JUDGMENT Abhiram Singh, J. The petitioner has been convicted under section 411 of the Indian Penal (Code (hereinafter to be referred to as 'the Code' and under section 3 of the Railway Property (Unlawful possession) Act (hereinafter to be referred to as 'the Act") and has been sentenced to undergo rigorous imprisonment for a period of three years under each count. The sentences are to run concurrently. 2. The case of the prosecution, in brief, is that an F.I.R. bad been lodged at Jharia police Station on 29.12.1968 to the effect that there was a theft of railway articles namely 12 numbers of D.O. Jawn 85 Lbs. and 20 numbers of D.O. Plates SH from Bhagtidih main line, Jharia, in the night between 27th and 28th of December, 1968. The F.I.R. was lodged by one Boija, the gang man on 29.12.1968 at 11 A.M. One Sakaldeo Sharma, an employee of the colliery informed Sri Aditya Prasad, a Sub-Inspector of Police that some stolen articles had been detected on a tandem on the road on 29.12.1968 in the afternoon and he came at the spot and seized 11 pieces of railway brake levers and nine pieces of brake wheel hanger which were loaded On the tandem and saw that four persons were present there including the petitioner. It is said that all, except the petitioner, tied away. The police officer investigated the case and submitted the chargesheet against the petitioner and three others. The trial of the petitioner was separated and it proceeded before the Judicial Magistrate, Dhanbad, and ended in the conviction and sentence, as mentioned above. On appeal the learned Additional Sessions Judge, Dhanbad, confirmed the order of conviction and sentence passed against the petitioner. 3. The learned counsel appearing for the petitioner has submitted that the conviction of the petitioner under section 411 of the Code as well as under section 3 of the Act is bad in law in view of the provisions laid down in section 26 of the General Clauses Act. According to him if the lame act of a person constitutes offences under two Acts, he will not be convicted and sentenced under both the Acts. On the other hand, the learned counsel for the State has argued that if the same act of any offender constitutes offences under two Acts. According to him if the lame act of a person constitutes offences under two Acts, he will not be convicted and sentenced under both the Acts. On the other hand, the learned counsel for the State has argued that if the same act of any offender constitutes offences under two Acts. he can be convicted under both the Acts but he will not be punished twice for the same act. To support this point he has relied on a decision of the Supreme Court reported in T.S. Ballah Versus T.S. Rangachari. It has been held in this decision that section 26 of the General Clauses Act bars only the punishment of the offender twice for the same offence and not trial or conviction under both enactments. He has also relied on a decision reported in Ramanaya Vs. The State of Bihar. According to this decision also, there is no illegality if any court passes the order of conviction under two enactments for the same offence. Only the offender should not be punished twice for the same offence. In the instant case, I find that the petitioner has been convicted under section 411 of the Code as well as under section 3 of the Act and it has been ordered that the sentences under both the sections will run concurrently. Thus, it appears that the petitioner has not only been convicted under both the enactments for the same offence rather he has also been punished under both the enactments. But the learned counsel for the State has drawn my attention to a decision in Hari Rachukandi Vs. State of Maharastra in which it has been held that if the court passes an order that the punishment is to run concurrently, then it does not violate the provisions of section 26 of the General Clauses Act and it will not tantamount to punishment of the offender twice for the same offence. I find that there is force in this contention raised by the learned counsel on behalf of the State. The conviction of the petitioner under section 411 of the Code as well as under section 3 of the Act Cannot be said to be illegal on this ground. 4. I find that there is force in this contention raised by the learned counsel on behalf of the State. The conviction of the petitioner under section 411 of the Code as well as under section 3 of the Act Cannot be said to be illegal on this ground. 4. The learned counsel for the petitioner has also contended that for a conviction under section 411 of the Code, it is necessary to prove that the property in question is a stolen property. He has further contended that in the instant case although the petitioner has been convicted under section 411 of the Code, but it has not been proved that the property in question is a stolen property. The F.I.R. had been lodged for the theft of 12 pieces of D.O. Jawn 85 Lbs. and 20 pieces of D.O. Plates SH stolen from Bhagatdih main line whereas the articles alleged to have been recovered from the possession of the petitioner are said to be 11 pieces of railway lever brakes and nine pieces of brake wheel hangers. Thus, the articles which where alleged to have been recovered from the possession of the petitioner are quite different from the articles for which F.I.R. was lodged for an offence under section 379 of the Code. Hence it cannot be said that in the instant case it has been proved that the articles recovered from the possession of the petitioner are the same property for which F.I.R. had been lodged and thus the stolen property. 5. Learned counsel for the petitioner has further submitted that for the conviction under section 3 of the Act, it must be proved that the property which is found in possession of the offender must be railway property. In the instant case, there is no legal evidence. which will lead to the conclusion that the property in question belonged to the railway. P.W. 3 is the train examiner who is said to have examined the seized articles. He has clearly admitted in his evidence that none of the articles seized from the possession of the petitioner had any railway mark. It has been further argued that the articles which were seized were also never produced before the court below nor the report of the P.W. 3 regarding the seized articles was ever produced before the court below. He has clearly admitted in his evidence that none of the articles seized from the possession of the petitioner had any railway mark. It has been further argued that the articles which were seized were also never produced before the court below nor the report of the P.W. 3 regarding the seized articles was ever produced before the court below. According to the learned counsel for the petitioner, the petitioner has been prejudiced during the trial as he had no occasion to get the witness cross-examined on the point of the seized articles as the same were not produced before the court below. Learned Counsel for the State has submitted that tile articles which were seized from the possession of the petitioner are. not available in the open market and were in a serviciable condition as stated by P.W. 3 and as such the articles should be deemed to be railway property. But I am not prepared to accept this argument. Non-production of the seized articles in the court has certainly proved prejudicial to the interest of the petitioner. The absence of any railway mark on the articles in-question is also very significant. With such a shaky evidence on record, in my opinion, the courts, below were not in a position to come to the conclusion that the articles in-question were actually railway property. 6. The learned counsel for the petitioner has also submitted that either for a conviction under section 411 of the Code or for a conviction under section 3 of the Act, it has to be considered that the articles in-question were recovered from the conscious and exclusive possession of the petitioner. The petitioner is only a tandem-driver from whose tandem, the articles were recovered. It has come in evidence that there were three persons on the tandem besides the petitioner. But when the articles in-question were seized from the tandem, all the persons except the petitioner are said to have fled away from that place. Hence in such a situation, it is difficult to hold that the petitioner was in actual possession of the articles in-question. The petitioner can utmost be said to be the carrier of the articles in-question. There is complete lack of evidence to prove the exclusive and conscious possession of the petitioner over the seized articles. 7. Hence in such a situation, it is difficult to hold that the petitioner was in actual possession of the articles in-question. The petitioner can utmost be said to be the carrier of the articles in-question. There is complete lack of evidence to prove the exclusive and conscious possession of the petitioner over the seized articles. 7. From the above discussion, it is manifest that the conviction of the petitioner is not based on legal evidence. The perusal of the relevant record reveals that the finding arrived at by the courts below is not legal correct and proper. 8. In the result, the revision application is allowed. The orders of conviction and sentence passed by the courts below are set aside. The petitioner is discharged from the liability of the bail bond. Application allowed.