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PETITIONER: SRI C. I. EMDEN

       Vs.

RESPONDENT: THE STATE OF U. P.

DATE OF JUDGMENT: 15/12/1959

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1960 AIR  548            1960 SCR  (2) 592  CITATOR INFO :  R          1964 SC 575  (10)  R          1966 SC1762  (3)  R          1968 SC1292  (8)  E          1973 SC  28  (19,20)  R          1975 SC 899  (10)  RF         1979 SC 478  (72)  R          1986 SC2045  (55)  RF         1990 SC1269  (2,3)

ACT: Prevention  of  Corruption-Trial  on a  charge  of  bribery- Receipt  of  gratification other  than  legal  remuneration, meaning  of Statutory Presumption-Whether offends  guarantee of   equal  protection  of  laws-Rebuttal  of   Presumption- Constitution of India, Art. 14-Prevention of Corruption Act, 1947 (11 of 1947), s. 4.

HEADNOTE: The appellant, who was working as a Loco Foreman, was  found to have accepted a sum of Rs. 375 from a Railway Contractor. The  appellant’s  explanation was that he had  borrowed  the amount  as he was in need of money for meeting the  expenses of the clothing of his children who were studying in school, The  Special judge accepted the evidence of  the  contractor and held that the money had been taken as a bribe, that  the defence   story   was  improbable  and  untrue,   that   the presumption  under s. 4 Of the Prevention of Corruption  Act had  to  be  raised and that the presumption  had  not  been rebutted  by  the appellant and  accordingly  convicted  him under s. 161 Indian Penal Code and s. 5 Of the Prevention of Corruption Act, 1947.  On appeal the High Court held that on the  facts of the case the statutory presumption under S.  4 had  to  be  raised, that the  explanation  offered  by  the appellant was improbable and palpably unreasonable and  that the  presumption  had  not been  rebutted,  and  upheld  the conviction.  The appellant contended (i) that S. 4 was ultra vires  as it contravened Art. 14 of the  Constitution,  (ii) that  the presumption under s. 4 could not be raised  merely on  proof  of acceptance of money but it had further  to  be

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proved  that  the money was accepted as a bribe,  (iii)  and that even if the presumption arose it was rebutted when  the appellant offered a reasonably probable explanation. Held, that s. 4 of the Prevention of Corruption Act did  not violate Art. 14 Of the Constitution.  The classification  of public servants who were brought within the mischief of s. 4 was  based on intelligible differentia which had a  rational relation to the object of the Act, viz,, eradicating bribery and corruption amongst public servants. Ram  Krishna Dalmia v. Shri justice S. R. Tendolkar,  [1959] S.C.R. 279, followed. A.   S.  Krishna v. The State of Madras, [1957] S.C.R.  399, referred to. The presumption under s. 4 arose when it was shown that  the accused  had  received the stated amount and that  the  said amount was not legal remuneration.The word " gratification ’ 593 in s. 4(1) was to be given its literal dictionary meaning of satisfaction  of  appetite  or  desire ;  it  could  not  be construed  to mean money paid by way of a bribe.   The  High Court  was justified in raising the presumption against  the appellant as it was admitted that he had received the  money from  the contractor and the amount received was other  than legal remuneration. State v. Pundlik Bhikaji Ahire, (1959) 61 Bom.  L.R. 837 and Promod  Chander  Shekhar  v.  Rex,  I.L.R.  1950  All.  382, approved. The State v. Abhey singh, A.I.R. 1957 Raj. 138 and State  v. Pandurang   Laxman   Parab,  (1958)  60  Bom.    L.R.   811, disapproved. Even if it be assumed that the presumption arising under  S. 4(1) could be rebutted by the accused giving an  explanation which was a reasonably probable one the High Court was right in  holding that the explanation given by the appellant  was wholly unsatisfactory and unreasonable. Otto  George Gfeller v. The King, A.I.R. 1943 P.C.  211  and Rex v. Cary Briant, (1943) I K.B. 607, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 68  of 1958. Appeal  by special leave from the judgment and  order  dated July 11, 1957, of the Allahabad High Court (Lucknow  Bench), Lucknow, in Criminal Appeal No. 515 of 1955, arising out  of the  judgment  and  order dated October  31,  1955,  of  the Special  Judge, Anti-corruption, Lucknow, in  Criminal  Case No. 2/3/32/45 of 1953-55. Frank Anthony, Udai Pratap Singh and P. C. Agarwala, for the appellant. G. C. Mathur and O. P. Lal, for the respondent. 1959.  December 15.  The Judgment of the Court was delivered by GAJENDRAGADKAR    J.-This    appeal   by    special    leave Gajendragadkar j. has been filed by C. 1. Emden (hereinafter called the appellant) who has been convicted under s. 161 of the Indian Penal Code and under s. 5(2) of the Prevention of Corruption Act 2 of 1947 (hereinafter called the Act).   The case against him was that he had accepted a bribe of Rs. 375 from Sarat Chandra Shukla on January 8, 1953.  The appellant was  a  Loco Foreman at Alambagh Loco Shed, and  Shukla  had secured  a  contract at the same place for  the  removal  of cinders 76 594

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from ash pits and for loading coal.  This contract had  been given to Shukla in June 1952.  The prosecution case was that the  appellant  demanded from Shukla  Rs. 400 per  month  in order  that Shukla may be allowed to carry out his  contract peacefully  without any harassment.  Shukla was told by  the appellant that he had been receiving a monthly payment  from Ram  Ratan  who had held a similar contract before  him  and that it would be to his interest to agree to pay the  bribe. Shukla, however, refused to accede to this request and  that led  to many hostile acts on the part of the appellant.   On January 3, 1953, the appellant again asked Shukla to pay him the   monthly  bribe  as  already  suggested;  Shukla   then requested  him to reduce the demand on the ground  that  the contract given to him was for a much lesser amount than that which  had  been  given to his predecessor  Ram  Ratan;  the appellant thereupon agreed to accept Rs. 375.  Shukla had no money  at  the  time and so he asked for time  to  make  the necessary  arrangement.  The agreement then was that  Shukla would  pay  the money to the appellant on January  8,  1953. Meanwhile  Shukla approached the Deputy  Superintendent,  of Police,  Corruption Branch, and gave him  information  about the   illegal  demand  made  by  the  appellant.    Shukla’s statement  was then recorded before a magistrate and it  was decided  to lay a trap.  Accordingly, a party consisting  of Shukla, the magistrate, the Deputy Superintendent of  Police and  some other persons went to the Loco Yard.   Shukla  and Sada  Shiv proceeded inside the Yard while the rest  of  the party stood at the gate.  Shukla then met the appellant  and informed him that he had brought the money; he was told that the appellant would go out to the Yard and accept the money. At  about  3 p.m. the appellant went out to  the  Yard  and, after   making  a  round,  came  to  the  place  which   was comparatively  secluded.   He then asked Shukla to  pay  the money  and  Shukla gave him a bundle containing  the  marked currency  notes of the value of Rs. 375.  A signal was  then made by Shukla and the raiding party immediately arrived  on the scene.  The magistrate disclosed his identity to the 595 appellant and asked him to produce the amount paid to him by Shukla.  The appellant then took out the currency notes from his pocket and handed them over to the magistrate.  It is on these  facts that charges under s. 161 of the  Indian  Penal Code  and  s.  5(2)  of the  Act  were  framed  against  the appellant. The  appellant denied the charge.  He admitted that  he  had received  Rs. 375 from Shukla but his case was that  at  his request Shukla had advanced the said amount to him by way of loan  for  meeting  the  expenses of  the  clothing  of  his children who were studying in school.  The appellant alleged that  since  he had been in need of money he  had  requested Kishan  Chand to arrange for a loan of Rs. 500; but  knowing about  his need Shukla offered to advance him the loan,  and it  was  as such loan that Shukla paid him Rs. 375  and  the appellant  accepted the said amount.  Both  the  prosecution and  the  defence led evidence to support  their  respective versions. The  learned special judge who tried the case  believed  the evidence  given  by Shukla, held that  it  was  sufficiently corroborated,   and  found  that  the  defence   story   was improbable and untrue.  The learned judge also held that  on the  evidence led before him the presumption under s.  4  of the  Act had to be raised and that the said presumption  had not  been  rebutted  by the evidence  led  by  the  defence. Accordingly,  the learned judge convicted the  appellant  of both  the offences charged and sentenced him to  suffer  one

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year’s  rigorous imprisonment and to pay a fine of  Rs.  500 under   s.  161  of  the  Code  and  two   years’   rigorous imprisonment under s. 5 of the Act.  Both the sentences were ordered to run concurrently. The  appellant challenged the correctness and  propriety  of this order by his appeal before the High Court of Allahabad. The  High  Court saw no reason to interfere with  the  order under appeal because it held that, on the facts of the case, a statutory presumption under s. 4 had to be raised and that the said presumption had not been rebutted by the appellant. In  other  words  the  High  Court  did  not  consider   the prosecution evidence apart from the presumption since 596 it placed its decision on the presumption and the failure of the  defence to rebut it.  In the result the  conviction  of the  appellant was confirmed, the sentence   passed  against him  under s. 161 was maintained but  the sentence  under s. 5(2)  of  the Act was reduced to  one year.   The  sentences thus passed were ordered to   run   concurrently.    It   is against this order that the present appeal by special  leave has  been preferred by the appellant.  This appeal has  been placed before a Constitution Bench because one of the points which the appellant raises for our decision is that s.  4(1) of the Act which requires a presumption to be raised against an accused person is unconstitutional and ultra vires as  it violates the fundamental right guaranteed by Art. 14 of  the Constitution.  We would, therefore, first examine the merits of this point. The  Act was passed in 1947 with the object  of  effectively preventing  bribery and corruption.  Section  4(1)  provides that  where in any trial of an offence punishable  under  s. 161 or s. 165 of the Indian Penal Code it is proved that  an accused  person has accepted or obtained, or has  agreed  to accept or attempted to obtain, for himself or for any  other person, any gratification (other than legal remuneration) or any  valuable  thing from any person, it shall  be  presumed unless  the contrary is proved that he accepted or  obtained or   agreed   to  accept  or  attempted  to   obtain,   that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said  section 161,  or as the case may be, without consideration or for  a consideration which he knows to be inadequate.  Mr. Anthony, for  the  appellant,  contends  that  this  section  offends against  the fundamental requirement of equality before  law or  the  equal  protection  of laws.   It  is  difficult  to appreciate  this  argument.   The scope and  effect  of  the fundamental right guaranteed by Art. 14 has been  considered by  this  Court  on several occasions; as a  result  of  the decisions  of this Court it is well estab. lished that  Art. 14  does  not  forbid  reasonable  classific-ation  for  the purposes   of  legislation;  no  doubt  it   forbids   class legislation; but if it appears that the 597 impugned legislation is based on a reasonable classification founded  on  intelligible  differentia  and  that  the  said differentia have a rational relation to the object Sought to be  achieved  by  it, its validity  cannot  be  successfully challenged  under Art. 14 (Vide: Shri Ram Krishna Dalmia  v. Shri Justice S. R. Tendolkar (1).  In the present case there can be no doubt that the basis adopted by the Legislature in classifying  one  class of public servants who  are  brought within  the  mischief  of s. 4(1) is  a  perfectly  rational basis.  It is based on an intelligible differentia and there can be no difficulty in distinguishing the class of  persons covered  by  the  impugned section  from  other  classes  of

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persons  who  are  accused  of  committing  other  offences. Legislature  presumably realised that experience  in  courts showed  how  difficult it is to bring home  to  the  accused persons the charge of bribery; evidence which is and can  be generally adduced in such cases in support of the charge  is apt to be treated as tainted, and so it is not very easy  to establish  the charge of bribery beyond a reasonable  doubt. Legislature felt that the evil of corruption amongst  public servants  posed a serious problem and bad to be  effectively rooted   out  in  the  interest  of  clean   and   efficient administration.   That  is why the  Legislature  decided  to enact  s.  4(1) with a view to require the  raising  of  the statutory  presumption  as soon as the  condition  precedent prescribed  by it in that behalf is satisfied.   The  object which  the  Legislature  thus  wanted  to  achieve  is   the eradication of corruption from amongst public servants,  and between the said object and the intelligible differentia  on which  the classification is based there is a  rational  and direct  relation.   We  have, therefore,  no  hesitation  in holding  that the challenge to the vires of s. 4(1)  on  the ground  that  it violates Art. 14 of the  Constitution  must fail.   Incidentally, we may refer’ to the decision of  this Court in A. S. Krishna v. The State of Madras (2) in which a similar  challenge to the vires of a  statutory  presumption required   to  be  raised  under  s.  4(2)  of  the   Madras Prohibition Act, 10 of 1937, has been repelled. (1) [1959] S.C.R. 279.       (2) [1957] S.C. R. 399. 598 That  takes us to the question of construing s. 4(1).   When does  the statutory presumption fall to be raised, and  what is  the  content  of  the  said  presumption?   Mr.  Anthony contends  that  the statutory presumpion  cannot  be  raised merely on proof of the fact that the appellant had  received Rs. 375 from Shukla; in order to justify the raising of  the statutory   presumption  it  must  also  be  shown  by   the prosecution that the amount was paid and accepted as by  way of  bribe.  This argument involves the construction  of  the words  " any gratification other than, legal remuneration  " used in s. 4(1).  It is also urged by Mr. Anthony that  even if   the  statutory  presumption  is  raised   against   the appellant,  in  deciding  the question  as  to  whether  the contrary is proved within the meaning of s. 4(1) it must  be borne in mind that the onus of proof on the appellant is not as heavy as it is on the prosecution in a criminal trial. Let  us  first consider when the presumption can  be  raised under  s.  4(1).  In dealing with this question  it  may  be relevant  to remember that the presumption is drawn  in  the light of the provisions of s. 161 of the Indian Penal  Code. In substance the said section provides inter alia that if  a public servant accepts any gratification whatever other than legal  remuneration  as  a motive or  reward  for  doing  or forbearing to do any official act, he is guilty of accepting illegal   gratification.    Section   4(1)   requires    the presumption  to  be  raised whenever it is  proved  that  an accused  person  has accepted "  any  illegal  gratification (other than legal remuneration) or any valuable thing." This clause does not include the receipt of trivial gratification or  thing  which is covered by the exception  prescribed  by sub-s.  (3).   The  argument  is  that  in  prescribing  the condition   precedent   for  raising   a   presumption   the Legislature  has advisedly used the word "  gratification  " and  not  money  or gift or other  consideration.   In  this connection  reliance  has been placed on  the  corresponding provision  contained  in s. 2 of the English  Prevention  of Corruption Act, 1916 (6 Geo. 5, c. 64) which uses the  words

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"any money, gift, or other consideration ". The use of the 599 word gratification emphasises that it is not the receipt  of any  money which justifies the raising of  the  presumption; something  more  than the mere receipt of money  has  to  be proved.   It must be proved that the money was  received  by way of bribe.  This contention no doubt is supported by  the decision  of the Rajasthan High Court in The State v.  Abhey Singh  (1) as well as the decision of the Bombay High  Court in the State v. Pandurang Laxman Parab (2). On the other hand Mr. Mathur, for the State, argues that the word  " gratification " should be construed in  its  literal dictionary  meaning  and as such it  means  satisfaction  of appetite  or desire; that is to say the presumption  can  be raised  whenever it is shown that the accused  has  received satisfaction either of his desire or appetite.  No doubt  it is conceded by now that in most of the cases it-would be the payment  of  money which would cause  gratification  to  the accused;  but  he contests the suggestion that  the  word  " gratification  "  must be confined only to  the  payment  of money  coupled  with the right that the money  should-  have been paid by way of a bribe.  This view has been accepted by the  Bombay High Court in a subsequent decision in State  v. Pundlik Bhikaji Ahire (3) and by the Allahabad High Court in Promod Chander Shekhar v. Rex (4). Paragraph  3 of s. 161 of the Code provides that the word  " gratification " is not restricted to pecuniary gratification or  to  gratifications  estimable  in  money.   Therefore  " gratification " mentioned in s. 4(1) cannot be confined only to  payment  of money.  What the prosecution  has  to  prove before  asking the court to raise a presumption  against  an accused  person is that the accused person has received a  " gratification  other  than legal remuneration ";  if  it  is shown,  as in the present case it has been shown,  that  the accused received the stated amount and that the said  amount was not legal remuneration then the condition prescribed  by the   section   is  satisfied.   In  the  context   of   the remuneration legally payable to, and receivable by, a (1)  A.I.R. [1957] Rajasthan 138. (2)  (1958) 60 B. L. R. 8 xi. (3)  (1959) 61 B.L.R. 837. (4)  I.L.R. 1950 All. 382. 600 public servant, there is no difficulty in holding that where money  is shown to have been paid to, and accepted by,  such public servant and that the said  money does not  constitute his legal remuneration, the presumption has to be raised  as required  by the section.  If the word " gratification "  is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption.  Technically it may no doubt be suggested  that the  object which the statutory presumption serves  on  this construction  is  that the court may then presume  that  the money  was paid by way of a bribe as a motive or  reward  as required  by s. 161 of the Code.  In our opinion this  could not   have  been  the  intention  of  the   Legislature   in prescribing the statutory presumption under s. 4(1).  In the context  we see no justification for not giving the  word  " gratification " its literal dictionary meaning. There   is   another  consideration  which   supports   this construction.  The presumption has also to be raised when it is  shown that the accused person has received any  valuable thing.  This clause has reference to the offence  punishable under s. 165 of the Code; and there. is no doubt that one of the  essential ingredients of the said offence is  that  the

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valuable  thing  should have been received  by  the  accused without consideration or for a consideration which he  knows to be inadequate.  It cannot be suggested that the  relevant clause  in  s. 4(1) which deals with the acceptance  of  any valuable  thing  should be interpreted to  impose  upon  the prosecution  an  obligation  to  prove  not  only  that  the valuable thing has been received by the accused but that  it has  been  received by him without consideration  or  for  a consideration  which he knows to be inadequate.   The  plain meaning of this clause undoubtedly requires the  presumption to  be raised whenever it is shown that the  valuable  thing has been received by the accused without anything more.   If that is the true position in respect of the construction  of this  part of s. 4(1) it would be unreasonable to hold  that the  word " gratification " in the same clause  imports  the necessity to prove not only the payment                             601 of  money  but  the  incriminating  character  of  the  said payment.   It is true that the Legislature might  have  used the word " money " or " consideration " as has been done  by the  relevant  section of the English statute;  but  if  the dictionary  meaning  of the word " gratification "  fits  in with the scheme of the section and leads to the same  result as  the meaning of the word " valuable thing " mentioned  in the  same  clause, we see no justification  for  adding  any clause  to qualify the word " gratification"; the  view  for which  the appellant contends in effect amounts to adding  a qualifying  clause  to  describe  gratification.   We  would accordingly  hold that in the present appeal the High  Court was  justified  in  raising  the  presumption  against   the appellant because it is admitted by him that he received Rs. 375 from Shukla and that the amount thus received by him was other than legal remuneration. What then is the content of the presumption which is  raised against  the  appellant  ?  Mr. Anthony  argues  that  in  a criminal case the onus of proof which the accused is  called upon  to  discharge  can never be as heavy as  that  of  the prosecution,  and that the High Court should  have  accepted the  explanation  given  by the appellant because  it  is  a reasonably probable explanation.  He contends that the  test which can be legitimately applied in deciding whether or not the  defence  explanation should be accepted  cannot  be  as rigorous  as  can  be and must be applied  in  deciding  the merits  of  the prosecution case.  This  question  has  been considered  by  courts in India and in  England  on  several occasions.   We  may briefly indicate some of  the  relevant decisions on this point. In Otto George Gfeller v. The King(1) the Privy Council  was dealing with the case where the prosecution had  established that the accused were in possession of goods recently stolen and  the  point  which  arose  for  decision  was  how   the explanation given by the accused about his possession of the said  goods would or should be considered by the  jury.   In that   connection  Sir  George  Rankin  observed  that   the appellant did not (1)  A.I.R. 1943 P.C. 211. 77 602 have  to  prove his story, but if his story broke  down  the jury  might convict.  In other words, the jury  might  think that the explanation given was one which           could not be   reasonably   true,  attributing  a  reticence   or   an incuriosity  or a guilelessness to him beyond anything  that could fairly be supposed.  The same view was taken in Rex v. Carr Briant (1) where it has been observed that in any  case

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where  either  by statute or at common law  some  matter  is presumed  against  an  accused, "  unless  the  contrary  is -proved  the jury should be directed that it is for them  to decide  whether the contrary is proved, that the  burden  of proof  required is less than that required at the  bands  of the  prosecution  in proving the case  beyond  a  reasonable doubt,  and  that the burden may be discharged  by  evidence satisfying  the  jury of the probability of that  which  the accused  is called upon to establish " (p. 612).   In  other words,  the  effect of these observations appears to  be  to relax   to  some  extent  the  rigour  of  "the   elementary proposition  that  in  civil  -cases  the  preponderance  of probability may constitute sufficient ground for a verdict " (p.  611),(Also vide: Regina v. Dunbar (2)).  It is  on  the strength  of these decisions that Mr. Anthony contends  that in  deciding  whether the contrary has been  proved  or  not under  s.  4(1) the High Court should not have  applied  the same  test  as  has  to  be  applied  in  dealing  with  the prosecution  case.  The High Court should have inquired  not whether  the  explanation given by the appellant  is  wholly satisfactory  but  whether  it  is  a  reasonably   possible explanation  or not.  On behalf of the State it is urged  by Mr.  Mathur  that in construing the effect of the  clause  " unless the contrary is proved " we must necessarily refer to the definition of the word " proved " prescribed by s. 3  of the  Evidence Act.  A fact is said to be proved when,  after considering the matter before it, the Court either  believes it  to exist or considers its existence so probable  that  a prudent man ought under the circumstances of the  particular case to act on the supposition that it exists.  He has  also relied  on s. 4 which provides that whenever it is  directed that the (1) (1943) 1 K.B. 607. (2) (1958) 1 Q.B. 1 at p. 11. 603 court  shall  presume a fact it shall record  such  fact  as proved  unless and until it is disproved.  The  argument  is that  there is not much room for relaxing the onus of  proof where the accused is called upon to prove the contrary under s. 4(1).  We do not think it necessary to decide this  point in the present appeal.  We are prepared to assume in  favour of the appellant that  even if the explanation given  by him is a reasonably probable one the presumption raised  against him  can  be said to be rebutted.  But is  the  explanation. given  by  him reasonably probable ? That  is  the  question which must now be considered. What is his explanation ? He admits that he received Rs. 375 from Shukla but urges that Shukla gave him this amount as  a loan  in  order to enable him to meet the  expenses  of  the clothes  for his school-going children.  In support of  this the  appellant  gave evidence himself,  and  examined  other witnesses,  Kishan Chand and Ram Ratan being  the  principal ones  amongst  them.   The  High  Court  has  examined  this evidence  and has disbelieved it.  It has found that  Kishan Chand is an interested witness and that the story deposed to by  him  is highly improbable.  Apart from  this  conclusion reached  by  the High Court on  appreciating  oral  evidence adduced  in support of the defence plea, the High Court  has also  examined the probabilities in the case.  It has  found that at the material time the appellant was in possession of a  bank balance of Rs. 1,600 and that his salary  was  about Rs. 600 per month.  Besides his children for whose  clothing he  claims  to have borrowed money had to go  to  school  in March  and  there was no immediate  pressure  for  preparing their  clothes.   The  appellant  sought  to  overcome  this

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infirmity in his explanation by suggesting that he wanted to reserve  his bank balance for the purpose of his  daughter’s marriage  which  he  was intending to perform  in  the  near future.  The High Court was not impressed by this story; and so  it  thought that the purpose for which  the  amount  was alleged  to have been borrowed could not be a true  purpose. Besides the High Court has also considered whether it  would have been probable that Shukla 604 should have advanced money to the appellant.  Having  regard to  the  relations between the appellant and Shukla  it  was held  by the High Court that it was extremely unlikely  that Shukla  would  have  offered  to advance  any  loan  to  the appellant.  It is on a consideration of these facts that the High Court came to       the conclusion that the explanation given   by   the  accused  was   improbable   and   palpably unreasonable. It is true that in considering the explanation given by  the appellant  the High Court has incidentally referred  to  the statement  made  by  him  on January  8,  1953,  before  the magistrate,  and Mr. Anthony has strongly objected  to  this part  of the judgment.  It is urged that the statement  made by   the   appellant  before  the   magistrate   after   the investigation   into   the   offence   had   commenced    is inadmissible.  We are prepared to assume that this criticism is  wellfounded  and  that  the  appellant’s  statement   in question  should  not  have  been  taken  into  account   in considering the probability of his explanation; but, in  our opinion, the judgment of the High Court shows that not  much importance  was  attached to this statement,  and  that  the final  conclusion of the High Court was substantially  based on its appreciation of the oral evidence led by the  defence and  on  considerations  of probability  to  which  we  have already referred.  Therefore, we are satisfied that the High Court  was right in discarding the explanation given by  the appellant  as wholly unsatisfactory and unreasonable.   That being so it is really not necessary in the present appeal to decide  the question about the nature of the onus  of  proof cast  upon  the  accused  by s.  4(1)  after  the  statutory presumption is raised against him. In the result the appeal fails, the order of conviction  and sentence  passed against the appellant is confirmed and  his bail bond cancelled. Appeal dismissed.                             605