Accused when can be asked to account such possession.

The petitioner was a fireman working in the Southern Railways. On May 27, 1960 at 5-30 a.m. he was found carrying a small bag containing raw coal weighing 23 kilograms valued at Rs. 1-50 nP. near the loco shed of the Gadag Railway Station. The charge-sheet against him was that there was reason to believe that the coal which he was carrying was stolen property, and that since he had failed to give a satisfactory explanation for its possession he had committed an offence under section 124 of the Bombay Police Act (XXII of 1951). Now that section reads:

“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 to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both.”

The learned Magistrate found the petitioner guilty of the offence with which he was charged and sentenced him to pay a fine of Rs. 25, and in default to suffer simple imprisonment for two weeks.

The reasons why the Magistrate came to the conclusion that there were reasons to believe that the coal which was in the possession of the petitioner was stolen property are set out in paragraph 6(b) of his judgment and that paragraph reads:

“The determination of the next aspect, whether there was reason to believe the said raw coal was stolen property depends on the circumstances of the case and they are:

(i) The accused has been a fireman working in the Railways.

(ii) The accused was caught behind the loco shed of Gadag Railway Station between water tank and loco shed at about 5-30 a.m., carrying raw coal which was used for Railways; and

(iii) Failure of the accused to explain satisfactorily to Police.

Hence the time, the spot and the kind of property possessed and conveyed by the accused at that odd hour clearly leads any ordinary prudent man, reasonably to believe the same to be stolen property or property fraudulently obtained. The said circumstances have clearly satisfied the Court that there was reason to believe that raw coal which the accused was possessing and carrying was stolen property.”

What the learned Magistrate overlooked in this case was that the necessity for the accused to account for the possession of the coal by him arose only if there was reason to believe that the coal was stolen property. Now, in order to come to the conclusion that the coal was stolen property, the Magistrate took into account three circumstances. The first was that the accused was a fireman working in the Railways. The second was that he was carrying coal “which was used for Railways” at a very early hour in the morning behind the loco shed of the Railway Station; and the third was the failure on the part of the accused to explain satisfactorily to the Police as to why he was in possession of that coal.

It seems to me that the first and third ground which influenced the Magistrate in coming to the conclusion that the coal was stolen property were irrelevant grounds. The mere fact that the accused was employed in the Railways cannot, in my opinion, form any satisfactory ground for the conclusion that the coal which the accused was carrying in this case was stolen coal. Similarly the fact that the accused did not satisfactorily explain to the Police as to why he was in possession of the coal or was carrying it on that day cannot also constitute sufficient ground for reaching the conclusion that the accused was in possession of stolen property. The necessity for the explanation as to why the accused was in possession of the coal which he was carrying would arise under the provisions of section 124 of the Bombay Police Act (XXII of 1951), only after it was established in the first instance that there was reason to believe that property which was found in the possession of th