Suleman Issa vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 67 of 1951

Decision Date: 11 March, 1954

Coram: Ghulam Hasan, Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose

In this case, the Supreme Court recorded that the appeal was filed by special leave from a judgment of the High Court of Bombay dated 26 June 1950. The High Court, consisting of Justices Dixit and Chainani, had set aside an earlier order of acquittal issued by the Sessions Judge of Kaira on 7 May 1949 and had reinstated the conviction and sentence originally imposed by the Sub-Divisional Magistrate of Nadiad Prant on 31 December 1948. The appellant, Suleman Issa, was described as an inhabitant of Natal, South Africa, who had left Durban in August 1947 travelling by car to India in order to visit his native village of Sarsa in District Kaira, where his sister lived with her husband Alimahmad Issak. He was accompanied by his brother-in-law Daud Hassam. After reaching Mombasa by car, they boarded a boat on 30 August and arrived in Colombo on 11 September. From Colombo they flew to Madras on 14 September, while the car was shipped separately on a steamer. The appellant remained in Madras until the steamer docked on 20 September; the car was finally delivered to him on 1 October after he had paid a customs duty of Rs 2,700 and provided a cash security deposit of Rs 10,000, intending to take the vehicle back to Durban on his return journey. He proceeded to Nardana on 7 October, passing through Bangalore, Poona, Nasik and Dhulia, and then travelled by train to Sarsa, arriving on 8 October. The car was loaded onto an open truck at Nardana, taken to Anand for delivery, and then driven to Sarsa, where Senior Police Inspector Ratansing Kalusing Raol was present.

The Court noted that the petition concerned the propriety of a confiscation order made under section 517 of the Criminal Procedure Code, 1898, which authorises a court, after the conclusion of an enquiry or trial, to order the disposal of any property or document produced before it or in its custody if an offence appears to have been committed in relation to that property. The Court observed that while the statute gives the court such power, it does not compel the court to order confiscation in every case, and the decision must be guided by the facts and the specific statutory provisions governing the offence. In the present matter, the accused had been prosecuted under section 61-E of the Bombay District Police Act, 1890, an offence carrying a maximum imprisonment of three months and a fine of Rs 100, and the prosecution’s narrative that the gold in question had been smuggled from Africa was not accepted by the Court. Consequently, the Court held that the confiscation of gold valued at approximately three lakhs of rupees was singularly inappropriate, because the relevant statute did not contain a confiscation penalty comparable to that in the Sea Customs Act. The judgment, delivered by Justice Ghulam Hasan, therefore set aside the confiscation order and affirmed that confiscation is not a mandatory consequence of a conviction when the statutory framework and the circumstances of the case do not justify such a severe penalty.

In this case the appellant, Suleman Issa, travelled from Durban in August 1947 with the purpose of visiting his native village of Sarsa in District Kaira, where his sister lived with her husband Alimahmad Issak. He was accompanied by his brother-in-law Daud Hassam and the two men drove to Mombasa. From Mombasa they boarded a boat on 30 August and arrived at Colombo on 1 September. On 14 September they flew from Colombo to Madras, while the car was shipped separately by steamer. They remained in Madras until the steamer reached the port on 20 September. The car was delivered to the appellant on 1 October after he had paid a customs duty of Rs 2,700 and a cash security deposit of Rs 10,000, because he intended to return the vehicle to Durban on his departure. On 7 October the party travelled by road to Nardana, passing through Bangalore, Poona, Nasik and Dhulia, and then took a train to Sarsa, arriving on 8 October. The automobile was loaded onto an open truck at Nardana, taken to Anand, and from there driven to Sarsa. Ratansing Kalusing Raol, the senior police inspector of Nadiad town, observed that the car bore no Indian registration number while passing through the town and ordered his men to keep watch. The appellant and his companion were summoned to appear before the sub-inspector on 12 October. When questioned, the appellant explained that his family originally came from Jamnagar State but for the past sixty years had been engaged in contracting work involving the purchase and sale of land in Durban. He also stated that his brother Daud Issa was then residing in Bombay. He produced passports, customs duty receipts and the security deposit slip to substantiate the journey. On 15 October Head Constable Ajit Singh informed Inspector Raol that an unidentified person had visited the shop of jeweller Umarbhai with a large quantity of gold. Police inspection of the jeweller’s shop and that of his brother revealed that the appellant had delivered the gold to be melted. The seized gold, together with additional gold held elsewhere, amounted to 27,731 tolas and was valued at approximately Rs 300,000. The police also seized the appellant’s car. Proceedings were instituted under action 20 of the Indian Telegraph Act on the assumption that a wireless set in the car was being used as a transmitter; these proceedings were later dropped when the allegation proved unfounded. A thorough examination of the car found no incriminating material. The appellant was detained under the Public Securities Act but subsequently released. Finally, on 2 January 1948, the appellant and others were prosecuted on the complaint of Inspector Raol for an offence under section 61E of the Bombay District Police Act (IV of 1890) read with section 109 of the Indian Penal Code, the statutory provision stating that anyone found in possession of, conveying, or offering for sale or pawn any property believed to be stolen or fraudulently obtained, and who fails to account for it to the satisfaction of the magistrate, may be punished with imprisonment of up to three months or a fine of up to one hundred rupees.

In this case, the Court referred to the provision of section 61E, which provides that any person who, in any manner, offers for sale or pawn, anything that there is reason to believe is stolen property or property fraudulently obtained, and who fails to account for such possession to the satisfaction of the Magistrate, may be punished with imprisonment for a term that may extend to three months or with a fine that may extend to one hundred rupees. The Magistrate applied this provision, convicted the appellant, and sentenced him to a fine of one hundred rupees while also directing that the gold be confiscated under section 517 of the Code of Criminal Procedure. The other accused, who had been charged with abetment, were acquitted. The Magistrate explained that there was no direct evidence that the accused had committed theft or obtained the property fraudulently, but in his opinion the surrounding circumstances gave rise to a reasonable belief that the gold in question was either stolen or fraudulently obtained. On appeal, the Sessions Judge observed that although the possession of the gold was highly suspicious, the circumstances did not rise to the level of a reasonable belief that the property was stolen or fraudulently obtained; consequently, he set aside the conviction and sentence and ordered that the gold be returned to the appellant. The State appealed to the High Court, which rejected the prosecution’s claim that the gold had been brought into India by the appellant in his motor-car, but concurred with the Magistrate that the surrounding facts created a reasonable belief that the appellant possessed gold that was either stolen or fraudulently obtained. The High Court also rejected the appellant’s explanation that his father had periodically brought the gold to Sarsa during visits to his native place. Regarding the order of confiscation under section 517, the High Court held that it was not necessary for the confiscated property to be the exact property in relation to which an offence was alleged; it was sufficient that the property had been produced before the court. On that basis, the High Court set aside the acquittal and restored the Magistrate’s order of confiscation. Counsel for the appellant, at the outset, asserted that he did not concede the correctness of the conviction but argued that, even if the conviction were proper, section 517 did not apply to the facts and the court lacked jurisdiction to order the confiscation of the gold. He further contended that, in any view of the matter, the confiscation order was inappropriate. Section 517(1) states: “When an inquiry or a trial in any criminal court is concluded, the court may make such order as it thinks fit for the disposal (by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise) of any property or document produced before it or in its custody or…”

In this case the Court examined the language of section 517 which, on a plain reading, authorised a criminal court, after the conclusion of an inquiry or trial, to make an order for the disposal of any property or document that had been produced before it or was in its custody, or that concerned an offence that appeared to have been committed, or that had been used in the commission of an offence. The provision further stipulated that the court’s power of disposal could take the form of destruction, confiscation, or delivery to any person who claimed a right to possession of the property. Counsel for the appellant argued that the gold seized by the police had been sent to the Treasury and had never been produced before the court. The Court found that the evidence on this point was not clear and definite, and noted that the question had not been raised before the lower courts. The High Court had justified its order on the basis that the property was produced before it and had held that it was unnecessary to find that an offence had apparently been committed in respect of the property before passing the confiscation order. The Court observed that the gold was not property about which any offence appeared to have been committed, nor was it property that had been used for the commission of an offence. Although the section gave the court power to confiscate property that was in its custody, the Court held that this power was not absolute and did not require a confiscation order in every circumstance. It was possible, the Court noted, to encounter situations where the subject of the offence was property that, under the law governing that offence, was liable to be confiscated as part of the punishment on conviction. Assuming, for the sake of argument, that the court possessed jurisdiction to order the disposal of the gold, the Court concluded that a confiscation order was not appropriate in the present facts. Section 517 provided a general mechanism for the disposal of property in the circumstances described in the later part of the section, but section 61E by itself did not empower the court to impose a penalty of confiscation. The sentence of imprisonment and fine authorised by section 61E was a nominal sentence because the provision operated on the mere belief that the property in the person’s possession was stolen or fraudulently obtained and that such possession was not satisfactorily accounted for. The offence in this case fell under the local Police Act, not under an enactment such as the Sea Customs Act that contains a substantive confiscation penalty. Consequently, confiscation was not the sole mode of disposal available under section 517, and it was singularly inappropriate where the accused was prosecuted for an offence carrying a maximum sentence of three months and a fine of one hundred rupees.

In this case, the Court noted that the statutory penalty included only a fine of Es. 100 as currency. The Court explained that it was within its authority to direct that the seized property be handed over to any person who could establish a right to possess it. In the present matter, the gold was discovered in the possession of the appellant, and no other party was before the Court claiming a competing interest in the gold. The Court observed that there was no proof that the gold had been stolen or obtained by fraud. The only finding was that the circumstances gave rise to a suspicion that the gold might have been stolen or fraudulently acquired. The Court also noted that the appellant had failed to provide a satisfactory account of how he came into possession of the gold. The High Court had expressed the view that the gold had been smuggled from Africa into India by illicit routes. However, even if that view were correct, the Court held that confiscating the gold under section 517 on the basis of a mere belief was manifestly harsh and unreasonable. The Court also noted that the belief standard is the one required to sustain a conviction under section 61E. Consequently, the Court concluded that the order of confiscation could not be legally sustained under the applicable statutory framework. Accordingly, the Court set aside the confiscation order and directed that the gold seized from the appellant’s possession be returned to him. The appeal was allowed, and the respondent was represented by counsel during the entire hearing of the case.