IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL NO : 1067 of 2005 [Criminal Appeal under Section 378 Cr.P.C. against the Judgment dated 10/01/2005 in CC NO : 48 of 2004 on the file of the Court of the VI Metropolitan Magistrate(Railways), Visakhapatnam] Between: The Sub-Inspector, RPF, Marripalem, rep. by the Public Prosecutor, High Court of A.P., Hyderabad. .... APPELLANT AND 1 Chukka Appala Reddy, S/o. Sadhu Rao, Kancharlapalem, Near Ramulavari Veedhi, Visakhapatnam. 2 Vaddi Appala Swamy, S/o. Late Tavitayya, Kancharlapalem, Ramurthy Panthulupet, Visakhapatnam. ....RESPONDENTS/Accused Counsel for the Appellant :PUBLIC PROSECUTOR Counsel for the Respondents : MR.B.DEVANAND The Court delivered the following : THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY CRIMINAL APPEAL No.1067 OF 2005 JUDGMENT: This appeal is directed against the Judgment dated 10.01.2005 in C.C.No.48 of 2004 on the file of VI Metropolitan Magistrate For Railways, Waltair, wherein the respondents herein, A1 and A2, were found not guilty of the offence punishable under Section 3(a) Railway Property (Unlawful Possession) Act 29 of 1996 (for short, “the Act”) and acquitted there of under Section 248 (1) Cr.P.C. 2. Heard the learned Additional Public Prosecutor for the appellant/State. None appeared for the respondents/accused. Perused the records. 3. The complaint was filed before the learned Magistrate for Railways by the Sub-Inspector, RPF, Marripalem, in Cr.No.38 of 2003 alleging that on 15.10.2003 during the course of surprise check at 11:30 AM, it was found that A.1 was carrying two AC railway bearing plates in a bag and on interrogation he revealed that he was in the habit of selling the railway property in the scrap shop of A2, near the fly over bridge. In pursuance of the said information a raid was conducted on the shop of A.2 and some more materials, namely, 20 pendrol clips, 5 AC bearing plates, broken pieces of CST-9 plates (weighing about 30 Kgs) were seized under a panchanama, in the presence of PWs.6 and 7. A case was registered against A.1 and A.2 for the offence under Section 3(a) of the Act. 4. The accused denied the offence and pleaded not guilty to the charge framed against them for the above said offence. 5. In support of their claim the prosecution examined PW.1 - the Enquiry Officer, PW.2 – the expert, who certified as to the nature of the property being of railways, PW.3 - the Inspector of Police who participated in the raid, PW.4 – owner of the site wherein the scrap shop is said to have been located, PW.5 – the Building Inspector and PWs.6 and 7 – the panch witnesses. The prosecution marked Exs.P-1 and P-2 - the seizure list I and II, Ex.P-3 – Certificate given by PW.2 regarding nature of the property, Ex.P-4 – the certificate given by the Municipal Corporation and Exs.P-5 to P-7 – the statements of PWs.6 and 7 and LW.3. MOs. 1 to 5 are the items of the railway property said to have been seized from A.1 and at his instance from the shop of A.2. 6. On consideration of the material available on record the learned Magistrate found the accused not guilty of the offence under Section 3(a) of the Act and consequently acquitted them. Aggrieved by the said order of the acquittal, the present appeal is filed by the State. 7. The alleged search of A.1 and seizure of MO.1 i.e., 2 AC bearing plates from his possession under a seizure list Ex.P-1 is said to have been witnessed by PWs.6 and 7, the panchas. Similarly, on the alleged information furnished by A.1, the scrap shop of A.2 is said to have been searched and MOs. 3 to 5 have been recovered from there under seizure list Ex.P-2, in the presence of the same panch witnesses PWs.6 and 7. However, both of them turned hostile and did not support the prosecution case at all. The prosecution is, therefore, left with the evidence of PW.1 alone. The learned Magistrate has rightly held that in the absence of any corroborative evidence and PWs.6 and 7 having turned hostile, it is not safe to rely upon the sole testimony of PW.1 to base conviction. Further, PW.4, the owner of the site wherein the scrap shop is located, denied that she let out the premises to A.2. PW.5- Building Inspector, produced municipal record to show that encroachment fee was collected from PW.4. Thus, there was nothing on record to show that PW.4 has let out the premises to A.2 for running a scrap shop. 8. Under those circumstances, as the prosecution failed to establish the alleged search and seizure by any independent evidence, the acquittal of the accused as recorded by the learned Magistrate does not call for any interference by this Court. There are no merits in the appeal. 9. In the result, the criminal appeal is dismissed. ________________________ G.V. SEETHAPATHY, J September 18, 2009 MD/BSS