OM PRAKASHversusSTATE OF U.P.

                       [2008] 1 S.C. R. 1087


A                        OM PRAKASH
                                v                                  f'
                                                                               '
                          STATE OF U.P.
                (Criminal Appeal No. 145 of 2008)
                       JANUARY 22, 2008
B
       (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

         Railway Properly (Unlawful Possession) Act, 1966; ss.
    2(d) and 3:
c       Contractor found in possession of cast Iron Grade-II
  Railway properly for transporling unauthorizedly - Trial Court
  found accused guilty of committing offence punishable uls. 3
  of the Act and sentenced him to undergo imprisonment for
  one year - Affirmed by first appellate courl and High Coult -
D On appeal, Held: From the evidence on record, accused was
  found in unlawful possession of the goods in question - All
  the ingredients of s.3 established - Hence, no interference
  with the order of Coutts below called for - Since a minimum
  punishment of one year has been prescribed under the
E provisions, reduction in sentence not allowed - Sentencing -
  Reduction in sentence.
       On receipt of an information, Inspector of Police with
  other police personnel went to the Railway Scrap yard
  and found the accused-appellant in possession of cast
F Iron Grade-I loaded in a truck, allegedly, for transporting
                                                                   7-      •
  the same unauthorizedly. Trial Court found the appellant-
  contractor guilty of committing offence punishable u/s.3
  of the Railway Property (Unlawful Possession) Act, 1966
  and sentenced him to undergo imprisonment for one year.
G Appeal  filed thereagainst was dismissed by the High
  Court and Revision petition was also dismissed by the
  High Court. Hence the present appeal.                            ,   r
         Appellant contended that he was not the owner of
    the goods but was only a labourer; and that the sentence
H                              1087
                OM PRAKASH v. STATE OF U.P                          1088


     may be reduced to the period already undergone by him. A
          Dismissing the appeal, the Court
           HELD: 1.1 From the evidence on record, it was found
     that the presence of Cast Iron Grade-I has not been
     disputed. The stand of the appellant was that somebody B
     else was the auction purchaser of the g'!ods in question
     and he had no role to play, but at all stages, it appears
     that he was present near the truck. He was described as
     the contractor and in his presence the analysis was done,
     and from the material available on record, it is also clear c
     that he, as the contractor, was asked to unload the articles
     and he had called his labourers to unload the articles.
     Therefore, the finding that he was in unlawful possession
     of Cast Iron Grade-I, is a finding which does not warrant
     interference. All the ingredients of s.3 of the Railway D
     Property (Uniawful Possession) Act have been
     established. (Paras - 7, 8 & 11) [1090-C, D, E; 1091-E]
          1.2 So far as the sentence is concerned, for offence
     committed for the first time, a minimum punishment of one
     year has been prescribed. Therefore, the courts below E
     have rightly imposed sentence of one year. (Para - 11)
          State of Maharashtra vs. Vishwanath Tukaram (1979) 4
     sec 23 - referred to.
          CRIMINALAPPELLATE JURISDICTION: Criminal Appeal                  F
     No. 145 of 2008.

          From the Judgment/final Order dated 4.5.2007 of the High
     Court of Judicature at Allahabad in Crl. R. No. 156/2000.

          B.S. Jain, Ajay Veer Singh, Manish Raghav, Anand Mishra          G
     and Dr. (Mrs.) Vipin Gupta for the Appellant.
.\
          Anil K. Jha for the Respondent.

          The Judgment of the Court was delivered by

                                                            .....          H
    . 1089       SUPREME COURT REPORTS                  [2008] 1 S.C.R.


A            DR. ARIJIT PASAYAT, J. 1. Leave granted.
                                                                            ~

       2. Challenge in this appeal is to the order passed by a
  learned Single Judge of the Allahabad High Court dismissing
  the revision petition filed by the appellant under Section 397,
  read with Section 401 of the Code of Civil Procedure, 1973 (in
B
  short 'the Code').

           3. Challenge in the revision was to the order passed by a
     learned Sessions Judge in Criminal Appeal No.2060 of 1990              •
     by which the order of conviction and sentence, as recorded by
c    the learned Additional CJM, was confirmed.

             4. Background facts in a nutshell are as follows:

           On getting information on 22.01.1990 that one Truck
     No.UP-93, 1665 of Minakshi Traders was being loaded at scrap
     yard of Jhansi with Cast Iron Grade-I illegally with the Cast Iron
D
     Grade-II, the inspector R.K. Rajput, along with Dy. Superintendent
                                                                            .\,
     M.U. Farooki went to the spot and found a Truck No.UP-93-
     1665 near the Auction Hall which was loaded with Cast Iron
     Grade II. Superintendent lncharge called the Head Constable
     878 Taradat Sati and DSK Lala Ram. They were asked to climb
E
     up the truck and take a look, and after examining, they reported
     that some Cast Iron Grade-I was loaded in the truck. At that
     point of time, the Contractor, the present appellant was also
     present nearthe Truck along with some persons. The Contractor
     called his labourers and unloaded the Cast Iron Grade-I from
F    the truck. It was found that 22 carat Cast Iron Grade-I were without   ...   (

     Tie Bars. Inside the truck approximately, 7 Tons of Cast Iron
     Grade-II were loaded. It was accepted that no Cast Iron Grade-
     I could have been loaded. Necessary examination was done
     and it was found that the railway property, i.e. Cast Iron Grade-
G    I was unauthorizedly being transported. A complaint was lodged
     and after analysing the evidence on record, learned Additional
                                                                            /
     Chief Judicial Magistrate, Jhansi found the appellant guilty under
     Section 3 of the Railway Property (Unlawful Possession) Act,
      1966 (in short 'the Railway Act') and sentenced him to undergo
H    imprisonment for one year with fine of Rs.1,000/- with default
              OM PRAKASH v. STATE OF U.P. [PASAYAT, J.]                 1090

    .;-


'
          stipulations.                                                         A
               5. As noted above, an appeal before the learned Sessions
          Judge, Jhansi did not bring any relief to the appellant and so
          also was the revision before the High Court.
               6. Learned counsel for the appellant took the stand that B
          the appellant was not the owner of the articles and he was only
          a labourer. It was also submitted that the appellant has already
          undergone sentence of more than eight months and since the
          sentence is only one year, the same may be reduced to the
          period already undergone by the appellant.                            c
                7. From the evidence on record, it was found that the
          presence of Cast Iron Grade-I has not been disputed. The stand
          presently taken is that somebody else was the auction purchaser
          and the appellant had no role to play. But at all stages, it appears
          that the appellant was present near the truck, he was described D
    ~
          as the contractor and in his presence the analysis was done,
          and from the material available on record, it is also clear that
          he, as the contractor, was asked to unload the articles and he
          had called his labourers to unload the articles.
                8. Therefore, the finding that he was in unlawful possession E
          of Cast Iron Grade-I is a finding which does not warrant
          interference. Railway property, as defined in Section 2, clause
          (d) of the Act reads as follows:

• ....         "Section 2(d) "railway property" includes any goods, money
               or valuable security or animal, belonging to, or in the charge
                                                                                F

               or possession of, a railway administration."
                9. Section 3 deals with penalty for unlawful possession of
          railway property. The same reads as follows:
                                                                                G
    \               "3. 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-
                                                                                H
    1091         SUPREME COURT REPORTS                 [2008) 1 S.C.R.


A               (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
B          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
c          court, such imprisonment shall not be less than two years
           and such fine shall not be less than two thousand rupees."
         1O. In State of Maharashtra vs. Vishwanath Tukaram (1979
    (4) sec 23), it was observed that the following ingredients are
    necessary to bring in application of Section 3:
0
           (i)   The property in question should be railway property;
           (ii) It should be reasonably suspected of having been
           stolen or unlawfully obtained; and
E          (iii) it should be found or proved that the accused was or
           had been in possession of that property.
       11. In the instant case, all the ingredients have been
  established. So far as the sentence is concerned, for offence
  committed for the first time, a minimum punishment of one year
F has been prescribed. That being so, the courts below have rightly
  imposed sentence of one year.
         12. Above being the position, there is no merit in this appeal
    which is, accordingly, dismissed.
G S.K.S.                                          Appeal dismissed.