1. This is a state appeal from the judgment of acquittal under both the alternative charges under Sections 380 and 411 I. P. C., of the two partners (namely respondents 1 and 2) of a chemists shop styled 'Seth Brothers', and of respondent No. 3, a servant, who actually sold an injectule sodium penicillin on the 30th April, 1958 to a customer; The broad facts are practically common ground. One out-door patient at the M. Y. Hospital, Indore having been advised by Dr. Purohit a physician attached to that hospital, to take an injection of crystalline penicillin Sodium G, went to the com-pcunder with the prescription and an ampoule.
The compounder found that it was stamped 'M. Y. Hospital Indore', which indicated the medicine was meant to be supplied directly to this hospital. Medicines with such marks are given to patients or the staff from the hospital store on the orders of the proper authority. This not having been given by the hospital the compounder got suspicious and wanted to know where the patient had got it from. The patient accordingly showed the cash-memo from the shop of the respondents.
The matter was reported to the Hospital-Superintendent. The respondents admitted having sold the medicine; and on search of the shop were found to have four more ampoules of the same medicine bearing the same identity mark. For all practical purposes, this is all the relevant evidence, upon which the partners and the shop assistant were put on trial on alternative charges either of committing itheft of these ampoules from the hospital stores, orof receiving and retaining this medicine having reason to know that they had been stolen.
2. Certainly these identity marks are put as a precaution against hospital property being stolen and sold in the open market. But the evidence in this case was incomplete. The first requirement in a case of this nature is that in regard to the goods concerned (in this case the five ampoules) there should be proof of the commission of an offence of theft or criminal misappropriation. The identity mark is certainly a point indicating the possibility of the goods coming from the hospital stores, but this is only one out of several possibilities.
What is really wanted is the evidence that during the periodical check-up of the stores, ampoules of this stuff and of this batch were found missing. Or it may be shown that after the report of this discovery, the stores were checked up by the hospital authorities, who detected that a quantity of this medicine could not bo accounted for. The usual method of store-keeping in such institutions is that there is a register showing the stock of each medicine with the description, batch number, or date of manufacture and the like.
Whenever a quantity is issued, the authority under which it is issued is shown and the stock balance is struck. Very likely, large quantities are sent to the hospital and distributed them with a writ ten recovd of the patient's names. In case any medicine issued for a patient is not used up, and is returned it would be brought back into the register. If the registers are properly maintained, it should not be difficult to find out if and when a certain quantity of particular medicine had been missed or has remained unaccounted for, either in the stores themselves, or in the hospital wards.
It may be that when a few ampoules are involved, it is hardly worth the trouble for the hospital staff to make an elaborate check up. But before convicting anybody of an offence either under Section 380 or 411 I. P. C., it is essential that the goods should be proved to have been stolen or misappropriated.
3. There may be special circumstances in which the possession by an unauthorized person of the goods with a particular identity mark is itself satisfactory and sufficient evidence that they had been stolen; but that is not the position here. Here, the medicine is by no means rare. Thousands of such ampoules are manufactured by one or other of a few manufacturing concerns at Bombay and elsewhere. They supply to different distributors all over the country. In case of some distributors for example, institutions like this hospital, the manufacturers themselves stamp on the containers. Simultaneously, out of the same batch or batches manufactured at the same time, consignments are sent to other distributors as well.
Normally, they would not have the identity marks of any of the other distributors, but in practice, it might happen that some of the ampoules marked with the name of one distributor get mixed up with those meant for another. As long as the medicines are the same, this is of no practical consequence, and the new distributor would be just going about selling them. He may not even note it.
Another possibility is also there, namely an in-patient being issued a certain number of ampoules for which he is charged, leaving die hospital without using up the whole quantity. He might have passed on this surplus to local chemist. The possibility that these goods were secretly, disposed of by a member of the hospital staff is only one out of the three alternatives. In any case, there should be evidence that goods of this description had been actually missed or remained unaccounted for in the hospital, shortly before their being recovered from or traced to the shop of the respondents. Then, and only then, would the respondents be on explanation under Section 114, Evidence Act.
4. The learned Deputy Government Advocate has placed a number of rulings such as Emperor v. Hari Ramji, 9 Born LR 27; The Queen v. Shura-ffooddeen, 13 Suth WR Cr 26; and In the matter of Ramjoy Kurmokar, 25 Suth WR Cr 10. About the principles enunciated in thece decisions, there cannot be two opinions. Once a person is found in possession of stolen property, certain presumptions follow and he is on exp'anation, at the risk of being otherwise convicted either for the theft or under Section 411 I. P. C.
But then it should already be stolen property (for the purpose of Section 411), that is, the Court should be able to come to the conclusion that the offence of theft or criminal misappropriation has been committed in respect of it. The difficulty here is that there is no material on which the Court could arrive at this finding.
5. In the result, it is impossible to hold that the finding recorded by the Magistrate is perverse, and one calling for interference by this Court in an appeal under Section 417 Criminal Procedure Code, The State appeal is dismissed summarily.
6. I agree.