1. The petitioner was tried by a learned Additional Presidency Magistrate upon a charge under Section 54A of the Calcutta Police Act, He was found guilty and sentenced to pay a fine of Rs. 100/-In default of payment of the fine he was ordered to undergo three week's rigorous imprisonment.
2. Admittedly, the petitioner was the manager of a firm. B.L. Choraria and Corporation. According to the prosecution 98 bags of burnt cartridges were found on 9th April 1946 in front of the premises of this firm. According to the evidence the petitioner immediately produced certain cash memos which were produced by the prosecution in this case. The petitioner himself did not give any evidence as to how these burnt cartridges had been obtained. The learned Magistrate came to the conclusion that the petitioner was in possession of these goods in circumstances which could reasonably give rise to the belief that the goods were stolen or had been improperly obtained.
3. I am not satisfied that in the eye of the law the petitioner was in possession of these goods. There was no evidence that he had purchased them himself on behalf of the firm or had obtained them in any other way on behalf of the firm. They may well have been purchased by the members of the firm and brought to the premises of the firm. All that the prosecution proved was that these goods were outside the premises of which the petitioner was the manager. As manager he certainly was not the owner of the goods and, as I have said, possession in the eye of the law would be with the owners of the business. Had it been established that the manager had himself purchased or obtained these goods in somewhat suspicious circumstances, entirely different considerations would apply. But as I have already said all that has been proved is that the goods were found outside the premises of a firm and therefore it was said that the manager must have been in possession of them.
4. Assume, stolen property is found on a shelf in a shop. It does not necessarily follow that every one of the shop assistants in the shop is in possession of that property. Prima facie, the person in possession is the owner of the shop. Evidence could be given to show that one or more of the shop assistants were in possession. But it cannot be presumed that they are in possession merely because they are in the shop. In the same way, a manager might be in possession of these goods so as to make him criminally liable. On the other hand, he might not. Unless there was some evidence given to connect the manager with the acquisition of these goods or with the fact of bringing them on to the premises he could not in my view be said to be in possession of them so as to be convicted under Section 54A of the Calcutta Police Act.
5. For example, assume that I bring stolen property into my own house. Is the bearer who is in charge of my house in possession of that stolen property? According to the learned Magistrate, he would be. But in my view, he would clearly not be. Had the bearer received instructions for obtaining the property in somewhat suspicious circumstances, he as well as myself might well be said to have been in possession of these goods so as to come within the purview of Section 54A of the Calcutta Police Act. In my view the prosecution in this case did not establish such possession as is required under the section concerned. That being so the petitioner was in my view wrongly convicted.
6. The whole order sheet in this case has been placed before me and I must confess that it makes extraordinary reading. The petitioner was challenged and released on bail on 17th May 1946, The case dragged on and nothing appears to have been done until 7th November 1946 when the petitioner was released under Section 249, Criminal Procedure Code. It appears to me that he was very properly released under that section having regard to the conduct of the prosecution in this case. It must be remembered that the case was a plain and simple one and there was no excuse whatsoever for this inordinate delay.
7. On 1st May 1947 the prosecution applied to have these proceedings revived and the accused was again summoned.
8. I could imagine an application to revive these proceedings being made a very short time after the petitioner had been released. But it took the prosecution nearly six months to make up their minds to proceed with this case after the release under Section 249, Cr. P.C. Having regard to that delay the Court in my view should have refused to resummon the petitioner. There was no excuse whatsoever for the conduct of the prosecution in this case. Had the case been a difficult and complicated one, delay might reasonably be expected. But here the prosecution only had to produce a few witnesses because the onus under the section concerned to a large extent rests upon the accused person.
9. There is also an item in the order sheet which I must confess astounds me. On 8th July 1946, Mr. Reza, Additional Chief Presidency Magistrate, signs the following order:
L.R's opinion not yet received. To 23-7-46. Accused as before.
10. I do not quite understand what this order means. Was it the custom of this Additional Chief Presidency Magistrate and is it the custom of any Presidency Magistrate to-day, to ask the Legal Remembrancer for his opinion upon a case? If it is, then the practice is most reprehensible. If this sort of thing has been going on then the Magistrates have been asking the prosecution for the prosecution's opinion on the case; because after all it must be remembered that the Legal Remembrancer is a Legal Officer attached to Government, who are of course the real prosecutors in a case of this kind.
11. Let this judgment be sent to the present Chief Presidency Magistrate for his report upon this order of Mr. Reza, the then Additional Chief Presidency Magistrate. I should like to know as soon as possible from the Chief Presidency Magistrate whether it was customary in the past to ask the Legal Remembrancer for his opinion on any and if so what matters and further whether it is done now.
12. This report of the learned Chief Presidency Magistrate should be forwarded to this Court within seven days from to-day.
13. For the reasons I have given I allow this petition, set aside the conviction and sentence and acquit the petitioner. The fine, if paid, must be refunded forthwith. The Rule is accordingly made absolute.