Present : Bertram CJ. 1921

THE KING v. ARNOLIS.

139-D. C. Colombo, 5,928.

Theft- Accused charged with dishonest retention of stolen property - Evidence of previous sales of stolen Umber by accused-Criminal Procedure Code, ss. 182 and 408-Penal Code, s. 394.

Accused, who had agreed with a timber merchant to sell him a certain quantity of timber, went with another person and opened a timber store belonging to Messrs. Darley, Butler &, Co., and loaded carts with timber. He was promptly arrested at the stores in the act, and was charged with dishonest retention of stolen property under section 394 of the Penal Code.

Evidence was led at the trial to prove that he had sold timber belonging to Messrs. Darley, Butler & Co. to others on previous occasions.

Held, that while the charge of dishonest retention was not appropriate to the circumstances, it was open to the Court to convict the accused of theft under section 182 of the Criminal Procedure Code.

The evidence of previous sales of stolen timber was admissible on the question of theft. " This evidence was tendered under section 408 of the Criminal Procedure Code in support of the charge of retaining stolen property. It was, no doubt, because he wished to utilize this evidence under that section that counsel for the Crown declined to amend the indictment. But this section ought not to be made use of in this indirect manner. If the circumstances do not really indicate the offence of retention of stolen property, the section does not apply at all. On the other hand, this evidence was admissible on the question of theft altogether independently of that section. It was relevant as evidence of a systematic course of dealing by the accused inconsistent with the possible defence on the part of the accused, namely, that he had innocently fetched the carts, or that he had on this occasion innocently lent himself to the scheme of the real thief."

APPEAL from an acquittal.

Jansz, C.C., for the appellant.-To constitute the offence of dishonest retention of stolen property there need not be a change in the mental element of possession from an honest to a dishonest condition of mind. The latest Ceylon rulings differ from the Indian rulings which the District Judge has followed (see l C. W. R. 230).

Soertsz, for the accused, respondent.-There are many Ceylon decisions in favour of the District Judge's view. {3 N. L. B. 267 ; 2 N. L. R. 4 ; P. C. Anuradhapura, 18,943 [1]; P. C. Trincomalee, 5,945 [2]; and P. C. Panadure, 12,860.[3]) The facts disclose an offence

Foot Notes:

1 S. C. Min., Jan. 17,1898.
2 S. C. Min., Jan. 24,1898.
3 S. C. Min, Aug. 7,1902.

of theft if any offence was committed, and not the offence of dishonest retention. It is not proper to charge under section 394 with the object of leading evidence of previous dealings with stolen goods.

The facts relied on by the prosecution to prove theft are not inconsistent with the innocence of the accused.

October 18,1921. BERTRAM C.J.-

This an appeal by the Solicitor-General against an acquittal. The accused was charged " that on or about March 30,1921, he did dishonestly retain 420 teak planks, the property of Messrs. Darley, Butler & Co., Limited, knowing them to be stolen property."

The evidence discloses that the accused took part in what was a very imprudent theft. On March 29,1921, he came to one Cornelis Perera, a timber merchant, and offered a quantity of teak planks for sale. Knowing that timber had been missed from Messrs. Darley, Butler's stores, Cornells Perera suspected him, and communicated with Messrs. Darley, Butler's manager, Mr.. Foucar, who requested Cornelia Perera to get the timber brought to his store. On March 30 the accused, with a man who appeared to be a clerk, went to Messrs. Darley, Butler's store, which his companion opened with a key. Three carters engaged by the accused were in attendance, and saw the store opened. Accused or