P L D 1952 Dacca 314 (PLP)

"(1) That this silver bar was found along with other articles alleged to have been stolen and claimed by a certain person about which there was already a case under section 411, Indian Penal Code, against the accused which has been decided ; (2) That the accused was asked to produce the key of the box in which these articles were, but he did not and then the box had to be broken open by the Police Officer; (3) That the accused failed to account for the bar, he did not say where he got the bar or point out any persons from whom he got it". He was acquitted by the Calcutta High Court and the points taken by the learned Magistrate were disposed of in these words : "As regards the first of these reasons,, the accused was acquitted of the charge referred to and in the absence of anything to show that the other articles were stolen, no infer ence against the accused can be drawn from the fact that this silver bar was found with those other articles. As regards the second of those reasons, the failure of the accused to produce the key is not shown to have been wilful. His story is that it was not then in his possession and this has not been rebutted. The third ground is not one on which the Magistrate is justifi ed in finding reason for believing that the property was stolen. He had, first, to find on sufficient materials that there was reason for such belief and it was not until he had come to such a finding that he could consider whether the accused had been able to account for its possession." The observation with regard to the third point is important. It makes clear that the failure of the accused to account for the silver bar was not taken as a reason to believe that it was stolen or fraudulently obtained. Reference may be made also to cases (1) Chand Khan v. Emperor 36 C W N 512 ; (2) Bai Das v. Alim Bux Khan 23 C W N 1053 ; (3) Rasik Lal Das v. The King Emperor (supra). The first of these three cases related to possession of betelnuts in suspicious circumstances. Accused Chand Khan denied possession. The relevant portion of the judgment by which the learned Judges disposed of the points raised by the learned trying Magistrate was as follows "The learned Magistrate who has found against the peti tioner in the present case has set out the facts that a man had been caught leaving the Jagannath Ghat jetty with a bag of betelnuts and that on his statement the present petitioner's boat was searched ; that the accused denied that he was in possession of the nuts ; that there were certain witnesses who proved the finding of the betelnuts in the petitioner's boat and that there was no doubt that they were discovered in that boat. The learned Magistrate goes on to say that he has failed to give any explanation from where he obtained them and that they must reasonably be suspected to be stolen property. I think that that finding of the learned Magistrate is an expression of opinion as regards reasonable suspicion in this case. But that is not what is wanted. What is wanted is a reasonable belief and it seems to me that there is a difference in degree as regards the one expression and the other." In my opinion denial of possession which, in other words, means failure to account for possession, does not within the meaning of section 4 (1) of the Bengal Criminal Law Amend ment Act by itself constitute any reason to believe that the property was stolen or fraudulently obtained. In this case no other circumstance has been proved by the prosecution which constitute such reason. It has not been shown either that at the relevant date the copper wire was controlled article or that it was under control when it was acquired by the accused. In the absence of any such law of control, it was open to anybody to acquire and possess it. In fact, Kanaiyalal Marwari of the same locality was admittedly in possession of a considerable amount of copper wire. No suspicion even can in these circumstances attach to the possession of 115 maunds of copper wire by the accused who as the evidence shows is also a business man and a man of at least some substance. It no doubt appears that Kanaiyalal Marwari had lodged a First Informa tion Report in March, 1947, that is to say, more than a year before the seizure in this case, alleging theft of certain quantity of copper wire from his godown and that the Inspector after in vestigation submitted a charge‑sheet in that case against certain persons but neither Kanaiyalal Marwari nor anybody concerned with the custody of the copper wire alleged to have been stolen has been produced in this case to take oath to sub‑stantiate the story of theft. In fact even the F. I. R. has not been proved. The Inspector's evidence that he sub mitted charge‑sheet does not constitute proof of the alleged theft. My conclusion, in these circumstances, is that the prosecution has failed to make out a case under section 4 (1) of the Bengal Criminal Law Amendment Act against Fazlul Kader Chowdhury. In the result, the Rule obtained by Fazlul Kader, Chowdhury is made absolute and his conviction and sentence are set aside. In these circumstances no question can arise of enhancement of sentence, and accordingly the Rule obtained by the Superintendent and the Remembrancer of Legal Affairs is discharged. Per Ahmad, J.‑

As I have the misfortune to differ with my learned brother on the interpretation of the expression "reason to believe" under section 4 (1) of the Bengal Criminal Law Amendment Act, and on the question as to whether grounds were made out by the prosecution by evidence to prove that there was reason to believe that the articles were stolen or fraudulently obtained and also in the con sequential orders that we have made in the two Rules, I send this case to the Hon'ble the Chief Justice to appoint a judge or judges of this Court under clause 36 of the Letters Patent to hear the case upon the points on which we have differed. A. K. Fazlul Huq, D. C. Roy and A. S. M. Mofakher for Petitioner in Revision No. 74 and Opposite Party in Revision No.

75. S. Afzal, Deputy Legal Remembrancer, for the Crown in Revision No. 74 and Salahuddin and Abu Sayeed Choudhury for the Superintendent and Remembrancer of Legal Affairs, East Bengal, in Revision No.

75. ELLS, J.‑This case comes before me on the direction of F my Lord, the Chief Justice, under the provisions of section 439 read with section 429 of the Code of Criminal Procedure. The case centres round Maulvi Fazlul Kader Chowdhury, a businessman of Chittagong, 32 years of age. He describes himself in the following terms : Your petitioner was the Secretary of All‑India Muslim Students' Federation for 1941‑42, Secretary, Chittagong District Muslim League for 1943‑48 and is President, East Bengal Trade Union League, the President, Pakistan Seamen's Union, the President, Eastern Pakistan Railway Employees' Association, and was a member of the All‑India Muslim League from‑1942‑48". He added that in such capacities he earned the displeasure of the local District Authorities, but of that there is no evidence on record. He also describes himself as a graduate of the Calcutta University, carrying on business in salt and says that he never dealt with scrap iron materials or copper wires but had a grocery shop at Khatunganj, police station Kotwali, Cittagong, which was closed one year previous to the 9th of May, 1948. This business he carried on under the style of "A. J. Chowdhury and Sons" in premises which he rented from Haji Abdul Latif Sowdagar in the year 1943. From the Haji Sahib he rented a godown and a shop in 1943 for a rent of Rs.

70. The godown was a two‑storied structure on the east side of Chand Mia Lane in Khatunganj, Chittagong. On the 9th of May, 1948, armed with a search warrant, the Inspector of Police, Chittagong, Abdur Rashid searched this godown between 2‑30 and 6 p.m. in the presence of witnesses. The key was procured from a man describing himself as a professional coolie doing the work of loading and unloading. His name is Abdur Rahman alias Dovashi, and he was the petitioner's custodian. During the search in the shop 115 maunds of bare copper‑wire in bundles, some wrapped up in pieces of gunny bags and some lying exposed, were discovered in the southern room on the ground floor. There were also discovered a number of empty cartridge cases and some galvanised wire, but with the latter I am not concerned in this case. After the search of the godown, Inspector Abdur Rashid contacted the petitioner and asked him for any permit or authority which he held for the possession of the wire. This was on the .13th of May, 1948, and thereafter the Inspector caused certain enquiries to be made in Dacca to verify the statements made to him by the petitioner. A Police Officer was sent to Dacca for the purpose but the statements could not be verified. Thereafter the petitioner was sent up under the Bengal Criminal Law Amendment Acton the 4th of June, 1948. The hearing began on the 3rd of August, 1948, and the petitioner was convicted by Mr. S. M. H. Ali , a Magistrate of the 1st Class at Chittagong, on the 18th of September, 1948. He was fined Rs. 100 or in default to undergo simple imprison ment for two weeks. He appealed against his conviction and sentence to the Sessions Judge of Chittagong, and on the 31st of December, 1948, the Sessions judge dismissed his appeal. Thereafter he approached this Court in the exercise of its Criminal Revisional Jurisdiction and obtained a Rule on the 28th of February, 1949, on the District Magistrate of Chittagong to show cause why the order complained of, i.e., his conviction and sentence should not be set aside. On the same day the Superintendent and Remembrancer of Legal Affairs East Bengal, on behalf of the Provincial Government applied for an enhancement of the petitioner's sentence. On his application a Rule was issued on the opposite party to show cause why the sentence imposed upon him should not be enhanced. The former is Rule 74 of 1949 the latter is Rule 75 of 1949. The two revision cases were heard by their Lordships. Mr. Justice Amir‑ud‑Din Ahmad and Mr. Justice Ibrahim ; but as they did not agree in their opinions, the matter has now been referred to me, and the whole case is before me. The argument on behalf of the petitioner has been shared by Mr. Fazlul Huq and Mr. Dinesh Chandra Roy in alternat ing frequency. Mr. Afzal assisted by Mr. Salahuddin and Mr. Abu Sayeed Chowdhury, appeared for the Crown. The petitioner was convicted under section 4 (1) of the Bengal Criminal Law (Industrial Areas) Amendment Act (Bengal Act IV of 1942). That section reads "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 which may extend to 6 months". Three questions, therefore, have to be decided, first, whether the petitioner was in possession of the godown in which the copper wire was found ; secondly, whether there was reason to believe that the copper wire was stolen property or had been fraudulently .obtained ; and thirdly, whether the petitioner was able to give any satisfactory account of his possession. With regard to the first point, I have no hesitation in holding that the godown actually was in the possession of the petitioner on the material date, i.e., on the 9th of May, 1948. There is no dispute that the petitioner rented the godown for a sum of Rs. 70 from Haji Abdul Latif Sowdagar in 1943. There is no dispute, on his own evidence, that he did business in that godown up to September, 1947. There is no dispute that the godown was opened with a key provided by his custo dian Abdur Rahman Dovashi. The petitioner's own case was that on the 1st July, 1947, he sublet the godown to one Muhammad Hossain. The circumstances attendant upon this subletting, are somewhat unusual. Muhammad Hossain was a stranger who is described as an up‑country man. Apparently the lease was effected without any written agreement and no rent was paid, and there is a divergence between the statement of the petitioner himself and that of his own witnesses as to who carried through the transaction. In his statement to the Court the petitioner said, "My employee Monir Ahmad had let out the godown to Muhammad Hossain alias Madan Sahib. I know nothing about this". Yet his own defence witness Monir Ahmad states "About 1j years ago, I sublet the above godown on my master's behalf to one Muhammad Hossain alias Madan Sahib at a rental of Rs. 30 per month". Moreover, the circumstances of the lease from July the first, 1947, conflict with the evidence of another witness on the side of the petitioner, Abdur Rahman Dovashi, who stated that he did not know the date on which the godown was sublet and he had not seen Abdur Rahman for 18 months prior to the date of his deposition on the 9th of September, 1948. The circumstances in which the godown is supposed to have been let by an agent of the petitioner to an agent of Muhammad Hussain, are clearly impossible of belief. The petitioner endeavoured to produce evidence to show that rent had actually been paid for the godown by Muhammad Hossain. He produced a series of receipts which were mark ed as Exh. A series in the trial Court. The receipts them selves were obviously suspicious. There was no occasion for Muhammad Hossain to pay six months' rent from July to December, 1947, in a lump sum on the 6th of January, 1948. There is no explanation why after he had paid this lump sum, he never paid anything more at all. The serial numbers on the counterfoil receipts only advanced as far as No. 12 and after that there are no more serial numbers, although there are seven other counterfoils which purport to show receipt of rent from other parties. The counterfoil lastly is not endors ed by Muhammad Hossain but by Abdur Rahman. There is no !evidence that Muhammad Hussain ever did any business ever examined as a witness in this case. With regard to Muhammad Hossain, the excuse was given that he had got himself involved in a murder case in some dispute over the disposal of salvage. That excuse was not tendered to explain the absence of Abdur Rahman from the witness box and no other excuse was offered. From all these facts one inference and one only is possible and that is that the godown was never sublet to Muhammad Hussain on the 1st of July, 1947, and remained all along in the possession of the petitioner. It was in possession of the petitioner on the material date, 9th of May, 1948, and in his possession also was the wire which was found inside the godown. A point has been taken as to whether or not the peti tioner was in conscious possession of this wire, Mr. Roy arguing that conscious possession must be established in order to establish mens rea. We see no difficulty whatsoever in holding that the petitioner was in conscious possession of the copper wire in the godown. The fact that the key to the godown was in the possession of Abdur Rahman Dovashi, creates no difficulty at all, because his possession was the mere possession of a custodian on behalf of the owner the petitioner. Further the quantity of wire which was found in the godown, clearly excludes any possibility of the peti tioner not being in conscious possession. No coolie could have brought so large a quantity of copper wire (it amounted to almost 4 tons) without the knowledge of the owner of the godown. Indeed, costs of the transport, hire of conveyance and conveyance charges and the like must have been borne by the petitioner and not by the custodian. Accepting then that the copper wire was found in the possession of the petitioner on the 9th of May, 1948, the next question for determination is whether there is reason to believe that the copper wire was stolen or fraudulently obtained. I only touch upon Mr. Fazlul Huq's suggestion that it is the possessor of the copper wire who has to have reason to believe it to be stolen or fraudulently obtained, to dismiss it summarily. That suggestion is not supported by anybody else, not even by Mr. Roy who shared Mr. Fazlul Huq's argument. Mr. Fazlul Huq and Mr. Roy both charged Mr. Afzal, the Deputy Legal Remembrancer, with accepting that for the purposes of section 4 of the Bengal Criminal Law Amendment Act, 1942, suspicion and belief are almost interchangeable terms. Mr. Afzal has given them reason for this argu ment, because he has referred to the case of Bai Das v. Alim Bux Khan (supra), as being the sheet anchor of his case. The case under report was 'heard by Richardson and Shamsul Huda JJ., and as the headnote shows, they held : "To justify a conviction under section 54‑A of the Calcutta Police Act there must be reason to believe that the article has been stolen or fraudulently obtained and no conviction can be had in the absence of a reasonable ground for suspicion". Mr. Afzal has stressed the words 'In the absence of a reasonable ground for suspicion" and has argued therefrom that if there is a reasonable ground for suspicion, then that is of the judgment under report, however, their Lordships express their meaning as follows : "The petitioner in this case was found in possession of a chuddar which we understand was an old one. He could not indicate the exact person from whom he had purchased it but examined two witnesses to show that he had purchased it as an old cloth from a pilgrim at a Dharamsala. Whether this account is correct or not need not be considered for, in our opinion, the possession of an old chuddar is not enough in itself to arise suspicion. The con viction is under section 54A of the Calcutta Police Act ; and to justify a conviction under that section there must be reason to believe that the article has been stolen or fraudulently obtained. We are not satisfied that there was any reasonable ground for suspicion in this case". It is difficult to accept Mr. Afzal's interpretation of this reported judgment, for, it may equally be that their Lordships were satisfied that in the case there was no reasonable ground for suspicion let alone ground for belief. Indeed, that view fits in with the fact that the property found with the accused was only an old chuddar. Mr. Afzal has relied upon this ruling and has also sum moned to his aid the definition of belief in the Law Lexicon of British India which says "Belief admits of all degrees from the slightest suspicion to the fullest assurance" Other cases have also been reported and as they are all under the Calcutta Police Act, it is, perhaps, of service to record here what is to be found in section 54A of the Calcutta Police Act IV of 1886 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 act to the satisfac tion of the Magistrate, be liable to fine which may extend to one hundred rupees, or to imprisonment with or without hard labour for a term which may extend to three months". The other cases which have been cited start in chrono logical order with the cases of Sukhu Kalwar v. The King Emperor (supra). There their Lordships Newbould and Shamsul Huda JJ. observed : "The preliminary condition which must be fulfilled before effect can be given to section 54A is that there must be reason to believe that the property found in the accused's possession was stolen property. In the case under report the property stolen was one silver bar. It was found amongst other properties in respect of which the accused was placed on trial on a charge under section 411 of the Penal Code and was acquitted. In these circumstances, it is not surprising that their Lordships held that there was no reason to believe that one silver bar was stolen property. Thereafter comes the case of Rasik Lai Das v. The Emperor (supra). This case came before Walmsley and Suhrawardy JJ. and they pronounced : "For the purpose of section 54A of the Police Act, it is obligatory on the pro secution to show that there is reason to believe that the goods had been stolen or fraudulently obtained. It appears to me in this case that the mere evidence of the Sub‑Inspector that second‑hand articles of clothing were recovered from the house of the accused would hardly warrant us in saying that there is reason to believe that the articles found in the possession of the accused had been stolen or fraudulently obtained. There must necessarile be a great deal of property of this kind disposed of in Calcutta". The property of this kind consisted of 23 ties, 3 pairs of gloves, 2 scarfs, 2 braces, 1 pair of stockings and l night cap. Once again as this is the property in which a considerable second‑hand trade is carried on in Calcutta, it is not surprising that their Lordships held that there was no reason to believe that it was stolen property. The next case is the case of Chand Khan v. Emperor (supra). Their Lordships Pearson and Mallik JJ. observed "Before an accused person is called upon to account for the possession of properties in respect of which he is charged under section 54A of the Calcutta Police Act, facts must be shown and findings arrived at that there is reason to believe that the properties are stolen. Mere suspicion that the properties might be stolen is not sufficient". The facts are that the accused Chand Khan was majhi of a boat and was placed on trial with six of his boatmen who were acquitted. The accused Chand Khan was caught red‑handed leaving the Jaggannath Ghat jetty with a bag of betelnuts in his posses sion. There were also betelnuts found in the boat. Their Lordships observed in the concluding portion of their judgment : "What is wanted is a reasonable belief and it seems to me that there is a difference in degree as regards the one expression and the other (reasonable suspicion)". Their Lordships thought that there was hardly a case of sufficient importance to require a fresh investigation. These rulings establish then that before the accused can be called upon to account for his possession, there must be reason to believe that the articles have been stolen or fraudulently obtained. With those rulings I respectfully agree. I think it is not enough to show that there is reason to suspect that the articles found have been stolen or fraudulently 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 know ledge but by way of inference of evidence received or infor mation derived from others. It falls short of an "absolute" certainly because the accused, in accounting for his possession, may be able to show that the grounds upon which it is based are unsubstantial. The question now arises whether in this case there was reason to believe that the copper wire found in the petitioner's godown on the 9th May 1948, was stolen or fraudulently obtained. In this connection the sequence of events is to be noticed, and the first item of that sequence is the necessity for the Act itself. I might, perhaps, not inappropriately quote from the observations of Mr. A. K. Fazul‑ul‑Huq as a member‑in‑charge of the Bill in the "Statement of Objects and Reasons". "Thefts of articles from railway workshops and stores and from mill and industrial areas are of frequent occurrence and it is always difficult to bring the offenders to book owing to the difficulty of satisfactory identification of the articles as required by law. The question of dealing with the criminals has been examined by the Railway adminis trations as also by the Blandy‑Gordon Committee and by Government and the view has been held that the problem can be effectively met only by special legislation on the lines of sections 32 and 54A of the Calcutta Police Act, 1866, which while applying to the whole of Bengal should at the outset, be extended to such individual areas as Government may, from time to time, notify to that effect. For the present, it is proposed to make the Bill applicable to the Railway Workshops at Kharagpur and Chittagong". The Act itself is described in its preamble as an Act "to prevent theft of unidentifiable articles in industrial areas. Whereas it is expedient to prevent theft of unidentifiable articles in indus trial areas ; it is hereby enacted as follows :" Second in the sequence of events is the fact that copper wire was under some sort of control up to 1946 although there is on record nothing to show that it was controlled in 1947 or any permit was required for its possession. Thirdly, there was the report that in March 1947, 500 maunds of copper wire had been stolen from the godown of a Marwari in Chittagong by name Kanaiyalal Marwari. With this background we come to the search of the petitioner's godown on the 9th of May, 1948, and what is most material in this case is the commodity in which the petitioner actually deals. As we have seen, the petitioner describes himself in his own application to this Court as carrying on business in salt, and possessing a grocery shop at Khatunganj under police‑station hotwali, Chittagong. He is careful to add that he never dealt in scrap materials or copper wire. His own witnesses speak to his dealings as a business man. Thus his witness Monir says that foodgrains used to be stored in the godown before it was sublet and defence witness No. 3 Muhammad Solaiman says that up to a year before the date on which he was deposing the petitioner dealt in food grains and clothes. So, on the 9th of May, 1948, after repeated thefts in Railway Workshops and industrial concerns had caused the introduction of special legislation in order to deal with the menace ; after a big theft of copper wire had been reported in March, 1947, in the premises of a man who deals in food grains and who 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 4 tons of copper wire. It is not necessary to satisfy the requirements of section 4 of the Bengal Criminal Law Amendment Act, 1942, that it should be proved that the copper wire found in the petitioner's godown, actually was D stolen in any particular theft or that it was part of the copper wire stolen in the theft reported in March 1947, It is quite sufficient to show that there is reason to believe that the E copper wire was stolen or fraudulently obtained. The quantity of copper wire discovered in these circumstances in the petitioner's godown certainly affords ample reason to believe that it was stolen property, and that his godown was being used as a "cache", a depository for stolen property . A suggestion has been thrown out that no action was taken against Kanaiyalal 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, Kanaiylal 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 circumstances 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 a businessman whose business is confined to foodgrains and on whose premises 4 tons of copper wires were found. There remains the third point whether the petitioner has been able to furnish satisfactory account of his possession. As has already been indicated, the petitioner attempted to disclaim all connection with the godown and to dissociate himself from its contents. That attempt failed and on the evidence the Courts below were quite right in holding that the godown was still in his possession, with the copper wire, on the 9th of May 1948. The explanation which he offered for its possession, that it belonged to Muhammad Hossain, was clearly unacceptable. Two other suggestions have been thrown out in the course of argument which may be construed as attempts to account for possession. It was suggested, for example, to D. W. 1 Monir Ahmad that the petitioner himself had a business in salvage materials. Of course, if he had business in salvage materials that might, as in the case of Kanaiylal Marwari, be a fact to be taken into consideration. But the suggestion was denied and it is diametrically opposed to the petitioner's own statement in his petition before this Court. The last suggestion was one thrown out by Mr. Fazlul Huq during the course of his argument that perhaps the copper wire had been planted on the petitioner without his knowledge. This argument is founded solely on the statement of prosecution witness No. 7 Ahmadur Rahman to the effect that the petitioner had not been near the shop for two months prior to the material date. Mr. Fazlul Huq suggested that in that period of two months it was quite possible that the copper wire had been planted on the petitioner. There is nothing whatsoever in the record to lend support to any such view. In the result then, I find that the copper wire which forms the subject‑matter of this case, was actually found in the possession of the petitioner on the 9th of May 1948. I find that there is reason to believe that property was stolen or fraudulently obtained. I find that the petitioner has not been able to account for its possession satisfactorily. In these circumstances he has been rightly convicted and the rule issued on his petition, i.e., rule No. 74 of 1949, must be discharged. With regard to the rule for enhancement, the sentence of a fine of Rs. 100 imposed on the petitioner on his conviction, is grotesquely inadequate. In the result, the rule in Criminal Revision No. 75 of 1949 is made absolute and the sentence imposed on the petitioner is enhanced to one of simple imprisonment for three months. The fine, if it has already been paid, will be refunded to him. The petitioner will be called upon to surrender forthwith to serve out the sentence now imposed upon him. Leave to appeal to the Federal Court is asked for and refused. A. H. Sentence enhanced.