Satya Naryan Pandey vs State of West Bengal

A.M. Bhattacharjee, J.—Section 4(1) of the Bengal Criminal Law (Industrial Areas) Amendment Act, 1941, hereunder the accused-petitioner has been convicted, reads (omitting portions not relevant for our present purpose) as hereunder : -

Whoever has in his possession. any thing which there is reason to believe to have been stolen or fradulently obtained, shall, if he fails to account for such possession. to the satisfaction of the Magistrate, be liable to fine which may extend to one hundred rupees, or to imprisonment for a term which may extend to six months.

We are, however afraid that if we are to confirm the order of conviction passed by the Magistrate and affirmed by the Court of Appeal, we will have to construe the provisions to mean that whoever has in his possession anything which may be suspected to be stolen or fradulently obtained, shall, if he fails to account for such possession to the satisfaction of the Magistrate, be liable to be convicted and sentenced as aforesaid. We regret that we cannot jump that far.

One may suspect for no cause, or no good cause or for insufficient case. But as pointed out in Section 26, Indian Penal Code, Chapter II whereof is virtually a Law Lexicon for all our penal statutes in the absence of contrary indication, "a person is said to have reason to believe a thing, if he has sufficient cause to believe that thing, but not otherwise". It is obvious that between "reason to believe to be stolen" and "suspected to be stolen", there is inevitably a good deal of distance which cannot be covered by the mere ipse dixit of the prosecuting agency or the Court.

The accused, as admitted by the prosecution, was a dealer in scrap iron and had the requisite licence to carry on such trade. He was found in the Truck which was being loaded with scrap iron at broad daylight at the crossing of busy roads at about half kilometer away from his shop and on being challenged, he at once claimed to be owner. Accepting that the accused could not then produce any document in support of such purchase, it is not the case of the prosecution that dealing in the commodities in question was regulated by any law and could not be freely brought'' and sold. Go to even an honest man''s house and you may find articles claimed to be purchased by him even though he cannot produce any document in support of such purchase which may not be handy or may be lost misplaced or untraceable. That, by itself, cannot give arise to any reasonable belief as to their being stolen or fradulently obtained.

At the trial, however, the accused endeavoured to account for his possession by examining witness from his alleged seller, one A.P.S. Organisation and by producing documents. It is not disputed that the said A.P.S organisation is a dealer in scrap iron, but the Courts below thought that as the documet ought to have been produced much earlier and the employee of the seller, alleged to have issued the document was not examined, the defence case did not merit coinsideration. The Courts below ought to have realised that once a document is admitted in evidence, it cannot be brushed aside solely on the ground of its late production. They ought to have also realised that though a document admitted in evidence can be challenged at any later stage on the ground of not being relevant or otherwise inadmissible, no challenge can be made as to the mode or manner of proof after once it is admitted without objection, the contention that the document was produced rather late or that it was not proved by the employee himself alleged to have issued the same must be rejected as untenable.

It was urged before the Court of Appeal that the offence being a non-cognisabale one, investigation by the Police has vitiated the trial and this contention was rightly repelled by the appellate Court. The principle is well-settled, as enacted in Section 465 of the Code of Criminal Procedure, that no error, commission or irregularity in any proceeding before or during the trial can, by itself, warrant a reversal or alteration of any finding, or sentence, unless a failure of justice has in fact been occasioned thereby. Reference was rightly made by the Court of Appeal to the decision of the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, which, construing me relevant provisions of the preceeding Code of 1898, laid down in clear terms that cognizance of case on a police-report, even though in breach of the provisions of the Code relating to investigation, cannot warrant a reversal of the order of conviction, "unless the illegality in the investigation can be shown to have brought about a miscarriage of justice". If the materials on record warrant a conviction, an accused can not go free, simply because the Police has blundered.

We are accordingly of the view that the Courts below erred in law in holding that the seized articles were such which could be reasonably believed to be stolen or fradulently obtained and that the accused has fialed to account for possession. We have reminded ourselves abaout our own decision in Lachman Singh vs. State (1989 Cal HCN 352) and we are not deviating from our view therein- even remotely. Ml that we said in that Lachman Singh (supra) is that though generally the prosecution is to prove the case, yet where both sides have adduced evidence and both the ingredients of the offence as to the articles being reasonably believed to be stolen or fradulently obtained, and the failure of the accused to account for possession stand proved on the defence evidence alone, the accused cannot claim to be acquitted simply and solely on the ground that the prosecution could not establish the charge by its own evidence. We have said, and we would like to reiterate, that the general thesis that the prosecution must prove its case would stand out-stretched to a breaking-point if it is held that prosecution must nevertheless fail, even though the defence evidence establishes the guilt.

One word more before we conclude. As already noted, the offence u/s 4(1) is punishable either with fine only extending to Rs. 100/- or with the imprisonment only extending to 6 months. We are afraid that whatever might be the money-value in 1942 when the act was enacted, equation of fine upto Rs. 100/- only with imprisonment upto 6 months is palpably and disproportionately absurd in the present context and it is high time that the authorities concerned give serious advertence to this grave anomaly. We would direct a copy of our judgment to be forwarded forthwith to Law department of the State.

We accordingly allow the re visional application, set aside the order of conviction and sentence passed by the Magistrate and affirmed by the Court of Appeal and acquit the accused, who shall stand discharged from his bail-bond. Records to go down at once.

Amulya Kumar Nandi, J.

I agree.