, lubricants, wood etc., found with a person in fact belonged to the Railway, is very heavy. The prosecution must prove that it was picked up or stolen form the Railway stores or stock or from the Railway premises including rolling stock. It is the bounden duty of the prosecution to establish beyond reasonable doubt that the property was 'Railway property' as defined under 'the Act'. The prosecution must prove that the property belonged to or was in the charge of or in possession of a Railway administration. When a person is found or proved to be in possession of such Railway property, either unlawfully obtained or reasonably suspected to have been stolen from the possession of the Railway, the person is liable to be convicted. It appears clear in the instant case that the prosecution has miserably failed to prove the essential ingredients of the offence. As such, taking the totality of the evidence I am constrained to hold that the prosecution has failed to establish its case against the accused and the conviction and sentence must be set aside.
6. In the result, the petition is accepted and the conviction and sentence of the accused are set aside. Fine, if paid, shall be refunded to the petitioner.