Suleman Issa v. State of Bombay, (SC) BS35728
SUPREME COURT OF INDIA

(Larger Bench)

Before:- Mehr Chand Mahajan, C.J.I., B.K. Mukherjea, S.R. Das, Vivian Bose and Ghulam Hasan, JJ.

Criminal Appeal No. 67 of 1951. D/d. 11.3.1954.

Suleman Issa - Appellant

Versus

State of Bombay - Respondent

For the Appellant :- N.C. Chatterjee, Senior Advocate, H.J. Umrigar, and S.P. Varma, Advocates.

For the Respondent :- M.C. Setalvad, Attorney-General for India, Porus A. Mehta, Advocate, R.H. Dhebar, Agent.

Bombay District Police Act, 1890, section 61E Criminal Procedure Code, 1898, Section 517 - Gold found with accused - Conviction - Order of confiscation of gold under Section 517 Criminal Procedure Code held not proper - It is not every case in which the court must necessarily pass an order of confiscation irrespective of the circumstances of the case.

[Para 8]

JUDGMENT

Ghulam 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, J.) dated 26-7-1950, 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 7-5-1949, and restoring the order of conviction and sentence of the appellant passed by the Sub-Divisional Magistrate, Nadiad Prant dated 31-12-1948.

2. 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 Daud Hassan 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 11. 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 and Anand where it was taken delivery of and then driven to Sarsa.

3. 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 appellant was 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 Oct. 15, Head Constable Ajit Singh informed Raol that same 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 27731/2 tolas the value of which is roughly estimated at Rs. 3 lakhs. Proceedings under Section 20, Indian Telegraph Act, were instituted 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 2-1-1948, he also with others was prosecuted on the Complaint of Raol for an offence under Section 61-E Bombay District Police Act (X of 1890) read with Section 109, Penal Code. Section 61-E says :

4. 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, Criminal Procedure Code The other accused who were charged with abetment were acquitted.

The Magistrate took the view that there was 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 Section 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 motorcar, 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 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 his view the acquittal was set aside and the order of the Magistrate was restored.

5. 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.

6. Section 517(1) reads thus :

7. 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.

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 person claiming to be entitled to possession of such property.

8. 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 ever 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 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 61-E by itself does not empower the court to impose the penalty of confiscation and the sentence of imprisonment and fine authorised 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 inappropriate in a case where the accused is prosecuted for an offence punishable with a maximum sentence of 3 months and a fine of Rs. 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 he supported.

9. We accordingly set aside the order of confiscation and direct that the gold seized from the appellant's possession shall be restored to him.

Order accordingly