Ram Gopal Agarwala vs State

K.K. Mitra, J.—This is an appeal against the order passed by a Presidency Magistrate convicting the Appellants u/s 411, Indian Penal Code. The Appellants had been sentenced to pay a fine of Rs. 2,000, in default to suffer rigorous imprisonment for six months.

The prosecution case in short is that the Police searched a godown at 33 Canal South Road belonging to ''Chemical Industries and Equipment Company, of which the Appellant Ram Gopal Agarwalla was the proprietor, from March 8 to 10, 1967, and seized a huge quantity of chemicals and packages of ''carbon black'' in presence of the employees of Ram Gopal, that is, the Appellant No. 2. The goods seized were taken to the Police Station and one R.K. Roy of Dunlop & Company Ltd. was contacted. Sri R.K. Roy saw the bags containing carbon black and he identified 40 of these bags as their property. A complaint was then lodged by Sri R.K. Roy as the Purchasing Manager of Dunlop Rubber Company on the basis of which investigation started and challan was submitted against the Appellants. The Appellants were convicted u/s 411 of the Indian Penal Code.

The defence is a plea of innocence. It is contended by the defence that the articles seized were not stolen goods and that they were in bona fide possession of the same by purchasing those in open market in usual course of business.

The learned Magistrate accepted the prosecution case and convicted the Appellants as stated before.

There is no dispute on the point that the Appellant Ram Gopal Agarwalla is the proprietor of the firm known as ''Chemical Industries and Equipment Co''. The company has got a godown at 33 Canal South Road. P.W. 4 Shyam Sundar stated that a portion of the premises had been sublet by the tenant Lalchand Umeshchand in favour of Ram Gopal Agarwalla. The godown was searched by P.W. 8 D. N. Chakraborty, a Sub-Inspector of Police, in presence of search witnesses, P.W. 2 and P.W. 3, from March 8 to 10, 1967, and a huge quantity of chemicals and carbon black in packages were seized by him and taken to the Police Station.

P.W. 1 R.K. Roy, who is the principal witness in this case, is an officer of Dunlop (India) Limited. His evidence is that on March 23, 1967, he identified 40 packages out of the 73 packages seized by the Police and kept at the Police Station to be their property. He stated that 28 out of the 40 packages had the writing as D. R. Company over the packages and for the rest the marking was found cut out. But he claimed 12 other packages also as their property. Out of these 40 bags 32 bags contained carbon black of Sterling M. T. variety, one bag containing Sterling F.T. variety and 7 bags containing Regal 300 variety. P.W. 1 further stated that they were the only importers of Regal 300. It is not, however, the case of the prosecution that these goods are stolen property in the sense that there was any theft in respect of those goods from the possession of Dunlop & Company These goods, carbon black, are claimed to be imported from U.S.A. While P.W. 1- R.K. Roy claims Dunlop & Company to be the only importer of Regal 300, there is no evidence as to whether there are other importers in respect of ''Sterling M.T.'' and ''Sterling F.T.'' The witness proved a letter, Ex. 6, dated October 7, 1968, written by the agent in India of the manufacturers in U.S.A. of Regal 300 which shows that during 1966-67 they were the only importers of Regal 300 to Calcutta. But this does not show that there are no other importer at any other part in India with respect to carbon black of the variety of Regal 300.

The prosecution case is that Dunlop & Company imported a large quantity of carbon black of these three varieties and that the entire consignment had not been received for which a short certificate had been given by the Port Commissioners. P.W. 1 proved the invoices with copies of bills of lading and the short certificates given by the agent of the shippers. It is thus proved that Dunlop & Company did not receive the entire bulk of their consignment of carbon black of these three varieties and for that they obtained certificates as to short delivery for which they can lay their claims to the shipping company or the Port Commissioners. It is not however known how, where and when part of these imported consignments were lost. The question is if the carbon black as recovered from the godown of Appellant No. 1 is a stolen property and that he dishonesty retained such stolen property knowing or having reason to believe that those were stolen property.

It appears from the evidence of P.W. 1 that they sell by auction damaged carbon black through D. Albert & Company It also appears that the Customs department and the Port Commissioners also at times sell carbon black by auction. It is, therefore, open to intending purchaser to get hold of carbon black through such auction. The case of the prosecution rests as to the establishment of the fact that these are stolen properties on the basis of the evidence of the marking as D.R. Company appearing in 32 of the covering packages. But, at the same time P.W. 1 admitted in cross-examination that they also auction paper bags in which carbon black is imported. It is, therefore, not difficult to get hold of the packages having such marking by any dealer having business in carbon black. P.W. 4 Shyam Sundar stated that they used to buy carbon black from Dunlop�s, Port Commissioners and from Madras, and while they purchased the stuff they got it in their original packing. He also stated that the purchase was made in auction sale and they would re-sell them as necessary. It is, therefore, quite possible that these packages had been utilized for wrapping up inferior quality of carbon black or even carbon black sweeping for the purpose of deceiving the customers who take the thing on the belief that these are of the quality imported by Dunlop & Company P.W. 12 stated that they purchased two bags of carbon black on August 23, 1968, from the Appellant No. 1 and did not find the quality to be the same as stated by the seller and, therefore, he returned the goods. This shows that the Appellant No. 1 had deceived the customer in the matter of sale of inferior quality carbon black.

P.W. 22 Bhupal Chand, who was an employee of the Appellant company upto August 1966, stated upon reference to the stock register that the firm purchased carbon black from as many as ten parties. The prosecution did not examine all those ten parties to show if the carbon black, as alleged to be stolen property, would have been purchased from such dealers. Some of such dealers, viz. Ws. 13, 14, 15, 16, 18 and 24 (six in number), of course have been examined. Some of them stated that the Appellant No. 1 had purchased carbon black sweepings which were in gunny bags. But, it is significant to note that P.W. 24 admitted in cross-examination that in the challan in respect of the sale it had mentioned that it was the carbon black imported quality and not carbon sweeping. So much reliance cannot be placed upon the evidence of the persons from whom the Appellant No. 1 purchased the goods to determine conclusively whether he had purchased carbon black sweepings or carbon black. Besides, the other persons from whom the Appellant No. 1 purchased carbon black in 1966 are not examined. It is quite possible that the Appellant No. 1 purchased those articles in open market as there is nothing to indicate that carbon black is not available for sale in the market. The onus is upon the prosecution to prove that the Appellant No. 1 procured these articles knowing or having reason to believe that these were stolen properties. The evidence reveals that D. Albert & Company is the auction-seller of carbon black imported by Dunlop & Company In the auction notices there is no mention that the articles received were in damaged "condition. Besides, there is no evidence to show if the articles seized by Police and claimed by P.W. 1 as their property were damaged carbon black or not. The defence is not required to support their contention with that much of precision as required from the prosecution. It is only for the defence to raise doubt or show that their version is a probable version. In the instant case, in the absence of any evidence as to theft of these goods at any particular time and in the absence of any reliable evidence to show that these goods are the properties of Dunlop & Company, I find that the Appellant No. 1 is entitled to get the benefit of a reasonable doubt.

So far as Appellant No. 2 is concerned the evidence reveals that he is no more than an employee of Appellant No. 1 and the only evidence against him is that the articles had been seized in his presence from the godown belonging to Appellant No. 1. It cannot, therefore, be said that he was in possession of the goods. There was no evidence to convict the Appellant No. 2, u/s 411, Indian Penal Code. The appeal is allowed.

In the result, the conviction of the Appellants u/s 411, Indian Penal Code, and the sentence passed thereto be set aside. They are acquitted of the charge. The fine, if paid, be refunded to the Appellants.