Decided on April 20,1978

Hadibandhu Das Respondents


R.N.MISRA, J. - (1.) THIS appeal under Section 378 of the Criminal Procedure Code is directed against the appellate judgment of the learned Special Judge, Puri, setting aside the conviction of the respondent under Rule 132 (3) of the Defence of India Rules, 1962, by the Special Magistrate, Orissa, at Bhubaneswar.
(2.) RESPONDENT is an excise vendor and has his place of residence as also business within the Mangalabag area of the Town of Cuttack, The Deputy Superintendent of Police, C.B.I. (Economic Offences Wing) at Calcutta (P.W. 1) obtained a search warrant (Ext. 2) from the Additional District Magistrate (Judicial), Puri, authorising search of the premises of the respondent and his brother in connection with a case under Section 9 of the Opium Act. In execution of Ext. 2, the respondent's premises were searched on 6.5.1965 and during search the Inspector (P.W. 74) recovered small coins of different denominations from several places of the residential building along with obsolete coins, gold and other valuables. The Inspector conducting the search submitted a report (Ext. 3) to the Superintendent of Police, C.B.I., stating that in course of the search for the offence under the Opium Act, the respondent was found to be in possession of small coins beyond his personal or business requirements and had thus committed an offence punishable under Rule 132 of the Defence of India Rules, 1962. A formal First Information Report (Ext. 4) was drawn up and investigation followed. Respondent was ultimately charged thus: - "That you on or about the 6th day of May, 1965, at Mangalabag, P.S. Mangalabag, Dist. Cuttack, possessed small coins of different denominations amounting to Rs. 8355.05paise in excess of your personal or business requirements for the time being." Respondent's defence was that out of the coins recovered from his house, coins worth Rs. 500 to Rs. 700 belonged to him and the rest of the amount belonged to his mother and other relations staying with him in the same house. He also took the plea that a part of the coins represented collections of the Puja Committee of Mangalabag which as Treasurer of the Committee he was keeping with him. Prosecution examined as many as 74 witnesses and exhibited scores of documents, I must say that bulk of the evidence, oral and documentary, was wholly irrelevant for the purpose of trial for the charge in question and Mr. Patnaik appearing as Special Public Prosecutor in support of this appeal has fairly accepted that position. I am surprised that the learned Magistrate who tried the case exercised no control and allowed so much of irrelevant evidence to be brought on record. The learned trying Magistrate came to hold, - "To sum up, a huge quantity of coins was recovered from the house of the accused; he is the head of the family; there is no evidence that such coins were necessary for the accused's business or personal requirements and there is no evidence that the coins seized belonged to different members of the accused's family. This being the position, I am satisfied that an offence under Rule 132 (3) is committed by the accused by violating sub -rule (2) (e) of Rule 132 of the Defence of India Rules. This is a piece of special legislation meant to cover special offences and to meet special circumstances that may arise in the society. Of course, prosecution led evidence to show that there was acute shortage of coins at Cuttack and Choudwar but that evidence in my opinion is not sufficient to say that simply because the accused hoarded this much of coin, it brought about a shortage of coins at those places...... Though there is no adequate proof that there was shortage of coins in the market in the year 1965, the liability of the accused is in no way lessened. Hoarding of such huge quantity of small coins is certainly derogatory to the principle of circulation of coins which the law seeks to ensure." and accordingly convicted the petitioner of the charge and sentenced him to two years' rigorous imprisonment and fine of Rs. 1.000/ - with a default sentence of six months' rigorous imprisonment.
(3.) ON appeal challenging the conviction, the learned Special Judge took note of the fact that according to the prosecution the value of small coins seized from the respondent amounted to Rs. 8,355.05. He noticed the fact that small coins of the value of Rs. 33.50 paise seized as perExt. 6 had not been produced in court. There was no clear indication as to the extent of rupee coins in the total amount referred to above. He also noticed unexplained difference between the total of items 2, 4, 6, 11 and 14 which are said to be small coins as per the search list (Ext. 5) and the total amount for which respondent was charged being Rs. 8,355.05 paise. The lower appellate court was impressed by the fact that there was no admission of seizure of the entire small coins from the respondent's possession and at the most, respondent had stated that out of the seized amount, small coins worth Rs. 500/ - to Rs. 700/ - belonged to him. It came to the conclusion that the rest of the coins appeared to be of respondent's mother and since admittedly she was living in the house and these coins had been kept mixed up with old, obsolete coins which respondent's mother was likely to have preserved, the defence plea seemed to be cogent. It found that the respondent was doing business and was involved in substantial commercial activities and came to conclude that the prosecution had failed to prove that on 6.5.1965, respondent was in possession of small coins in excess of his personal or business requirements for the time being and accordingly set aside the conviction and sentence and directed return of the seized coins to the respondent. Against this judgment of acquittal, the prosecution has preferred the appeal.;

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