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PETITIONER:

SULEMAN ISSA

Vs.

RESPONDENT:

THE STATE OF BOMBAY.

DATE OF JUDGMENT:

11/03/1954

BENCH:

HASAN, GHULAM

BENCH:

HASAN, GHULAM

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1954 AIR 312 1954 SCR 976

ACT:

Criminal Procedure Code (V of 1898), s. 517-Person pro-

secuted under s. 61-E of the Bombay District Police Act

(Bombay Act IV of 1890)-Confiscation of gold worth about 3

lakhs Propriety of.

HEADNOTE:

Under s. 517 of the Code of Criminal Procedure the court is

empowered on the conclusion of an enquiry or trial to make

an

977

order for the disposal of any property or document produced

before it or in its custody or regarding which an offence

appears to have been committed or which had been used for

the commission of any offence. The power of the court

extends to the confiscation of the property in the custody

of the court but it is not in every case in which the court

must necessarily pass an order of confiscation irrespective

of the circumstances of the case.

Held, that the confiscation of gold worth about 3 lakhs of

rupees was singularly inappropriate in a case like the

present where the prosecution story that the gold in

question was smuggled into India from Africa was not

accepted by the court and the accused was convicted for an

offence under a. 61-E of the Bombay District Police Act,

1890, which provides a maximum sentence of three months and

a fine of Rs. 100 and which does not contain any substantial

provision such as the Sea Customs Act imposing the penalty

of confiscation.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of

1951.

Appeal by special leave from the Judgment and Order, dated

26th June, 1950, of the High Court of Judicature at Bombay

(Dixit and Chainani JJ.) in Criminal Appeal No. 784 of 1949.

N. C. Chatterjee (H. J. Umrigar and S. P. Varma, with

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him) for the appellant.

M. C. Setalvad, Attorney-General for India (Porus A. Mehta,

with him) for the respondent.

1954. March 11. The Judgment of the Court was

delivered by

GULAM HASAN J.-This appeal is brought by special leave from

the judgment and order of the High Court of Judicature at

Bombay (Dixit and Chainani JJ.), dated June 26, 1950,

whereby the High Court allowed the appeal of the State of

Bombay, setting aside the order of acquittal of the

appellant passed by the Sessions Judge of Kaira, dated May

7, 1949, and restoring the order of conviction and sentence

of the appellant passed by the Sub-Divisional Magistrate,

Nadiad Prant, dated December 31, 1948.

The appellant, Suleman Issa, who is an inhabitant of Natal

in South Africa left Durban in August, 1947, by car for

India to pay a visit to his native place Sarsa in District

Kaira where his sister was living with her husband Alimahmad

Issak. He was accompanied by,

978

Daud Hassam another brother-in-law and both travelled to

Mombasa by car. From Mombasa they took a boat on August 30,

and reached Colombo on September 1 1. They flew from Colombo

to Madras on September 14, but shipped the car by a steamer.

They stayed in Madras until the steamer arrived on September

20. The car was delivered to the appellant on October 1,

after he had paid Rs. 2,700 as custom duty and a cash

deposit of Rs. 10,000 by way of security as the appellant

intended to take the car back to Durban on his return. The

party motored to Nardana on October 7, passing through

Bangalore, Poona, Nasik and Dhulia. From there they

travelled by train and reached Sarsa on October 8. The car

was booked in an open truck from Nardana to Anand where it

was taken delivery of and then driven to Sarsa.

One Ratansing Kalusing Raol, Senior Police Inspector of

Nadiad town, having noticed the car bearing no Indian number

passing in the town instructed policemen to keep a watch.

The appellants ordered to appear before the Sub-Inspector on

October 12. On being questioned he stated that his family

was the original inhabitant of Jamnagar State but for the

last 60 years they were doing the business of contractors

for purchasing and selling land in Durban. His brother Daud

Issa was, however, serving in Bombay. He gave details of

the journey performed by him and his companion and produced

passports, as also the receipts for paying custom duty and

the deposit. On October 15, Head Constable Ajit Singh,

informed Raol that some unknown person had come to the shop

of Umarbhai jeweller with a large quantity of gold.

Accordingly the police visited the shop of the jeweller and

his brother (also a jeweller) and came to know that gold had

been given to him by the appellant to be melted. This gold

along with some other gold kept at another place was seized

by the police. The police also took possession of the car.

The entire quantity of gold seized was 27731 tolas the value

of which is roughly estimated at Rs. 3 lakhs. Proceedings

under action 20 of the Indian Telegraph Act were instituted

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against the appellant and others on the assumption that the

wireless set in the car was a transmitter but they were

dropped when it was found otherwise. The car was thoroughly

examined but nothing incriminating was found. The appellant

was also detained under the Public Securities Act but was

released. Ultimately on January 2, 1948, he along with

others was prosecuted on the complaint of Raol for an

offence under section 61 E of the Bombay District Police Act

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(IV of 1890) read with section 109 of the Indian Penal Code.

Section 61E says:-

" Whoever has in his possession or conveys in any manner, or

offers for sale or pawn, anything which there is reason to

believe is stolen property or property fraudulently

obtained, shall, if he fails to account for such possession

or act to the satisfaction of the Magistrate, be punished

with imprisonment for a term which may extend to three

months or with fine which may extend to one hundred rupees."

He was convicted by the Magistrate and sentenced to a fine

of Rs. 100 and the gold was directed to be confiscated under

section 517 of the Code of Criminal Procedure. The other

accused who were charged with abetment were acquitted,. The

Magistrate took the view that there wag no direct evidence

to show that the accused had committed theft or had obtained

property fraudulently but there were in his opinion

circumstances which led to the reasonable belief that the

gold in question was either stolen or was fraudulently

obtained. The Sessions Judge held that although the

possession of the gold was highly suspicious, nevertheless

it did not constitute sufficient ground for a reasonable

belief that the property was either stolen or was

fraudulently obtained. He accordingly set aside the

conviction and sentence and ordered the gold to be restored

to the appellant. The High Court in appeal by the State did

not accept the prosecution story that the gold was brought

into India by the appellant in his motor-car, but held

agreeing with the Magistrate that from the circumstances

there was reason to believe that he was in possession of

gold which was either stolen property or property

980

fraudulently obtained. The High Court did not accept the

explanation of the appellant that his father had brought the

gold to Sarsa from time to time when he visited his native

place. As regards the order of confiscation under section

517, the High Court held that it was not necessary that the

property confiscated must be the property in relation to

which an offence appears to have been committed but it was

enough if ,the property is produced before the court. In

this view the acquittal was set aside and the order of the

Magistrate was restored.

Mr. Chatterjee on behalf of the appellant stated at the

outset that he was not prepared to concede that the

appellant's conviction was right but he proceeded on the

assumption that even if it was so, section 517 had no

application to the case and the court had no jurisdiction to

pass the order of confiscation of the gold. He also urged

that 'in any, view of the matter the order of confiscation

was not a proper order in the circumstances of this case.

Section 517(1) reads thus:-

When an inquiry or a trial in any criminal court is

concluded, the court may make such order as it thinks fit

for the disposal (by destruction, confiscation, or delivery

to any person claiming to be entitled to possession thereof

or otherwise) of any property or document produced before it

or in its custody or regarding which any offence appears to.

have been committed, or which has been used for the

commission of any offence."

The section on a plain reading shows that upon the

conclusion of an inquiry or trial the court is empowered to

make an order for disposal of any property or document

produced before it

or in-its custody,

or regarding which any offence appears to have been

committed,

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or which has been used for the commission of an offence.

The section also shows that the power of the court extends

to destruction, confiscation or delivery to any

981

person claiming to be entitled to possession of such

property.

Mr. Chatterjee contended that the gold after it was seized

by the Police was sent to the Treasury and was never

produced before the court. We do not think that the

evidence on this point is clear and definite. This point

does not appear to have been raised before the courts below.

The High Court justified the order on the ground that the

property was produced before the court and held that it was

not necessary to find before passing the order that " any

offence appears to have been committed " in respect of it.

It is clear to us that the property was not one regarding

which any offence appears to have been committed, or which

has been used for the commission of any offence. Now the

power of the court no doubt extends to confiscation of

property in the custody of the court but it is not every

case in which the court must necessarily pass an order of

confiscation irrespective of the circumstances of the case.

It is possible to conceive of cases where the subject matter

of the offence may be property which under the law relating

to that offence is liable to be confiscated as a punishment

on conviction. Assuming therefore that the court had

jurisdiction to pass an order regarding the disposal of the

gold, it seems to us that the order of confiscation was not

an appropriate order in the circumstances of this case.

Section 517 contains a general provision for disposal of the

property in the circumstances mentioned in the latter part

of the section. Section 61E by itself does not empower the

court to impose the penalty of confiscation and the sentence

of imprisonment and fine authorized by the section is a

nominal sentence for the obvious reason that the section

proceeds upon the mere belief that the property in

possession of the person is stolen property or property

fraudulently obtained possession of which is not

satisfactorily accounted for. It is an offence under the

local Police Act and not under an Act which contains any

substantive provision such as the Sea Customs Act imposing

the penalty of confiscation. Confiscation is not the only

mode of disposal under section 517 and is singularly

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inappropriate in a case where the accused is prosecuted for

an offence punishable with a maximum sentence of 3 months

and a fine of Es. 100. It was certainly open to the court

to order the property to be delivered to the person claiming

to be entitled to its possession. Here the gold was found

from the possession of the appellant, and the court was not

called upon to consider any rival claims about its

possession. Admittedly ,there was no evidence to prove that

it was stolen, or that it was fraudulently obtained and all

that was found was that there was reason to believe that it

was stolen or fraudulently obtained and that the appellant

failed to account for its possession to the satisfaction of

the court. The High Court thought that the gold was

smuggled from Africa into India but assuming this to be so,

its confiscation under section 517 upon the existence of a

mere belief required to sustain a conviction under section

61 E was palpably harsh and unreasonable. We hold,

therefore, that the order of confiscation of gold cannot be

supported.

We accordingly set aside the order of confiscation and

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direct that the, gold seized from the appellant's possession

shall be restored to him.

Appeal allowed.

Agent for the respondent: B. H. Dhebar.