JUDGMENT H. N. Kapoor, J. 1. This appeal has been filed by the State against the order and judgment dated 11-7- 1973 of Special Railway Magistrate, North Eastern Railway, Varanasi acquitting the respondent of the charge under Section 3 of the Railway Property (Unlawful Possession) Act. The prosecution case as revealed in the FIR and by the prosecution evidence briefly stated is as follows : Respondent -Shivendra Pratap Singh was the chargeman in Traction Assembly Stores, Diesel Locomotive Works, Varanasi. On 24-12-1971 at about 4.30 P. M. after finishing his duty he wanted to leave the workshop by lorrygate on his Motorcycle. Pawan Kumar Madan (P. W. 3) Inspector, RPF was on duty. Because the respondent wanted to leave in a hurry Pawan Kumar Madan felt suspicious and he stopped him. He directed Nizamuddin Ansari (PW 9) A. S. I., R. P. F. to make a search of the motorcycle. He, accordingly, took search of the motorcycle in the presence of Pawan Kumar Madan (PW 3) and Devi Paltan Lal (PW 2) Rakshak R. P. F. On search, two coils of cable wires Exs. 6 and 7 wrapped in a polythene and having the labled reeling slips lead seal from the tin box which was attached to the carrier of the motorcycle of the accused was recovered. A. S. I. Nizam Uddin prepared the search and seizure memo Ex. Ka. 6 and the copy of the same was given to the accused. They were sealed at the spot in the same tin container Ex. Ka. 3. Nizam Uddin took the accused along with the sealed tin container to the R. P. F. Post D. L. W. Ram Prasad Singh Rakshak (PW 4) then made necessary entries in the general diary at 5.15 P. M. at the instance of Sri Ansari. Enquiry of this case under Section 8 of the Act was made by A. S. I. Nizamuddin himself. He inspected the site and prepared the site- plan Ex. Ka. 6. The sealed articles were kept in the Malkhana. Parvesh Ji Arora (PW 1) who was the senior chargeman, D. L. W. Varanasi inspected both the articles at the R. P. F. Post under tie orders of the Superintendent, Traction Assembly Shop. The goods were taken out from the workshop by A. S. I. Nizamuddin and after inspection they were again sealed and kept in the Malkhana. Parvesh Ji Arora (PW 1) who was the senior chargeman, D. L. W. Varanasi inspected both the articles at the R. P. F. Post under tie orders of the Superintendent, Traction Assembly Shop. The goods were taken out from the workshop by A. S. I. Nizamuddin and after inspection they were again sealed and kept in the Malkhana. Sri Arora had found the seal intact and had compared it with title sample seal. He submitted his report Ex. Ka. 3 after examining those cable wires. He gave his expert opinion that that type of material was being used in D. L. W. Traction Assembly Shop. A. S. I. Nizam Uddin had also gone to Poona in order to make enquiry from the firm which supplied those goods to D. L. W. Sri K. B. R. Rao, Technical Manager (PW 6) Western Insulated Cables Ltd. Poona gave his opinion in writing which is Ex. Ka. 9 that the cables with the reeling slips which had been shown to him had been despatched to D. L. W. siding vide challan No. PC/5905 dated 22-4-1970. The sealed bundles were taken to Poona by A. S. I. Nizam Uddin accompanied by his superior officer, Inspector Pawan Kumar Madan (PW 3). M. R. Hawlikar (PW 7) who was the Chief Tester in India Cable Co. Ltd. Poona also examined those cables and prepared test sheets Ex. Ka. 12 and Ex. Ka. 13. According to him the reeling slips which were Ex. 10 and Ex. 11 tallied with the material which was sent in that batch. He being the chief tester used to check each batch before it was despatched. The accused had also made a statement in writing dated 24-12-71 (Ex. Ka. 17) before the A. S. I. Nizam Uddin (PW 9) soon after his arrest. After completing the enquiry, A. S. I. Nizam Uddin filed a complaint Ex. Ka. 18 against the accused who was duly tried. 2. The accused admitted that the cables Exs. 6 and 7 were recovered from the tin carrier of his motorcycle. It was, however, not locked and he did not know who had kept these goods in the tin carrier. He stated that he himself was surprised as to who had kept these articles in his carrier. 2. The accused admitted that the cables Exs. 6 and 7 were recovered from the tin carrier of his motorcycle. It was, however, not locked and he did not know who had kept these goods in the tin carrier. He stated that he himself was surprised as to who had kept these articles in his carrier. He then stated that those cables were not used in D. L. W. because they did not bear any marking of the D. L. W. He, further stated that he did not know if the firm, Western Insulated Cables Ltd. Poona had supplied such cables to the D. L. W. He also stated that he did not know if such cables were received in the store but there was no shortage in the stores. With regard to his written admission he stated that Pawan Kumar Madan had asked him to give his explanation in writing. He had written something but he (Madan) had torn it out and told that he should write whatever he was asked to write. Madan had threatened him that otherwise he would be kept in the lock-up atleast for two days and it would ruin his reputation. He also told him that after all he would get another opportunity before the Magistrate. he got very much perturbed and then gave his statement Ex. Ka. 17 in writing. Lastly he stated that Madan was inimical to him and so he got him falsely implicated in this case with the help of his own R. P. F. men. He examined four witnesses in defence, namely, Samar Bahadur Singh (DW 1), Subrata Ghosh (DW 2) Krishna Chandra Srivastava (DW 3) and Kashi Prasad Singh (DW 4)., Samar Bahadur was the officer in-charge of R. P. F., D. L. W. He has not said anything particular except that a register was kept at the special gate of the workshop. DW 2 Subrata Ghosh stated that a meeting of the Area Committee was held in December, 1971 and) R. P. F. Inspector Pawan Kumar Madam attended that meeting. In that meeting; it was discussed that a number of thefts were being committed in the colony and that the R. P. F. was not being able to control the thefts. DW 2 Subrata Ghosh stated that a meeting of the Area Committee was held in December, 1971 and) R. P. F. Inspector Pawan Kumar Madam attended that meeting. In that meeting; it was discussed that a number of thefts were being committed in the colony and that the R. P. F. was not being able to control the thefts. In that meeting S. P. Singh, accused had said that there was no use to entrust the R. P. F. with the duty of checking the theft etc. outside the workshop because the R. P. F. had failed to check up the thefts. Pawan Kumar Madan reacted to these remarks and had left the meeting. At that time he had said that he would show how to check the theft and would take precaution to catch the criminals. Sri S. P. Singh was the elected member of the Area Committee. He was then implicated in this case after 2 or 3 weeks. DW 3 Krishna Chandra Srivastava stated that on 24-12-71 he met S. P. Singh at about 1.30 P. M. He had then gone with S. P. Singh to the material control section for checking the printing of material issue slips. He had gone through the main gate. He stayed there for about an hour. At about 4.15 P. M., S. P. Singh had a talk with him that he would go to his house and then he left for his house. He subsequently learnt with great surprise that he was implicated in this case. Kashi Prasad Singh DW 4 stated that in 1971 Pawan Kumar Madan had asked him to give some condemned pipes for getting his sofa-set prepared. The accused S. P. Singh was the supervisor at that time and the witness had worked under him and he told Pawan Kumar Madan to contact S. P. Singh as it was not possible for the witness to arrange for the pipe. The witness then stated that after 3 or 4 days S. P. Singh had told him not to give pipes to Madan. The witness, however, admitted that such pipes could not be taken out of the workshop. That could be taken by committing theft only. This suggestion was given to Madan also but he denied the suggestion. The witness then stated that after 3 or 4 days S. P. Singh had told him not to give pipes to Madan. The witness, however, admitted that such pipes could not be taken out of the workshop. That could be taken by committing theft only. This suggestion was given to Madan also but he denied the suggestion. In support of its case the prosecution has examined Rakshak Devi Paltan Lal PW 2, Inspector Pawan Kumar Madan PW 3 of R. P. F. and A. S. I. Nizam Uddin Ansari PW 9 R. P. F. as recovery witnesses. Nizam Uddin Ansari also made enquiry under Section 8. He also proved the confession of the accused Ex. Ka. 17. V. N. Sahai Verma PW 8 is the wardkeeper of General Stores Department D. L. W. He proved from the register that such cables had been received in the stores as on 18-6-70 there was entry at serial nos. 195 and 197. He also proved from the purchase order file that the order for such cables had been placed and that such cables were being used in the loco. He stated on the basis of the register dated 23-10 -1970 that this material had been issued to the storage ward. Parvesh Ji Arora (PW 1) Senior Chargeman, D. L. W. stated that the cables of such specification as noted on the coils were used in the D. L. W. K. B. R. Rao (PW 6) proved his report Ex. Ka-9 which was to the effect that these two coils cables, according to the specification mentioned, formed part of order no. P. 3313 and batch no. 159652 and 169775 were supplied to D. L. W. Varanasi by his company i. e. Insulated Cables Ltd. Poona. M. R. Hawlikar is the chief tester of that company. He stated that he tested that batch before it was being despatched and the reeling slips Exs. Ka-11 and 10 attached to these cables tallied with the description noted over the test sheets of the original batch Ex. Ka-12 and Ka-13. The remaining two witnesses, namely, Constables Ram Prasad Singh (PW 4) and constable Ramji Pandey (PW 5) are formal witnesses who made entries in the general diary. 3. The learned Special Magistrate arrived at the conclusion that the cable coils Exs. Ka. Ka-12 and Ka-13. The remaining two witnesses, namely, Constables Ram Prasad Singh (PW 4) and constable Ramji Pandey (PW 5) are formal witnesses who made entries in the general diary. 3. The learned Special Magistrate arrived at the conclusion that the cable coils Exs. Ka. 6 and 7 were the railway property, possession of which was punishable under Section 3 of R. P. (U. P.). He found that this property was being passed out of the D. L. W. in the tin box of the motorcycle without any authority and, as such, this material was obtained unlawfully for being removed from the railway administration. The learned Magistrate however took the view that there was no evidence on record to suggest that the accused while in the D. L. W. was so in control of his motor cycle that no body could have kept such cables coils in the tin box of his motor cycle without the consent and knowledge of the accused. He was also inclined to believe the defence evidence that the accused himself could not have kept the cable coils in the box between 1.30 a. m. and 4.15 P. M. He then observed that the accused was required to discharge the burden showing that he came lawfully in possession only after the prosecution was able to establish its case against the accused. 4. The learned Magistrate further held that the confessional statement, paper no. A-6 (Ex. Ka-17) was the only evidence which was brought in this case for proving the prosecution case completely and in case this statement was excluded the prosecution case could not be proved. He then excluded this statement from consideration on the ground that it was hit by Sec. 162 CrPC as the A. S. I. Nizam Uddin Ansari (PW 9) of R. P. F. was the Police Officer who was conducting the enquiry under Ch. 14 of the Criminal Procedure Code. The learned Magistrate repelled the argument of the learned counsel for the accused that the confession was obtained by threat or inducement and held that it was not hit u/S. 24 of the Indian Evidence Act. He held that the confession otherwise was complete. He ultimately held that it was hit under Sec. 25 of the Indian Evidence Act as it was recorded before the Police Officer and, as such, it was to be excluded from consideration. He held that the confession otherwise was complete. He ultimately held that it was hit under Sec. 25 of the Indian Evidence Act as it was recorded before the Police Officer and, as such, it was to be excluded from consideration. After excluding this confession he held that the prosecution case was not proved beyond reasonable doubt as the chances that accused had no knowledge about the presence of cable coils Exs. 6 and 7 in the tin box are not excluded in entirety. He, therefore, gave benefit of doubt to the accused and acquitted him. The main point to be decided in this appeal therefore, is whether the confessional statement Ex Ka-17 is hit under Section 162 CrPC. The learned Assistant Government Advocate has placed reliance on the case of State v. Durga Prasad, AIR 1974 SC 2136 in which it was held that the enquiry under Sec. 8 (i) of the Railway Property (Unlawful Possession) Act, 1966 by an officer of the Railway Protection Force cannot be deemed to be an investigation for the purposes of Sec. 162 CrPC. In that case the officer of the R. P. F. making enquiry had obtained the signatures of the witnesses on their statements and the argument was that he had committed flagrant violation of Sec. 162 CrPC and the entire trial was vitiated because those statements had been brought on the record and had been put to the witnesses in the examination-in-chief. Hon'ble Supreme Court held, overruling the decision of the High Court that the trial was not vitiated even though such- statements signed by the witnesses had been brought on the record. The order of acquittal was set aside and the order of conviction recorded by the Sessions Judge was restored. This decision is dated 28-3-74 while the learned Magistrate had decided the present case on 11-7-73 when this decision was not available. In that judgment their Lordships referred to the earlier decision in the case of Radhu Joti Savant v. State, AIR 1966 SC 1746 . It was a case under the Central Excise and Customs Act. The provisions of Section 21 (i) (ii) of that Act and the provisions of Sec. 8 (i) and (ii) of the Railway Property (Unlawful Possession) Act were held to be identical in material respects. It was a case under the Central Excise and Customs Act. The provisions of Section 21 (i) (ii) of that Act and the provisions of Sec. 8 (i) and (ii) of the Railway Property (Unlawful Possession) Act were held to be identical in material respects. In the earlier decision it was held that the confession made by an accused before the Central Excise Officer was not hit under Section 25 of the Indian Evidence Act as it would not be deemed to have been recorded under Section 162 CrPC. By referring to the earlier decision of 1966 their Lordships made it abundantly clear that the same principles would apply to a confessional statement made under R. P. (U. P.) Act even though they were not actually considering confessional statement. They were only considering the statements of witnesses recorded by the enquiry officer after obtaining their signatures. In the light of this decision of the Hon. Supreme Court there can be no doubt that the view taken by the learned Magistrate on the point of Section 162 CrPC is erroneous ami the confessional statement (paper no. A-6) Ex. 17 cannot be hit by Sec. 162 CrPC. 5. In his statement the accused had admitted the recovery of the two coils of cables along with the sealed lables from the tin carrier of the motor cycle. He admitted that it was of his office and he had no authority to take it out. He further admitted that both the coils were the railway property and were recovered from his unlawful possession. He stated that he had committed a mistake and he should be excused. He had also stated that he was making this correct statement out of his own accord. 6. Sri P. C. Chaturvedi, learned counsel for the accused argued that this statement was hit under Section 24 of the Indian Evidence Act as it was obtained under coercion as the accused had been threatened that he would be kept in the Hawalat atleast for two days and his own reputation would be spoilt, 25th December being the holiday on account of Christmas and 26th December being Sunday. The accused made this statement for the first time in his statement recorded under Section, 342 CrPC on 24-4-73 after the entire prosecution evidence had been completed. No such suggestion was. The accused made this statement for the first time in his statement recorded under Section, 342 CrPC on 24-4-73 after the entire prosecution evidence had been completed. No such suggestion was. given to A. S. I. Nizam Uddin Ansari PW 9 whose statement was recorded on 9-4-73. Such suggestion was not given even to Inspector Pawan Kumar Madan PW 3 whose statement was recorded on 11-12-72. In fact the main allegation made by the accused is against the Inspector Madan that he was inimical to him. There could thus be no doubt that the theory of coercion or intimidation has been introduced by way of an after-thought. This version has not been supported even by any defence witness. Even from the statement of the accused it would appear that no such inducement was offered to the accused that he would not be prosecuted. Even according to his statement he was told that he would have another opportunity before the Magistrate. The accused is an educated person and was working as the Chargeman. He would certainly not have got himself falsely implicated by giving such a statement in writing completely proving his guilt. I, therefore, agree with the findings of the learned Magistrate on this point. Once the recovery is admitted in the statement, Ex. Ka-17, made before the A. S. I. Nizam Uddin Ansari unlawful possession of Railway property is proved. The allegation of enmity made against Pawan Kumar Madan PW 3 carry no weight. Subrata Ghosh DW 2 only stated that the accused had criticised Madan in a meeting and Madan got annoyed. Even if it was correct such enmity was not of the kind which would lead Pawan Kumar Madan to get the accused falsely implicated. All that can be said is that he might have decided even to check the officers in whose case checking might not have been so strict in the past. Kashi Prasad Singh DW 4 was immediately under the accused and is obviously a partisan witness. Even he did not state that there was any talk between the accused and Pawan Kumar Madan for the supply of condemned pipes. Pawan Kumar Madan has emphatically denied such allegation and I am inclined to believe the statement of the Inspector Madan -wild allegations have been made against him by the accused by way of setting up a defence. Even he did not state that there was any talk between the accused and Pawan Kumar Madan for the supply of condemned pipes. Pawan Kumar Madan has emphatically denied such allegation and I am inclined to believe the statement of the Inspector Madan -wild allegations have been made against him by the accused by way of setting up a defence. Lastly Sri P. C. Chaturvedi argued that the prosecution has not established it as a fact that the coils of cables recovered from the possession of the accused were the railway property. It was argued that they did not bear marking of DLW. There is nothing on record to show that every article which is being used in the DLW must have the marking of DLW. It has already been seen above while stating the prosecution case that Pravesh Ji Arora PW 1 who was the Senior Chargeman stated that these cables were being used by the DLW. K. B. R. Rao PW 6 Technical Manager of Insulated Cables Ltd. Poona stated that cables of such specifications were despatched to DLW. M. R. Hawlikar PW 7 Chief Tester of that company stated that he had tested the batch before the despatch and the two coils had the specifications of that batch. V. W. Sahai Verma PW 8 store-keeper also stated that the orders had been placed to that company and the goods had been received from that company. In my opinion, this evidence is sufficient to prove that it was the railway property specially when it was being brought from the railway workshop when the same was checked on the gate. I do not think that any further special sparking test or laboratory test was needed to prove the same. Both the coils of the cables had been sealed with lead and the reeling slips were attached to them. Obviously they were brand new. Prevesh Ji Arora PW 1 no doubt, stated that reeling slips were torn away when they were used. No doubt, it is also in evidence that such supply was in the market also by that company. But that does not make any difference when it has been fully established that they were supplied to the DLW as well and it has also been fully established that they were being taken out from the workshop. No doubt, it is also in evidence that such supply was in the market also by that company. But that does not make any difference when it has been fully established that they were supplied to the DLW as well and it has also been fully established that they were being taken out from the workshop. The confession of the accused hence has been corroborated by the evidence of recovery and also by the evidence of the experts mentioned above that such coils were being used by the DWL and had been supplied by Insulated Cables Co. Poona to DLW and they have all the specifications of the batch. It was argued that no shortage in the store was proved, with reference to any register etc. It might not have been possible to detect the shortage (of two coils only when the huge stocks were stored. It is significant that in his statement the accused himself stated that in case he had any evil intention he could have easily sent the goods outside on the basis of gate pass and could have shown it as having been consumed in several ways as the electric department was in his charge. He could have even got such coils outside the workshop from the electricity department. It would show that he had fully access to such railway property. I agree with the findings of the learned Magistrate on this point also that it has been fully established that the two coils were the railway property and were actually used in D. L. W. On the basis of the entire evidence and the circumstances discussed above there can be no doubt that the prosecution has succeeded in proving that the accused was found in unlawful possession of the railway property. His explanation that he had no knowledge as to how they were put in the carrier of his motorcycle cannot be accepted in view of his admission, Ex. Ka.-17. The prosecution has thus succeeded in proving its case against the appellant beyond all reasonable doubt. The appeal, therefore, has got to be allowed. The accused is liable to be convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. 7. I have heard the learned counsel for the respondent and the learned Assistant Government Advocate on the question of sentence also. The appeal, therefore, has got to be allowed. The accused is liable to be convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. 7. I have heard the learned counsel for the respondent and the learned Assistant Government Advocate on the question of sentence also. Learned counsel for the accused argued that the respondent is likely to lose his job after this conviction and, as such, this by itself would be the sufficient punishment. The property involved is worth Rs. 100/-. It does appear that the accused was holding a very responsible post and if he was really a corrupt officer he could have defrauded the Railway by huge amount by misusing his office. There are no such allegations against him. He was even elected the member of the area committee and the evidence is that he himself has shown his annoyance that the R. P. F. was not doing its job properly. He had at once admitted and gave it in writing that his possession would be deemed to be unlawful because he had not obtained pass. By this admission he himself furnished evidence against him. It is a different matter that he later resiled from that admission. After considering all these special reasons which,, in my opinion, are adequate reasons, I am of the opinion that the sentence of imprisonment is not called for in this case. The ends of justice will be adequately met if the accused is sentenced to fine. 8. In the result, the appeal is allowed. The order of acquittal of the learned Magistrate is set aside. The respondent, Shivendra Pratap Singh is convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and is sentenced to a fine of Rs. 1500/- (Rupees one thousand and five hundred only). IN default of payment of fine he shall undergo R. I. for one year. He is allowed two months time to deposit the fine. The record of this case shall be despatched to the lower court within two weeks. Appeal allowed.