Sankarlal Agarwalla vs The State

Narasimham, C.J.—This is a revision petition against the appellate judgment of the Sessions Judge of Sambalpur, maintaining the conviction of the Petitioner u/s 411, Indian Penal Code by a First Class Magistrate of Sambalpur. but reducing the sentence passed on him from 6 months to 3 months imprisonment.

The charge against the Petitioner was that he dishonestly received and retained a packet of milk powder belonging to the Block Development Officer, Kuchinda, knowing or having reason to believe the same to be stolen property.

The facts are these-500 packets of milk powder were sent by the U.S.A. administration from Calcutta, to the Block Development Officer, Kuchinda, for the purpose of free distribution of milk to students. The packets arrived at Bamunda Railway Station on the 23rd July 1958 (see Ext. 2). They were unloaded on the 24th July 1958 and 18 packets were found damp and consequently they were not taken immediate delivery of, but were kept with the Station Master for assessment of damage. Subsequently on the 26th July the Gram Sebak (Village Welfare Officer), one Panchandn Das (p.w. 2) under instructions from the Block Development Officer, took delivery of the damaged packets also, removed them from the railway platform at Bamunda and stocked them in the Third Class Waiting Hall, keeping them in charge of one Nilambar Behera who was asked to keep watch over the property. At about 1 p.m. on the same day, viz the 26th July 1958 when the Gram Sebak removed these packets from the Third Class Waiting Hall, to a nearby godown, he found one packet missing. He made a search for the same but could get no clue and then, on the 27th July 1958, he reported the loss to the Block Development Officer, Kuchinda. On the 8th August 1958 the Petitioner was arrested by the Police while investigating another criminal case, namely Gobindpur case No. 9 of 1958, and closely questioned. He then made a statement before the Assistant Sub-Inspector of Police (p.w. 6) which gave a clue about the loss of the missing packet of milk powder. Thereupon the Assistant Sub-Inspector took the Petitioner in custody to the shop of one Kalishankar of Bamunda and there, in the presence of the Assistant Sub-Inspector, the Petitioner asked Kalishankar to produce the milk powder packet which he (the Petitioner) had kept there. Kalishankar then pointed out the place of its concealment wherefrom it was, then, taken possession of by the Police. The packet was identified as the milk powder packet sent to the Block Development Officer, Kuchinda, from the label that was attached to it. Both the Petitioner ad Kalishankar were sent up for trial for an offence u/s 411, India Penal Code but Kalishankar was acquitted.

Mr. D. Sahu for the Petitioner challenged the findings of fact of the two lower courts. He urged firstly that there was no evidence to show that the packet was "stolen property" inasmuch as the person in whose charge it was kept in the Third Class Waiting Hall at Bamulda Railway Station, viz. Nilambar Behera was not examined as a witness. Secondly, he urged that the identity of the packet recovered from the shop Kalishankar with the packet that was addressed to the Block Development Officer, Kuchinda, was not established. I do not think on those questions of fact there are sufficient grounds for me to disturb the concurrent findings of the two lower courts. The evidence of the Gram Sevak (p.w. 2) shows clearly that the damaged packets were kept in the Third Class Waiting Hall on the 26th July 1958 in charge of one Nilambar Behera and that at about 1 p.m on the same day when he was removing them to the godown nearby he noticed that one packet was missing. Even in the absence of the evidence of Nilambar Behera, therefore, it is open to the court to hold that the packet was "open" by some unknown person. Mr. Sahu''s argument that Nilambar might have handed over the packet to the Petitioner and that the Petitioner might have accepted it in good faith is a mere conjecture. The Gram Sevak was in charge of the packet and he never gave any authority to Nilambar Behera to hand over the packet to anyone else. In the circumstances it should be held that the packet was dishonestly removed from the third Class Waiting Hall with or without the connivance of Nilambar Behera and that it was "stolen property".

As regards its identity also there can be no room for doubt in view of the address "Block Development Officer, Kuchinda" written on the label attached to the recovered packet of milk powder. All the packets were sent from Calcutta, addressed to the Block Development Officer, Kuchinda; and it is difficult to accept Mr. Sahu''s contention that in an out of the way place like Bamulda, in the interior part of Bamra Subdivision, some other packet of milk powder addressed to the Block Development Officer, Kuchinda, (not forming a part of the consignment sent from Calcutta) would be found at the place pointed out at the instance of the Petitioner himself.

The main question of law urged by Mr. D. Sahu is regarding the applicability of Section 27 of the Indian Evidence Act. The case against the Petitioner rests mainly on his statement made before the Assistant Sub-Inspector of Police (p.w. 6.) which led to the recovery of the packet from the shop of Kalishankar. Ordinarily when the packet was recovered from the shop of Kalishankar it must be held to be in his possession and unless he gives a satisfactory explanation for it he will be held to be a guilty receiver of stolen property. But here the conduct of the Petitioner in taking the Assistant Sub-Inspector to Kalishankar''s shop and asking him to produce the packet which he had kept concealed there, would show that it was in the possession of the Petitioner first and that he had kept it in Kalisbankar''s shop. The statement of the Petitioner as deposed to by the Assistant Sub-Inspector (p.w. 6) i substantially corroborated by the search witness (p.w. 5) notwithstanding some minor discrepancies here and there which are not material. Thus, the statement of the Petitioner before the Assistant Sub-Inspector contains a clear admission that it was the Petitioner who kept the stolen packet in Kalishankar''s shop. If this statement be held admissible the Petitioner''s possession of the stolen property is well established and in the absence of any satisfactory explanation to account for the same the lower court was justified in holding that he was a guilty receiver, punishable u/s 411, Indian Penal Code.

Mr. Sahu then contended that this statement of the Petitioner was made before the Assistant Sub-Inspector when he was in custody in connection with another case, namely Gobindpur case No. 9 of 1958 and not in connection with the present offence, and consequently it was not admissible. Mr. Sahu''s contentions seems to be that for the applicability of Section 27 of the Evidence Act the confessional statement must relate to the very offence in respect of which the confessing accused was then in Police custody. The language of that section cannot bear such an interpretation, nor could Mr. Sahu cite a single decision in support of his argument. Very often, when a person is taken into Police custody in respect of a certain offence he makes confessions regarding his participation in many other offences, which subsequently lead to the discovery of new facts on the basis of which new cases are instituted against the confessing accused and his accomplices. The detection of these new offences is itself facilitated by such confessions. In the absence of express words in Section 27 of the Indian Evidence Act, it will not be proper to so construe that section as to restrict the confession to the particular offence in respect of which the confessing accused was in custody. There are two decisions of the Madras High Court where this question has been considered and an argument, similar to the one advanced by Mr. Sahu was not accepted, See In re Kamakshi Naidu 44 Cri.L.J. 304 which has been reiterated in Public Prosecutor v. Kandikatla Nagabhushandm 48 CriL.J. 124. Mr. Sahu cited a Lahore decision reported in Ghetu v. The Grown 48 Cri.L.J. 200 but that case related to a confessional statement made by a person at a time when be was not accused of any offence. Such a statement will be outside the scope of Section 27 of the Evidence Act inasmuch as that section refers to a person "accused of any offence, in the custody of a Police Officer". In the instant case, however, on the evidence of the Assistant Sub Inspector of Police (p.w. 6) it is clear that the Petitioner was arrested and kept in custody in connection with another criminal case, namely Gobindpur case No. 9 of 1958. The Lahore decision has no application here.

The statement of the Petitioner before the Assistant Sub-Inspector of Police (p.w. 6) was therefore admissible u/s 27 of the Indian Evidence Act, and was sufficient to sustain his conviction. The sentence which has already been reduced by the lower appellate court, does not call for further reduction. The petition is dismissed.