1. This is an appeal filed by the original accused from his conviction under Sections 411 and 414 of the Indian Penal Code by Mr. B.P. Saptarshi, Additional Chief Presidency Magistrate, Bombay, and the sentence of three months' rigorous imprisonment and a fine of Rs. 500 imposed upon the accused by him in respect of the same. The short facts necessary for the purpose of disposing of this appeal are, that the complainant Sunderlal Chotalal carries on business in the name of "Laxmi Metal Industries," in Bombay, and does the work of cutting stainless steel sheets into pieces of circular shapes of different sizes, that on August 14, 1972 lie had certain circular sheets of a customer stored in gunny bags in his workshop, that he locked his workshop that evening and opened the same on the morning of August 16, 1972, August 15, 1972 being a public holiday; and that lie thereupon found that a considerable quantity of the circular stainless steel sheets stored in his workshop had disappeared. He made a complaint to the police, and as a result of the investigation that was conducted, the accused came to be arrested on August 21, 1972. The accused then made a statement in the presence of panchas to the effect that he had sold steel articles in the quantity of about 300 kg. and certain other goods to a Marwari in 6th Lane, Kamatipura, and expressed his willingness to take the police to the shop of that Marwari. As a result of that statement, the police party and the panchas recovered five gunny bags containing stolen articles from the shop of a Marwari named Jayantraj Mulchand, to whose shop the accused led them, and the same were identified by Sunderlal Chotalal as the goods which had disappeared from his workshop. On that, the accused in the present case was charged under Section 411 of the Indian Penal Code for having received stolen property, viz. the said stainless steel articles of the value of Rs. 20,000, on or about August 15, 1972, knowing or having reason to believe them to be stolen property. Curiously enough, though the charge was only under Section 411, Indian Penal Code, as aforesaid, the learned Additional Chief Presidency Magistrate convicted the accused both of the offence under Section 411 as well as under Section 414 of the Indian Penal Code, and without indicating in respect of which offence he was passing sentence, he passed one sentence upon the accused, viz. that of three months' rigorous imprisonment and a fine of Rs. 500. In fact he stated clearly at the end of his judgment that he was not passing a separate sentence on each count. This, in my opinion, is again a wholly improper course on the part of the learned Additional Chief Presidency Magistrate. First and foremost, the charge being under Section 411 of the Indian Penal Code, and the offence under Section 414, Indian Penal Code in not being a lesser offence in relation to the offence under Section 411, Indian Penal Code, it was not open to the learned Additional Chief Presidency Magistrate to convict the accused of the offence under Section 414, Indian Penal Code, presumably by invoking the provisions of Section 238(1) of the Code of Criminal Procedure, without there being a separate charge in respect of the same. Secondly, if, rightly or wrongly, he did convict the accused person of both the offences under Section 411 as well as Section 414 of the Indian Penal Code, he was bound to pass a sentence upon him in respect of each of those offences (Jayaram Vithoba v. The State of Bombay ), since the provisions of Section 26 of the
General Clauses Act, 1897, apply only where an act is an offence under two different enactments, in which case a person cannot be punished twice for the same offence. I must, therefore, set aside the conviction of the accused in the present case under Section 414 of the Indian Penal Code.
2. As far as the conviction of the accused under Section 411 of the Indian Penal Code is concerned, the first proposition of Mr. Omer, who appeared on his behalf, was that the only evidence in the case on which the conviction of the accused under Section 411 of the Indian Penal Code can be founded being evidence in the nature of the statement made by him and the discovery of the goods from the shop of the Marwari, which evidence has been admitted under Section 27 of the Indian Evidence Act, and that evidence being of a subsidiary nature, it was not open to the trial Court to found the conviction on the basis of that subsidiary evidence alone. In support of that proposition, he relied on what 1 sitting in a Division Bench, have myself observed in the case of D. B, Deshmukh v. State viz. that
discovery evidence, by itself, is subsidiary and cannot sustain a conviction. That statement was apparently made by me on the basis of an earlier judgment of another Division Bench of this Court in the case of A.Y. Madar v. State in which it was laid down by
Gajendragadkar J., delivering the judgment of the Division Bench, that if the direct evidence given by eye-witnesses does not appear to be wholly satisfactory, subsidiary facts on which the prosecution relies cannot carry the prosecution case any further, and the nature of the subsidiary fact he had in mind was indicated by him viz. the discovery of the bloodstained axe in that case. Whilst I agree with the proposition propounded in the said two cases, and am indeed bound by the same, that proposition, as formulated, postulates that the evidence in question must be in the nature of subsidiary evidence. What is subsidiary evidence, would however depend on the nature of the offence in each case. Discovery evidence under Section 27 of the Indian Evidence Act may be subsidiary evidence in the ease of offences involving murder or violence as in Deshmukh's case or in Madar's case, but, in my opinion, it is quite clear that in the case of an offence of knowingly receiving stolen property under Section 411, Indian Penal Code, the statement made by the accused leading to the discovery of the stolen property can, by no means, be said to be in the nature of subsidiary evidence. In the case of a charge for such an offence, discovery evidence would clearly be the main evidence in the case, or, at any rate, one of the very important pieces of evidence. In the present case, therefore, I hold that the evidence relating to the statement made by the accused in the presence of panchas, which is recorded in the panchanama exh. C and is deposed to by the panch witness Prabhakar Mane, and the discovery of the steel sheets to which it led, is not in the nature of subsidiary evidence, and under the circumstances, it is perfectly proper for the Court to found the conviction on the basis of that evidence alone, if the requirements of Section 411 of the Indian Penal Code are fulfilled. I must, therefore, reject this contention of Mr. Omer.
3. The next contention of Mr. Omer was that evidence by way of the statement made by the accused and the discovery of the goods in question from the shop of the Marwari do not prove that the accused had at any time actual physical possession of those goods so as to convict him under Section 411 of the Indian Penal Code. The question of law that arises, therefore, is whether in order to bring home a charge under Section 411, Indian Penal Code of receiving or retaining stolen property, knowing or having reason to believe the same to be stolen property, the prosecution is called upon to prove that the accused had some time or the other actual physical possession of the property in question. In my opinion, it is not necessary for the prosecution to prove actual physical possession of the property by the accused at any stage after its disappearance by theft. If that were so, an offence under Section 411, Indian Penal Code could be easily avoided by a receiver of stolen goods keeping the goods in the godown of some other person. The section should not be interpreted so as to lead to such an absurd result. T hold that in order to bring home the offence under Section 411, Indian Penal Code, the prosecution must prove either that the accused had actual physical possession of the property in question, or that he had constructive possession of it by which T mean that that property was within his power and unrestricted control to be dealt with as he pleased. I agree with the view taken to that effect by a Division Bench of the Calcutta High Court in the case of Shewdhar Sukul v. Emperor (1913) I.L.R. 40 Cal. 990 in which the consignee presented a railway receipt for certain stolen goods to the station-master, paid the freight and received formal delivery of the package from the latter, and it was held that the goods had come within the power and unrestricted control of the accused and though he had not in fact removed them from the station where they were lying, he could be found guilty of the offence of knowingly receiving stolen property under Section 411 of the Indian Penal Code. In the judgment of the Court in the said case it was observed (at page 995) that after the delivery of the goods by the station-master, they came to be not merely in the potential possession of the petitioner, but actually within his power and unrestricted control, and it was open to him to do as he liked with the goods. It was further observed that he could have removed the goods without let or hindrance to any place wheresoever he might have wished them to carry and the possession of the Railway Company having, from the moment of the delivery, ceased, and that of the petitioner, having commenced, the petitioner should be convicted of the offence under Section 411 of the Indian Penal Code. I approve of the view taken by the Calcutta High Court in Shewdhar's case, and under the circumstances, I hold that in the present case also, if the evidence proves that the circular stainless steel sheets had come into the power and unrestricted control of the accused at any stage in the course of their journey from the workshop of Sunderlal Chhotalal to the shop of the Marwari Jayawantraj, the accused can be convicted of the offence under Section 411, Indian Penal Code.
4. I must now turn to the evidence in the present case in the light of this legal position. First and foremost, it may be stated that the statement made by the accused which has been admitted under Section 27 of the Evidence Act does not in terms state that he was at any time in actual or constructive possession of the stolen steel sheets in question. On behalf of the State, it was sought to be contended that since the accused had, in his statement under Section 27 of the Evidence Act, stated that he had sold the said goods to the Marwari from whose shop they were found, and since delivery is implict in the concept of sale, it must be held that the accused could not have delivered those goods to the Marwari without having had, at some stage, actual or constructive possession thereof. The panch witness Prabhakar Mane has in his evidence deposed that the accused had stated that he had "given" the three hundred kilograms of circular steel sheets to the Marwari to whom he had "sold" the same, but I would prefer to take the statement as recorded in the panchanama which Mane has stated to be correct rather than the statement as deposed to by Mane from memory. The question, therefore, is whether possession, actual or constructive, on the part of the accused can be inferred merely from his statement as recorded in the panchanama that it was he who had sold the goods in question to the Marwari. The mere fact of the accused having sold the goods to the Marwari in the present case cannot, in my opinion, be said to prove beyond reasonable doubt that the accused must have received the goods at some point of time before they were handed over to the Marwari. I must give the benefit of that doubt to the accused and hold that the offence under Section 411, Indian Penal Code, has not been brought'home against the accused. The appeal is, therefore, allowed and the conviction as well as the sentence passed upon the accused by the trial Magistrate set aside. Bail bonds cancelled. The fine, if paid, should be refunded to the accused.