P L D 1952 Federal Court 19 (PLP)

ABDUL RASHID, C. J.‑I have had the advantage of read ing the judgments that my brothers Akram and Cornelius propose to deliver. We all agree that the question of law involved in this appeal has been correctly decided by Ellis, J. We have now to see whether there are any "reasons" which can form the basis of the belief that the copper wire found in the possession of the accused was stolen property. Three such reasons have been mentioned in the judgment of Ellis, J. None of these reasons, however, is supported by any admissible evidence. The admission contained in the petition for revisionl preferred by the accused in the High Court at Dacca cannot be taken into consideration in order to fill up the gaps in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the Trial Court. If any other material is sought to be used against the accused person, such material should be placed oft the record after complying with the provisions of section 428 of the Code of Criminal Procedure. I would, therefore, accept this appeal and acquit the appellant. AKRAM J.‑I agree in the order of acquittal made in favour of the appellant. The real question which seems to me to arise in this appeal is whether or not the necessary conditions under which 'a person becomes liable to give a satisfactory account under section 4 (1) of the Bengal Criminal Law Amendment Act, 194:2, for his having possession of anything or for conveying or offering the same for sale or pawn, have been shown to exist. The Act lays down two conditions which must be satisfied before a person can incur such a liability, namely :‑ (a) that he has possession of the thing or conveys or offers the same for sale or pawn ; and (b) that there is reason to believe that the said thing is either stolen or fraudulently obtained. As to (a) it has been unanimously found by all the Courts below, that the appellant was an possession of copper wire‑the subject matter of the charge. That finding, therefore, must be treated as final and conclusive in the absence of a disregard of any fundamental principle of law or procedure. As to (b), however, except the fact that a great quantity of copper wire was found in the possession of the appellant, there is no other legal evidence on the record which can be said to furnish a reason to believe that the copper wire was stolen or fraudu lently obtained. Suggestions no doubt were made by the prosecution to the effect that one Kanaiya Lal Marwari had an enormous stock of copper wire in his godown ; that there was a recent theft of a large quantity of it from the said godown, that the copper wire found in the possession of the appellant was a part of the same stolen wire, but neither Kanaiya Lal Marwari was examined in she case, nor the alleged theft nor the identity of the copper wire was legally established. There is thus nothing on the record which to my mind can be said to provide any legal basis for making the appellant liable to give a satisfactory account for his possession. It may be that a certain amount of suspicion is caused by the conduct of the appellant, but the word believe is a very much stronger word. and moreover the statute requires that the belief must be a reasonable one. For the above reasons I am inclined to the view that the conditions of section 4 (1) of the Bengal Criminal Law Amendment Act, 1942, were not satisfied, and that the appellant was, therefore, not liable to render any account for his possession. Even if the appellant had failed in his attempt to establish his defence‑plea, nevertheless, the prosecution was not absolved from the duty of discharging the initial onus which lay upon it. The position seems to be this, that although a person may fail to give a satisfactory explanation required of trim under the law, he may still take the advantage of any defect or weakness in the prosecution case and claim an' acquittal, as the original onus on the prosecution of proving the general issue is never shifted, and it has to prove the case, beyond a reasonable doubt. CORNELIUS, J.‑This is an appeal by special leave from a judgment of the Dacca High Court. The appellant Moulvi Fazlul Qader Chaudhury was convicted on the 18th September 1948 by a First Class Magistrate of Chittagong, upon a charge under section 4 of the Bengal Criminal Law Amendment Act 1942, in respect of 115 maunds of copper wire allegedly found on the 9th May 1948, in a godown in his possession, and situated in a part of Chittagong known as Khatunganj. He was sentenced to pay a fine of Rs.

100. An appeal to the Sessions Judge of Chittagong having been dismissed, the appellant went up in revision before the Dacca High Court, where his case was heard by a Division Bench composed of Mr. Justice Amir‑ud‑Din Ahmad and Mr. Justice Ibrahim, along with a separate revision petition by the Crown praying for enhancement of the sentence. The learned judges differed in their views on the case. Mr. Justice Amir‑ud‑Din Ahmad considered that on the evidence, the accused had been rightly convicted, and that the sentence awarded to him was inade quate ; in his view, the appropriate sentence was three months simple imprisonment. Mr. Justice Ibrahim considered that no case for conviction had been made out against the, petitioner and that his conviction and sentence should accordingly be set aside. In view of the difference of opinion, the case, was referred by the senior judge Mr. Justice Amir‑ud‑Din Ahmad to the Chief Justice for reference to another judge or judges of the Court under clause 36 of the Letters Patent "to hear the case upon the point on which we (the judges of the Division Bench) had differed". The case was then referred to Mr. Justice Ellis "for disposal according to law". Mr. Justice Ellis treated the reference in my opinion, correctly as one under section 439 read with section 429, Criminal P. C. and after hearing both parties, agreed with Mr. Justice Amir‑ud‑Din Ahmad both as regards the correctness of the conviction and the appropriate sentence. He pronounced orders discharging the rule obtained by the petitioner, but making the rule obtained by the Crown absolute and awarding the appellant a sentence of simple imprisonment for three months. A request was made to the learned Judge for leave to appeal to this Court, which was refused. The order of this Court granting special leave to appeal mentions that, among other questions of considerable impor tance, the appellant had raised the plea that he had been denied tile substance of a fair hearing in the Dacca High Court. The relevant facts are that when the case was fixed for hearing before Mr. Justice Ellis, an application was made on behalf of the appellant to the Dacca High Court for grant of copies of the judgments written by the learned judges of the Division Bench, and was refused on the ground that the orders of the learned. Judges did not amount to judgments but were merely expressions of opinion. Accordingly, at the time when the case was argued before the third judge, the appellant did not have the benefit of the analysis of evidence and the rationes decidendi contained in the judgments of the two judges by whom his case had first been heard and adjudicated upon. I have found it difficult to appreciate the considerations which led to the refusal of these important documents to the appellant. No question of secrecy arose, for each judgment had been read out in open Court, and they were indubitably a part of the judicial proceedings, and as such public documents. While specific prejudice by non‑delivery of the required copies was not pleaded, it seems sufficiently plain that the party suffering the deprivation was placed at an appreciable disadvantage, without justification in law. He was entitled to take the full benefit of the views expressed, on the facts and the law involved in his case by the two Judges of the Division Bench, to the same extent at least as he could use the reasoning adopted by judges of the same Court in dealing with points, relevant to his case, which had arisen in earlier cases. I note with satisfaction that the learned Advocate -General of Pakistan appearing for the Crown in this case did not in any way support the action of the Dacca High Court giving rise to this complaint. It will be convenient to commence the examination of the appellant's case, on the merits, by reproducing the provi sion of law under which he was charged. This is subsec tion (1) of section 4 of the Bengal Criminal Law Amendment Act and is as follows :‑ "Whoever has in his possession or conveys in any manner or offers for sale or pawn, anything which there is reason to believe to have been stolen or fraudulently obtained shall. if he fails to account for such possession or such act to the satisfaction of the Magistrate, be liable to fine which may extend to one hundred rupees or to imprisonment for a term may .extend to six months." It does not appear that this provision has ever previously been judicially interpreted but authorities have been cited in which the very similar language of section 54‑A of the Calcutta Police Act 1866 was examined. The only difference between the two sections is that, in respect of the provision for impri sonment, the Calcutta Police Act reads as follows :‑ "or to imprisonment, with or without hard labour, for a which may entend to three months. The authorities term cited before us under the Act of 1866 are Sukhu Kalwar v. The Emperor 22 C W N 936 ; Rasik Lal Dad v. Emperor 26 C W N 712 and Chand Khan v. Emperor 36 C W N

512. It is unnecessary to enter upon an examination of the facts and circumstances of these three cases as f he ratio decidendi has been, in my opinion, correctly appreciated by Mr. Justice Ellis in his judgment where he has observed as under :‑ "I think it is not enough to show that there is reason to suspect that the articles found have been stolen or fraudu lently obtained. Something more is required and that something is `reason to believe', 'belief' being a conviction of the mind arising not from the actual perception or knowledge but by way of inference of evidence received or information derived from others. It falls short of an `absolute' certainty because the accused, in accounting for his possession, may be able to show that the grounds upon which it is based are unsubstantial." In each of the three cases cited the Calcutta High Court examined the grounds advanced for entertaining the belief that the goods found in the possession of the accused were either stolen or fraudulently obtained, and came to the con clusion that nothing was proved beyond mere possession. Mr. H. S. Suhrawardy for the appellant has offered G criticism of the grounds on which Mr. Justice Ellis held that there were reasons to believe that the goods recovered in this case were stolen property. Besides these, certain other grounds appear from the judgments of the Magistrate, the Sessions Judge, and Mr. Justice Amir‑ud‑Din Ahmad, all of whom held that there was a case for conviction, and it will be convenient to examine all these grounds together. It should be mentioned that on the point of the appellant's possession of the copper wire all these learned Judges, as well as Mr. Justice Ibrahim were agreed that this had been proved. The appellant had from the very outset, i.e., from a time when the case was still under police investigation, contended that he had sublet the godown to one Muhammad Hussain alias Madan Saheb, a salvage merchant, long before the recovery. With the exception of Mr. Justice Ellis, each of the other judges held that the appellant had failed to establish this contention ; Mr. Justice Ellis held in positive I terms that there had been in fact zoo subletting. On this part of the case, namely the existence of "reasons to believe" that the goods were stolen property or had been fraudulently obtained, I propose to proceed on the basis that the appellants possession was established. The relevant facts relating to the possession and its discovery are that the appellant had about the year 1943 rented from one Abdul Matin (a prosecution witness along with his two brothers Abdul Latif and Abdul Malak) a shop in Khatunganj with a godown behind. The police officer who conducted the search of the godown found the shop, which was styled "A. J. Chaudhury & Sons" to be closed and there is evidence of two defence witnesses that it had been closed for about a year before the recovery. The shop apparently dealt in food-grains and clothes and the godown is admitted by a defence witness to have been used at one time by the appellant for storage of foodgrains. Abdul Matin had brought a case against the appellant in respect of the godown under a Rent Control Order, which failed. The nature of the case is not stated: At the time of the recovery, which was made on the basis of information received by the police, the appellant was not present, and. the godown was found locked. The key was produced by one Abdur Rahman Dovashi, a professional coolie who worked for other persons besides the appellant, but apparently was living in the appellant's unused shop at the time of the occurrence. The godown being opened, it was searched by Abdul Latif, brother of the landlord Abdul Matin, and as stated already, 115 maunds of copper wire, apparently new, were found therein along with a quantity of galvanised wire weighing one and a half maunds and two gunny bags containing empty cartridges. The charge was confined to the copper wire found. One further matter appears from the evidence of the investigating police officer, namely, that in March 1947 a large quantity, i. e., not less than five hundred maunds, of copper wire was reported to have been stolen from the godown of one Kanaiya Lal Marwari situated in the same bazar, namely, Khatunganj: A case under sections 957/380 P. P. C. was started against certain persons, not including the accused. It is not known whether any convictions were obtained in the case. No copy of the First Information Report in that case has been brought on the record, nor has Kanaiya Lal been produced to speak to his loss. There is no evidence to show the precise specifications of the copper wire lost by Kanaiya Lal, such as should readily have been available, nor even any less accurate description, such as might serve to fix the kind and quality by appearance. Therefore, the police officer's solitary statement that the wire which bad been lost by Kanaiya Lal was similar to the wire found in the appellant's godown, is no more ban a merle guess. It does not appear that he ever saw any, of the stolen wire, either before or after the theft. Arising out of these facts, the following grounds were extracted in favour of the belief that the copper wire was stolen property, by the various judges who have held to that effect. The learned Magistrate a noted that the appellant had no authority for possessing the copper wise, and Mr, Justice Amir‑ud‑Din Ahmad and Mr. Justice Ellis observed that at least up to 1946, copper wire had been a commodity under official control. The absence of authority for possession is clearly immaterial. If by reference to the time expired control the learned judges of the Dacca High Court intended to indicate a factor, in their opinion, weighing against the appellant, I would observe, with all respect to their view, that the interval of two years preceding the material date during which there had been no control is sufficient, per se, to deprive the circumstance of all relevancy or weight. Then the learned Magistrate took "judicial notice" of two matters, firstly that at the time of the recovery, copper wire was not ordinarily available, and secondly that it was not commonly used. There is not an iota of evidence upon either of these points. These were matters of a special nature, and, specially with reference to the point of availability, which was germane to the issue before the Court, it was not open to the Court to base these findings on mere assumptions, without evidence. Next, the learned Magistrate as well as Mr. Justice Ellis were impressed by the large quantity of copper wire discovered. The precise line of reasoning by which the mere quantity has been held in proof of the goods being either stolen or fraudulently obtained is not clear from their judg ments, With all respect to this view, it appears to me to be a difficult matter to base so strong a conclusion upon so slight a premise. For it is established that the appellant is a man of Considerable substance, and I cannot see that the quantity of copper wire alleged to have been recovered from his posses sion was of a value entirely outside his means to acquire. Next the ground was taken by each one of the convicting judges that similar copper wire had been s; oleo from Kanaiya Lal. That this ground is entirely without force will appear from what has been already stated above concerning the total absence of evidence some of which was easily available, to establish the allegation of similarity. The learned Sessions Judge employed the argument Shat the goods must be tainted with theft or fraud because in spite of their high value they were claimed neither by the appellant nor by Madan Saheb. As for the appellant, had he claimed that the goods were his, this would have been inconsistent with the plea taken by him from the outset and maintained throughout the proceedings, namely, that the goods were not his and that the godown was in the possession of Madan Saheb. Madan Saheb was not found at the addresses given to the police by the appellant and appears to be living outside Pakistan. As a serious charge had already been preferred in respect of these goods' it was not to be expected that he would come forward to claim them. There would appear to be nothing in this point as well. Mr. Justice Amir‑ud‑Din Ahmad took into consideration the facts that empty cartridges cases were found along with the copper wire, that for possession of such goods, a licence under the Arms Act was necessary and that the appellant had not shown that he possessed such a licence or was exempted. With great respect to the learned Judge, these matters are, in my opinion, devoid of relevancy. No charge having beet levelled against the appellant in respect of these cartridge case, the occasion never arose for him to explain his possession of them. I take up next for examination two grounds which have been advanced by Mr. Justice Ellis alone. The first of these appears sufficiently clearly from the following passages in the learned judge's judgment :‑ (1) "the petitioner described himself in his own application to this Court as carrying on business in salt, and possessing a grocery shop at Khatunganj under Police Station Kotwali, Chittagong. He is careful to add that he never dealt in scrap materials or copper wire". (2) "So, on the 9th of May, 1948 * * * * in the pre mises of a man who deals in food-grains and is careful to say that he had no dealings whatsoever in scrap iron materials or copper wire, there was discovered on the 9th of May, 1948, no smaller quantity than almost four tons of copper wire". (3) "A suggestion has been thrown out that no action was taken against Kanaiya Lal Marwari with regard to the 70 or 80 maunds of copper‑wire left in his godown after the theft which he had reported. That is immaterial. Kanaiya Lal Marwari was a salvage merchant dealing in scrap materials. The possession of a quantity of copper wire in the godown of a dealer in scrap might, in certain circum stances, give rise to suspicion but can never give rise to a reason to believe that it was stolen ; but the case is far different in dealing with the business man whose business is confined to food-grains and on whose premises four tons of copper wires were found". In brief, the learned judge appears to have thought that the possession of so much copper wire by a dealer in food grains was a ground for believing the goods to be stolen or fraudulently obtained and that the case would have been otherwise if the person had been a salvage merchant. Two matters appear in the argument of the learned judge. which I may briefly notice. The first is the statement that "Kanaiya Lal Marwari was a salvage merchant dealing in scrap materials"..' There is no evidence on the record to support this statement. The only witness who mentions Kanaiya Lal Marwari, viz. the investigating police officer, said nothing about his occupation. The second is the reliance 'placed by the learned judge on an averment of fact, concerning the occupation of the petitioner before him, which was contained in his petition of revision to the High Court. That petition was signed and verified by one S. M. Bazlul Haque, who described himself an officer of the petitioner". In the ordinary course, any such matter of fact, relevant to a point for determination in the case, should be established as evidence in the proceedings, in one of the modes known to law. No reason appears why this course could not have been adopted in the proceedings in the High Court. In the absence of a proper statement, made on oath, it seems to me, speaking with respect, that the adoption by the learned judge of this part of the averments in' the revision petition, as proof relevant to the determination of the petitioner's case, was clearly irregular. This was the more so as there was nothing to indicate that the averment had been made under the instruc tions, or even with the knowledge of the petitioner. But even assuming that the petitioner never dealt in salvage goods‑indeed, the evidence shows that from about September, 1947 up to May, 1948, when the recovery was made, he was not a dealer at all‑and further assuming that his possession of the copper wire is established, can there be no circumstances in which such possession could be had bona fide ? There being no evidence that available supplies of copper wire were so tightly controlled or held, by dealers or industrial undertakings or Governments or other parties interested, that persons outside these categories could not possibly obtain any supplies except by theft or fraud, the assumption that the appellant's possession must have been mala fide is plainly a difficult one to make. Moreover, assum ing that he had no direct use for it, may it not be that it was acquired with the object of making a profit by resale ? Cases very frequently occur in which business men, or even private persons, lay by stocks of commodities in short supply, in order to make a profit on resale, although they may have no interest in such goods, either as consumers or dealers. I therefore find it quite impossible to attach any weight in the relevant sense to the circumstance that the appellant was not a salvage merchant. 'The other ground advanced by Mr. Justice Ellis is that in the "Statement of Objects and Reasons" published with the Bill which was later enacted as the Bengal Criminal Law Amendment Act, 1942, it had been stared that :‑‑ "Thefts of articles from railway workshops and stores, mills and industrial areas are of frequent occurrence and it is always difficult to bring the offender to book owing to the difficulty of satisfactory identification of the articles as required by law". It appears that the learned judge accepted this assertion as evidence in the case, for later, in stating the grounds on which he based his inference that the goods were stolen, he has made reference to "repeated thefts in railway workshops and industrial concerns". The learned Advocate‑General of Pakistan conceded that the use of this statement was irregular, No sanctity attaches to statements of fact occurring in a statute (Maxwell, Interpretation of Statute 9th Edition page 319) and, a fortiori, statements of fact contained in documents appended to Bills which never become part of the law and are only intended to serve as an aid to legislatures and to the gen eral public in following what may he described as the purport of the proposed measure, cannot ordinarily be regarded as, per se, relevant evidence in a judicial proceeding. In any case, the particular assertions here in question were made some six years before the material date, and the passage of time alone should have sufficed to incline the learned judge against accept ing the facts stated as true, without further evidence, in relation to the case before him. It is thus apparent that the sole circumstance which was legally available as a ground for. believing that the goods found as it has been held by the Dacca High Court in the possession of the appellant were stolen goods or had been fraudulently obtained is that they were in the godown which he had rented from Abdul Matin in 1943, and therefore there can be no question but that the prosecution had failed to establish a sufficient prima facie case against the appellant, on the strength of which he could have been called upon to account for such possession: The learned Advocate‑General of Pakistan attempted to adduce the appellant's conduct after the recovery in support of the conclusion that his possession was not bona fide. Taking his stand on the unanimous finding of all the judges who had dealt with this case that: the possession of the accused had been established, the learned Advocate‑General appeared to argue that the taking of a false plea by the appellant, namely, that the goods were not in his possession, was a factor which tended to show that his possession was mala fide. My impres sion of the accused's conduct after the recovery is exactly the reverse. He was completely consistent in raising and main taining the plea of non‑possession in the investigation, and in all the subsequent judicial proceedings. This very con sistency appears to me as a factor going in favour of his honesty. The argument therefore is unworthy of serious con sideration. In my opinion, the charge against the appellant was in an essential respect supported by no evidence at all and that consequently the conviction in not maintainable in law. I would accordingly allow this appeal and acquit the appellant. A. H. Appeal allowed.