IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.1233 of 2005 Criminal Appeal under Section 378(4) against the Judgment dated 10/01/2005 in CC No.151 of 2003 on the file of the Court of the VI Metropolitan Magistrate(Railways), Visakhapatnam Between: The Asst. Sub-Inspector, RPF, Vizianagaram, rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... APPELLANT AND Shaik Fayyaz Ali, S/o. Sher Ali, D. No. 22-9-4, Ambatisatram Junction, Gosha Hospital Road, Vizianagaram. .....RESPONDENT Counsel for the Appellant :PUBLIC PROSECUTOR Counsel for the Respondent : MR.V.V.N.NARASIMHAM The Court delivered the following Judgment: THE HON’BLE SRI JUSTICE G.V.SETHAPATHY CRIMINAL APPEAL No.1233 OF 2005 JUDGMENT: This appeal is directed against the Judgment dated 10.01.2005 in C.C.No.151 of 2003 on the file of VI Metropolitan Magistrate for Railways, Visakhapatnam, wherein the respondent herein/accused was found not guilty of the offence under Section 3(a) Railway Property (Unlawful Possession) Act 29 of 1996 (for short, “the Act”) and acquitted thereof. 2. Heard the learned Additional Public Prosecutor for the appellant. None appeared for the respondent/accused. Perused the records. 3. The Railway Police Force, Vizianagaram filed a complaint against the respondent/accused before the trial Court alleging in brief as follows: On 09.04.2003 at about 06:00 PM on information a raid was conducted by the RPF officials in the iron scrap godown of the accused and it was found that he was in possession of 11 items of railway materials, which are described in the complaint, and accused failed to produce any authority for having possession of the said railway property. The said material was seized and the accused was arrested. During further enquiry the seized material was got examined by experts and based on their report, a complaint is filed. 4. The accused denied the offence and pleaded not guilty to the charge framed under Section 3(a) of the Act. In support of their case, the prosecution examined Pws.1 to 9 and got marked Exs.P-1 to P-10 and MOs. 1 to 11, which are the seized materials. 5. On a consideration of the evidence available on record, the learned Magistrate found the accused not guilty and acquitted him on the ground that the opinion expressed by the experts regarding the nature of the seized property was vague and uncertain and the recovery of MOs.1 to 11 from the possession of the accused was also not duly established by the prosecution. Aggrieved by the said order of acquittal, the present appeal is filed by the railways. 6. As seen from the evidence on record the experts were examined as PWs.4, 5,6 and 8. PW.4, who examined MO.2, admitted that such material is used by the other departments also and it cannot therefore be inferred that MO.2 is a railway property exclusively used by railways. PW.5, who examined MOs.5 to 7, admitted that there are no railway markings on the said materials and he could not say as to where and how the said material is used by the railways. PW.6, who examined MOs.8 and 10, deposed that they are unserviceable materials belonging to railways. It is admittedly available in the open market, as such unserviceable material is put for auction by the railways periodically. PW.8, who examined MO.1, deposed that the said material is used by other departments also. MO.9 is admittedly not claimed by the railways. It is not known why MO.9 was seized. Regarding MOs.3, 4 and 11, no expert is examined and no certificate was also obtained to show that they are railway property. 7. Based on the above evidence, the learned Magistrate has rightly held that the opinion and certificates issued by the experts regarding the nature of the property does not establish that the property seized belongs to the railways. On the other hand, their evidence would go to show that such property is available in the open market and it is also used by other departments as well. When the nature of the property is not established as being railway property, the ingredients of the offence alleged under Section 3(a) of the Act do not get attracted. 8. Secondly, as one of the panch witnesses examined as PW.9 turned hostile to the prosecution and the other official witness examined to prove the alleged seizure having found to be not reliable, the learned Magistrate has rightly held that the seizure of the items MOs.1 to 11 from the possession of the accused has not been duly established. 9. It is well settled that an order of acquittal passed by the trial Court can be interfered with by the appellate Court only when there are strong grounds and compelling reasons to do so. In the present case, on a reappraisal of the evidence available on record, it is found that there are no such strong grounds or compelling reasons warranting interference with the order of acquittal passed by the learned Magistrate. It is, therefore, held that there are no merits in the appeal. 10. In the result, the Criminal Appeal is dismissed. _______________________ G.V.SEETHAPATHY, J September 24, 2009 MD