Judgment 1. Heard all the parties. 2. These revisions are directed against the common order dated 1.7.96 in C.A.Nos.3, 4 and 2 of 1994 on the file of the learned Sessions Judge, Dindigul, confirming the common order of conviction dated 20.12.1993 in C.C.No.2703 of 1990 on the file of the learned Chief Judicial Magistrate, Dindigul, by the petitioners/accused for the offence punishable under Sec.3(a) of the Railway Property (Unauthorised Possession) Act, 1966, and sentencing the petitioners for one year rigorous imprisonment with a fine of Rs.1,000 in default of which, to undergo three months simple imprisonment, in addition. 3. The petitioners were facing trial as A-4, A-l and A-3 along with one another accused, A-2 by name Vijayan in C.C.No.2703 of 1996 for the offence punishable under Sec.3(a) of the Railway Property (Unlawful Possession) Act, 1966, hereinafter referred to as the Act, with regard to an alleged occurrence said to have taken place on 7.4.1990 at about 4 a.m., within the jurisdiction of the Dindigul Railway Protection Force, the respondent herein. 4. P.W.I made a complaint dated 5.12.1990 which is marked as Ex.P-1, to the respondent herein, namely, Dindigul Railway Protection Force, that one bag of coriander was missing, out of 330 bags that were unloaded and kept near broad gauge goods shed, and on the basis of the said complaint, P.W.3 and P.W.6 and their parties were carrying on a confidential watch near the Dindigul Broad Gauge Goods Shed and Railway Station area on 6.4.1990 night. 5. During their confidential watch, they noticed that A-l was carrying a gunny bundle on his right shoulder, coming from the Dindigul Railway Goods Yard towards the Western side, in a suspicious manner, and therefore, he was stopped and enquired by P.W.3. During the enquiry P.W.3, and P.W.6 found that the said gunny bag contained 2 Nos. of Railway Act bearing plates with the Railway marks as “Y.75 R-1986 3/4 I 10145 EWs” in one Plate and as “75-1986 Y.T. 10145 EWs” in another plate. 6. A-l admitted having removed them from the nearby railway track with a view to sell it outside, for his monetary benefit. Since A-l could not account for the lawful possession of the said bearing plates, the prosecution suspected that the said bearing plates were stolen or unlawfully obtained from the Railways, and therefore, seized them under cover of a mahazar duly attested by the witnesses. Since A-l could not account for the lawful possession of the said bearing plates, the prosecution suspected that the said bearing plates were stolen or unlawfully obtained from the Railways, and therefore, seized them under cover of a mahazar duly attested by the witnesses. In pursuance of the said enquiry, A-l gave a voluntary confession statement and admitted that he also committed a theft of one bag of coriander, along with A-2, one Vijayan, Goods Clerk, Southern Railway, Dindigul Railway Station, and A-3, Panneer Selvam, from the stock lot kept in the northern side of the broad gauge goods shed. Dindigul. The said confession statement of A-l is marked as Ex.P-9. 7. The respondents arrested A-2 and A-3 at 9 a.m. and 9.15 a.m. respectively, on 7.4.1990. A-2 and A-3 also gave two independent confession statements in the presence of P.W.3 and P.W.6 which were marked as Ex.P-10 and P-11 respectively. 8. A-2, in his confession statement, admitted that he took one bag of coriander from the broad gauge goods shed at about 1 a.m. on 5.4.1990 and handed over the same to A-3 Panneer Selvam to dispose it of outside, fat monetary benefit, A-3, in his confession statement, admitted that, he along with A-l and A-2, committed a theft of one bag of coriander from the broad gauge goods shed, Dindigul, and sold it to the accused A-4 namely, Ramesh, the owner of the Paraman Flour Mills, at No.2 Anguvilas Road, Dindigul. 9. The prosecution, therefore, after sending advance intimation to this Court on 7.4.1990 at about 1.00 p.m., conducted a search between 2.00 and 3.00 p.m. on 7.4.1990 at the said Paraman Flour Mills No.2, Anguvilas Road, Dindigul. During the course of search in the said flour mill owned by A-4, the prosecution found one gunny bag containing coriander, for which A-4 could not produce any bill or voucher for having purchased the said coriander. Therefore, P.W.3 and P.W.6 recovered the said bag of coriander under a cover of search list duly signed by the mahazar witnesses. A copy of the search list was also furnished to under acknowledgement, and therefore, A-4 was arrested and brought to the office of the respondents, where A-4 gave a voluntary confession statement, which was marked as Ex.P-14. Therefore, P.W.3 and P.W.6 recovered the said bag of coriander under a cover of search list duly signed by the mahazar witnesses. A copy of the search list was also furnished to under acknowledgement, and therefore, A-4 was arrested and brought to the office of the respondents, where A-4 gave a voluntary confession statement, which was marked as Ex.P-14. Hence, the accused were charged and tried in C.C.No.2703 of 1990 on the file of the learned Chief Judicial Magistrate, Dindigul, for an offence punishable under Sec.3(a) of the Railway Property (Unlawful Possession) Act, 1966, for the alleged unlawful possession of one bag of coriander, and two Railway A.C. bearing plates containing the mark of railways. 10. Ten witnesses were examined as P.W.I to P.W.10. Twenty four documents were marked as Exs.P-l. to P-24 and three material objects were produced as M.O.I to M.O.3 on behalf of the prosecution. 11. It is suffix to mention that P.W.I and P.W.2 spoke about the missing of one bag of coriander from the broad gauge goods shed at Dindigul, P.W.3 was the Inspector of the Railway Protection Force, who spoke about the search, seizure, arrest, enquiry and filing of the F.I.R., P.W.4 spoke about the certificate of the case properties seized from A-l P.W.5 was examined to speak about the confession of A-2 and the muster roll extract; P.W.6 spoke about the arrest of A-l and A-4. P.W.7 and P.W.8 spoke about the confession of A-3; and P.W.9 arid P.W.1Q were examined to speak about the arrest and confession of A-4. 12. In the light of the evidence of P.W.1 to P.W.10, read with Exs.P-9, P-10, P-11 and P-14, the learned Judicial Magistrate, Dindigul, by his order dated 20.12.1993, convicted the accused 1 to 5 for the offence punishable under Sec.3(a) of the Railway Property (Unlawful Possession) Act, and sentenced them for one year rigorous imprisonment with a fine of Rs.1,000 in default of which, to undergo three months simple imprisonment, in addition. 13. Aggrieved by the said order of conviction and sentence dated 20.12.93 A-l preferred appeal in C.A.No.4 of 1994 A-4 preferred appeal in C.A.No.3 of 1994 and A-3 and A-2 preferred C.A.No.2 of 1994 before the learned District and Sessions Judge, Dindigul, who, by order dated 1.7.1996, acquitted A-2 and confirmed the conviction and sentence with regard to the A-l, A-3 and A-4. 14. 14. Against the above order dated 1.7.1996 made in C.A.Nos.3,4 and 2 of 1994, the accused A-l, A2 and A-3 preferred the above revisions, namely Crl.R.C.Nos.509, 541 and 590 of 1996 respectively. 15. Mr.C.Rajan, learned counsel appearing on behalf of the petitioner in Crl.R.C.No.509 of 1996, contends that the entire case of the prosecution is liable to be rejected for want of independent witnesses. He challenges the order of conviction and sentence on the following grounds: (i) the search conducted by the petitioner with regard to the property in question does not comply with who procedure contemplated under Secs. 10 and 11 of the Railway Property (Unlawful Possession) Act, read with Sec.165 of the Crl.P.C. (ii) the mere intimation to the court under Ex.P-12, cannot by itself, amount to a warrant contemplated under Sec.10 (2) of the Act. (iii) there is no material available for the respondents to have reason to believe that the place of the 4th accused was used for the deposit or sale of railway property which had been stolen or unlawfully obtained at the time of making an application by the railway authorities on 7.4.1990. (iv)in the absence of any such reason to believe as contemplated under Sec. 10(a) of the Act, the respondent investigation officer had no reasonable ground to conduct a search as provided under Sec.165 of the Act. (v)the confession of the co-accused cannot be a reason to make an application for the search nor to grant a warrant thereon under Sec.10 of the Railway Property (Unlawful Possession) Act nor can it be a reasonable ground to conduct a search under Sec.165 of the Crl.P.C. (vi)in the absence of such reason to believe that the said flour mill was used for the deposit and sale of railway property that had been stolen or unlawfully obtained, the very application for issue of a search warrant made by the respondents is without jurisdiction and; (vii)in the absence of a valid warrant issued by a Magistrate, the very search said to have been conducted by the respondent, wherein, they found that A-l was in unlawful possession of two Railway Act bearing plates (A-2) in a gunny bag (A-3) and A-4 was in possession of one bag of coriander is held to be illegal and contrary to law. In this regard, the learned counsel for the petitioner relied upon the decision in K.L.Subbayya v. State of Karnataka K.L.Subbayya v. State of Karnataka, 1992 L.W.(Crl.) 213 wherein it is held as follows: “Sec.53 of the Mysore Excise Act relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the Magistrate. Sec.54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate. In the instant case, it is admitted that the inspector who searched the car of the appellant had not made by the record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of Sec.54 were not at all complied with. This therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction.” 16. Mr.Rajan also contents that the mere railway receipts are not sufficient to hold mat the goods recovered are railway properties, as the said coriander is also available in the open market, as admitted by P.W.2 himself, Mr.Rajan, placing reliance on the deposition of P.W.3 contends that since P.W.3 hadadmitted that the coriander bag was found in an open condition, the prosecution had failed to prove beyond all reasonable doubts that the said property was a railway property. In this regard, the teamed counsel for the petitioner relies upon the decision in State by Sub Inspector R.P.F. Royapuram v. Ramasamy State by Sub Inspector R.P.F. Royapuram v. Ramasamy, 1967 L.W. (Crl.) 159 wherein, it is held as follows: “The prosecution should fast succeed in proving that the accused has been in possession of the railway property. The evidence of P.W.1 examined to prove this aspect of the case is not very satisfactory. The mark found on M.0.1”Oriental Bombay“indicates the manufacturing concerns name. It does not show that it belongs and belongs only to the railway administration. Merely because a railway engine emblem is also found on M.O.I it does not make it a railway property, as anybody, could have an emblem likewise. Further, P.W.I had no knowledge that the Indian Railways were in possession of this particular Dynamo Belt. It does not show that it belongs and belongs only to the railway administration. Merely because a railway engine emblem is also found on M.O.I it does not make it a railway property, as anybody, could have an emblem likewise. Further, P.W.I had no knowledge that the Indian Railways were in possession of this particular Dynamo Belt. There is no evidence to show that the railways did purchase this article from the manufacturing company. M.O.I produced is court looks like a worn out material with tearing on it. P.W.1 doubted whether it could be used for servicing at all. Merely by looking at M.0.1 in such a condition, it is difficult to accept the evidence of P.W.1 when he states that it belongs to the railways. Thus, the evidence on the side of the prosecution failed to prove that the article belonged to the railway administration beyond all reasonable doubt. There is in the instant case no sufficient evidence of identification mark on the goods or some peculiarity which cannot be found on any non-railway goods, nor is mere any evidence to show that it was in possession of the railway administration.” 17. Mr.Rajan, placing reliance on the deposition of P.W 3, P.W.4, P.W.5, P W.6, P.W.7, P.W.8, P.W.9 and P.W.10 pointed out the contradictions and discrepancies in the prosecution evidence, and therefore, contends that the petitioners are entitled for the benefit of doubt. Mr.Rajan further contends that since the learned appellate Judge has acquitted A-2 in view of the contradictions in the confessional statements of A-l, A-3 and A-4, namely Exs P-9, P-11 and P-14 the said confessional statements of A-l, A-3 and A-4 cannot be considered as a piece of evidence as defined under Sec.3 of the Evidence Act and further states that the teamed Appellate Judge ought to have extended the same principle to the other accused, namely, the petitioners herein, as the chain of proof had broken in view of the acquittal of A2 arising out of the very, same cause of action. Mr.Rajan also contends that the prosecution has not proved that the said railway A.C. bearing plates were railway property for charging the petitioner Under Sec.3(a) of the Act. In support of his contentions, Mr.Rajan relies upon the decision in: (i)Arumugam IN RE. Arumugam IN RE. , 1967 L.W. (Crl.) 7 (Summary). (ii)Kashmiri Lal v. State of UP. Mr.Rajan also contends that the prosecution has not proved that the said railway A.C. bearing plates were railway property for charging the petitioner Under Sec.3(a) of the Act. In support of his contentions, Mr.Rajan relies upon the decision in: (i)Arumugam IN RE. Arumugam IN RE. , 1967 L.W. (Crl.) 7 (Summary). (ii)Kashmiri Lal v. State of UP. Kashmiri Lal v. State of UP., 1970 L. W. (Crl.) 234and235 (Summary) and (iii)In P. Radha and Razack IN RE. P. Radha and Razack IN RE. , 1976 L.W. (Crl.) 222. 18. Mr.Rajan further contends that under the facts and circumstances of the case, the burden lies on the prosecution to indicate that the coriander bag seized from the premises of A-4 belongs to the railway, which was lifted from the Dindigul Goods Shed and only thereafter, A4 was required to discharge his burden that it is not a railway property. In this regard, he relies upon the decision of this Court in B. Mohan IN RE. B. Mohan IN RE. , 1987 L.W. (Crl.) 202, wherein, it is held as follows: “Under the Railway Property (Unlawful Possession) Act, 1966 special provisions have been introduced in order to protect the railway property. The Railway Protection Force has been given powers to arrest as well as to summon person has been found in possession of railway property, reasonably suspected of having been stolen or unlawfully obtained, the burden shifts on him to show that he came into possession lawfully. Therefore, the whole investigation and the whole trial are based on the special provision of the Act. But, for these exorbitant provisions to come into play, the prosecution has necessarily to prove beyond reasonable doubt that the property in possession of the accused is railway property.” “In this case, it is true that the similarity in dates would suggest that the property found in possession of the accused is the same as the one stolen from the Railways. But for the conviction under Sec.3 of the Act. Something more is needed. It should be proved beyond reasonable doubt that the property recovered from the accused is the railway property, much more so on account of the shifting of the burden of proof on the accused embodied in Sec.3 of the Act. But for the conviction under Sec.3 of the Act. Something more is needed. It should be proved beyond reasonable doubt that the property recovered from the accused is the railway property, much more so on account of the shifting of the burden of proof on the accused embodied in Sec.3 of the Act. The prosecution could have indicated the length of the railway wire which was found cut and examined whether the bundle of wire in possession of the accused was of the same length. It would be dangerous to base a conviction under Sec.3 of the Act merely on the fact that the date of disappearance and the date of purchase happened to be the same without being satisfied with the dates between the articles missing and the article purchase by the accused. There is still a certain amount of doubt lingering, the benefit of which should go to the accused.” 19. Alternatively, Mr.Rajan claims that the petitioners are entitled for the benefit of Secs.3 and 4 of the Probation of Offenders Act as held by the Apex Court in Nirmal Lal Gupta v. State of Orissa Nirmal Lal Gupta v. State of Orissa, (1995) 2 S.C.C. (Supp.) 713 as the petitioners were not convicted previously. 20. Mr.Kasi Viswanathan, appearing for the petitioner in Crl.R.C.No.541 of 1996 and. Mr.Swamidoss Manokaran, appearing for the petitioner in Crl.R.C.No.590 of 1996 adopt argument of Mr.C.Rajan. 21. Per contra, Mr.N.R.Elango, at the outset, contends that the mere acquittal of A-2 on erroneous appreciation of evidence, cannot be a ground for the petitioners/accused to claim acquittal when the conviction and sentence against the petitioners are based on direct, clear and unambiguous material evidences. 22. Mr.Elango, invited my attention to Ex.P-1, namely, the report given by P.W.1 to the respondents as well as Exs.P-9, P-10, P-11, P-12, P-13, P-14 and P-15 supported with Ex.P-2, namely delivery register. It is clear that A-l was found red handed and caught on the track itself with the gunny bag M.O.3 and two Railway AC Bearing plates marked as M.O.2. 23. It is clear that A-l was found red handed and caught on the track itself with the gunny bag M.O.3 and two Railway AC Bearing plates marked as M.O.2. 23. That apart, Mr.Elango, also contends that only on the basis of confession of A-l, A-2 and A-3, an application was sent to the Magistrate under Ex.P-12 and the respondent immediately carried on a search in the premises of A-4, wherein, they recovered one bag of coriander with the railway make on the gunny bag containing the wagon number and invoice number, etc. 24. Therefore, Mr.Elango, contends that it is not on the mere entries or mask on the gunny bag that A-l, A-3 and A-4 were charged for the offence punishable under Sec.3(a) of the Act, but the marks were found on the gunny bag which contained bearing plates as well as the coriander bag, contained the railway mark. Wagon number and invoice number, respectively, and such piece of evidence can certainly be taken as a corroborative evidence, if not, as a direct evidence. He further contends that once such evidence is taken as a corroborative evidence with the complaint made by the railway authorities, certainly the respondents have discharged their burden indicating the railway properties which were either stolen or unlawfully obtained. 25. Mr.Elango, the learned Government Advocate further contends that the reliance placed by the learned counsel for the petitioner upon the decisions in State by Sub Inspector, R.P.F., Royapuram v. Ramasamy State by Sub Inspector, R.P.F., Royapuram v. Ramasamy , 1983 L. W. (Crl.) 159 and in B. Mohan IN RE. B. Mohan IN RE. , 1987 L.W. (Crl.) 292 are not tenable in law. 26. Mr.Elango also contends that the decisions relied upon by the learned counsel for the petitioner namely. (i)Arumugam IN RE. Arumugam IN RE. , 1967 L.W. (Crl.) 7 #x0028; Summary) 238 and (ii)Kashmiri Lal v. State of U.P. Kashmiri Lal v. State of U.P., 1970 L. W. (Crl.) 234and235 are not tenable in law, because, the material evidence produced before the court satisfies that the properties belong to the Railway Administration, as the bearing plates contain the Railway marks and A-l was sought in red hand when he was carrying it from the track. 27. 27. He further contends that similarly, the decision in Kashmiri Lal v. State of U.P Kashmiri Lal v. State of U.P , 1970 L.W. (Crl.) 234and235 is not relevant to the facts and circumstances of the present case, because, the said decision deals only with the Railway stores as defined in the Railway Property (Unlawful Possession) Act, 1966, Whereas in the presence case, the petitioners are charged under Sec.3(a) of the Act read with Sec.2(d) of the Act, wherein, the railway property is defined. 28. Mr.Elango further contends that the reliance placed by the learned counsel for the petitioner on the decision P. Radha and Razack IN RE. P. Radha and Razack IN RE., 1976 L.W. (Crl.) (Sum.) 222 is also not relevant in law, because A2 was acquitted not on the basis of the confession, but in view of the contradiction in the confessional statements of the co-accused, namely, A-l, A-3 and A-4. 29. In any event, Mr.Elango reiterates that the mere acquittal of A-2 even on an erroneous appreciation of evidence cannot be a ground for the petitioners to claim acquittal of the charges punishable under Sec.3(a) which are proved by material evidences on record, particularly, when the petitioner A-l, A-3 and A-4 have failed to prove that the said railway properties suspected to have been stolen or unlawfully obtained came to their possession lawfully as contemplated under Sec.3 of the Act. 30. Accordingly to Mr.Elango, the complaint by the learned counsel for the petitioner that there was an unnecessary delay in the investigation is not tenable in law. Mr.Elango further contends that since A-l was caught red handed when he was carrying the railway bearing plates, it could not be said that there was no reason to believe to charge him for the offence punishable under Sec.3(a). That apart, since the search was conducted and the gunny bag was recovered from A-4 on the basis of the confession of A-1 and A-3 again, it could not be said that there was no reason to believe to make an application for such search, nor it could be contended that there was no ground for conducting the search under Secs.10 and 11 of the Railway Property (Unlawful Possession) Act, 1966 read with Sec. 165 of the Crl.P.C. 31. Mr.Elango further contends that the procedure contemplated under Sec.165 of the Act for the conduct of the search was duly complied with and absolutely there was no delay on the part of the prosecution in conducting the investigation and search or producing the property before the Magistrate. In this regard, Mr.Elango relies upon the decision of the Apex Court in Pooran Mal v. Director of Inspection Pooran Mal v. Director of Inspection, (1974) 1 S.C.C. 345 . 32. I have given a careful consideration to the submissions of both sides. 33. In this connection, for the purpose of appreciating the averments of both sides, it is relevant to refer Secs.2(d)7, 10 and 11 of the Act and Sec.165 of Crl. P.C Sec.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.” See. 7: Disposal of persons arrested: “Every person arrested for an offence “punishable under this Act shall, if the arrest was made by the person other than an officer of the force, be forwarded without delay to the nearest officer of the Force,” Sec.10: Issue of search warrant:(1) If an officer of the force has reason to believe that any place is used for the deposit or sate of railway property which has been stolen or unlawfully obtained, he shall make an application to the Magistrate, having jurisdiction over the area in which that place is situate, for issue of a search warrant. (2) The Magistrate to whom an application is made under Sub-sec(1) may after such inquiry as he thinks necessary, by his warrant, authorise any officer of the Force, (a) to enter, with such assistance as may be required, such place; (b) to search the same in the maimer specified in the warrant (c) to take possession of any railway property therein found which he reasonably suspects to be stolen or unlawfully obtained; and (d) to convey such railway property before a Magistrate or to guard the same on the spot “until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety.‘ Sec. 11: Searches and arrests how to be made:“All searches and arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure 1898 (5 of 1898), relating respectively to searches and arrests made under that Code.” Sec.165 of Crl.P.C: Search by Police Officer: (1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is incharge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, alter recording in writing the grounds of his belief and specifying in such writing, so far as possible the thing for which search is to be made, search or - search to be made, for such thing in any place within the limits of such section; (2) A police officer proceeding under Sub-sec.(1) shall, if practicable, conduct the search in person. (3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require an officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (4) The provisions of this case as to search warrants and the general provisions as to searches contained in Sec.100 shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under Sub-sec.(1) or Sub-sec.(3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.” 34. In Arumugam IN RE. Arumugam IN RE. , 1967 L.W. (Crl.) 7 Summary 238, Mr.Krishnaswamy Reddy, J. has held as follows: “In a prosecution for an offence under Sec.3 of the Railway Property (Unlawful Possession) Act, it is necessary for the prosecution to show that the articles seized were used or that they were kept by the railway administration with the intention to use them for the construction, operation or maintenance of a railway. To. sustain a conviction under. Sec.3 of the Act, the prosecution should prove (1) that the property in question belonged to a railway administration, and (2) that it was used or intended to be used stated above, and that they were in a serviceable conditions when they were found in the possession of the petitioner.” 35. The Apex Court, in Kashmiri Lal v. The State of Uttar Pradesh Kashmiri Lal v. The State of Uttar Pradesh, 1970 L. W. (Crl.) 106 has held as follows: “Before any one can be charged with the offence under Sec.3 it must be shown that he was in possession of railway stores which by the definition of section does not include all articles which are the property of a railway administration but only those which are used or intended to be used in the construction operation or maintenance of a railway. Mere unlawful possession of the property of any railway administration is not an offence. The prosecution must also prove that the articles were being actually used or were intended to be used for by the railway. Thus any article which is the property of a railway administration but which has been discarded or rejected for further use would be outside the definition of railway stores. Railway stores may be new or old and an offence may be committed in respect of stores of either kind. Thus any article which is the property of a railway administration but which has been discarded or rejected for further use would be outside the definition of railway stores. Railway stores may be new or old and an offence may be committed in respect of stores of either kind. If the railway administration has no further used of them, be they now or old as in the case where they have became unserviceable of out-moded, no person can be charged with an offence under Sec.3 in respect thereof. It is only when the articles satisfy the definition of railway stores that the prosecution can be successfully launched against a person in unlawfully (sic.) possession thereof. Even in such a case, the prosecution must first adduce evidence to show that there was cause for reasonable suspicion of the stores being stolen or obtained unlawfully. It is only when the burden in respect of this is discharged by the prosecution that the onus shifts to the accused to account satisfactorily of his possession of the same. He may, for instance, show that he had purchased the property in open market where goods of this kind are usually sold or that he had brought them from some one bona fide in the belief that the vendor had lawfully obtained the same” 36. Both the case, viz., Arumugham IN RE. Arumugham IN RE. , 1967 L.W. (Crl.) 238 (Summary) as well as Kashmiri Lal v. The State of Uttar Pradesh Kashmiri Lal v. The State of Uttar Pradesh , 1970 L.W. (Crl.) 234 dealt only with regard to the railway stores as defined under Railway Property (Unlawful Possession) Act, 1955, which stands now repealed by the Railway Property (Unlawful Possession) Act, 1966, wherein, under Sec.2(d) defines the railway property as already, mentioned above, Therefore, the said decisions, namely Arumugham IN RE. Arumugham IN RE. , 1967 L.W. (Crl.) 238 (Summary) as well as Kashmiri Lal v. The State of Uttar Pradesh Kashmiri Lal v. The State of Uttar Pradesh, 1970 L.W. (Crl). 234 cannot be relied upon by the petitioner to the facts of the present case. 37. In P. Radha and Razack IN RE. Arumugham IN RE. , 1967 L.W. (Crl.) 238 (Summary) as well as Kashmiri Lal v. The State of Uttar Pradesh Kashmiri Lal v. The State of Uttar Pradesh, 1970 L.W. (Crl). 234 cannot be relied upon by the petitioner to the facts of the present case. 37. In P. Radha and Razack IN RE. P. Radha and Razack IN RE., 1976 L.W. (Crl.) 227 (Summary), this Court has held as follows: “The confession of co-accused is not technically the evidence and has no force of a sworn, testimony, or rather it is not substantive evidence in the sense that a conviction on that alone can stand, and that the section has merely gives (sic.) a discretion to the court to use it against the co-accused when the conditions as stated above are satisfied. As the section has given only the discretion that the court may take into consideration such confession it can be construed that the court has full discretion to exclude the confession altogether from consideration against the co-accused if, from the facts and circumstances, the court is disposed to take that view, since such Kind “of evidence is of the very weakest kind being simply a statement tainted statement of a third person not made upon oath or affirmation, in the sense that it is not made in the presence of a person or persons whom he incriminated and consequently cannot be tested by cross-examination. Hence the confession of this nature cannot be regarded as a piece of evidence, as defined under Sec.3 of the Evidence Act.” 38. Sec.2(d) is an inclusive definition. Therefore, it is immaterial whether the properties in question are in serviceable condition or otherwise. It is sufficient for the prosecution to establish that the property in question belongs to or in character in possession of the railway administration to constitute a railway property for the purpose of Sec.3(a) of the Railway Property for the purpose of Sec.3(a) of the RP(UP) Act. 39. In the instant case, A-l was caught in red handed with M.O.3 and M.0.4 which contain the railway marks and M.O.I was seized from A-4 on the confession of A-l and A-3, which corroborate with the railway receipts, wagon number, etc. 39. In the instant case, A-l was caught in red handed with M.O.3 and M.0.4 which contain the railway marks and M.O.I was seized from A-4 on the confession of A-l and A-3, which corroborate with the railway receipts, wagon number, etc. Therefore, from the above material evidence available on record, I am satisfied that the prosecution has discharged their initial burden that the M.Os.l, 2 and 3 are Railway properties, as the same were recovered from A-1 and A-4 and on the other hand, the petitioners failed to prove that the said railway properties came to their lawful possession as contemplated under Sec.3(a). 40. That apart, I am also satisfied with the contention of the learned Government Advocate that A-2 was acquitted not placing reliance on the confessional statement of the co-accused but in view of the contradictions in the said confession statements, which are marked as Exs.P-9, P-11 and P-14. 41. I am not able to appreciate the contentions of Mr.Rajan that there was no reason to make an application by the respondents to seek for a search warrant, because, the railway authorities made a complaint to the respondents that one bag of coriander was missing on 5.4.1990 itself, and on the basis of such complaint, P.W.3 and P.W.6 conducted a watch in the night, during which, they caught A-l in red hand, carrying the gunny bag containing Railway Act bearing plates. Immediately thereafter, they obtained the above statement from A-l and A-3, in pursuance of which, they made an application to the Magistrate for issue of search warrant, and simultaneously, conducted the search at the premises of A-4, wherein, they found the gunny bag containing coriander received from Wagon Number etc. Therefore, the reliance placed on the decisions in: 42. I am not convinced with the arguments of Mr.Rajan that the search should not be conducted before getting warrant from the Magistrate. In this connection, it is relevant to refer the decision referred by the learned Government Advocate in Pooran Mal v. Director of Inspection Pooran Mal v. Director of Inspection, (1974) 1 S.C.C. 345 which deserves consideration, wherein, the Apex Court has held as follows: (i)B. Mohan IN RE. B. Mohan IN RE., 1987 L.W. (Crl.) 202 and (ii)K. L.Subbayya v. State of Karnataka K. L.Subbayya v. State of Karnataka, 1992 L.W. (Crl.) 213. B. Mohan IN RE., 1987 L.W. (Crl.) 202 and (ii)K. L.Subbayya v. State of Karnataka K. L.Subbayya v. State of Karnataka, 1992 L.W. (Crl.) 213. “In other words search and seizure for the purposes of preventing or detecting crime reasonably enforced was not inconsistent with the constitutional guarantee against search and seizure.” Therefore, since the authorities in the instant case have conducted a search and seizure for preventing the Crime, it cannot be held illegal. 43. That apart, I am also satisfied that the respondents have complied with the procedure contemplated under Secs. 10 and 11 of the Act read with Sec.165 of Crl.P.C. nor I could find any delay in conducting the investigation. 44. For all the above reasons, I do not find any good and sufficient reasons to interfere with the order of conviction and sentence imposed by the courts below against the petitioners herein, and the petitioners had not discharged their statutory obligation under Sec.3(a) of the Act and had failed to prove that the Railway property came into their possession lawfully. 45. However, I am obliged to refer the decision in Nirmal Lal Gupta v. State of Orissa Nirmal Lal Gupta v. State of Orissa, (1995) 2 S.C.C. (Supp.) 713wherein the Apex Court has held as follows: “Clause (a) gives a choice to the court to either award imprisonment or impose fine, or both. It is the choice of the court which determines whether imprisonment alone should be awarded or fine alone be imposed or both should be awarded. It is thus obvious that it is not obligatory on the court to always award imprisonment as a punishment. Once it is so understood it is difficult to comprehend that a minimum sentence alone thereunder is imposable to which the Probation of Offenders Act would not be applicable.” “Under clause (b) the court is obligated to award imprisonment for a term which may extend to five years and also impose fine. The awardable imprisonment however cannot be loss than two years and such fine cannot be less than two thousand rupees, unless for special and adequate reasons, to be mentioned in the judgment of the court, the imprisonment of less than two years is imposed and a fine less than Rs.2,000 is imposed. Here there is a compulsion to impose both kinds of sentences, unless the court exercises discretion to do away with imposing any punishment”. 46. Here there is a compulsion to impose both kinds of sentences, unless the court exercises discretion to do away with imposing any punishment”. 46. Considering the facts and circumstances of the case, instead of sentencing him with imprisonment or imposing fine, as specified under Sec.3(a) of the RP(UP) Act, I am satisfied that the petitioners/accused, being first offenders, may be given benefit of Probation of Offenders Act and the petitioners/accused shall be released under Sec.4 of Probation of Offenders Act. Therefore, I direct the petitioners to be released on Probation of good conduct on their entering into a bond for a sum of Rs. 1,000 within four weeks from today before the learned Chief Judicial Magistrate, Dindigul, with one Surety to appear and receive sentence when called upon during a period of six months, and in the meantime, to keep the peace and be of good behaviour, and the learned trial court is consequently directed to refund the fine amount to the petitioners Within four weeks from the date of receipt of a copy of this order. In the result, the revisions are dismissed with the above direction. No costs.