Panchal v Rex (Criminal Appeal No. 163 of 1941) [1940] EACA 62 (1 January 1940)

# APPELLATE CRIMINAL

### Before Sir Joseph Sheridan, C. J. and Bartley, J.

## **MAGANBHAI PANCHAL, Appellant**

ν.

REX, Respondent

# Criminal Appeal No. 163 of 1941

Criminal Law—Receiving stolen property—Presumption of dishonest possession— Recent possession—Evidence of possession of other stolen articles.

A ring was stolen on the 9th November, 1939. It was found in the appellant's possession on the 6th February, 1941. Evidence as to the possession by the appellant of other stolen property was given by a police officer who testified to finding the articles in the appellant's possession, to the fact that two of the articles had been produced as exhibits in court and that they were the subject of charges under section 295 of the Penal Code and that the court had decided that the articles were stolen property and had directed them to be returned to the owners.

Held $(10-12-41)$ .—(1) That no presumption of dishonest possession was raised against the appellant and that he should not have been called upon to account for his possession. (2) That the possession of other stolen articles should be proved by evidence proving

the theft of the articles. Ina Sheikh v. Queen Empress (1885) 11 Cal. 160.

#### Appellant in person.

### Stacey, Crown Counsel, for the Crown.

JUDGMENT.—We have put it to Crown Counsel that the conviction in this case cannot stand and he fairly agrees that such is the position. The matter in law is clear. The article alleged to have been dishonestly received by the accused was stolen on the 9th November, 1939, and it was found in the possession of the accused on the 6th February, 1941. On these facts no presumption of dishonest possession was raised against the accused and he should not have been called on to account for his possession. The presumption against an accused person arises when recent possession has been proved; mere possession is insufficient. Section 295 of the Penal Code is practically identical with section 411 of the Indian Penal Code, so that the authorities on the latter provision of law are applicable. A reference to Ina Sheikh v. Queen Empress (1885) 11 Cal. 160 will show that the evidence in the case under consideration could not be taken as raising any presumption based on recent possession against the accused. In that case, Reg v. Cooper, 3 C. & K. 318, was referred to in the following language: "Maule, J. said, 'Where a man is found in possession of a horse six or seven months after it is lost and there is no other evidence against him but that possession, he ought not to be called to account for it"". So here where the period between the date of the theft and that of the finding of the ring with the accused was almost 15 months the accused should not have been asked to explain his possession. Had he, even though he was wrongly put on his defence, admitted the crime with which he was charged, he could of course have been convicted on his admission, that is settled law. But he made no such admission. As to the statement in the judgment that the accused was found in possession of two other stolen articles, that was not proved in the only acceptable manner by evidence proving the theft of these articles, and even if the evidence of Inspector May had been admissible it would not have thrown light on the one question to be decided, namely whether the accused had guilty knowledge when he received the ring. It is quite possible that the two articles referred to were stolen many years ago, at a time which would be irrelevant for the purpose of indicating guilty knowledge on the part of the accused. The conviction and sentence are quashed and the accused acquitted. The ring is directed to be returned to the learned magistrate, who will return it to whomsoever produced it in Court, presumably the Police.