1. This is an appeal by the Remembrancer of Legal Affairs, Bengal, on behalf of the Government of Bengal, against a decision of the Deputy Magistrate of Noakhali by which he acquitted the respondent of a charge under Section 263 of the Indian Penal Code.
2. The facts were as follows : On February 20,1933, the respondent Bazlar Rahman who was a Collectorate peon, was found near the Stamp Vendors' Stalls attached to the Noakhali Court. Information had been given to the Police of frauds upon the revenue perpetrated in connection with court-fee stamps. Certain Police Officers were watching near the Stamp Vendors' Stalls. The respondent was watched, and was seen to have something in his hand. The officer in charge of the Kotwali Police Station seized him by the wrist, whereupon the respondent firmly closed his fist, crushing whatever it was that he had in his palm. The officer forcibly opened the respondent's fist in the presence of two local Pleaders and Sub-Inspector Samusuddin Ahmad Chowdhury and others and found in it a crumpled ball of paper, and when the ball was opened it was found to consist of two court-fee stamps marked Exs. I and II in this case. These appeared to the officers to be old used stamps, and I gather that what was meant by that expression was, that the stamps appeared to the Police Officers to be stamps which had already been used upon documents which required to be stamped in accordance with law, that is to say, the stamps were revenue stamps which had been used for documents which, by law, are required to be stamped and, therefore, from the point of view of the Revenue Department, had been used.
3. Thereupon, the officer-in-charge took the respondent to the Police Station with the stamps and recorded a formal first information report. The respondent made a statement before the Sub-Divisional Magistrate in which he said that Mahammadulla, a licensed Stamp-Vendor, owed him Rs. 30 and that afternoon he met him under the banian tree and put something into his hand and said 'Take your money,' that the respondent thought that they were currency notes, and just at that moment the officer-in-charge arrested him, that is to say, the respondent's story was, that the stamps had been pressed into his hand and before he had had an opportunity to examine them he was arrested.
4. According to the prosecution, one of the stamps, Ex. 2, when examined with the aid of a magnifying glass, showed that it bore part of the impression of a Court Seal, that the two outer lines of the Seal were still visible, that same portion of the figures denoting the date of user, and some other letters were faintly visible in spite of the fact that they had been erased that the gum on the back of the stamp, had entirely disappeared, and that the original endorsements of the Stamp-Vendor upon it had faded, on account of erasure and treatment with some liquid used for the purpose of erasing the marks upon the stamp, and on account of the fact that fresh endorsements had been written upon the stamp and the year '30' had been converted in '34.' The prosecution also suggested that Ex. I contained similar marks of alterations.
5. Now, by Court seal, the prosecution apparently meant a Court stamp, that is to say, a mark made with a rubber stamp. It was suggested that the method employed in the Mofussil Courts of showing that a court-fee stamp has been used in the revenue sense, that is to say, that it has been used upon some document required by law to be stamped, is to place a rubber stamp mark upon it with the name of the Court and the dale and their particulars.
6. In passing it is to be noted that this suggestion is not in accordance with the Court Fees Act, which requires, by Section 30 thereof, that the officer of the Court or the head of the Office on receiving any such document, that is to say, a document requiring to be stamped under the Act, shall forthwith effect a cancellation of the stamp by punching out the figurehead so as to leave the amount designated on the stamp untouched and the part removed by punching shall be burnt or otherwise destroyed. It is not suggested that there is any mark either upon Ex. I or Ex. II of such punching. The endorsements referred to by the prosecution are the endorsements put upon a stamp by the Stamp-vendor, which are, as I understand, the name of the vendor, the name of the vendee and the date of the sale. The endorsements are not put upon the stamp for the purpose of showing that it has been used, and therefore do not come within the purview of Section 263 of the Indian Penal Code.
7. The respondent was put upon his trial for an offence falling within the second part of Section 263, that he knowingly had in his possession a stamp from which a mark had been erased or removed, which had been put on the stamp for the purpose of denoting that it had been used. Sub-Inspector Samsuddin Ahmad Chowdhury gave evidence of the arrest of the respondent, and stated that when his fist had been forcibly opened, two court-fee stamps were found in his palm ; these stamps were endorsed and were used up court-fee stamps. A Pleader was called who gave similar evidence saying that the respondent's palm contained two used up court-fee stamps. Mahemmadulla, the man referred to by the respondent, was called and he stated that the respondent had approached him and asked him to purchase two court-fee stamps, and he denied the respondent's statement with regard to himself. Another Pleader gave similar evidence but slightly varied the description of the stamps by saying that they were two old court-fee stamps. That is the whole of the evidence upon the point whether these stamps had been marked for the purpose of denoting that they had been used, and whether the mark had been erased or removed by anybody.
8. On examination of the two exhibits there is, in my opinion, practically nothing to show that any mark had been put on the stamps for the purpose of denoting that they had been used within the meaning of Section 263. The very slight marks of a rubber stamp upon them are, in my opinion, consistent with being the mark of any private or office rubber stamp such as is in common use in commercial offices and such other places. There is nothing whatever in the marks upon the stamps to indicate that they are marks put upon the stamps in any Court of law.
9. The learned Magistrate misdirected himself about the meaning of Section 263. The first part of the section makes it an offence to erase or remove from a stamp issued by Government for the purpose of revenue, any mark put upon it for the purpose of denoting that it has been used, if that erasing or removing is done fraudulently or with intent to cause loss to Government. Therefore, for an offence under the first part of the section it is necessary to prove fraud or an intent to cause loss to Government. Under the second part of the section it is an offence to have in possession any stamp from which the mark put upon it for the purpose of denoting that it has been used has been erased or removed, if those facts are known to the person having such a stamp in his possession. That is to say, it is sufficient to prove that the person in whose possession the stamp was found knew that such a mark had been erased or removed from it; it is not necessary under this part of the section to prove that his possession was fraudulent or with intent to cause loss to Government. If, therefore, we were of opinion that the decision of the Magistrate in acquitting the respondent was brought about owing to this misdirection of himself with regard to the meaning of the section, it would have been necessary to send the case back to him to be re-heard.
10. But apart from this wrong construction put upon the meaning of the section, the learned Magistrate was not satisfied with the evidence that is to say, he was not satisfied that there was any or sufficient evidence to show that any mark put upon these. stamps for the purpose of denoting that the stamps had been used had been erased or removed either by the accused or by any one else. On this point he said:
There is no evidence on record that the stamps bore marks or impressions denoting that the stamps were used for the purpose of revenue. Exhibit I bears no erasure or mark of removal of any notation. Exhibit II bears a mark of erasure. But there is no means of knowing what was erased or what notation was removed. The possession of a stamp bearing a mark of erasure may throw some suspicion on the accused person. But it is obligatory on the prosecution to show what mark or notation was done away with. There is no documentary or oral evidence on the point. There is no evidence either that the accused person removed or erased such marks or notation. Even if there were such thing, the failure to prove the connection of the accused person with those marks or impressions goes to the root of the case. It is to be shown that the stamps were in a cancelled condition. There is no evidence on this point.
11. Now, it is true that here again the Magistrate misdirected himself. There was no necessity under this part of the section for the prosecution to prove that the erasure of the marks or impressions had been done by the accused person or that he had any connection with them. It was, as I have already said, sufficient to show that he had in his possession such stamps knowing that such marks had been so erased. But upon the question of evidence I fired myself in agreement with the learned Magistrate. There was nothing in the evidence to show what had been erased, or what notations had been removed.
12. According to Mr. Bhattacharjee all this was assumed by the prosecution and its witnesses and even, as he alleges, by the Pleader appearing for the respondent. But obviously that is not sufficient. The case must be proved, and evidence upon this point must be given. At his request we have examined the stamps, the two exhibits in the case, and for myself I say without any hesitation that I can find nothing upon either of them to indicate that they have been stamped with a Government or Court stamp to show that they have been used within the meaning of s- 263. In consequence of this lack of evidence, the Magistrate gave the prisoner, as he said, the [benefit of the doubt, although he was satisfied that considerable suspicion attached to turn for his possession of these stamps. The learned Advocate Mr. Bhattacharjee, has suggested that if Magistrates and Judges are to take this view of evidence of this kind it will be impossible to convict offenders under this section. But there is no more difficulty in proving an offence under this section than under many other sections of the Penal Code, where it is sometimes difficult to. bring home the offence to accused persons. Doubtless in a considerable number of cases there will be sufficient indication left upon the fee-stamp to show that a rubber stamp put upon it by a Court, for the purpose of showing that the fee-stamp has been used, has been placed upon it by such Court. In cases such as these it is essential that careful evidence should be given to show what is the kind of stamp that one would expect to find upon a used court-fee stamp. There are indications on all such stamps to show where they were purchased, when they were purchased, who sold them, and to whom they were sold. Evidence can be given about the kind of stamp which is used in the Courts in that District, or if a similar stamp is used in all Districts, evidence should be given on that point also.
13. When that evidence has been given, the stamp can be examined, and a comparison made between the indications left upon the stamp and those which one would expect to find having regard to the fact that it has been stamped within a particular District. If these matters are attended to, the only occasions upon which it may be impossible to bring home the offence to any particular person will be those when that person successfully removed every trace of the Court rubber stamp from the Government fee stamp in question. In such circumstances, the only way to prove the case against him would be to show that the stamp had been affixed to some document and had been so used for revenue purposes, in which case it would be possible to prove a case against a person who knowingly possessed such a stamp.
14. For the reasons which I have given, this appeal must be dismissed. The respondent is discharged from his bail bond.
15. I agree. I would like to add that the learned Magistrate was wrong in saying that there was no evidence that the stamps were used for the purpose of revenue. There are two witnesses who said that the stamps were 'used up' It is, therefore, clear there is evidence that the stamps were used for the purpose of revenue, the only purpose for which they are used. There is also the admission of the accused when he was first arrested that these were used stamps. The natural conclusion is that they were used for the ordinary purpose for which these stamps are used, that is for the purpose of revenue. If these stamps, had in fact been used for the purpose of revenue, the fact that they bore no marks would go to show that the marks had been erased. However, on examining the stamps we are of opinion that the slight marks on the stamps do not at all necessarily indicate that they have, in fact, been used for the purpose of revenue. The learned Magistrate, therefore, was right in concluding that the evidence was insufficient to establish the case against the accused, although the circumstances of his arrest are very suspicious. The fact that the stamps were not punched does not, of course, necessarily show that an offence could not be committed in respect of them, as there have been a number of cases in which stamps which have been used have been left unpunched and, subsequently, removed probably for nefarious purposes. Of course, if the procedure laid down in the Stamp Act is properly carried out, every stamp ought to be punched, but experience has shown that punching is often omitted.