In Re: Mala Naicker and Another

Sadasiva Aiyar, J.—The two accused (very poor coolies) have been convicted and sentenced u/s 20 of the Treasure Trove Act (VI of

1878) read with Section 4.

Their contention in revision is that neither of them is a '' finder'' of the Treasure within the meaning of that term as used in Section 4. The term

finder "" is not defined in the Act and the established fact is that the accused discovered the treasure buried in the ground while they were cutting a

tree under the orders and in the presence of their employer.

I think that the accused were ""finders "" of the treasure even though they found it in the course of the performance of labor for an employer. It is

contended that because the concluding portion of Section 4 imposes a duty on the "" finder "" "" to deposit the treasure in the nearest Government

Treasury and etc,"" a person who has not the physical control of the treasure found by him cannot be a "" finder"" under that section, and that in this

case, the accused''s employer at once assumed control over the treasure.

I think that the meaning of the term "" finder "" cannot be restricted by reason of one of the obligations imposed on the finder being to deposit the

treasure in the Treasury. If it is impossible for him to discharge that (particular obligation, he should be held absolved from its performance as

nobody could be convicted under the criminal law for not doing an impossible act, unless the terms and intention of the statute are absolutely clear

and inflict a penalty on even an innocent person. I therefore see no reason to interfere with the conviction.

As regards the sentences, the accused are stated by the sub-magistrate to be ""the poorest of the villagers "" there is no legal evidence that they

obtained a substantial or any portion of the Treasure Trove and though it seems clear that some rich person or persons is or are assisting them in

filing this revision petition and assisted them in their defence in the Lower Courts, I do not think that these facts can be taken into consideration in

arriving at a conclusion as to what is the reasonable fine which could be imposed on the accused. The fine of 50 Rs. imposed on the 2nd Petitioner

is therefore reduced to 10 Rupees and the balance (if already recovered) will be refunded to him. In other respects the petition is dismissed.