Radhakishan Vs. State of U. P  INSC
270 (27 September 1962)
IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 822 1963 SCR Supl. (1) 408
CITATOR INFO :
F 1980 SC 593 (11) F 1985 SC 989 (15) D 1985
Criminal Trial-Secreting of postal
articles-Entrustment of article, if necessary ingredient of offence-Exclusive
possession-Articles recovered from almirah-Accused and his father both living
in house-Key Produced by father-Whether accused in exclusive possession-The
Post Offices Act, 1898 (VI of 1898), s. 52.
The appellant, a postman, and I,is father
were living in the same house. Certain undelivered postal articles were re-
covered from an almirah in the house, the key of which was produced by the
father. The appellant was tried and convicted of an offence under s. 52 Post
Offices Act for secreting postal articles. The appellant contended that since
it had not been proved that he had been entrusted with these articles the
offence under s. 52 was not made out and that lie could not be held guilty of
secreting as he was not in exclusive possession of these articles.
Held, that entrustment was not an essential
ingredient of the offence under s. 52. Where the legislature intended to make
entrustment an ingredient of the offence it had used appropriate words to make
it clear. It had used no such words in s. 52. To secrete means to hide. In a
case like the present, the retention of an undelivered postal article in an
almirah for an inordinately long period would be tantamount to hiding that
Held, further, that the appellant was not in
exclusive possession of the postal articles and no inference could be drawn 409
that he had secreted them. As the key was produced by the appellant's father it
could not be inferred that the appellant was in joint possession of the almirah
much less that he was in exclusive possession of it. No inference could be
drawn from the fact that the almirah contained certain other articles belonging
to the appellant as it also contained a large number of articles belonging to
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 160 to 162 of 1960.
Appeals by special leave from the judgment
and order dated January 20, 1960 of the Allahabad High Court in Criminal
Government Appeals Nos. 2011 to 2013 of 1958.
B. C. Misra and P. K. Chakravarti, for the
G. C. Mathur and C. P. Lal, for the
1962. September 27. The judgment of the Court
was delivered by MUDHOLKAR, J.-These three appeals arise out of three separate
trials before the Additional Sessions judge, Bulandshahr, but were argued
together as they arise identical questions. In all these trials, the appellant,
who was a postman attached to the Bulandshahr post office was tried for
offences under s. 52 of the Indian Post Office Act, 1898 (VI of 1898) and in
two of' them, also for offences under ss. 467 and 471 of the Indian Penal Code.
Briefly stated the allegations against the
appellant were that he either stole or secreted five registered letters and
that he fabricated three receipts showing that the registered letters were
received by the addressees. The learned Additional Sessions judge acquitted the
appellant of all these offences. The State then preferred an appeal against his
acquittal in these three cases to the High Court of Allahabad but restricted
the appeal to the acquittal of the appellant in respect of offences under 410
s. 52 of the Indian Post Office Act, 1898 (hereafter referred to as the Act).
The High Court held that the appellant had secreted the five registered letters
in question and on this finding set aside his acquittal and convicted him in
each of the three appeals for offences under s. 52 of the Act and sentenced him
to undergo rigorous imprisonment for a period of one year in each case. The
appellant has come up to this Court by special leave.
Briefly stated the prosecution case is that
when the house in which the appellant lives along with his father Diwan Singh,
a retired Police Head Constable, was searched by the C.I.D. Inspector, S.N.
Singh, along with Masood Murtaza, Sub-Inspector of Police, Bulandshahr on May
12, 1956, in connection with a case against Messrs Greenwood Publicity, they
accidentally discovered a large number of letters and postcards and also the
five registered letters in question.
At the time of the search the appellant who
happens to be a trade union official, was not in Bulandshahr but was away on
leave at Delhi in connection with a postal conference.
These articles were found in an almirah, the
key of which was produced by the appellant's father. The articles were not
listed at the spot but were taken to the Kotwali in a sealed packet and later
on listed there. A number of other articles were also seized at that time but
we are not concerned with them as they have no connection with the charges
against the appellant.
Briefly, the appellant's defence in all these
cases is that there are two factions in the Bulandshahr post office and that
these articles were planted by the opposite party.
According to him, the planting must have
occurred in the Kotwali when the Sub-Inspector purported to make a list of the
articles seized from the house in which the appellant lives. Further, according
to him, neither the house nor the almirah from which the articles are said to
have been 411 seized was in his exclusive possession. He stated-and that fact
is not denied-that the house which consists of two rooms only has been rented
in his father's name, that both of them live in those two rooms and that the
almirah was in his father's possession inasmuch as the key was produced by him.
On behalf of the appellant Mr. B. C. Misra
has raised the following six points:
(1) That on the findings arrived at by the
High Court no offence under s. 52 of the Post Office Act has been made out.
(2) That it has not been established that the
five registered letters were in the exclusive possession of the appellant.
(3) That the search was illegal inasmuch as
it was in contravention of the provisions of ss. 103 and 165 of the Code of
(4) That in examining the appellant the Ad-
ditional Session Judge did not comply with the requirements of s. 342 of the
Code of Criminal Procedure.
(5) That the High Court has not found that
there were compelling reasons for setting aside the appellant's acquittal-.
(6) The sentences in the three cases having
been ordered to run consecutively the total sentence is excessive.
We will deal with the last four points first.
So far as the alleged illegality of the search is concerned it is sufficient to
say that even assuming that the search was illegal the seizure of the articles
is not vitiated. It may be that where the provisions of' ss. 103 and 165, Code
of Criminal Procedure, are 412 contravened the search could be resisted by the
person whose premises are sought to be searched. It may also be that because of
the illegality of the search the Court may be inclined to examine carefully the
evidence regarding the seizure. But beyond these two consequences no further
consequence ensues. The High Court has chosen to accept the evidence of the
prosecution with regard to the fact of seizure and that being a question to be
decided only by the Court of fact, this Court would not re-examine the evidence
for satisfying itself as to the correctness or otherwise of the conclusions
reached by the High Court. In so far as the contravention of provisions of s.
342, Code of Criminal Procedure, are concerned it is sufficient to point out
that no grievance was made either before the Court of the Additional Sessions
judge or before the High Court that there was such a contravention and the
appellant was prejudiced and we cannot allow the point to be raised for the
first time here, the reason being that whether there was prejudice is a
question of fact and cannot be permitted to be agitated for the first time in
an appeal under Art. 136 of the Constitution. As regards the fifth point, it is
sufficient to say that this Court has held that an appeal from acquittal need
not be treated differently from an appeal from conviction and if the High Court
finds that the acquittal is not justified by the evidence on record it can set
aside the acquittal without coming to the conclusion that there were compelling
reasons for doing so. In so far as the sentence is concerned, bearing in mind
the fact that the maximum sentence awarded under s. 52 of the Act is seven
years it would not be right to say that in ordering the sentences in the three
cases to run consecutively the appellant is being very severely punished.
In so far as s. 52 of the Act is concerned
the argument is that the prosecution having merely shown that the registered
letters were recovered from an almirah in the house in which the appellant
lives the 413 utmost that could be said is that he was in possession of
letters, that is, assuming that he was in the exclusive possession of the house
and the almirah. The mere fact of possession, according to learned counsel,
does not suffice to show that the letters were secreted by the appellant. It is
contended that for an officer of the post office to be found guilty for any of
the acts specified in s. 52 it has further to be shown that he was entrusted
with the postal article with respect to which he is alleged to have committed
any of those acts. Section 52 of the Act runs thus :
"Penalty for theft, dishonest,
misappropriation, secretion, destruction, or throwing away of postal
articles.-Whoever, being an officer of the Post Office, commits theft in
respect of, or dishonestly misappropriates, or, for any purpose whatsoever,
secretes, destroys or throws away, any postal article in course of transmission
by post or anything contained therein, shall be punishable with imprisonment
for a term which may extend to seven years, and shall also be punishable with
fine." The first act referred to in this section is theft. Surely it
cannot be contended that any (entrustment' is necessary with regard to that
act. Indeed, if entrustment were proved and the article entrusted is not found
to have been disposed of in the manner permissible under the Act, the offence
committed would be not theft but criminal breach of trust.
But. according to Mr. Misra, the appellant
cannot be said to have secreted the letter just because it was found in the
almirah which is said to have been in his exclusive possession. To secrete
means, according to the dictionary "to hide". In connection with a
postal article addressed to some person the fact that it is retained in his
possession by an officer of the post office in an almirah and that too for an
inordinately long period would be tantamount to hiding that 414 article. Of
course, what act amounts to "secreting" would necessarily depend upon
the facts of each case and in our opinion in a case like the present, what 'has
been established by the prosecution would sustain an inference of secreting.
Further, a perusal of s. 55 makes it clear that where the entrustment of an
article is made an ingredient of an offence, the legislature has used
appropriate words to make the matter clear. If, therefore, it was the intention
of' the legislature that for an officer of the post office to be punished for
secreting, destroying or throwing away a postal article in the oucrse of
transmission by post, entrustment of that article to him was essential it would
have used language similar to that used by it in s. 55. It seems to us that
bearing in mind the' fact that an officer of the post office having in the
course of his duties access to postal articles kept or lying in the post
office, the legislature has deliberately enlarged the scope of s. 52 so as to
encompass secretion, destruction or throwing away of postal articles by an
officer of the post office even though they may not have been entrusted to him
or even though the are riot articles with which he is required or is competent
to deal in the course of his duties. The object of the provision is to prevent
postal articles 'in course of transmission by post' from being tampered with,
and so the secreting, destruction' etc., of postal articles to which the
provision is directed is to such secreting, destruction etc., as would
frustrate or tend to frustrate their delivery to the addressees.
Then Mr. Misra contended that it would not be
correct to say that the five registered letters recovered from the almirah were
in the course of transmission by post because that recovery was made 7 or 8
months after those letters had been despatched and that no complaint had ever
been made regarding their nondelivery by the senders or the addressees of those
letters. He further referred to the fact that at least in respect of three of
the registered letters 415 acknowledgments purporting to be from the addressee
were obtained and were with the post office. He admitted that the prosecution
allegation was that those documents were fabricated but that case having failed
before the Court of Sessions and the Government not having appealed against
that part of the decision of that court it must be held that at least three of
those letters were duly received by the addressees. The expression "in
course of transmission by post" has been defined in S. 3 (a) of the Act as
.lm15 " a postal article shall be deemed
to be in course of transmission by post from the time of its being delivered to
a Post Office to the time of its being delivered to the addressee or of its
being returned to the sender or otherwise disposed of under Chapter VII."
The mere fact that there is even a delay of several months in delivering a
postal article to the addressee would not mean that the article had ceased to
be in course of transmission. It is common experience that delivery of postal
articles is now and again delayed for a considerable length of time-----may be
through accident or through the negligence of the postal employees. It is
probably for this reason that the definition clearly lays down that until an
article despatched by post is delivered or can be said to be delivered that it
will be deemed to be in course of transmission. We cannot, therefore, accept
the first part of this contention of Mr. Misra.
As regards the other point, that is, based on
the fact that there were acknowledgments in respect of three letters in the
post office we may point out that the existence of these acknowledgments would
no more than raise a presumption that those articles were delivered to the
addressees. The addressees have been examined in this case and they have
deposed that the letters in question were not received by them. Their 416
evidence has been believed by the High Court and therefore, there is an end to
the matter. In the circumstances, therefore, we do not accept Mr. Misra's
contention that the act of an officer of the post office in being in possession
of a postal article for an inordinate length of time has no significance and cannot
justify the conclusion that he had secreted the article.
The next and in our opinion the most
important question to be considered is whether the prosecution has established
that the five registered letters in question were recovered from the possession
of the appellant. As already stated, all that the prosecution has been able to
prove is this case is that these letters were found in an almirah of the house
in which the appellant lives jointly with his father and of which the key was
furnished by the father. Dealing with this question the High Court has observed
as follows :
"In the first place, the respondent
alone had the opportunity and the means to secure such a large number of postal
(2) that at least nine of those postal
articles were addressed to the respondent himself (vide Ex. Ka-9, serial no.
66), (3) that Dewan Singh, who, we are informed is a very old man, would not
foist the said incriminating articles on his son and thus ruin his career forever,
and (4) that the respondent alone can be said to have had some motive for
secreting and concealing the registered letters and other postal articles in
question." Before the High Court could take into consideration the
circumstance that as between himself and his father the appellant had a better
opportunity to 417 get at postal articles it had to find affirmatively that the
almirah was in the exclusive possession of the appellant.
We have not been able to discover anything in
the judgment which directly bears on this question. As the key was produced by
the appellant's father and there is no evidence that it was ever with the
appellant it would not be legitimate to infer that the almirah was even in the
appellant's joint, much less in his exclusive, possession.
Tile circumstance that the almirah contained,
apart from the registered letters in question, certain other articles belonging
to the- appellant cannot sustain an inference that the almirah was in the
appellant's possession exclusively or even jointly with his father. We may recall
that the almirah contained a large number of articles belonging to the father
and since he had the key with him it must be he who must be deemed to be in
possession of the almirah and consequently of its contents including the
registered letters in question.
Apart from that, out of the four reasons
given by it, the last, as pointed out by the High Court itself, is a
speculative reason and must, therefore, be left out of consideration. The
second 'reason' is no reason at all because a very large number of articles
found in the almirah admittedly belong to the father. The third reason that the
rather would not foist articles to incriminate the son and thus ruin his career
assumes that had the father kept the articles he could have done so only if he
wanted to incri- minate the son. We cannot understand why the father, if he
happened to get possession of the articles from some source may not have kept
them in the almirah in the same way in which he had kept the other articles
belonging to him. That leaves, therefore, only the first reason. We doubt if on
the basis of this reason alone the High Court could have held that though the
locked almirah was not in the exclusive possession of the appellant, these
articles were in his exclusive possession. If the point to be 418 established
was whether the appellant had availed himself of the opportunity to procure the
articles it could have been established by showing that he was in their
exclusive possession. But to say that he must be deemed to be in exclusive
possession of these articles and not merely in their joint possession along
with his father because he had the opportunity to get at the articles and then
infer that he must have utilized the opportunity and was therefore in their
exclusive possession would be arguing in a circle.
Moreover since entrustment of the articles
has not been established, the taking away of the articles by the appellant from
the post office (if that is how he came by the articles) would be theft but it
has not been found that he committed any theft. Indeed, had it been so found he
could have been convicted under s. 52 without the Court having to consider
whether he had secreted the articles. We may mention that Mr. Mathur who
appears for the State does not even suggest that the articles were stolen by
the appellant. Therefore, the contention that he had an opportunity to get at
the articles loses all significance and can possibly have no bearing on the
question as to the nature of possession attributable to the appellant.
In the circumstances we must hold that the
prosecution has failed to prove that these letters were in the exclusive
possession of the appellant. No presumption can, therefore, be drawn against
him that he had secreted them from the mere fact that they were found in the almirah
which, at best, may be regarded as being in the joint possession of himself and
his father. But, as already stated, even an, inference of joint possession
would not be legitimate.
For these reasons we allow the three appeals
and set aside the conviction and sentences passed against the appellant.