HYNDMAN-JONES, J.

I am of opinion that this Appeal must be allowed.

There were several points taken by the Appellant.

Firstly.-That the property could not reasonable be suspected of being stolen.

Secondly.- That there was no evidence of the Appellant having been found in actual possession of the property inasmuch as the evidence was only to the effect that it was found in his house and was therefore only prima facie.

Thirdly.-That there was not information and search warrant authorising the police to search the Appellant's house as required by subsection (5) of the Amending Ordinance VII. of 1902.

Fourthly.-That the Court being a Bench Court had no jurisdiction to hear the case, the proper tribunal being a Court presided over by a single Magistrate.

This last point is in my opinion fatal.

The Indian Act under which the case was brought clearly contemplates that cases brought thereunder should be tried by a Magistrate; by the interpretation clause (s. 2 of the Act) the word "Magistrate" shall mean any Magistrate of Police acting for the place where the matter requiring the cognizance of a Magistrate arises; and by the interpretation clause of the Criminal Procedure Code, 1900 (s. 2, s. 52 of the Code) wherever by any enactment passed before the commencement of this Code an offence is made cognisable by . . . a Magistrate, a Magistrate of Police . . . the expressions "Magistrate" or "Magistrate of Police" respectively shall be deemed to mean a "Police Court" as defined by this Code. Then according to s. 12 of the Criminal Procedure Code, which is not made subject to the other provisions of the Code as in the case of offences under the Penal Code, "any offence under any "law other than the Penal Code shall, when any Court is mentioned "in that behalf in such law be tried by such Court." The terms of that section are imperative and it is clear that a Police Court should have tried this case. I am fortified in this view by the Indian cases cited. Indrobeer Thaba [1864] 1 Suth W.R.(Cr.) 5, Regina v. Donoghue [1870] 5 Madr. H.C. 277, Queen Emp. v. Schade [1897] Ind. L.R. 19 Allah 465.

It was urged by the Attorney-General that inasmuch as subsection (4) of the Amending Ordinance VII of 1902, mentions the Bench Court, that Court had jurisdiction by implication. It must be noted, however, that the Bench Court is only referred to as a Court dealing with subsequent offences, and even if the section could be construed as implying that the Court had jurisdiction in such cases it could not be construed as implying that the Court had jurisdiction to try first offences of which this appears to be one.

There is another point, not raised in the argument, which is that the case was not really one of unlawful possession at all. I take it that the Indian Act was passed to meet those cases where the property cannot be identified as the property of any person; the Act requires that persons found in possession of property which may be reasonably suspected of being stolen shall account for their possession of it. This provision is a great departure from he Common Law of England, because once the property may be reasonably suspected of being stolen property it throws the burden on the accused of accounting for his possession of it and does not oblige the prosecution to prove any case against him; the amending Ordinance VII of 1902, extends the meaning of the word "possession" to possession in houses, ships and buildings generally. But in any case where the property has been identified as belonging to any particular person the burden is upon the prosecution to prove the case in the ordinary way; there can be no unlawful possession where the owner is known. It is true that there is a presumption against a person found in possession of property recently stolen; and on his failure to rebut that presumption he might be regarded as the thief or the receiver according to circumstances. But this presumption only applies to cases where the pro