This application under section 401 of the Criminal Procedure Code, 1973 is directed against the judgment and order dated 11.1.1982 passed by the Additional Sessions Judge, Katnrup, Gauhati maintaining the conviction of the accused petitioners under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentencing each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/-, in default to undergo rigorous imprisonment for another 15 days. 2. The case of the complainant was that on 27.9.74 at about 9 P.M. at New Gauhati Railway Yard, the Railway Rakshak (R.P.F.) on. yard duty detected the accused persons, who were railway employees, steal­ing Basmati rice from Railway Wagon No. 60380. They were caught red handed with the stolen rice by the Railway Police and rice weighing 10 Kgs. was seized from possession of each of the accused persons. The case was investigated by the Railway Police, and the petitioners were charged for commission of an offence under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, hereinafter 'the Act'. The prosecution examined 4 witnesses, who deposed that the accused persons were caught red handed with bags of rice near Railway Wagon No. 60380. One body cut mark in the wagon was noticed and an iron rod used in breaking of the wagon was found. A shortage certificate was also produced. From the aforesaid evidence the trial Court came to the conclusion that the rice belonged to railways and that the same was found in unlawful possession of the accused. This finding arrived at on the basis of the circumstances that the petitioners were found near the wagon containing rice. The trial Court accordingly held the petitioners guilty of offence under section 3(a) of the Act and convicted and sentenced each of them to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 1000/- in default to rigorous impri­sonment for another 6 monhts. On appeal, the learned Additional Sessions Judge upheld the conviction. He, however, reduced the sentence to a term of rigorous imprisonment for six months each and a fine of Rs. 100/- each, in default to suffer rigorous imprisonment for another IS days. Against the aforesaid judgment of the Additional Sessions Judge, the present petition has been filed. 3. Mr. On appeal, the learned Additional Sessions Judge upheld the conviction. He, however, reduced the sentence to a term of rigorous imprisonment for six months each and a fine of Rs. 100/- each, in default to suffer rigorous imprisonment for another IS days. Against the aforesaid judgment of the Additional Sessions Judge, the present petition has been filed. 3. Mr. J. M. Choudhury, the learned counsel appearing for the petiti­oners submits that from the evidence on record, the prosecution has not been able to prove that the rice in question was the same the which was contained in Wagon No. 60380. No evidence by the prosecution had been adduced to that effect and inference has been drawn from the mere fact that the Wagon in question, which was found to be cut, contained Basmati rice and the rice found to be in possession of the petitioners was also stated to be Basmati rice. According to him, there is no material to justify the aforesaid inference. It is based on pure guess, surmises and conjectures. The submission of Mr. Choudhury in fact is that the prosecution has failed to prove at all, not to speak of proving beyond all reasonable doubt, that the rice found in the possession of the petitioners was 'Railway Property' and in the absence of such proof, the conviction cannot be sustained. 4. The next submission of Mr. Choudhury is that the allegation made against the petitioners was that they were detected by the R.P.F. while they were stealing Basmati rice from the Railway Wagon in question and they were caught red handed with the stolen rice whereas in course of trial, no such case could be established. The evidence shows that the Wagon in question was found to be damaged and some rice had fallen on the floor. The petitioners were apprehended with begs containing 10 Kgs. of rice in their hands while they were passing through a place near the Railway yard. The evidence so adduce^ in Court in course of trial is apparently not consistent with original prosecution story. Besides, the case of the prosecution at one stage was also that the petitioners were detected while they were trying to run away and it cannot be said that the charge is proved. The evidence so adduce^ in Court in course of trial is apparently not consistent with original prosecution story. Besides, the case of the prosecution at one stage was also that the petitioners were detected while they were trying to run away and it cannot be said that the charge is proved. There is also no material on the basis of which the prosecution could have suspected that the petitioners had stolen or unlawfully obtained the rice in question. 5. I have considered the submissions of Mr. J. M. Choudhury, the learned counsel for the petitioners. Also heard Mr. D. Goswami, the learned Public Prosecutor. 1 have gone through the evidence of the witnesses and the orders of the Courts below. In order to properly appreciate the submissions made on behalf of the petitioners it is necessary at this stage to examine the relevant provisions of the Act and the scheme thereof. Section 3 of the Act (so far as it is relevant) provides for penalty for unlawful possession of railway property. It reads : "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 - * * * 'Railway property' has been defined in clause (d) of section 2 of the Act as follows : " (d) 'railway property" includes any goods, money or valu­able security or animal, belonging to, or in the charge or possession of, a railway administration;" From a plain leading of section 3 of the Act it is clear that in order to hold a person guilty of on offence three requirements must be fulfilled. These are-(1) the property must be 'railway property'; (ii) the accused person must be found or proved to have been in possession of such ''railway property" ; and( (iii) it should reasonably be suspected of having been stolen or unlawfully obtained. The prosecution must prove the existence of all the above three conditions. A careful reading of the aforesaid provisions makes it abundantly clear that in order to convict a person under section 3 of the Act, it must be established by the prosecution that he was in possession of "railway property". The prosecution must prove the existence of all the above three conditions. A careful reading of the aforesaid provisions makes it abundantly clear that in order to convict a person under section 3 of the Act, it must be established by the prosecution that he was in possession of "railway property". The definition of 'railway property' makes it clear that in order to claim any property a 'railway property' it, must be proved that the property in question belonged to the Railway Adminis­tration or was in the charge or possession of the Railway Admini­stration. It must be so at the relevant time. There are many properties belonging to the Railway Administration which are disposed of by it from time to time by public auction or by various other means, the same being either unserviceable or surplus. These are purchased by various persons and thereafter they enter into the main distribution system and reach various individuals who may buy them from the market in the usual course for their personal use. Such goods may also even bear the Railway emolem or other markings. There are also cases where the Railway Administration purchases goods from various private manufacturers and in course of supply rejects some of the goods supplied as sub-standard or unsatisfactory. These goods also are disposed by the manufactu­rers in the usual course in the market. These are some of the instances where a property which may even bear some marks or sign to show that it was at one point of time 'railway property' or intended to be railway property at the relevant time. It is for the prosecution to prove by positive evidence that the property was 'railway property' and that the accused person was found in possession of such prope­rty. The burden of proof that the property was railway property does not shift to the accused. Once this burden is discharged, the prosecution is further required to prove that it could be "reasonably suspected" to have been stolen or unlawfully obtained. The expression "reasonably suspected" is very significant. Suspicion implies a belief or opinion based upon the facts or circumstances which do not amount to proof. "Reasonably" means in a reasonable manner or consistently with reason. Once this burden is discharged, the prosecution is further required to prove that it could be "reasonably suspected" to have been stolen or unlawfully obtained. The expression "reasonably suspected" is very significant. Suspicion implies a belief or opinion based upon the facts or circumstances which do not amount to proof. "Reasonably" means in a reasonable manner or consistently with reason. Thus, the prosecution must have some facts or circumstances before it on the basis of which it could acting in a reasonable manner, believe that the person concerned found in possession of such 'railway property' might have stolen or unlawfully obtained the same. Such reasonable suspicion has to bj proved before the Court by the prosecution. Only thereafter the onus shifts on the accused to prove that the 'railway property' came into his possession lawfully. Section 3 of the Act does not require in all cases the accused persons to come forward and adduce evidence as to how the property in question was obtained by him. It is in fact a defence made available to the accused ones the prosecution succeeds in proving its case. 6. I, therefore, propose, to consider the submission of the learned counsel for the petitioners in the light of the" provisions of the law discussed above. Mr. Choudhury, the learned counsel for the petitioners, submits that besides discrepancies in the prosecu­tion story and the evidence on record it is clear in the instant case the prosecution failed to prove that the rice in question found in possession of the petitioners was 'railway property'. Mr. Choud­hury read the evidence and submitted that no attempt was made to satisfy the Court that the alleged rice which has been found in possession of the petitioners was the same rice that was conta­ined in the railway wagon. Even the alleged shortage certificate could not be proved. No test was conducted to satisfy the Court in that regard. On that score itself, according to Mr. Choudhury, the prosecution case cannot stand. 7. I have considered carefully the submissions of Mr. Choudhury. There is considerable force in the submission. There is no satisfactory material or evidence on record to prove that the rice alleged to have been found with the petitioners was the same rice that was contained in the railway wagons or in other words it was 'railway property'. Rice is an item of common use. Choudhury. There is considerable force in the submission. There is no satisfactory material or evidence on record to prove that the rice alleged to have been found with the petitioners was the same rice that was contained in the railway wagons or in other words it was 'railway property'. Rice is an item of common use. Rice similar to one contained in the railway wagon was available freely in the market. It was the duty of the prosecution to prove that the rice found in possession of the petitioners was the rice stolen from the railway wagon and that should have been proved by adducing cogent and satisfactory evidence to that effect. In the instant case there is no material to hold that the rice found with the accused persons was railway property. Taking the totality of evidence, I am of the opinion that the prosecution has failed to establish its case against the accused persons beyond reasonable doubt. 8. In the result, this petition is allowed and the conviction and sentence of the accused petitioners are set aside. They are discharged from the bail bonds.