JUDGMENT : B.C. Patel, J. State has preferred this appeal against the order of acquittal recorded by Judicial Magistrate First Class, Bhavnagar in Criminal Case No. 24 of 1990 wherein the accused were tried for an offence punishable under section 3 of the Railway Property (Unlawful Possession) Act, 1956 (hereinafter referred to as "the Act"). 2. On 26.2.1989, Ganpatsinh Laxmansinh, PW.1 while discharging his duties, was conveyed information by Sub-Inspector Maniram of Railway Protection Force (hereinafter referred to as "the RPF") that goods belonging to the Railways are lying at a place situated in Khadkivad. The officers along with city Police Sub-Inspector Desai reached the house of accused No.2, who was not present there, but at the relevant time, accused No.1, who happens to be the wife of accused No.2 was present. Railway properties were found in the house. Statement of accused were recorded under the Act. After completing the investigation, complaint came to be filed against the accused. The trial Court held that mere possession of articles manufactured by private firms for the use of railway administration cannot, by any stretch of imagination, be regarded as Railway property as described in section 2 (d) of the Act, relying on a decision reported in 1973 Criminal Law Journal 1706. The trial Court further held that there is no evidence that the muddamal article was found from the custody of the accused. The trial Court further held that looking to the complaint and evidence, muddamal even if found from the possession of the accused, as the complainant has failed to prove that the stolen articles belong to the Railways, the accused cannot be convicted. 3. Ganpatsinh Laxmansinh, PW. 1, in his testimony stated that accused No.1 was present and on searching the 'vada', brake locks and fittings belonging to the Railways in all 1700 kgs. approximately, were found. In the cross examination, no question is put to the witness as to how he states that the goods seized were of railways. 3.1 Maniram, PW. 2, has stated on oath before the trial Court that on search, railway track, wash basin, ankles, brake locks, nuts, blots and fittings of the railway wagons were found. approximately, were found. In the cross examination, no question is put to the witness as to how he states that the goods seized were of railways. 3.1 Maniram, PW. 2, has stated on oath before the trial Court that on search, railway track, wash basin, ankles, brake locks, nuts, blots and fittings of the railway wagons were found. In the presence of panch, accused No. 1 was asked to produce any bill or receipt to which it was stated by accused No.1 that she has no receipt and even in future it will not be possible to produce. It was her case that the material was purchased by her husband from the hawkers. The goods were sized under a panchnama. The statement given by the accused is produced at Exh. 10. On 15.3.1989, accused No. 2 appeared before the RPF officer and stated before him that railway property which was stolen has been purchased by him from the hawkers. He further stated that he has no receipt or bill and even in future also, he will not be in a position to produce the same. He gave a statement which is recorded at Exh. 11. In the cross examination it is not put to this witness that the goods seized were auctioned by the Railways. However, a suggestion is made that the accused purchased the muddamal article in an auction which suggestion has been denied by the witness. A suggestion was also made to the witness that accused were prepared to show the bills, but by force the muddamal was taken into custody, which has been denied. In further cross examination, it is put to the witness that railway scrap is being auctioned, accused is a dealer as well as purchaser in scrap. Accused is dealing in such articles. He has stated that on the muddamal, there were marks of the Railways. He has denied that the articles are available in the market. It is required to be noted that even in the further cross examination, it is not suggested to this witness that these muddamal articles were sold in auction. 3.2 Shanabhai, PW. 4, who accompanied the PSI for raiding the premises of the accused was questioned that search warrant was not obtained. PSI Maniram, PW. 2, who carried out the raid is not questioned about the warrant being obtained from the competent authority. 3.2 Shanabhai, PW. 4, who accompanied the PSI for raiding the premises of the accused was questioned that search warrant was not obtained. PSI Maniram, PW. 2, who carried out the raid is not questioned about the warrant being obtained from the competent authority. Witness Shanabhai corroborated the version of finding of the property from the 'delha' of the accused and that bill or receipt though were asked to produce, the accused could not produce the same. He further stated that according to the accused No.1, from some boys of the village, scrap was purchased. In the cross-examination, he stated that there were no markings of the Railways. 3.3 Harendraprasad, PW. 5 has deposed that the muddamal was shown to him which included fish plates, nuts, blots, A/C bearings, plates, ankles etc. This witness further stated that the material was pertaining to Railway tracks and the muddamal was serviceable. He has further stated that the articles which can be used (i.e. serviceable parts or material) in railways are not being auctioned. In the cross-examination, he has stated that he cannot say as to the muddamal belongs to which railway and there were no special markings. [It is difficult to understand whether this suggestion pertains to the Division of Railways or route of the Railways]. He has produced Exh. 16 issued by him for the purpose of pointing out that the material was examined by him and it belongs to the railway administration. 3.4 Prosecution has also examined Gomayarao, PW. 6, who has examined the muddamal and has stated that the material examined by him was used in the Railway and was serviceable. He has given certificate for the same, which is produced at Exh. 18. He has stated that certain goods were serviceable. According to him, the brake blocks are used in trains. He has denied the suggestion that the muddamal was old. He has stated that he has taken training at Ajmer for the purpose of identifying the railway property. In the certificate given by him he has opined that iron sheets, ladder, break block pieces are used in box wagon and wash basin is used in coach and other loose materials are used in the wagon. He has further stated in the certificate that these material can be used in the coaches and wagon and as such it is the property of the Railway administration. He has further stated in the certificate that these material can be used in the coaches and wagon and as such it is the property of the Railway administration. 3.5 Labhu Talsi, PW. 7, working as a Railway Gangman was selected as a panch. he has stated that the muddamal was seen, however there were no markings of the Railway. 3.6 Prosecution has also examined Nathani Balani, PW. 3, a co-panch, who was also working as a Gangman. He has stated in the cross examination that from the accused No.1, no demand was made for bill or receipt. He has further stated that the accused were not questioned in his presence. 4. Reading the evidence as a whole, it transpires that some material was found from the house of the accused. As per the say of the accused, the same is mere scrap but as per the prosecution version, the muddamal which was found was serviceable. So far as the markings are concerned, some witnesses have positively stated that there were markings of railways. Some has not referred and some deposed that there were no markings. In view of this, it was submitted that in the absence of markings, it cannot be said that the property belongs to the Railway. No question is put to Ganpatsinh PW. 1 for challenging his version that the property belongs to the Railway. Similarly, no questions are put to the other witnesses also. 4.1 The fact remains that witnesses have deposed before the Court that the property seized from the accused belong to the Railways. No bill or any document evidencing that the accused were in lawful possession of the muddamal has been produced before the Court. No specific question is put to the witness that the muddamal goods were auctioned with details of auction. There is evidence to show that the muddamal was serviceable and was in such a condition that the same could be used in the Railway. It is also made clear that parts which can be used are never auctioned. From this, the only inference that can be drawn is that muddamal which was serviceable was not auctioned. If goods are purchased from auction, some details could have been given by the accused. It is also made clear that parts which can be used are never auctioned. From this, the only inference that can be drawn is that muddamal which was serviceable was not auctioned. If goods are purchased from auction, some details could have been given by the accused. If the accused are in custody of property bearing markings of Railways and is not scrap as such, it is for the accused to show that they were in lawful custody. Thus, it is clear that the muddamal which could be used in the Railways, which belonged to the Railways, was found from the possession of the accused. 5. Mr. Nanavati, learned advocate for the accused submitted that in view of the decision of the Apex Court in the case of Kashmirilal v. State Of UP reported in AIR 1970 SC 1868 , mere unlawful possession of the property of any Railway administration is not an offence under section 3. [That was a case under the old Act: Railway Stores (Unlawful Possession) Act, 1955]. In that case, witness Jaswantsinh made a positive averment that : "Railway engine is auctioned in the market. I cannot say if these articles were auctioned in the market. I cannot say these articles were auctioned or not". 5.1 The witness in his cross examination repeated the same averments indifferent words, but only added that he had examined the articles and they were parts of an engine and that the railway articles were mixed with other goods in the bags. The Apex Court in paragraph 2 of the judgment [Kashmirilal, supra) observed that "by section 2 railway stores' are defined to mean any article: (a) which is the property of any Railway Administration; and (b). which is used or intended to be used in the construction, operation or maintenance of a railway. In paragraph 3, the Apex Court held that : "If the railway administration has no further use of them, be they new or old as in the case where they have become unserviceable or outmoded, no person can be charged with an offence under Section 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 unlawful possession thereof." 6. The instant case is covered by the provisions contained in the Act of 1966. It is only when the articles satisfy the definition of railway stores that the prosecution can be successfully launched against a person in unlawful possession thereof." 6. The instant case is covered by the provisions contained in the Act of 1966. In the case of State Of U.P. v. Ram Dass reported in 1976 CRI. L.J. 1401, railway property was recovered from inside a bag which the accused was carrying. Learned Magistrate, relying on the prosecution evidence convicted the accused for an offence under section 3 of the Act and sentenced him to imprisonment and fine. In appeal, the learned Sessions Judge held that so far as recovery of the metal dust belonging to the railway from the possession of Ram Das was concerned, there was no reason to disbelieve the prosecution witnesses. However, the Sessions Judge, relying on the decision in the case of Kashmirilal (Supra) held that there was no evidence to show that the recovered article, i.e. copper dust mixed with metal dust, was used or intended to be used in construction, operation or maintenance of the railway, it could not be said that an offence under section 3 of the Act had been made out, and, therefore, set aside the conviction and sentence passed against the accused Ram Das. State preferred an appeal against the said order passed by the learned Sessions Judge. The Division Bench held as under in paragraphs 6 and 7 of the judgment :- "6. In our opinion reliance by the learned Sessions Judge on the case of Kashmirilal v. State of U.P., 1970 All WR (SC) 500 was misplaced. That was a case under Section 3 of the Railway Stores (Unlawful Possession) Act, 1955 and not under the Railway Property (Unlawful Possession) Act, 1966. Section 3 of the Act provided that if any person was found to be in possession of any article of railway stores, reasonably suspected of being stolen or unlawfully obtained and for the possession of which he could not offer a satisfactory explanation, he was to be punished with imprisonment for a term which may extend to five years or with fine or with both. Section 2 defined the railway store as meaning any article which is the property of any railway administration and which is used or intended to be used in the construction, operation or maintenance of railway. Section 2 defined the railway store as meaning any article which is the property of any railway administration and which is used or intended to be used in the construction, operation or maintenance of railway. It was because of the definition of the words 'railway stores' as contained in Section 2, that the Supreme Court in Kashmirilal Lal's case observed that any article which is the property of the railway administration but which has been discarded or rejected for further use, would be outside the definition of the railway stores. If the railway administration has no further use of the stores, whether they be new or old, as in he case where they become unserviceable or outmoded, no person can be charged under Section 3 in respect thereof. 7. However, the Railway Stores (Unlawful Possession) Act, 1955 was repealed by the Railway Property (Unlawful Possession) Act 1966 and section 3 of the new Act provided that whoever is found or 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 punished as provided therein. The expression 'railway property' has been defined in Section 2 (d) as including any goods, money or valuable security or animal belonging to or in the charge or possession of a railway administration. It will thus be seen that the definition of the expression 'railway property' as used in the 1966 Act is considerably wider than the definition of 'railway stores' as contained in the 1955 Act. Under the 1966 Act, it is not necessary that before an article can be considered to be railway property, it must be such which is used or intended to be used for the construction, operation or maintenance of the railway (which was the requirement for its being covered by the definition of railway stores under the 1955 Act). It, therefore, follows that the judgment of the learned Sessions Judge in acquitting Ram Das on the ground that the article recovered from the possession of Ram Das was not shown to be used or intended to be used in the construction, operation or maintenance of the railway cannot be sustained." 7. Mr. It, therefore, follows that the judgment of the learned Sessions Judge in acquitting Ram Das on the ground that the article recovered from the possession of Ram Das was not shown to be used or intended to be used in the construction, operation or maintenance of the railway cannot be sustained." 7. Mr. Nanavati submitted that it must be shown that the articles were in possession of the railway and that a complaint was filed for theft of articles and there must be evidence to show that the articles belong to the railway or the articles were in charge or in possession of the Railway. 7.1 Section 3 of the Act reads as under :- "3. 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 to his possession lawfully, be punishable - (a). for the first offence, with imprisonment for a term which may extend to five years, or with both and in the absence of special and adequate reasons to be mentioned in he judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees. (b). for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees. 7.2 From the evidence it is clear that the material found from the possession of the accused, it can be said that the same was used in railways and could have been used in the Railways as that was serviceable. Reading the aforesaid section, if it is pointed out that the property in question is a Railway property and if it is reasonably suspected of having been stolen or unlawfully obtained and it is found or proved that the accused was or had been in possession of the property, then the consequences must follow. In the instant case, can it be said that the Railway property is lawfully obtained and the accused is found to have been in possession of the railway property lawfully. In the instant case, can it be said that the Railway property is lawfully obtained and the accused is found to have been in possession of the railway property lawfully. From the facts, it is clear that the property which was seized was railway property and there is nothing to show that the muddamal articles were in lawful possession of the accused. Merely because in the Railway auctions scrap material is auctioned, it does not mean that the material which is proved to have been serviceable was also auctioned. Evidence suggest that serviceable material is not auctioned. Therefore, the finding of the trial Court that the accused have committed no offence, is without any merit. 8. The question that now arises is: which accused is guilty? Accused No.1 has clearly stated before the officer investigating the offence that her husband has purchased this material. Ganpatsinh PW.1 stated that he knows Gulab; his house is adjacent to wadi and he resides with his family. From the house and also from the "Dela", as per evidence of Maniram PW.2, muddamal was found. Accused No.1 is a housewife and if her husband has kept the material in the house wife cannot be held guilty. In the circumstances, the order of acquittal so far as the accused No.1 is concerned is confirmed. However, so far as the accused No.2 is concerned, the order of acquittal is quashed and set aside. The accused No.2 is convicted of an offence punishable under section 3 of the Act. 9. Office is directed to issue bailable warrant in the sum of Rs. ten thousand only on the accused No.2, returnable on 8th October 1998, requiring him to remain personally present before the Court on that date for hearing him on the question of sentence. 15th October 1998: 10. This matter could not be taken up earlier. Today, the accused No. 2 has remained present before the Court. He submitted that he is a poor man, earning his livelihood to maintain his family by trading in waste materials. He prayed that after a period of nine years, he may not be sent to jail for an offence alleged to have been committed in the year 1989. Mr. Nanavati submitted that looking to the condition of the accused No.2 and the nature of offence, the accused should not be sent to jail. He prayed that after a period of nine years, he may not be sent to jail for an offence alleged to have been committed in the year 1989. Mr. Nanavati submitted that looking to the condition of the accused No.2 and the nature of offence, the accused should not be sent to jail. He further submitted that this Court should take a lenient view as the legislature has permitted that for adequate reasons, the Court may impose lesser punishment such as only fine, and this is a fit case wherein this Court should take a lenient view. Mr. Nanavati further submitted that after the instant incident, the accused No. 2 has never been found indulging in such activities and even the prosecution has not pointed out that the accused No.2 is continuing such illegal activities. 11. Having seen the plight of the accused No.2 and having heard the accused No.2, his learned advocate and the learned APP, this Court feels that ends of justice would be met with if the accused No.2 is sentenced to pay a fine of Rupees one thousand only. The accused No.2 is, therefore, sentenced to pay a fine of Rupees one thousand only, in default of payment of fine, the accused No.2 is sentenced to undergo simple imprisonment for one month. The accused No.2 is granted four weeks time to deposit the amount of fine, which he shall deposit in the trial Court. This appeal stands allowed accordingly. Appeal allowed.