# KASHMIRI LAL v. STATE OF UTTAR PRADESH

- **Citation:** [1970] 2 S.C.R. 187
- **Court:** Supreme Court of India
- **Decided:** 1969-09-02
- **Case number:** Criminal Appeal No. 65N of 1968
- **Bench:** S. M. Sikri, G. K. Mitter, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kashmiri-lal-v-state-of-uttar-pradesh-4771
- **Pages:** 5

## Headnote

,
Railway Stores (Unlawful possession) Act (51 of 1955), ss. 2 and 3-
'Ruilway Stores', what are-Off.ence under s. 3-Jngredienrs and proof.
A large nu1nber of parts of machinery bearing railway marks, con·
tained in bags of metal scrap booked for transport by lorry by the appellant,
was seized by the Railway police and the appellant was charged with an
offence under s. 3 of the Railway Stores (Unlawful Possession) Act, 1955.
The expert on railway machinery parts· certified that the goods were un·
auctionable, sugg~sting tl'tat they could not have been auctioned and law·
fully purchased by any third party, but in court, he gave evidence and
made a categorical statement that he could not say if the articles were
auctioned in the market or not.
The appellant was convicted and the
conviction was confirmed. by the High Court.
In appeal to this Court,
HELD : Before anyone can be charged with the offence under s. 3.
the prosecution must show that the articles in his possession are 'railway
stores' as defined ins. 2, that is : (i) that the articles are the property of a
railway administration (though it is not necessary to prove that they belong to any particular railway administration); and (ii) that they are used
or intended to be used in the construction, operation or maintenance of a
railway. The prosecution must- also show that there was cause for reasonable suspicion of the stores having been stolen or unlawfully obtained.
Evidence that the goodi conformed to the railway standards, or that they
were new, falls short o the requisite proof, because, an ar_ticle, though it
is the property of a railway administration would not be 'railway stores'
if the article has been discarded or rejected as .~sek:ss. Since the evidence
in this case did not establish that the goods were used or intended to be
used in the construction, operation or maintenance of a railway the charge
must fail. [188 D-F, E-H; 189 F-H]
Moya/al Rostagir v. State, 66 C.W'I. 269, approved.
Observations contra in Udaya Dalai v. State, 30 Cuttack L.T. 275, disapproved.
G
CRIMINAL
APPELLATE
JURISDICTION : Criminal Appeal
No. 65N of 1968.
Appeal by special leave from the judgment and order, dated
October 5, 1967 of the Allahabad High Court, Lucknow Bench
in Criminal Revision No. 152 of 1966.
ff
A. S. R. Chari, R. K. Garg, R. A. Gupta anc'. S. C. Agarwal,
for the appellant.
H. R. Khanna and 0. P. Rana, for the respondent.
188
SUPREME COURT REPORTS
(1970] 2 S.C.R.

## Text

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KASHMIRI LAL
v.
STATE OF UTTAR PRADESH
September 2, 1969
(S. M. SIKRI, G. K. MITTER AND P.
JAGANMOHAN REDDY, JJ.]
,
Railway Stores (Unlawful possession) Act (51 of 1955), ss. 2 and 3-
'Ruilway Stores', what are-Off.ence under s. 3-Jngredienrs and proof.
A large nu1nber of parts of machinery bearing railway marks, con·
tained in bags of metal scrap booked for transport by lorry by the appellant,
was seized by the Railway police and the appellant was charged with an
offence under s. 3 of the Railway Stores (Unlawful Possession) Act, 1955.
The expert on railway machinery parts· certified that the goods were un·
auctionable, sugg~sting tl'tat they could not have been auctioned and law·
fully purchased by any third party, but in court, he gave evidence and
made a categorical statement that he could not say if the articles were
auctioned in the market or not.
The appellant was convicted and the
conviction was confirmed. by the High Court.
In appeal to this Court,
HELD : Before anyone can be charged with the offence under s. 3.
the prosecution must show that the articles in his possession are 'railway
stores' as defined ins. 2, that is : (i) that the articles are the property of a
railway administration (though it is not necessary to prove that they belong to any particular railway administration); and (ii) that they are used
or intended to be used in the construction, operation or maintenance of a
railway. The prosecution must- also show that there was cause for reasonable suspicion of the stores having been stolen or unlawfully obtained.
Evidence that the goodi conformed to the railway standards, or that they
were new, falls short o the requisite proof, because, an ar_ticle, though it
is the property of a railway administration would not be 'railway stores'
if the article has been discarded or rejected as .~sek:ss. Since the evidence
in this case did not establish that the goods were used or intended to be
used in the construction, operation or maintenance of a railway the charge
must fail. [188 D-F, E-H; 189 F-H]
Moya/al Rostagir v. State, 66 C.W'I. 269, approved.
Observations contra in Udaya Dalai v. State, 30 Cuttack L.T. 275, disapproved.
G
CRIMINAL
APPELLATE
JURISDICTION : Criminal Appeal
No. 65N of 1968.
Appeal by special leave from the judgment and order, dated
October 5, 1967 of the Allahabad High Court, Lucknow Bench
in Criminal Revision No. 152 of 1966.
ff
A. S. R. Chari, R. K. Garg, R. A. Gupta anc'. S. C. Agarwal,
for the appellant.
H. R. Khanna and 0. P. Rana, for the respondent.
188
SUPREME COURT REPORTS
(1970] 2 S.C.R.
The Judgment of the Court was delivered by
Mitter, J. In this appeal by special leave the appellant challenges his conviction under s. 3 of the Railway Stores (Unlawful
Possession) Act, 1955.
The Act is a measure providing for punishment of persons in
unlawful possession of railway stores who cannot satisfactorily
account how they came by the same.
By
section 2 "railway
store.>" are defined to mei> 'l 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.
Section 3 defines the offence as also the measure
of punishment therefor. It reads :
"If any person is found, or is proved to have been
in possession of any article of railway stores reasonably
suspected of being stolen or unlawfully obtained,
and cannot account satisfactorily how he
came
by the same, he shall be punishable with imprisonment for a term which may extend to five years,
or with fine, or with both."
Before anyone can be charged with the offence under s. 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 uo.ed 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 th.~ 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
bas been discarded or rejected for further use would be outside
the definition of railway stores.
~ailway 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 use of them
be they new or old as in the case where they have become unserviceable or out-moded no person can be charged with an
offence under s. 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.
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 unlawfu1Jy.
It is only
when the burden in respect of this is dischari;ed by the prosecution that the onus shifts to the accused to account satisfactorily
of his possession of the same.
He may, for ;nstance, show that
he bad purchased the property in op.~n market where goods of this
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KASHMIR! LAL v. U, P. STATE (Mitter, J.)
!89
kind are usually sold or that he had bought them from someone
bona fide in the belief that the vendor had lawfully obtained the
same.
The facts in this case are as follows.
On the strength of
some information received on 28th July, 1964 that some stolen
railway property was being sent out of Lucknow through a motor
transport agency, 2 Sub Inspector attached to the Railway Protection Force along with another Sub Inspector of Police searched
the premises of the motor transport company at Lucknow the
same night. The search which took place in the presence of the
appellant and the manager of the transport company revealed
that a large number of parts of railway machinery
(railway
engines) bearing railway marks were contained in 23 bags. of
metal scrap booked the same day by the appellant for consignment to Jullunder. The usual formality of preparing -a recovery
memo and the sealing of goods in bags in the presence of witnesses
was gone through.
One J aswant Singh, described as an expert
of railway machinery parts and Foreman and Chief Inspector of
N. E. Kotwali Chowk, Lucknow, examined the goods said to be
railway stores and kept in 11 bags and made a report to the effect
that they were a!J railway stores being parts of a railway engine.
It was G1e case for the prosecution that the appellant failed to
offer any satisfactory explanation of his possession of the goods.
On the strength of the .ovidcncc adduced and principally on the
report of Jaswant Singh along with his oral testimony the Magistrate found him guilty and sentenced him to imprisonment for
two years. The conviction was n~aintained by the Sessions Judge
and the High Court.
The report made by J as want Singh she .vs that he had examined the material which he classified under 38 heads and described
the same as unauctionable property.
Against each item he put
a remark either "O" or "N'', 'O' signifying old goods a'ld 'N'
meaning new ones.
The report seems to suggest that the goods
being
unauctionable a third party could not lawfully obtain
possession of the same.
Curiously in his testimony before the
court although he said that he had prepared the report an'1 signed
the same he made no statement to the effect that the contents of
the report were correct.
His definite averment was:
"Railway engine is
auctioned in the market.
I
cannot say if
these
articles were
auctioned in the
market.
I cannot say if these articles were auctioned
H
or not."
In his cross examination he repeated the same averment in different words .but only added that he had examined the . articles
!Sup.C:I./70-14
190
SUPREME COURT REPORTS
(1970] 2 S.C.lt.
and they were parts of an engine and that railway articles were
mixed with other goods in the bags.
From his deposition it is
not possible to spell out any averment to the effect that the items
mentioned in his report were used or intended to be used in the
construction, operation or maintenance of a railway.
In our view there was no evidence before the courts to prove
that the articles seized were railway stores within the meaning
of s. 2 of the Act. Our attention was drawn to the case of
Moya/al Rostagir v. The State(') wherein it was held that in
order to prove that the articles were railway stores it was necessacy to establish that the articles in question were not only the
property belonging to a railway administration but they were
used or intended to be used for the construction or operation
of a railway.
Counsel for the respondent however cited a decision of the Orissa High Court in Udaya Dalai v. The State(').
The material seized in that case were tie-bars and iron sleepers
which were brand new.
According to the learned Judge of the
Orissa High Court:
" .... section 2 of the Act does not require the pro..
secution to prove that the incriminating articles belonging to a particular railway.
From the
evidence of
P.W. 5 it can be reasonably inferred that as the seized
articles were found to conform to the specifications
of the Indian Railway Standards they held that they
belonged to any of the railways in India. . His further
evidence that they were 'brand new' is also sufficient
to show that they were intended to be used in the construction, operation or maintenance of the railway."
In our view although the prosecution is not called upon to prove
that the goods belong to any particular railway administration it
has to establish that the articles were the property of a railway
administration.
Evidence to the effect that the goods conformed
to the Railway Standards falls short of such proof.
In most cases
the burden of proof in this respect may be discharged by leading
evidence about the identifying marks on the goods or some.
peculiarity of the goods not to be found in cases of nonrailway goods. Again. the mere description of the .goods as new
would not fulfil the requirements of s.
2 (b). Some evidence
will have to be led to the effect that the goods of the kind were
being actually used by a railway administration and that the goods
were in a serviceable condition.
In the case of goods which had
not been put to use evidence would have to be led to establish
that they had been manufactured for such use.
(I) 66 C.W.N. 269.
(2) 30 Cuttack Law Times, 275.
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KASHMIRI LAL v. u. P. STAT!! (Mitter, J.)
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The evidence in the case before us did not establish that the
goods were railway stores within the meaning of s. 2 of the Act
and as such the question of punishment under s. 3 did not arise.
The appeal will there be allowed and the bail bond of the appellant directed to be cancelled.
B V.P.S.
Appeal allowed.