Judgment U.N.Sinha, J. 1. There are two petitioners in this case named Kishun Poddar and Ramji Poddar. Both of them have been convicted under Sec.3 of the Railway Stores (Unlawful Possession) Act, 1955, being Central Act No. 51 of 1955. Each of them has been sentenced to undergo rigorous imprisonment for two years. 2. The prosecution case was as follows: The police cases had been lodged about the theft of some brass-bearings etc., said to have been stolen from the Ganga Bridge Railway Stores. Shyam Sundar Singh, an Assistant Sub Inspector of Police attached to Garhara Out-Post, had received some confidential information, as a result of which on the 26th of February 1958, at about 5.25 p. m. he went to Teghra Bazar, and searched a shop belonging to one Jageshwar Mahton. This Jageshwar Mahton had also been tried in this case along with these two petitioners, but he has been acquitted. Shyam Sundar Singh, on the search, found 2 maunds 32 1/2 seers of piece of brass-bearing and 12 1/2 seers of other miscellaneous articles. These were found in two bags. According to the prosecution case, all these articles were railway materials. Amongst the articles found and seized by Shyam Sundar Singh, were the subject-matter of the charge, namely, some brass-bearing marked as Exts. 1 series. The two petitioners who were present at the shop, were arrested. According to the prosecution case, the articles in question in this case had been brought by the petitioners to Jageshwars shop for sale. Substantially upon these allegations, the petitioners were prosecuted in this case. 3. The defence case of the petitioners was that on the day previous to the day in question, they had purchased a pony of Keotakothi, Dalsinghsarai, and in the morning of the 26th February 1958, they were returning with the pony. While passing through Teghra Bazar, they found a large number of persons assembled near the shop of Jageshwar Mahton. The shop was being searched by the police. The petitioners haulted, and they were wrongfully arrested by the police. According to the defence case, they had no concern with the articles, which are the subject-matter of the charge. Two defence witnesses were also examined on behalf of the petitioners. 4. The shop was being searched by the police. The petitioners haulted, and they were wrongfully arrested by the police. According to the defence case, they had no concern with the articles, which are the subject-matter of the charge. Two defence witnesses were also examined on behalf of the petitioners. 4. Upon a consideration of the materials on record, the petitioners were convicted by the learned Judicial Magistrate, under Sec.3 of Act 51 of 1955, as well as under Sec. 414 of the Indian Penal Code. On appeal, the convictions of the petitioners under Sec.3 of Act 51 of 1955 have been affirmed, whereas their convictions under Sec. 414 of the Indian Penal Code have been set aside. 5. The question of law raised in this case arises out of an interpretation of Sec.2 of Act 51 of 1955, and it is quoted here in extenso ; "2. In this Act, railway stores means any articles-- (a) which is the property of any railway administration; and (b) which is used or intended to be used in the construction, operation or maintenance of a railway." The argument that had been advanced before the learned Additional Sessions Judge on behalf of the petitioners was this. It had been contended that the prosecution should have proved that the brass-bearings in question were (a) the property of the railway administration, and (b) were intended to be used in the construction, operation or maintenance of a railway. This question of law had arisen, because the brass-bearings appeared to be used brass-bearings, which had been stored in the stores of the Ganga Bridge project, after they had been replaced with new brass-bearings. It was, therefore, urged before the learned Additional Sessions Judge, that, as the brass-bearings had been taken out of use and had been stored, the prosecution had to prove that these brass-bearings were still intended to be used in the construc- tion, operation or maintenance of a railway. The learned Additional Sessions Judge had held that the expression "intended to be used" is synonymous with the expression "is intended to be used", and that it should be proved that there is a present subsisting intention to use the articles in question, in the construction, operation or maintenance of a railway. The learned Additional Sessions Judge had held that the expression "intended to be used" is synonymous with the expression "is intended to be used", and that it should be proved that there is a present subsisting intention to use the articles in question, in the construction, operation or maintenance of a railway. After coming to this conclusion, the learned Judge has held that there was no doubt that the brass-bearings were railway properties, and that there was nothing to show that the requisite intention did not exist, and that it may reasonably be presumed that they were kept in store for the purpose of the railway. Learned Counsel for the petitioners has submitted that the conclusion of the learned Additional Sessions Judge to the effect that the ingredients of Sec.2(b) had been proved, because it may reasonably be presumed that the brass-bearings had been kept in store to be used in the construction, operation or maintenance of a railway, is erroneous. It is contended that no presumption could have been brought in aid, to find out whether particular railway properties were intended to be used in the construction, operation or maintenance of a railway. According to learned Counsel, this was a matter of proof, and in the absence of proof, the prosecution is bound to fail. Learned Counsel for the petitioners has urged that the result of the Legislature defining "railway stores" in Sec.2 of Act 51 of 1955 must be taken to be that articles which are not fit for use, must be automatically excluded from the definition, unless positive evidence is adduced that they were still intended to be used for the purpose mentioned in Sec.2 (b) of the Act. 6. In my opinion, whatever may be the substance of the argument of learned Counsel for the petitioners with respect to the finding of the learned Additional Sessions Judge, that it may reasonably be presumed in this case that the brass-bearings had been stored for the use of the railway, the conviction of the petitioners must be maintained upon 3 correct interpretation of Sec.2 of the Act. For the purpose of this interpretation, I will proceed on the footing that the brass-bearings in question had been used as such, in the operation of the railway, and that on the day they were seized from the shop of Jageshwar Mahton they were not in actual use. For the purpose of this interpretation, I will proceed on the footing that the brass-bearings in question had been used as such, in the operation of the railway, and that on the day they were seized from the shop of Jageshwar Mahton they were not in actual use. That brass-bearings are used in the operation of a railway was found by the learned Trial Judge in paragraph 7 of his judgment. According to the prosecution evidence led in the case, these particular brass-bearings had been replaced and had been stored in the store house of the Ganga Bridge project. Now, the interpretation of Sec.2(b) of the Act should be that an article must be considered to be "railway store", if the article is generally used in the construction, operation or maintenance of a railway, or is intended to be used in the construction, operation or maintenance of a railway. In this view of the matter, on the prosecution case that the brass-bearings had once been actually used in the operation of a railway, these articles, in my opinion, are covered by the words "which is used", mentioned in Clause (b) of Sec.2 of the Act. If the articles have actually been used in the operation of a railway, and they are still the property of the railway, in my opinion, the articles will fall within Sec.2 (a) and will be covered by the words "which is used in the operation of a railway" in Sec.2(b). In my opinion, the intention to be gathered from the words used in Sec.2 (b) of the Act should be that "railway stores" include articles which are in use, or which have been in actual use in the operation of a railway. The interpretation put upon Section 2(b) of the Act by the learned Counsel for the petitioners, ignores the word "used" in that section. If the argument of learned Counsel is correct, then ail that was necessary, was to state in Clause (b), that the article is intended to be used in the construction, operation or maintenance of a railway, in my opinion, upon the facts alleged and proved in this case, the conviction of the petitioners under Sec, 3 of Act 51 of 1955 must be upheld upon a correct interpretation of Sec.2 of the Act. 7. 7. Learned Counsel for the petitioners has further urged that the prosecution case did not deserve to bet accepted on merits, in as much, as the principal wit nesses against the petitioners, namely, Jagdish Sao (P. W. 4) and Sitaram Sao (P. W. 5), had not been named in the first information report, although according to their evidence in court, they had seen the petitioners keeping certain bags at the shop of Jageshwar Mahton, which are said to have contained, amongst other things, the brass- bearings in question. In my opinion, this contention can not be accepted at this stage. This argument had been advanced before the learned Additional Sessions Judge, and in spite of that argument, the evidence of P. Ws. 4 and 5 were accepted by the final court of fact. 8. In my opinion, the convictions of the petitioners must be upheld, although on reasons different from those mentioned by the learned Additional Sessions Judge. The application is, therefore, dismissed, and the rule issued by this Court discharged. G.N.Prasad, J. 9 I agree.