((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4111 OF 2008 The State of Maharashtra Applicant versus Mohammad Vasim Vald Mohammad Nasim Farooqui and another Respondents Y.S.Shinde, APP for the applicant-State. CORAM : A.S.OKA, J. DATE : 24th March 2009 PC : 1. Heard learned APP for the applicant-State in support of this application for leave. The respondents were prosecuted for an offence under section 3(A) of the Railways Property (unlawful possession) Act, 1966 (hereinafter referred to as "the said Act"). 2. The case of the applicant is that the scrap having quantity of 20 metric ton was sold by the Railways to the first respondent in an auction. Delivery of 10.10 metric ton was given to the first respondent on 27th July 1994 and balance quantity was lying in the godown of the Railways at Manmad. On 31st August 1994 ((-2-)) for taking delivery of the balance quantity of scrap, the first respondent who is representative of the second respondent alongwith a truck remained present in the compound of the godown of Railways. The allegation of the prosecution is that the first and second respondents with the help of their labourers were loading the scrap in the godown which was in fact not sold to the first respondent in the auction. 3. The learned APP submitted that the evidence on record clinchingly establishes that the first and second respondents had taken possession of the scrap which was admittedly not sold to the first respondent in the auction. He submitted that the possession of the scrap was established and, therefore, the offence was established. 4. I have perused the judgement and I have considered the submissions. The allegation against first and second respondents is that they were unauthorizedly possessing the property of the Railways in the form of scrap which was not sold to the first respondent. Witness no.3 examined by the prosecution is ((-3-)) Depot Store Keeper of the respondents who has stated that for the process of auction a committee consisting of three staff members was appointed. As per the procedure, the goods sold in the auction are delivered to the auction purchasers in the presence of members of the committee. After the goods are loaded in the truck, at the gate the same are verified and it is weighed and only after the sale price is paid by the auction purchaser, he becomes the owner of the goods. 5. There is no dispute that on the date when the auction was conducted the scrap weighing 10.10 metric ton was delivered to the accused no.1. It must be stated here that the learned Judge recorded that there was no Panchanama recorded in the godown from which the scrap was allegedly lifted by the first respondent. As far as seizure panchanama of the truck and goods therein is concerned, only one witness was examined who deposed that he signed the Panchanama on the next day i.e. on 1st September 1994. However, the date below the signature of the witness is 31st August 1994. The learned Judge has also considered the evidence of PW-2. He was the Inquiry Officer ((-4-)) appointed by the Railways who admitted that the goods loaded in the truck were not shown to the accused. The learned Judge found that after the alleged goods owned by the Railways were loaded in the truck, the same was still in the compound of the Railways. The goods were to be weighed and delivery challan was yet to be prepared. In the circumstances, the learned Judge has disbelieved the case of the prosecution that the first and second respondent were unauthorizedly in possession of the property of the Railways. The finding is that no attempt was made by the first and second respondents to run away with the goods. In the circumstances no case is made out for grant of leave. The application is rejected. (A.S.OKA, J.)