STATE OF MAHARASHTRA Vs. HUSSEIN AHMED ALIJI

JUDGEMENT

(1.) On 8th April, 1967 at about 7-30 a.m. two persons Rampatlal Budhai and Khulai Derro who were co-accused with the applicant in this revision were carrying bundles on their head when they were accosted by the Police Constable No. 1398 witness Anant Parshuram (P.W. 1) and a Head Constable who has not been examined. A search of the bundles revealed that they contained cinnamon weighting in all 72 Kgs. The two persons told the police that they were carrying the cinnamon on behalf of the accused No. 1 Hussein Ahmed Aliji the applicant in this revision who was the owner of the cinnamon. Immediately the accused No. 1 who was following the accused Nos. 2 and 3 on reaching the party also told the police that the goods belonged to him and later on at the trial he produced a customs receipt dated 28th May, 1966 which shows that 112 Kgs. of cinnamon were imported into India and customs duty was paid thereon. Mr. Gambhirwala on behalf of the State has taken objection to it being read because he says that it has not been proved. I am afraid, it is too late at the stage of revision to raise such an objection. When the accused produced it, no objection was taken to the receipt going on record and it has been admitted in evidence, and therefore, it must now be read in favour of the accused.

(2.) The trying Magistrate has explained away this receipt on two grounds. Firstly, that it is 11 months old. The goods were seized on 8th April, 1967 whereas the receipt is dated 28th May, 1966. Secondly, that the receipt is for 112 Kgs. of cinnamon whereas the goods seized were 72 Kgs. only. Neither of these reasons is a convincing ground for rejecting the receipt. That cinnamon can be stored and can remain in good condition for 11 months is not in doubt. At any rate, simply because the receipt happens to be old, no inference can be drawn against the accused that the goods were necessarily stolen property. Secondly, that the quantity is less than that mentioned in the receipt also seems to me perfectly irrelevant because a part of the goods comprised in the receipt could as well be carried on that date, and be seized.

(3.) But apart from all this, it seems to me that the main error in the judgment of the trying Magistrate is that he has not had regard to the requirements of section 124 under which the action was taken. Section 124 says "Whoever has in his possession or conveys in any manner 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, on conviction, be punished...... Therefore, the police could only act under this section if " there is reason to believe" that the property is stolen property or property fraudulently obtained. There is absolutely not an iota of evidence in this case to establish that the police had reason to believe that this property was stolen property or property fraudulently obtained.