Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
PETITIONER:
CHAMPAKLAL GANESHMAL
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA
DATE OF JUDGMENT05/11/1974
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
CHANDRACHUD, Y.V.
CITATION:
1975 AIR 160 1975 SCR (2) 584
1975 SCC (3) 485
ACT:
Bombay Police Act, 1951-S. 124-Scope of-"Stolen property" or
"property fraudulently obtained" meaning of.
HEADNOTE:
The appellant was convicted and sentenced for an offence
under s. 124 of the Bombay Police Act, 1951 for being in
possession of 20 brand new wrist watches of Sandoz
manufacture. The Presidency Magistrate found that the wrist
watches were either stolen property or property fraudulently
obtained. On appeal a single Judge of the High Court held
that the writ watches were smuggled property and hence
fraudulently obtained and confirmed the conviction and
sentences. On reference, a Division bench held that if the
property in the possession of the accused was capable of
being described as ’stolen property or property fraudulently
obtained’ by whomsoever it might have been stolen or
fraudulently obtained,- that would be sufficient to comply
with the requirements of the section and that the section
did not speak of the accused obtaining possession of the
property fraudulently but property "fraudulently obtained."
Section 124 of the Bombay Police Act enacts "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 to act to the
satisfaction of the Magistrate" be punishable on conviction.
Dismissing the appeal,
HELD:(1) When anything is imported into the country
clandestinely in violation of import or customs regulations
it is fraudulently obtained, that is obtained by committing
a fraud on the regulations. Smuggled goods are clearly
goods fraudulently obtained. [587F]
(2)The plain language of the section stops short at
describing the property as ’stolen property’ orproperty
fraudulently obtained’ and does not go on to add the words
’by him. If the property were stolen or fraudulently ob-
tained by the accused, that would be a distinct and
independent offence under the Indian Penal Code or other
laws and it would not be necessary to make it an offence
over again under s. 124 of the Bombay Police Act. If the
property is capable of being ’described as ’stolen property’
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
or ’property fraudulently obtained’ by whomsoever it might
have been stolen or fraudulently obtained. that would be
sufficient to comply with the requirements of the section.
It is the possession by the accused of property which bears
the attribute or characteristic of ’stolen property’ or
’property fraudulently obtained’, that is made penal. [587G-
588C]
(3)The explanation given by the appellant for his
possession of the wrist watches was unsatisfactory and the
High Court was right in taking the view that the appellant
had failed to account for the possession of wrist watches.
[588E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal appeal No. 41
of 1971.
From the Judgment and Order dated the 15th January, 1971 of
the Bombay High Court in Crl. Appeal No. 278 of 1969.
N. H. Hingorani, for the appellant.
S. B. Wad and M. N. Shroff, for the respondent.
585
The judgment of the Court was delivered by
BHAGWATI, I.-This appeal has been referred by the appellant
on a certificate of fitness granted by the High Court of
Bombay under Article 134(1) (c) of the Constitution. The
facts giving rise to the appeal are few and may be briefly
stated as follows.
On 4th October 1968 at about 5 p.m. the appellant was found
standing near I the crossing of Yusuf Meherally Road and
Abdul Rahman Street adjoining Crawford Market in Bombay.
The movements of the appellant excited the suspicion of PSI
Bhambre and Police Constable Vithal Bapu Kamble, who were
passing along that way to make inquiries in connection with
some other matter, and they accordingly accosted the
appellant and asked him why he was standing there. The
appellant replied that he was waiting for a friend. But that
answer did not satisfy the,officers and suspecting that
there was something fishy, theythe appellant in the
presence of panchas. In the course ofthe search two paper
packets were found, one in each trouser pocketof the
appellant and each packet contained ten brand new wrist-
watches of Sandoz manufacture. These wrist-watches were
quite expensive and their value came to over Rs. 2,000/-.
The appellant was asked as to how he came into possession of
these wristwatches, but he was not in a position to give a
satisfactory explanation. The Police officers, there. fore,
took the appellant to the police station and later charged
him with an offence under section 124 of the Bombay Police
Act, 1951 in the Court of the Presidency Magistrate V.T.,
Bombay.
The learned Presidency Magistrate found on the evidence on
record that there was reason to believe that the wrist-
watches found from the possession of the appellant were
either stolen property or property fraudulently obtained,
and since the explanation given by the appellant for his
possession was inconsistent and unsatisfactory, the learned
Presidency Magistrate held that the appellant was guilty and
convicted him of the offence under section 124 and sentenced
him to suffer rigorous imprisonment for. three months and to
pay a fine of Rs. 100 or in default to suffer rigorous
imprisonment for a further period of fifteen days.
The appellant appealed against the order of conviction and
sentence to the High Court of Bombay. The appeal came up
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
for hearing before a Single Judge of the High Court, namely,
Kamat, J. The learned Judge was of the view that there was
reason to believe that the wrist-watches found in the
possession of the appellant’ were smuggled property and
hence property fraudulently obtained and since there was no
satisfactory explanation forthcoming from the appellant, the
order of conviction and sentence passed against the
appellant was proper. But the attention of the learned
judge was drawn to a decision of another Single Judge of the
High Court, namely, Vimadalal, J. in Pratap Baburao v. The
State of Maharashtra(1) where a view had been taken that in
order to attract the, applicability of section 124 what was
necessary was that there should be reason to believe that
the property in question was fraudulently obtained by the
accused. Now, if this decision were right, then obviously
the appellant would
586
be, entitled to be acquitted and the order of conviction,
and sentence passed against him would be bad because on the
material on record it would not be possible to say that
there was reason to believe that the wristwatches were
fraudulently obtained by the appellant. The learned Judge,
however, found himself unable to agree with the view taken
by Vimadalal, J., and being of the opinion that on a proper
construction of section 124, the only matter in respect of
which the Court was required to have reason to believe was
that the property was stolen property or property
fraudulently obtained and not that the property should have
been stolen or fraudulently obtained by the ,accused, the
learned Judge referred the appeal to a Division Bench.
The appeal thereafter came up for hearing before a Division
Bench of the High Court consisting of Palekar and S. K.
Desai, JJ. The Division Bench disagreed with the view taken
by Vimadalal, J., and held that "The expression
’fraudulently obtained’ like the other juxtaposed expression
’stolen’ in that same section is the attribute, stamp or
character of the ’property’ found in the possession of
accused. If the property in his possession is capable of
being described as ,stolen property’ or ’property
fraudulently obtained’ by whomsoever it might have been
stolen or fraudulently obtained, that would be sufficient to
comply with the requirements of the section". The Division
Bench pointed out that "the section does not speak of the
accused obtaining possession of the property fraudulently
but of property ’fraudulently obtained"’. On the material
on record, the Division Bench held that there was reason to
believe that the wristwatches found in the possession of the
appellant were smuggled watches and hence they were
"property fraudulently obtained" within the contemplation of
section 124. The Division Bench then proceeded to consider
the explanation given by the appellant in regard to his
possession of the wrist-watches and taking the view that the
explanation was unsatisfactory and the appellant had failed
to account satisfactorily for the possession of the wrist-
watches, confirmed the order of conviction and sentence
passed against the appellant. ’The appellant thereupon
applied for a certificate for leave to appeal to this Court
under Art. 134(1)(c) of the Constitution and since the case
involved a question relating to the interpretation of
section 124, the High Court granted the certificate and
hence the present appeal.
The main question that was argued before us related to the
true interpretation of section 124. That section reads as
follows :
"Whoever has in his possession or conveys in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
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 to act to the satisfaction
of the Mastrate, on conviction, be punished
with imprisonment, for a term which may extend
to three months or with fine which may extend
to one hundred rupees or with both."
It is apparent, on a plain reading of this section, that
there are three ingredients which must be satisfied in order
to attract the applicability
587
of the section and bring home the offence against the
accused. The first is that the accused must be in the
possession of the property or be must have conveyed it in
any manner or offered it for sale or pawn to the second is
that the property must be one in respect of which the Court
has reason to believe that it is either stolen property or
property fraudulently obtained and the third is that the
accused must be unable to account for his possession or act
to the satisfaction of the Magistrate. If these three
ingredients are satisfied, the accused would be liable to be
convicted of the offence under the section.
Now, in the present case, twenty brand new wrist-watches of
Sandoz manufacture were found in the possession of the
appellant and the first ingredient was satisfied. The case
of the prosecution in regard to the second ingredient was
that there was reason to believe that these wrist-watches
were smuggled property and hence "property fraudulently
obtained" and it was this case which was accepted by the
High Court. The appellant contended that even if the
wristwatches were smuggled goods, they could not be said to
be fraudulently obtained and in any event there was no
evidence to show that they were fraudulently obtained by the
appellant and the prosecution case in regard to the second
ingredient was, therefore, not established. Now, there can
be no doubt that there was reason to believe that these
wrist-watches were smuggled goods. The High Court has given
cogent reasons for taking this view and we are wholly in
agreement with those reasons. It is significant to note
that the appellant was not a dealer in wrist-watches and yet
he was _found in possession of twenty brand new wrist-
watches of foreign manufacture tucked away in his trouser
pockets. When called upon to explain, he was unable to
state as to how he came into possession of these wrist-
watches. These circumstances are sufficient to create
reasonable belief that these wrist-watches were smuggled
property. The next step logically flowing from this premise
would be that these wristwatches were fraudulently obtained.
It can hardly be disputed that when anything is imported
into the country clandestinely in violation of import or
customs regulations, it is fraudulently obtained, that is,
obtained by committing a fraud on the regulations. Smuggled
goods are clearly goods fraudulently obtained. But the
question is whether in order to satisfy the second
ingradient these wrist-watches must be fraudulently obtained
by the accused or it is enough that they are fraudulently
obtained by some one else by smuggling and then have reached
the hands of the accused. If we look ’at the plain Ian age
of the section, it is clear that it stops short at
describing the property as "stolen property or property
fraudulently obtained" and does not go on to add the words
"by him". If the intention of the legislature were that the
property should be stolen or fraudulently obtained by the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
accused, then nothing would have been easier for the
legislature than to use appropriate words, such as "stolen
property or property fraudulently obtained by him". In fact
that could not be the intention of the legislature because
if the property were stolen or fraudulently obtained by the
accused, that would be a distinct and independent offence
under the Indian Penal Code or the Customs Act or the Import
and Export Control Act and it would not be necessary to make
it an offence over again under section 124 of the Bombay
Police Act. The words "stolen property or
588
property fraudulently obtained" merely denote the attribute
or characteristicof the property. If the property is
capable of being described a A’ stolen property" or
"property fraudulently obtained" by whomsoever
it mighthave been stolen or fraudulently obtained, that
would be sufficient tocomply with the requirements of the
section. The section merely speaks of the character of the
property-whether it satisfies the particular description and
does not say by whom it should have been stolen or
fraudulently obtained. The theft or the fraudulent
obtaining of the property may be by any person. It is not
the act of stealing or fraudulent obtaining that is sought
to be hit by the section. For that there are other laws,
such as the Indian Penal Code, the Customs Act and the
Import and Export Control Act. Here, it is the possession
by the accused of property which bears the attribute or
characteristic of "stolen property" or "property
fraudulently obtained" that is made penal. The Court while
dealing with a case under section 124 is, therefore, not
concerned to inquire whether there is reason to believe that
the property was stolen or fradulently obtained by the
accused. The only inquiry which the Court is called upon to
make is whether on the material on .record there is reason
to believe that the property found in the possession ,of the
accused can be described as " stolen property"-or "property
fraudulently obtained," whoever may be the person who stole
it or fradulently obtained it. There can be no doubt that
in the present case on the material on record there was
reason to believe that these wristwatches found in the
possession of the appellant were "property fraudulently
obtained" and the second ingredient was, therefore, clearly
satisfied. So far as the third ingredient is concerned, it
is clear that the explanation given by the appellant for his
possession of these wristwatches was unsatisfactory, and the
High Court was right in taking the view that the appellant
had failed to account for his possession of these wrist-
watches to the satisfaction of the Court.
We must, therefore, hold that all the three ingredients of
section 124 were satisfied in the present case and the
appellant was rightly convicted under that section. We
accordingly dismiss the appeal.
IV.P.S.
Appeal dismissed.
589