Judgment 1. This application is directed against the judgment of the Additional Sessions Judge Monghyr, convicting the petitioner under Sec.3 of the Railway Stores (Unlawful Possession) Act, 1955 (hereinafter referred to as the Act) and sentencing him to undergo rigorous imprisonment for one year. The petitioner was also convicted under Sec.379 of the Indian Penal Code, but no separate sentence was recorded on this count. 2. The prosecution case was that on the 13th May 1965, Paramhans Narain Singh, Havildar, along with Mundrika Sah (P. W. 2) both of the Railway Protection Force had gone to a place between Pasraha and Narainpur Railway Stations where a goods train had been derailed and the Down passenger train No. 444 was standing. The time was 8 P. M. when they came near the first class compartment of the passenger train they found the petitioner inside that compartment. On seeing them, the petitioner is said to have behaved in a suspicious manner. These two (persons went inside the compartment and found that the covering of one of the berths of the compartment had been freshly removed. Near him was lying a bundle which on being opened was found to contain rexine of the dimension of 3 cubits x 1- cubits besides other cloths. The petitioner on being questioned gave out a wrong name but later he disclosed his identity. On these allegations Paramhans Narain Singh (P. W. 1) made the report (Exhibit 1) and produced the petitioner along with the seized articles before Bihpur G. R. P. Police Station where the A. S. I. (Swami Nath Prasad) drew up a formal first information report. The investigation was done by Swami Nath Prasad and he, on the 15th May 1965 handed over charge of the case to Abdul Hasan Khan, Officer in charge of the G. R. P. (P. W. 3) who submitted chargesheet. 3. The defence was a plea of innocence which was rejected by the trial Court. The learned trying Magistrate found the prosecution case proved and this finding was upheld by the learned Additional Sessions Judge. 4. On behalf of the petitioner, Mr. A. K. Saran has vehemently argued that on the evidence on record conviction under Sec.3 of the Act and under Sec.379 of the Indian Penal Code cannot be sustained. The learned trying Magistrate found the prosecution case proved and this finding was upheld by the learned Additional Sessions Judge. 4. On behalf of the petitioner, Mr. A. K. Saran has vehemently argued that on the evidence on record conviction under Sec.3 of the Act and under Sec.379 of the Indian Penal Code cannot be sustained. In support of this contention reliance has been placed upon the definition of "railway stores" as given in Sec.2 of the Act Sec.2 says that "Railway Stores" means any article. "(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 is that the prosecution evidence does not establish that the rexine which is the subject of the charge is the property of the railway administration and that evidence is also lacking to show that it was used or it was intended to be used for the construction, operation or maintenance of a railway. In order to appreciate the argument advanced in this regard it would be relevant to refer to the evidence of P. Ws. 1 and 2 who have been examined on the point. Evidence of P. W. 1 is that when he entered inside the compartment he found that the petitioner wanted to flee away by the other door. He found that the rexine of berth No. 3 was removed. On opening the bundle which was with the petitioner, the rexine (a railway property) one dhoti and one chadar were found. The cloth had A. K. Yadav inscribed upon it (the name of the petitioner is Amarendra Kumar Yadav). Similar is the evidence of P. W. 2. He stated that when he entered inside the compartment he found that berth No. 3 which was covered with rexine was freshly cut. With the petitioner a bundle was found and on its opening the rexine (a railway property) was found which was of the same dimension as was the portion of the berth from which rexine had been removed. Then he spoke about the wrong name of the petitioner that he gave out and the petitioner having been taken to the railway police station. Then he spoke about the wrong name of the petitioner that he gave out and the petitioner having been taken to the railway police station. 5 Besides the evidence of these two witnesses there is the report of P. W. 1 marked Exhibit 1 which states that the bundle had a piece of rexine which had "I. R." inscribed upon it. The complaint form states that the rexine was 3 cubits long and if cubits wide and that its price was Rs. 15/-. These are the kind of materials on record to establish that it was an article of the railway stores within the meaning of Sec.2 of the Act. 6. It will be noticed that in this case the rexine which was seized has not been produced nor its non-production explained. The officer who had done the investigation has also not been examined. The berth from which the rexine is said to have been partly cut was also not produced. The point therefore for consideration is whether the materials on record are such as to satisfy the requirements of Sec.2 of the Act. In their evidence P. Ws. 1 and 2 do not say that the rexine had letters I. R. inscribed upon it. In their deposition, after the word rexine railway property is mentioned within buckets. It is not clear whether the witnesses had spoken the words railway property or the trying Magistrate had put these words to explain what these witnesses meant to say. Be that as it may the fact remains that their evidence is silent that the rexine seized contained any mark on it to show that it was a railway property. No doubt the report (Ext. 1) as already stated above contains these two letters I. R., but no mention about them has been made in the evidence of P. W. 1. He has simply proved Ext. 1, but has not said whether it is correct or not; as such no weight can be attached on the report (Ext. 1). 7. Besides the above infirmity in the prosecution evidence there is another reason why on such an evidence no conclusion can be drawn that the rexine was an article of the railway stores. In this connection, Ss. 64 and 65 of the Indian Evidence Act operate to the detriment of the prosecution. 1). 7. Besides the above infirmity in the prosecution evidence there is another reason why on such an evidence no conclusion can be drawn that the rexine was an article of the railway stores. In this connection, Ss. 64 and 65 of the Indian Evidence Act operate to the detriment of the prosecution. Document has been defined in Sec.3 of the Indian Evidence Act which says that it means any matter expressed or described upon any substance by means of letters figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter. The illustration appended to the section says that an inscription on a metal plate or stone is a document. In the case of Emperor V/s. Krishtappa Khandappa. AIR 1925 Bom 327 : (26 Cri LJ 1014) letters imprinted on trees for distinction and identification were held to be document under Sec.28 of the Indian Penal Code. Thus the inscription "I. R." on the seized rexine clearly is a document. Now, under Sec. 64 of the Indian Evidence Act, documents must be proved by primary evidence except in the cases hereinafter mentioned. Sec. 65 enumerates the cases in which secondary evidence relating to documents may be given. The kind of evidence that has been given is manifestly a secondary evidence. But no circumstance exist in the present case to warrant reception of secondary evidence. That being so evidence of P. Ws 1 and 2 on the point whether the rexine seized was an article of the railway stores, is hit by Sec. 64 read with Sec. 65 of the Indian Evidence Act, and cannot be relied upon to come to a conclusion that the rexine in question was an article of the railway stores. 8. The above discussion shows that requirements of clause (a) of S. 2 of the Act are not fulfilled. Requirements of clause (b) of Sec.2 of the Act also have not been fulfilled. The prosecution evidence does not seek to establish that the seized rexine was used or intended to be used in the construction operation or maintenance of a railway. In order that an article be held to be an article of railway stores evidence must satisfy requirements of both clauses (a) and (b) of Sec.2 of the Act. The prosecution evidence does not seek to establish that the seized rexine was used or intended to be used in the construction operation or maintenance of a railway. In order that an article be held to be an article of railway stores evidence must satisfy requirements of both clauses (a) and (b) of Sec.2 of the Act. So far as the facts of the present case are concerned the prosecution evidence must be held to have failed to establish that the seized article was an article of railway stores. 9. That both the two conditions set out in clauses (a) and (b) of Sec. 2 of the Act must be fully established before a conviction under Sec.3 of the Act can be sustained has been laid down in the case of Kashmirilal V/s. State of Uttar Pradesh. AIR 1970 SC 1868 : (1970 Cri LJ 1647). In this decision comment has been made on the evidence of P. W. Jaswant Singh that although he said that he had prepared the report and signed it, he made no statement to the effect that the contents of the report were correct. The evidence of P. W. 1 of the present case who is an author of the report (Exhibit 1) also suffers from the same infirmity and to which reference has been made above. 10. The two Courts below seem to have been influenced by the suspicious movement of the petitioner and the fact that in the first instance he gave out wrong name. This, however is of no consequence when the prosecution is found to have failed to prove that the rexine was an article of the railway stores. 11. Regard being had to the want of evidence to show that the article seized was an article of the railway stores, manifestly conviction of the petitioner under Sec.3 of the Act cannot be sustained. 12. Now as to the conviction under Sec.379 of the Indian Penal Code, it will be noticed that there is no eye-witness to the occurrence. Neither the rexine nor the berth was produced before the trial Court. The presumption available to the prosecution under Sec.114 (a) of the Indian Evidence Act cannot be pressed into service against the petitioner since there is nothing to show that the petitioner was in possession of stolen goods. Neither the rexine nor the berth was produced before the trial Court. The presumption available to the prosecution under Sec.114 (a) of the Indian Evidence Act cannot be pressed into service against the petitioner since there is nothing to show that the petitioner was in possession of stolen goods. In this view of the matter, conviction recorded under Sec.379 of the Indian Penal Code also cannot be sustained. 13. In the result the application is allowed and the conviction and the sentence passed against the petitioner are set aside. He is also discharged from his bail bonds.