http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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 979 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

(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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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 127 982 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

direct that the, gold seized from the appellant’s possession shall be restored to him. Appeal allowed. Agent for the respondent: B. H. Dhebar.