ORDER R. P. Awasthy, J. -- 1. The accused/petitioner, named above has filed the present revision petition against the judgment and finding dt. 21.9.88 delivered by Shri R.K. Behar, 4th Additional Sessions Judge, Raipur in Criminal Appeal No. 2/1988 arising out of Criminal Case No. 69/81 decided on 18.12.1977 by Shri Yogesh Mathur, Railway Magistrate, Raipur, holding the accused/petitioner guilty for committing an offence punishable under section 3 (a) of Railway Property (Un-Lawful Possession) Act, 1966 (Act in short) and sentencing him to rigorous imprisonment for one year and a fine of Rs. 1,000/- or in default to simple imprisonment for 2 months. 2. Prosecution case is that on receiving an information from some informer, D. Dongre Sub-Inspector of Railway, Security Force, Raipur went on 28.3.80 alongwith the Railway Protection Force and witnesses to the Godown or shop of the petitioner where second hand articles were found stocked and stored for sale. The petitioner is a junk-dealer (Kabadi) at Raipur. On search of the articles stocked in the said godown or shop of the petitioner being taken some property alleged to be either belonging to the Railways or used by Railway was also found stocked. The said articles were seized as per seizure memo Ex. P. 2. The statement (Ex. P. 3) of the petitioner was recorded by Shri Dongre. Out of the said articles Zink slags were sent to Shri S.S. Mishra who has deposed that such slags are used in the galvanishing plant of the Indian Railways. Other articles were sent to Shri S.C. Pathak the then Shop Superintendent for being tested, examined and verified as to whether the said articles belong to or were in use of the Railways. Shri S.C. Pathak (P.W. 3) issued the certificate (Ex. P. 4) to the effect that the said articles are used in carriage and wagon department of Indian Railways. He further certified that some of the said articles are exclusively used by Railways and are not available in the open market. 3. After completion of investigation a complaint was filed and after recording evidence the trial Court held appellant guilty and sentenced as detailed above. The appeal filed by the present petitioner was disallowed and hence the present revision petition has been filed. 4. It has been argued that in the present case it could not be established that the property seized from the petitioner was Railway property. The appeal filed by the present petitioner was disallowed and hence the present revision petition has been filed. 4. It has been argued that in the present case it could not be established that the property seized from the petitioner was Railway property. Further, it could also be not established that it could be reasonably suspected of having been stolen or unlawfully obtained. 5. In my opinion, the revision petition deserves to be allowed due to the following reasons:- It has to be seen that regarding zinc-slags which were seized alongwith other articles and which only were sent to Shri S.S. Mishra for examination, he (Shri S.S. Mishra, P.W. 1) has specifically deposed in his cross-examination that such slags can be obtained from any galvanishing-plant like Bhilai Steel Plant. He has further deposed that such zinc slags are available in open market also. Therefore, it could not be established that the said slags were Railway property within the meaning of section 2 (d) of the Act. It is so because it could not be established that the said slags either belong to the Railways or were incharge or possession of the Railway or could not be available anywhere else. On the other hand, since such slags are said to be available in market, it could not be established that the said slags were Railway property. 6. Regarding other and remaining articles Shri S.C. Pathak has deposed that the said articles cannot be said to be Railway property but said articles are used by the Railways. It may be pertinent to mention here that according to the certificate (Ex. P. 4), some of the said articles are exclusively used by the Railways. 7. Now the definition of the Railway Property given in section 2 (d) of the Act reads as below:- "(2) (d) "railway property" includes any goods, money or valuable security or animal belonging to or in the charge or possession of a railway administration." Therefore, the prosecution was supposed to firstly prove that the said articles either belonged to Railways or were either in charge or possession of the Railway. As has already been mentioned that Shri S.P. Pathak has deposed that the said property cannot be said to be railway property. As has already been mentioned that Shri S.P. Pathak has deposed that the said property cannot be said to be railway property. It appears that by the said statement, Shri S.C. Pathak meant that the said articles did not belong to Railway from their inception or were not produced or manufactured by the Railway. 8. Consequently, and under the said circumstances the prosecution was required to establish by producing direct evidence that the said articles were either in possession or in charge of the Railways. For establishing the said fact, prosecution could have adduced, in the alternative, circumstantial evidence also to the effect that the sale of such articles by the producer or manufacturer of the said articles was prohibited and such manufacturer and producer could sell the said articles only to the Railways. Further, it was also essential to prove that such articles were not auctioned by the Railways if found un-serviceable or found to be in excess of the requirement of the Railway. If the said fact could have been established then it could have been said and inferred that the said articles could be found only in possession or in charge of the Railways and if any other person was found to be in possession of such articles, then it could be inferred that the either obtained such articles by dishonesty removing them from the possession of the Railways or by obtaining them by some other unlawful means. 9. In the present case, there is no such evidence to indicate that the said articles were ever in possession or in charge of the Railway. 10. The alternative mode of proving the said fact as indicated above has also not been adopted in the present case and consequently neither it could be proved that the said articles either belonged to the Railways or were ever in possession or incharge of the Railways. It has also to be borne in mind that Shri S.C. Pathak has admitted that neither of the said articles bore any mark of the Railways. 11. Since the basic ingredient of section 3 (a) of the Act could not be established the onus of proof did not shift to the accused and he was not supposed to account for the possession of the said articles satisfactorily. (Please see Kashmirilal v. State of U.P., AIR 1970 SC at page 1868). 12. 11. Since the basic ingredient of section 3 (a) of the Act could not be established the onus of proof did not shift to the accused and he was not supposed to account for the possession of the said articles satisfactorily. (Please see Kashmirilal v. State of U.P., AIR 1970 SC at page 1868). 12. This aspect of the case has been totally lost sight of and ignored by the two Courts below. On the other hand, without the said fact being established that the said articles were railway property, the onus has been wrongly placed on the accused/petitioner to satisfactorily explain by producing bills and vouchers for purchase or such articles, as to how he came in possession of the said articles. Therefore, the present revision petition is allowed. The accused is held not guilty and is acquitted of the charge framed against him.