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PETITIONER: RADHAKISHAN

       Vs.

RESPONDENT: STATE OF U. P.

DATE OF JUDGMENT: 27/09/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  822            1963 SCR  Supl. (1) 408  CITATOR INFO :  F          1980 SC 593  (11)  F          1985 SC 989  (15)  D          1985 SC1672  (3)

ACT: Criminal  Trial-Secreting of postal articles-Entrustment  of article,   if  necessary  ingredient  of   offence-Exclusive possession-Articles  recovered from almirah-Accused and  his father  both living in house-Key Produced by  father-Whether accused  in exclusive possession-The Post Offices Act,  1898 (VI of 1898), s. 52.

HEADNOTE: The appellant, a postman, and I,is father were living in the same  house.  Certain undelivered postal articles  were  re- covered  from an almirah in the house, the key of which  was produced  by  the  father.   The  appellant  was  tried  and convicted  of  an offence under s. 52 Post Offices  Act  for secreting  postal  articles.  The appellant  contended  that since it had not been proved that he had been entrusted with these articles the offence under s. 52 was not made out  and that lie could not be held guilty of secreting as he was not in exclusive possession of these articles. Held,  that entrustment was not an essential  ingredient  of the offence under s. 52.  Where the legislature intended  to make  entrustment an ingredient of the offence it  had  used appropriate  words  to make it clear.  It had used  no  such words  in s. 52.  To secrete means to hide.  In a case  like the present, the retention of an undelivered postal  article in  an  almirah  for an inordinately long  period  would  be tantamount to hiding that article. Held,  further,  that  the appellant was  not  in  exclusive possession of the postal articles and no inference could  be drawn                             409 that  he had secreted them.  As the key was produced by  the appellant’s  father  it  could  not  be  inferred  that  the appellant  was in joint possession of the almirah much  less that  he  was in exclusive possession of it.   No  inference could  be  drawn from the fact that  the  almirah  contained

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certain other articles belonging to the appellant as it also contained  a  large  number of  articles  belonging  to  the father.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.  160 to 162 of 1960. Appeals  by special leave from the judgment and order  dated January  20,  1960 of the Allahabad High Court  in  Criminal Government Appeals Nos. 2011 to 2013 of 1958. B.         C.   Misra  and  P.  K.  Chakravarti,   for   the appellant. G.         C. Mathur and C. P. Lal, for the respondent. 1962.   September  27.   The  judgment  of  the  Court   was delivered by MUDHOLKAR,  J.-These  three  appeals  arise  out  of   three separate  trials  before  the  Additional  Sessions   judge, Bulandshahr,   but  were  argued  together  as  they   arise identical  questions.  In all these trials,  the  appellant, who  was a postman attached to the Bulandshahr  post  office was tried for offences under s. 52 of the Indian Post Office Act,  1898  (VI  of  1898) and in two  of’  them,  also  for offences  under  ss. 467 and 471 of the Indian  Penal  Code. Briefly  stated the allegations against the  appellant  were that he either stole or secreted five registered letters and that   he  fabricated  three  receipts  showing   that   the registered  letters  were received by the  addressees.   The learned Additional Sessions judge acquitted the appellant of all  these  offences.  The State then  preferred  an  appeal against his acquittal in these three cases to the High Court of  Allahabad but restricted the appeal to the acquittal  of the appellant in respect of offences under 410 s.   52  of  the  Indian Post Office  Act,  1898  (hereafter referred  to  as  the Act).  The High Court  held  that  the appellant  had  secreted  the  five  registered  letters  in question  and  on this finding set aside his  acquittal  and convicted  him  in each of the three  appeals  for  offences under s. 52 of the Act and sentenced him to undergo rigorous imprisonment  for  a period of one year in each  case.   The appellant has come up to this Court by special leave. Briefly  stated the prosecution case is that when the  house in  which  the appellant lives along with his  father  Diwan Singh, a retired Police Head Constable, was searched by  the C.I.D.  Inspector,  S.N. Singh, along with  Masood  Murtaza, Sub-Inspector  of  Police, Bulandshahr on May 12,  1956,  in connection  with a case against Messrs Greenwood  Publicity, they  accidentally discovered a large number of letters  and postcards and also the five registered letters in  question. At the time of the search the appellant who happens to be  a trade union official, was not in Bulandshahr but was away on leave  at  Delhi  in connection with  a  postal  conference. These  articles were found in an almirah, the key  of  which was  produced by the appellant’s father.  The articles  were not  listed at the spot but were taken to the Kotwali  in  a sealed packet and later on listed there.  A number of  other articles  were  also  seized at that time  but  we  are  not concerned  with  them as they have no  connection  with  the charges against the appellant. Briefly, the appellant’s defence in all these cases is  that there  are two factions in the Bulandshahr post  office  and that  these  articles were planted by  the  opposite  party. According  to  him, the planting must have occurred  in  the

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Kotwali  when the Sub-Inspector purported to make a list  of the  articles seized from the house in which  the  appellant lives.  Further, according to him, neither the house nor the almirah from which the articles are said to have been  411 seized was in his exclusive possession.  He stated-and  that fact  is  not denied-that the house which  consists  of  two rooms  only has been rented in his father’s name, that  both of them live in those two rooms and that the almirah was  in his father’s  possession inasmuch as the key was produced by him.               On behalf of the appellant Mr. B. C. Misra has               raised the following six points:               (1)   That  on the findings arrived at by  the               High Court no offence under s. 52 of the  Post               Office Act has been made out.               (2)   That  it has not been  established  that               the  five  registered  letters  were  in   the               exclusive possession of the appellant.               (3)   That the search was illegal inasmuch  as               it  was in contravention of the provisions  of               ss.  103  and  165 of  the  Code  of  Criminal               Procedure.               (4)   That in examining the appellant the  Ad-               ditional Session Judge did not comply with the               requirements of s. 342 of the Code of Criminal               Procedure.               (5)   That  the High Court has not found  that               there  were  compelling  reasons  for  setting               aside the appellant’s acquittal-.               (6)   The sentences in the three cases  having               been  ordered to run consecutively  the  total               sentence is excessive. We will deal with the last four points first.  So far as the alleged  illegality  of  the  search  is  concerned  it   is sufficient  to  say that even assuming that the  search  was illegal the seizure of the articles is not vitiated.  It may be  that where the provisions of’ ss. 103 and 165,  Code  of Criminal Procedure, are 412 contravened the search could be resisted by the person whose premises  are  sought to be searched.  It may also  be  that because  of  the illegality of the search the Court  may  be inclined  to  examine carefully the evidence  regarding  the seizure.   But  beyond  these two  consequences  no  further consequence ensues.  The High Court has chosen to accept the evidence  of  the  prosecution with regard to  the  fact  of seizure and that being a question to be decided only by  the Court of fact, this Court would not re-examine the  evidence for satisfying itself as to the correctness or otherwise  of the conclusions reached by the High Court.  In so far as the contravention  of  provisions of s. 342,  Code  of  Criminal Procedure, are concerned it is sufficient to point out  that no  grievance  was  made  either before  the  Court  of  the Additional  Sessions  judge or before the  High  Court  that there  was  such  a  contravention  and  the  appellant  was prejudiced  and we cannot allow the point to be  raised  for the first time here, the reason being that whether there was prejudice  is a question of fact and cannot be permitted  to be  agitated for the first time in an appeal under Art.  136 of  the  Constitution. As regards the fifth  point,  it  is sufficient  to say that this Court has held that  an  appeal from  acquittal  need  not be treated  differently  from  an appeal from conviction and if the High Court finds that  the acquittal is not justified by the evidence on record it  can

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set  aside  the acquittal without coming to  the  conclusion that there were compelling reasons for doing so.  In so  far as the sentence is concerned, bearing in mind the fact  that the maximum sentence awarded under s. 52 of the Act is seven years  it  would not be right to say that  in  ordering  the sentences  in  the  three cases  to  run  consecutively  the appellant is being very severely punished. In  so far as s. 52 of the Act is concerned the argument  is that the prosecution having merely shown that the registered letters were recovered from an almirah in the house in which the appellant lives the                             413 utmost  that could be said is that he was in  possession  of letters,  that  is, assuming that he was  in  the  exclusive possession  of the house and the almirah.  The mere fact  of possession,  according to learned counsel, does not  suffice to show that the letters were secreted by the appellant.  It is  contended that for an officer of the post office  to  be found  guilty for any of the acts specified in s. 52 it  has further  to be shown that he was entrusted with  the  postal article  with  respect  to  which  he  is  alleged  to  have committed  any  of those acts.  Section 52 of the  Act  runs thus :               "Penalty      for      theft,       dishonest,               misappropriation,  secretion, destruction,  or               throwing  away  of  postal  articles.-Whoever,               being  an officer of the Post Office,  commits               theft   in   respect   of,   or    dishonestly               misappropriates,    or,   for   any    purpose               whatsoever, secretes, destroys or throws away,               any  postal article in course of  transmission               by  post or anything contained therein,  shall               be  punishable  with imprisonment for  a  term               which  may  extend to seven years,  and  shall               also be punishable with fine." The first act referred to in this section is theft.   Surely it  cannot be contended that any (entrustment’ is  necessary with regard to that act.  Indeed, if entrustment were proved and the article entrusted is not found to have been disposed of  in  the manner permissible under the  Act,  the  offence committed  would be not theft but criminal breach of  trust. But. according to Mr. Misra, the appellant cannot be said to have  secreted the letter just because it was found  in  the almirah  which  is  said  to  have  been  in  his  exclusive possession.   To secrete means, according to the  dictionary "to hide".  In connection with a postal article addressed to some  person the fact that it is retained in his  possession by an officer of the post office in an almirah and that  too for  an  inordinately  long period would  be  tantamount  to hiding that 414 article.   Of course, what act amounts to "secreting"  would necessarily  depend upon the facts of each case and  in  our opinion  in  a  case  like  the  present,  what  ’has   been established by the prosecution would sustain an inference of secreting.  Further, a perusal of s. 55 makes it clear  that where the entrustment of an article is made an ingredient of an  offence, the legislature has used appropriate  words  to make the matter clear.  If, therefore, it was the  intention of’  the legislature that for an officer of the post  office to be punished for secreting, destroying or throwing away  a postal  article  in  the oucrse  of  transmission  by  post, entrustment  of that article to him was essential  it  would have used language similar to that used by it in s. 55.   It seems  to us that bearing in mind the’ fact that an  officer

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of the post office having in the course of his duties access to  postal  articles kept or lying in the post  office,  the legislature has deliberately enlarged the scope of s. 52  so as  to encompass secretion, destruction or throwing away  of postal articles by an officer of the post office even though they  may not have been entrusted to him or even though  the are riot articles with which he is required or is  competent to  deal  in the course of his duties.  The  object  of  the provision  is  to  prevent postal  articles  ’in  course  of transmission  by post’ from being tampered with, and so  the secreting,  destruction’ etc., of postal articles  to  which the provision is directed is to such secreting,  destruction etc., as would frustrate or tend to frustrate their delivery to the addressees. Then Mr. Misra contended that it would not be correct to say that the five registered letters recovered from the  almirah were  in  the course of transmission by  post  because  that recovery was made 7 or 8 months after those letters had been despatched  and  that  no  complaint  had  ever  been   made regarding their nondelivery by the senders or the addressees of  those letters.  He further referred to the fact that  at least in respect of three of the registered letters                             415 acknowledgments  purporting  to be from the  addressee  were obtained  and were with the post office.  He  admitted  that the  prosecution  allegation was that those  documents  were fabricated  but that case having failed before the Court  of Sessions and the Government not having appealed against that part  of the decision of that court it must be held that  at least  three  of  those letters were duly  received  by  the addressees.   The expression "in course of  transmission  by post" has been defined in S. 3 (a) of the Act as follows : .lm15 "  a  postal  article shall be deemed to  be  in  course  of transmission by post from the time of its being delivered to a  Post  Office to the time of its being  delivered  to  the addressee  or  of  its  being  returned  to  the  sender  or otherwise disposed of under Chapter VII." The  mere fact that there is even a delay of several  months in  delivering a postal article to the addressee  would  not mean  that  the  article  had ceased  to  be  in  course  of transmission.   It  is common experience  that  delivery  of postal articles is now and again delayed for a  considerable length  of time-----may be through accident or  through  the negligence of the postal employees.  It is probably for this reason  that the definition clearly lays down that until  an article despatched by post is delivered or can be said to be delivered  that  it  will  be deemed  to  be  in  course  of transmission.   We cannot, therefore, accept the first  part of this contention of Mr. Misra. As regards the other point, that is, based on the fact  that there  were acknowledgments in respect of three  letters  in the post office we may point out that the existence of these acknowledgments would no more than raise a presumption  that those  articles  were  delivered  to  the  addressees.   The addressees  have  been examined in this case and  they  have deposed  that the letters in question were not  received  by them.  Their 416 evidence has been believed by the High Court and  therefore, there  is  an  end to the  matter.   In  the  circumstances, therefore, we do not accept Mr. Misra’s contention that  the act of an officer of the post office in being in  possession of a postal article for an inordinate length of time has  no significance  and cannot justify the conclusion that he  had

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secreted the article. The  next and in our opinion the most important question  to be  considered  is whether the prosecution  has  established that the five registered letters in question were  recovered from  the possession of the appellant.  As  already  stated, all that the prosecution has been able to prove is this case is that these letters were found in an almirah of the  house in which the appellant lives jointly with his father and  of which  the  key was furnished by the father.   Dealing  with this question the High Court has observed as follows :               "In the first place, the respondent alone  had               the opportunity and the means to secure such a               large number of postal articles.               (2)   that  at  least  nine  of  those  postal               articles  were  addressed  to  the  respondent               himself (vide Ex.  Ka-9, serial no. 66),               (3)   that  Dewan Singh, who, we are  informed               is  a very old man, would not foist  the  said               incriminating  articles  on his son  and  thus               ruin his career for ever, and               (4)   that the respondent alone can be said to               have had   some   motive  for  secreting   and               concealing  the registered letters  and  other               postal articles in question." Before  the  High Court could take  into  consideration  the circumstance  that  as between himself and  his  father  the appellant had a better opportunity to  417 get at postal articles it had to find affirmatively that the almirah  was in the exclusive possession of  the  appellant. We  have not been able to discover anything in the  judgment which  directly  bears  on this question.  As  the  key  was produced by the appellant’s father and there is no  evidence that  it  was  ever  with the  appellant  it  would  not  be legitimate  to  infer  that  the almirah  was  even  in  the appellant’s  joint, much less in his exclusive,  possession. Tile circumstance that the almirah contained, apart from the registered  letters  in  question,  certain  other  articles belonging to the- appellant cannot sustain an inference that the almirah was in the appellant’s possession exclusively or even  jointly  with  his father.  We  may  recall  that  the almirah  contained a large number of articles  belonging  to the  father and since he had the key with him it must be  he who  must be deemed to be in possession of the  almirah  and consequently  of  its  contents  including  the   registered letters in question. Apart  from that, out of the four reasons given by  it,  the last,  as  pointed  out  by the  High  Court  itself,  is  a speculative  reason  and  must, therefore, be  left  out  of consideration.   The  second ’reason’ is no  reason  at  all because a very large number of articles found in the almirah admittedly belong to the father.  The third reason that  the rather  would not foist articles to incriminate the son  and thus  ruin his career assumes that had the father  kept  the articles  he could have done so only if he wanted to  incri- minate the son.  We cannot understand why the father, if he happened to get possession of the articles from some  source may  not  have kept them in the almirah in the same  way  in which he had kept the other articles belonging to him.  That leaves,  therefore, only the first reason.  We doubt  if  on the  basis  of this reason alone the High Court  could  have held that though the locked almirah was not in the exclusive possession  of  the appellant, these articles  were  in  his exclusive possession.  If the point to be 418

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established was whether the appellant had availed himself of the  opportunity to procure the articles it could have  been established  by  showing that he was    in  their  exclusive possession.  But to say that he must    be  deemed to be  in exclusive  possession  of these articles and not  merely  in their joint possession along with his father because he  had the  opportunity to get at the articles and then infer  that he  must have utilized the opportunity and was therefore  in their  exclusive  possession would be arguing in  a  circle. Moreover  since  entrustment of the articles  has  not  been established,  the  taking  away  of  the  articles  by   the appellant  from the post office (if that is how he  came  by the articles) would be theft but it has not been found  that he  committed  any theft.  Indeed, had it been so  found  he could  have  been convicted under s. 52  without  the  Court having to consider whether he had secreted the articles.  We may  mention that Mr. Mathur who appears for the State  does not  even  suggest  that the articles  were  stolen  by  the appellant.   Therefore,  the  contention  that  he  had   an opportunity  to get at the articles loses  all  significance and  can possibly have no bearing on the question as to  the nature of possession  attributable to the appellant. In  the circumstances we must hold that the prosecution  has failed  to  prove that these letters were in  the  exclusive possession of the appellant.  No presumption can, therefore, be drawn against him that he had secreted them from the mere fact that they were found in the almirah which, at best, may be regarded as being in the joint possession of himself  and his  father.  But, as already stated, even an, inference  of joint possession would not be legitimate. For  these reasons we allow the three appeals and set  aside the conviction and sentences passed against the appellant.                                        Appeal allowed.  419