Judgment

BHAGWATI J.:- This appeal has been preferred by the appellant on a certificate of fitness granted by the High Court of Bombay under Article 134 (1) (c) of the Constitution. The facts giving rise to the appeal are few and may be briefly stated as follows :

2. On 4th October, 1968 at about 5 p. m. the appellant was found standing near the crossing of Yusuf Meherally Road and Abdul Rahman Street adjoining Crawford Market in Bombay. The movements of the appellant excited the suspicion of PSI Bhambre and Police Constable Vithal Bapu Kamble, who were passing along that way to make inquiries in connection with some other matter, and they accordingly accosted the appellant and asked him why he was standing there. The appellant replied that he was waiting for a friend. But that answer did not satisfy the police officers and suspecting that there was something fishy, they searched the appellant in the presence of panchas. In the course of the search two paper packets were found, one in each trouser pocket of the appellant and each packet contained ten brand new wrist-watches of Sandoz manufacture. These wrist-watches were quite expensive and their value came to over Rs. 2,000- The appellant was asked as to how he came into possession of these wrist-watches, but he was not in a position to give a satisfactory explanation. The Police officers, therefore, took the appellant to the police station and later charged him with an offence under Section 124 of the Bombay Police Act, 1951 in the Court of the Presidency Magistrate V. T., Bombay.

3. The learned Presidency Magistrate found on the evidence on record that there was reason to believe that the wrist-watches found from the possession of the appellant were either stolen property or property fraudulently obtained, and since the explanation given, by the appellant for his possession was inconsistent and unsatisfactory, the learned Presidency Magistrate held that the appellant was guilty and convicted him of the offence under Section 124 and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 100/- or in default to suffer rigorous imprisonment for a further period of fifteen days.

4. The appellant appealed against the order of conviction and sentence to the High Court of Bombay. The appeal came up for hearing before a Single Judge of the High Court, namely, Kamat, J. The learned Judge was of the view that there was reason to believe that the wrist-watches found in the possession of the appellant were smuggled property and hence property fraudulently obtained and since there was no satisfactory explanation forthcoming from the appellant, the order of conviction and sentence passed against the appellant was proper. But the attention of the learned Judge was drawn to a decision of another Single Judge of the High Court, namely, Vimadalal, J. in Pratap Baburao v. The State of Maharashtra, (1970-72 Bom LR 411) where a view had been taken that in order to attract the applicability of Section 124 what was necessary was that there should be reason to believe that the property in question was fraudulently obtained by the accused. Now, if this decision were right, then obviously the appellant would be entitled to be acquitted and the order of conviction and sentence passed against him would be bad because on the material on record it would not be possible to say that there was reason to believe that the wrist-watches were-fraudulently obtained by the appellant. The learned Judge, however, found himself unable to agree with the view taken by Vimadalal, J., and being of the opinion that on a proper construction of Section 124, the only matter in respect of which the Court was required to have reason to believe was that the property was stolen property or property fraudulently obtained and not that the property should have been stolen or fraudulently obtained by the accused, the learned Judge referred the appeal to a Division Bench.

5. The appeal thereafter came u