E D SMITH Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Mr. E.D. Smith, a tailor doing business in the Mount Road, Madras, against a conviction by the Chief Presidency Magistrate for dishonest possession of stolen property under Section 411 of the Indian Penal Code. The property consists of various articles (Material Objects Nos. 1 to 6 and 9) alleged by the prosecution to have been stolen from the Army Clothing Factory situated close to accused s premises. The facts are fully set forth in the judgment of the Chief Presidency Magistrate and it is unnecessary to recapitulate them here.

(2.) In support of the conviction the Chief Presidency Magistrate has largely relied on certain statements made by accused at the time of the search of his shop to Captain Phillips, an officer of the Army Clothing Department examined as second prosecution witness. On behalf of accused it was argued by Mr. Grant in both Courts that these statements are confessions and that their admission in evidence is barred by Sections 24 and 26 of the Indian Evidence Act. The Chief Presidency Magistrate has held that they are not confessions within the meaning of these sections and it seems convenient to dispose of , the question of the admissibility of this evidence before proceeding further.

(3.) The statements relate to 88 flannel shirts (Material Object No. 1) which were seized in accused s brougham near Neill s statue and to 20 bales of canvas (Material Object No. 6) which were found in a well at the back of his shop. They were made privately to Captain Phillips at about 4 P.M. in the cutting room while the search of the shop was still incomplete. The conversation began by Captain Phillips saying to accused: Smith, make a clean breast of it; I want to get hold of the men in the factory. "On this accused told him that he had got the shirts from two tailors employed in the Army Clothing Factory for 8 annas each, and apparently being pressed to give names and particulars said: if 1 do, I shall implicate clerks, Muhammadans and guard peons." On being questioned as regards the canvas bales (Material Object No. 6) accused asked Captain Phillips if he had never had thefts reported to him from the Salt Cotaurs. Accused added "that is where that material came from," and said he purchased it a piece or two at a time and intended selling it to some upcountry Rajah.