JUDGMENT P.S. Sahay, J. These two revision applications have been heard together and will be governed by this common order. In both the application prayer has been made to set aside the order of the learned Magistrate by which he has created that charge under section 3 of the railway Property (Unlawful Possession) Act, (hereinafter referred to as the Act) be framed against them. It may be mentioned here that D.M. Ghose who was also facing trial along with them was discharged by the aforesaid order. 2. On receipt of a confidential report by the Assistant sub-inspector of police that one dram of kerosene oil belonging to the Railway was kept on the back side of the office of C.I.K.S. for the purposes or black marketing, the Officer-in-Charge seized the drum of kerosene oil in presence of witnesses and after inquiry first information report was lodged on 29-3-1980 against the petitioners and four others. A copy of the first information report has been filed and marked as Annexure – 1. The allegation was that kerosene oil was handed over to Nagendra Prasad Mishra for distribution at the different station and kerosene oil was also received and some of them were dropped at Narkatiaganj Station. One drum of kerosene oil was found behind the office and immediately an inquiry was made and two liters of kerosene oil was found in excess. On these allegations the first information report had been lodged as stated earlier and ultimately three persons were put on trial. 3. Seven witnesses ware examined by the prosecut on and they were also cross-examined. The matter was taken up by the learned Magistrate for framing a charge. A prayer was made on behalf of the petitioners that ingredient of section 3 of the Act, is not made out and therefore they should be discharged. The learned Magistrate after discussing the case of the petitioners and D.M. Ghose discharged D.M. Ghose and held that a case is made out against these petitioners and, therefore, they can not be discharged. He further ordered that a charge under section 3 of the Act, will be flamed against these petitioners. Being aggrieved by the aforesaid orders the petitioners have filed two separate petitions and they have been ordered to be heard together. 4. Mr. He further ordered that a charge under section 3 of the Act, will be flamed against these petitioners. Being aggrieved by the aforesaid orders the petitioners have filed two separate petitions and they have been ordered to be heard together. 4. Mr. Arun Hehari Mathur learned counsel appearing on behalf of the petitioners in both the cases has submitted that the order of the learned Magistrate is wholly illegal and unjustified inasmuch as he has not considered the provisions of section 3 of the Act, and it was fit case in which the two petitioners should have been discharged. The facts of the case have already been mentioned earlier and now it has to be considered whether the provisions of the Act, will be attracted so far as the petitioners are concerned. 5. Admittedly the petitioners are Railway servants and according to the prosecution case, kerosene oil was banded over to petitioner Nagendra Prasad Mishra and R.N. Bose, carriage fitter was assisting in unloading it at Narkatiaganj it is also true that they were found in possession of railway property and this fact has been rightly not challenged by learned counsel for the petitioners. Section 3 of the Act, may be usefully quoted: "3. Penalty for unlawful possession of railway property-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. (It is not necessary to mention other provisions)" Therefore in order to attract the provisions of this Act, these dements are necessary (I) the property in question should be railway property: (II) it should be reasonably suspected of having been stolen or unlawfully obtained; and (III) it should be found or proved that the accessed was or had been in possession of that property. 6. After hearing the learned counsel appearing for the petitioner and the learned counsel for the State, I am of opinion that the contention raised on behalf of the petitioners has to be accepted. 6. After hearing the learned counsel appearing for the petitioner and the learned counsel for the State, I am of opinion that the contention raised on behalf of the petitioners has to be accepted. The first and second requirement of the section no doubt present in the instant case but there is nothing to show that the article meaning thereby the Kerosene oil had been stolen or unlawfully obtained Rather according to the first information report kerosene oil was actually given to petitioner Nagendra Prasad Mishra for distribution at different stations. By no stretch of imagination these two petitioners can be said to be in possession of stolen property which had been unlawfully obtained. In the case of the State of Maharashtra versus Vishwanath Tukaram Umale and others a similar point was raised for consideration and it was held that since all the three ingredients of the section mentioned above were not attracted the order of conviction and sentence passed against the accused was unjustified. In my opinion therefore it will be gross abuse of the process of the court if the proceeding is allowed to continue against the petitioners. 7. Both the applications are accordingly allowed and for the reasons given above, no charge under section 3 of the Act, could be framed against the petitioners. Applications allowed.