R.L. Narasimham, C.J.
1. This is a petition, in revision, against the appellate judgment of the Sessions Judge of Cuttack maintaining the conviction of the petitioner under Section 5 of the Telegraph Wires (Unlawiul Possession) Act 1950 passed by a 1st Class Magistrate of Cuttack, but reducing the sentence to a fine of Rs. 500/-. At the time of the admission of this revision petition notice was issued to the petitioner to show cause why the sentence may not be enhanced to a substantive sentence of imprisonment and he was also given an opportunity to show cause against his conviction. The petition was heard like a regular criminal appeal and questions of fact and law were both fully argued.
2. The petitioner is a cloth dealer of Ramgarh in Tangi P. Section On 28-3-1954, his house was searched by the Police and two copper wire bundles (M. Os. 1 and 2) were seized from the verandah of his house. The petitioner was present at the time of the seizure and he produced before the Police Officer a cash-memo (Ext. 2) in support of his case that the wires were purchased from a firm at Berhampur. The seized bundles of copper wire were sent to the Engineering Supervisor, Telegraphs, Cuttack (P.W. 4) who after examining the same stated that they were of the gauges 200 lbs. per mile and 300 lbs. per mile respectively and belonged to the Telegraph Department. He found one sleeve joint in one piece and one Brittania joint in another piece.
He further stated that the wires could neither be imported or exported by private persons, nor were they available in the market. The petitioner took the plea that the wires were purchased by his son (D. W. 1) from the shop of Dinabhandliu Subodhi and Sons' of Ganjam, at Berhampur, and produced Ext. 2 a cash memo, in support of his plea. This explanation was given to show that his possession of the wires was lawful, but the lower appellate court rejected that explanation mainly because the said cash-memo (Ext. 2) was issued in favour of one Natabar Moharana. Moreover P. W. 5 who was a clerk of the firm of Dinabandhu Subodhi and Sons appeared as prosecution witness (P. W. 5) and stated that the goods sold under the cash-memo were copper scrap and not copper wires and that the firm of Dinabandhu Subodhi and Son never dealt in copper wires at all.
3. The Telegraph Wires (Unlawful Possession) Act, 1950 came into force on 28-12-1950. Section 2(b) of that Act defined telegraph wires as 'copper wire of any one of the following gauges commonly used in telegraph lines, namely, one hundred and fifty pounds, per mile, two hundred pounds per mile or three hundred pounds per mile'. Section 3 of the Act cast a duty on every person in possession of telegraph wires to make declaration within six months from the commencement of the Act to the prescribed authority, giving an accurate description of the quantity of telegraph wires in his possession. Section 4 required a person in possession of telegraph wires exceeding ten lbs. in weight to have the wires converted into ingot within one year from the commencement of the Act.
There is a proviso to this section which permits a person in possession of telegraph wires to sell them to such authority as may be prescribed by rules made under the Act. Section 5 which is the penal section for unlawful possession of telegraph wires may be quoted in full ;
'5. Penalty for unlawful possession of telegraph Wires:-- Whoever is found or is proved to have been in possession of any quantity of telegraph wires which the Court has reason to believe to be, or to have been the property of the Posts and Telegraph Department of the Central Government shall, unless he proves that the telegraph wires came into his possession lawfully, be punishable with imprisonment for aterm which may extend to five years, or with fine, or with both'.
There is a proviso to this section also but that is not material tor the present purpose. Section 7 prohibited a court from taking cognizance of an offence under that Act except on a complaint in writing by an officer specially empowered by the Central Government. The present case was started on a complaint filed by the Circle Inspector, Police, Sadar Cuttack. He, is one of the Officers duly authorised to file such complaint by virtue of notification No. SRO-1247 dated 19-7-1952 (See Gazette of India, Notification dated 19-7-1952, in Part 2, Section 3 at page 1122).
4. The aforesaid Act was not found to work effectively, especially in the States of Bengal, Bihar Orissa and Mysore, and consequently Parliament amended the Act by the Telegraph Wires Unlawful Possession Amendment Act, 1953 which came into force on 30-9-1953. In this Act the definition of 'telegraph wires' was slightly widened but that is not material for our purpose. The main change introduced was the insertion of a new Section 4A which prohibited any person from selling or purchasing any quantity of telegraph wires after the coming into force of the amending Act, namely 30-12-1953, except with the permission of such authority as may be prescribed. Another important change made by the amending Act was the omission of the words 'which the Court has reason to believe to be, or to have been, the property of the Posts and Telegraphs Department of the Central Government' from Section 5 of the parent Act. The necessity for the amendment arose, because, under the parent Act, to prove an offence under Section 5 the prosecution had not only to prove (1) that a person was in possession of telegraph wires but also (2) that there were reasons to believe that the wires were the property of the Posts and Telegraphs Department.
This casts an onorous duty on the prosecution to prove affirmatively that the wires seized from the accused person were the property of the Post and Telegraphs Department and Parliament presumably thought that in many instances it would be difficult to prove this fact as a result of which many guilty persons would escape. Hence these words were omitted from Section 5 by the Amending Act of 1953. Consequently, as the Act now stands it is sufficient for the prosecution to establish that a person was in possession of any quantity of 'telegraph wires' as defined in the Act. The burden is then shifted on the accused to prove that the telegraph wires came into his possession lawfully. Hence Mr. Misra's reliance on Laxmi Shaw v. The State AIR 1955 Cal 104 will be futile because, in that case the wires were seized on 9-9-1953 prior to the commencement of the amending Act: and in that decision the aforesaid significant change in the amending Act was noticed.
5. To prove the recovery of wires from the possession of the petitioner the prosecution relied on the evidence of three search witnesses, namely P.Ws. 1, 2 and 3 who all stated that when the Section I, of Police raided the house of the petitioner the two bundles of copper wires (M. Os. 1 and 2) were found on the verandah of his house and that he produced the cash-memo (Ext. 2) before them and the Police Officer. There has been practically no cross-examination of any of these witnesses and there is absolutely no ground for disbelieving their testimony. The petitioner also in his examination under Section 342, Cr. P. C. admitted that these two bundles of wire were seized from his house but stated that his son D. W. 1 had bought them from Dinabandhu Subudhi and Sons of Berhampur and kept them in his house.
The petitioner's son has deposed as D. W. 1 to support this story put forward by his father. A clever attempt was made to show that the wires should be deemed to be in the possession of the petitioner's son and not of the petitioner. But the lower appellate Court rightly refused to accept the story of purchase by the petitioner's son from Dinabandhu Subudhi and Sons. The cash-memo Ext. 2 shows that some copper scrap (tamba sara) was sold to one Natabar Moharana of Ramgarh by that firm. This Natabar Moharana has not been examined as a witness. The petitioner's son then put forward an ingenious case to the effect that he and Natabar Moharana purchased the wires jointly.
If the purchase was joint there is no reason why Natabar's name alone was mentioned in the cash-memo. Moreover P. W. 5, the clerk of the Firm of Dinabandhu Subudhi and Sons, stated that the firm of Dinabandhu Subudhi never dealt in copper wires and that what was sold, according to the cash-memo Ext. 2 was copper scrap and not copper wire. An attempt was made to discredit this witness on the ground that he was not in the service of the firm on 12-7-1952 on which date the alleged purchase was said to have taken place. But I do not think this circumstance is sufficient to discredit his testimony. Though he may not have been in the service of the firm on 12-7-1952 he is competent to speak as to whether the firm was dealing in copper wires or not and when he stated that the firm never dealt in copper wires and that by virtue of the cash-memo Ext. 2 only copper scrap was sold to Natabar Moharana there is absolutely no reason to disbelieve him.
6. It is true that the burden which is cast on the accused in a criminal case by the provision of a special statute is not so onerous as the primary burden cast on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which he is charged and if the accused could establish that his defence may probably be true he is entitled to acquittal. But where the defence is found to be clearly false he cannot be held to have discharged the burden of proving that the telegraph wires came into his possession lawfully as required by Section 5 of the Act. Moreover the only witness examined by him is his own son D. W. 1 who is obviously interested in seeing that the father escapes the penalty. The cash-memo that was produced to corroborate his story of purchase practically contradicts his own testimony. P. W. 5 the clerk of the firm has emphatically repudiated such purchase. I must therefore in agreement with the lower appellate court hold that the petitioner has failed to prove that he obtained possession of the copper wires lawfully.
7. There can also be no doubt that the wires were found in possession of the petitioner. The story of his son's purchase has already been disbelieved. The wires were admittedly recovered from the petitioner's house. Apart from being the karta of the family his knowledge of the presence of the wires in his house is established by his own conduct in producing the cash-memo before the Police Officer at the time of seizure. Hence, when the Karta is thus found to be aware of the presence of the wires in his house, it must be held in the circumstances of the case that he was in possession of the same, especially when the explanation given by his son has been found to be untrue.
8. On the question as to whether the seized wires were 'telegraph' wires within the meaning of the said Act, there is the testimony of the Engineering Supervisor, Telegraphs (P. W. 4). He stated that the wires were of the gauges 300 and 200 lbs. per mile and he further noticed a sleeve joint in one piece and a Brittania joint in the other piece. His mode of examination of the copper wires was not brought out in his evidence, and because of this omission an ingenious argument was advanced to show that his examination was superficial and perfunctory and his opinion should not be accepted as conclusive. An attempt was. made to support this argument from the following answer elicited from him in cross-examination: 'Unless we measure, we cannot say whether a particular wire is telegraph wire or ordinary wire'.
The cross-examiner, however, discreetly stopped at that stage and did not put any further question as to whether the witness's evidence about the gauges of the wires was based on actual measurement or not.' The witness had clearly stated that he examined the wires and then gave his opinion about their gauges. Though it might have been better if the prosecution had clarified this point by re-examining the witness I think there can be no doubt that the expert opinion about the gauges of the wires given by P. W. 4 was based on careful examination; and the aforesaid answer elicited in cross-examination does not in any way detract from the value to be attached to his testimony.
9. I notice that the Sub-Inspector of Police whoactually seized the wires has not been examined asa witness, but his non-examination does not appearto have prejudiced the petitioner in his defence.This point was not taken before the lower courts,and during the cross-examination of the prosecutionwitnesses also no questions were put to them regarding their statements before the Police during investigation, for the purpose of contradicting their statements in Court. The evidence of the Sub-Inspector ofPolice would have been very necessary, on the question of the recovery of the wires, if the evidence ofthe other witnesses on this question had been foundto be somewhat weak, but as I have already shownthe evidence of P. Ws. 1, 2 and 3 coupled with theadmission of the petitioner during his examinationunder Section 342 Cr. P. C., establishes clearly that thewires were recovered from his possession. I amtherefore satisfied that no prejudice has been causedto the petitioner by the non-examination of thePolice Officer.
10. I have carefully considered the question of sentence. In my opinion, a substantive sentence of imprisonment is necessary in the circumstances of this case. The petitioner is not an inexperienced youth, but a mature man of 54 years of age. The law relating to unlawful possession of telegraph wires was in forcei since 1950 and drastic amendment was introduced by the amending Act of 1953 mainly because theft of telegraph wires was found to be rampant in some of the States, including Orissa. Though the law provides for an alternative sentence of fine only, to be imposed in certain circumstances, the maximum sentence for the offence of unlawful possession of telegraph wires was fixed as five years rigorous imprisonment. This shows that the Parliament intended that an offence under Section 5 of the Act should be considered graver than a mere offence of theft.
11. While therefore maintaining the conviction of the petitioner under Section 5 of the Telegraph Wires (Unlawful Possession) Act 195.0 I would enhance the sentence passed on the petitioner to six months' rigorous imprisonment. The sentence of fine of Rs. 500/- (five hundred only) passed by the learned Sessions Judge is also maintained; in default of payment of that fine the petitioner shall undergo rigorous imprisonment for two months more. Prompt steps should be taken to recommit the petitioner to jail to serve out the sentence.
12. The revision petition is dismissed.