JUDGMENT Subrata Talukdar, J.: In this appeal u/s 378 of the Code of Criminal Procedure the Eastern Railway through Sub-Inspector/ R.P.F./ Post/ BWN have challenged the Order dated 19th December, 2013 passed by the ld. Chief Judicial Magistrate (for short C.J.M.) at Burdwan in CR case no.139 of 2012 u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short the 1966 Act). According to the case of the prosecution as recorded in the impugned judgment, on the 20th of February, 2012 an information was received from Security Control, Howrah to the effect that an unknown person was carrying one Exide battery in the compartment of Purbanchal Express. On examination of the information by the Railway staff one 12 Volt Exide battery was found in the Guard Lobby being carried by the accused, who is the opposite party in this appeal. Since the accused failed to produce any valid document in support of possessing the said 12 Volt Exide battery, he was arrested. The prosecution examined several witnesses namely, PWs 1 to 5. Prosecution also marked documents being Exh. 1 to 6. The seized battery was marked as Material Exh. 1. The defence got the opportunity to cross examine the PWs after framing of charge and the Ld. Magistrate upon consideration of the matter found the following:- a) That the prosecution has failed to prove by positive evidence that the property was Railway property and that the accused was found in possession of such property. b) The onus with regard to proving the case of the prosecution lies with the prosecution itself and does not shift to the accused for the purpose of adducing evidence as to the manner in which the property was obtained by him. c) With reference to proof of a charge u/s 3 of the 1966 Act, the same must be proved beyond reasonable doubt. The Ld. Magistrate also relied upon a decision of the Hon’ble Apex Court reported in 1979 (4) SCC 23 in State of Maharashtra Vs. Vishwanath Tukaram Umale which had specified the ingredients of the offence u/s 3 of the 1966 Act. d) With regard to consideration of the fact as to what constitutes stolen property, the Ld. Magistrate was pleased to notice Section 410 of the Indian Penal Code defining stolen property. e) The Ld. Vishwanath Tukaram Umale which had specified the ingredients of the offence u/s 3 of the 1966 Act. d) With regard to consideration of the fact as to what constitutes stolen property, the Ld. Magistrate was pleased to notice Section 410 of the Indian Penal Code defining stolen property. e) The Ld. Magistrate held that when the article of goods are to be found in the open market and, are common in nature such as an Exide battery, it becomes incumbent on the prosecution to establish that the alleged stolen good is Railway Property as defined under the 1966 Act and, further it was picked up and stolen from the Railway Stores. f) The Ld. Magistrate noticed that the prosecution could not place the stock register of the godown from where it could be ascertained that the Exide battery belonged to the said godown. Importantly, the property found in possession of the accused is not the same as having been stolen from the Railways. The said Exide battery did not have the relevant Railway markings namely, the IR mark. In this connection the cross examination of PW1, one Kripa Sindhu Mukherjee was usefully recorded by the Ld. Magistrate and the same is reproduced as follows:- “The Exide battery is available in market. I do not have knowledge regarding the battery factory owned by railway. There is no monogram of railway in the seized Exide battery. The Exide battery is easily available in the open market. It is not possible on my part to say as to whether this battery attached with the railway department. The driver and guard did not put their signature on the seizure list due to want of time. Burdwan Railway Station is quite busy station and each plat form is highly congested and passengers, hawkers etc. are found running immensely on each plat form. I did not inquire about the place of procurement of the battery. The battery was kept in a wooden box. The said box was not labelled.” Upon consideration of all the above factors the Ld. Magistrate was pleased to acquit the present opposite party accused u/s 248 (1) Cr.PC and held him not guilty of the offence punishable u/s 3 of the 1966 Act. Sri K.D.Poddar, Ld. Counsel for the appellant-petitioner, in his usual fairness, does not submit that the facts as recorded by the Ld. Magistrate was pleased to acquit the present opposite party accused u/s 248 (1) Cr.PC and held him not guilty of the offence punishable u/s 3 of the 1966 Act. Sri K.D.Poddar, Ld. Counsel for the appellant-petitioner, in his usual fairness, does not submit that the facts as recorded by the Ld. Magistrate in the impugned judgment dated 19th December, 2013 can be improved. He, however, submits that the hearing of the appeal may be expedited. Sri Poddar however, makes the additional submission that the Ld. Magistrate was wrong in shifting the onus of proof on the petitioner-Railways while applying the provisions of Section 3 of the 1996 Act. Sri Moinak Bakshi, Ld. Counsel appearing for the opposite party-accused submits that in view of the nature of the facts recorded by the Ld. Magistrate and the findings arrived at by him, in the event this appeal is allowed to continue there shall be caused grave miscarriage of justice to his client. He further submits that the opposite party-accused retires on the 30th of July, 2014 and, in the event this appeal is not decided expeditiously, there is every reason that his retirement benefits shall be withheld. Both the Ld. Counsel did not object to this Court taking up this matter for final hearing today at the stage of its appearance in the list under the heading Leave to Appeal. In the above backdrop both the Ld. Counsel were heard at length. After hearing the Ld. Counsel and considering the materials on record this Court finds that the Ld. Magistrate correctly appreciated the evidence on the point that the PWs failed to conclusively establish that the property in question belonged to the Railways. In this connection this Court specially mentions the cross-examination of PW1, which is quoted hereinabove in this judgment. This Court also notices the cross-examinations of PW2 that the entire seizure was done without calling for material witnesses. The evidence of PW1 is supported by the evidence of PW3 who states in his cross-examination as follows:- “There is no identification mark found over the battery pertaining to the property of Railways. It is available in the open market.” Similarly the evidence of PW4 supports the evidence of PW2 to the effect that neither Guard nor the Driver nor the Ticket Checker or the Staff signed the seizure list. It is available in the open market.” Similarly the evidence of PW4 supports the evidence of PW2 to the effect that neither Guard nor the Driver nor the Ticket Checker or the Staff signed the seizure list. PW5 states in his cross-examination that even the message received by Burdwan Railway Protection Force was not kept as part of the records. He admitted that the message book was not kept and he did not examine any person from the Railways on the incident of seizure. This Court therefore finds sufficient force in the findings of the ld. Magistrate that Section 3 of the 1966 Act puts an onus on the prosecution to first prove that the property was Railway property in order to sustain a charge of violation of Section 3. In this connection Section 3 of the 1966 Act is quoted below:- “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 unlawful obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable- (a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both 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 one year and such fine shall not be less than one 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.” To the mind of this Court a grave miscarriage of justice will result if on the allegation of stealing a single Exide battery which has not been proved to be Railway property and, in the face of the utterly weak evidence tendered by the prosecution, this appeal is allowed to continue and the accused-opposite party be allowed to suffer the long pangs of litigation in spite of the overwhelming facts in his favour. To the further mind of this Court the accused-opposite party is likely to suffer non-payment of superannuation benefits in the event he is made the victim of a prolonged litigation. This Court is of the view that that in the facts of this case the provisions of Section 3 of the 1966 Act have been correctly interpreted and applied by the Ld. Magistrate by following the law laid down by the Hon’ble Apex Court in Vishwanath Tukaram Umale’s case (supra). This Court therefore does not find it fit to admit the present appeal. GA 06 of 2014 is dismissed on contest. Sri Poddar points out that the present appeal has been labelled as GA 06 of 2014 when, the Registry ought to have labelled it as CRA. However, this Court finds that the office report has indicated that the appeal be labelled as GA 6 of 2013 instead of CRA 174 of 2013. Sri Poddar, however, agrees that more than nomenclature the substance of the appeal is of importance. There will be, however, no order as to costs.