Judgment

GHULAM HASAN, J. : This appeal is brought by special leave from the judgment and order of the High Court of Judicature at Bombay. (Dixit and Chainani, J.) dated 26-7-1950, whereby the High Court allowed the appeal of the State of Bombay, setting aside the order of acquittal of the appellant passed by the Sessions Judge of Kaira dated 7-5-1949, and restoring the order of conviction and sentence of the appellant passed by the Sub-Divisional Magistrate, Nadiad Prant dated 31-12-1948.

2. The appellant Suleman Issa, who is an inhabitant of Natal in South Africa, Left Durban in August 1947 by car for India to pay a visit to his native place Sarsa in district Kaira where his sister was living with her husband Alimahmad Issak.

He was accompanied by Daud Hassan another brother-in-law and both travelled to Mombasa by car. From Mombasa, they took a boat on August 30, and reached Colombo on September 11. They flew from Colombo to Madras on September 14, but shipped the car by a steamer. They stayed in Madras until the Steamer arrived on September 20. The car was delivered to the appellant on October 1, after he had paid Rs. 2,700/- as custom duty and a cash deposit of Rs. 10,000/- by way of security as the appellant intended to take the car back to Durban on his return.

The party motored to Nardana on October 7, passing through Bangalore, Poona Nasik and Dhulia. From there they travelled by train and reached Sarsa on October 8. The car was booked in an open truck from Nardana and Anand where it was taken delivery of and then driven to Sarsa.

3. One Ratansing Kalusing Raol, Senior Police Inspector of Nadiad town, having noticed the car bearing no Indian number passing in the town instructed policemen to keep a watch.

The appellant was ordered to appear before the Sub-Inspector on October 12. On being questioned he stated that his family was the original inhabitant of Jamnagar State but for the last 60 years they were doing the business of contractors for purchasing and selling land in Durban. His brother Daud Issa, was however serving in Bombay. He gave details of the journey performed by him and his companion and produced passports, as also the receipts for paying custom duty and the deposit.

On Oct. 15, Head Constable Ajit Singh informed Raol that same unknown person had come to the shop of Umarbhai Jeweller with a large quantity of gold. Accordingly the police visited the shop of the jeweller and his brother (also a jeweller) and came to know that gold had been given to him by the appellant to be melted.

This gold along with some other gold kept at another place was seized by the Police. The Police also took possession of the car. The entire quantity of gold seized was 27731/2 tolas the value of which is roughly estimated at Rs. 3 lakhs. Proceedings under S. 20, Indian Telegraph Act, were instituted against the appellant and others on the assumption that the wireless set in the car was a transmitter but they were dropped when it was found otherwise. The car was thoroughly examined but nothing incriminating was found.

The appellant was also detained under the Public Securities Act but was released. Ultimately on 2-1-1948, he also with others was prosecuted on the Complaint of Raol for an offence under S. 61-E Bombay District Police Act (X of 1890) read with S. 109, Penal Code. Section 61-E says :

"Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained shall if he fails to account for such possession or act to the satisfaction of the Magistrate, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees".

4. He was convicted by the Magistrate and sentenced to a fine of Rs. 100/- and the gold was directed to be confiscated under S. 517, Criminal P. C. The other accused who were charged with abetment were acquitted.

The Magistrate took the view that there