Rex v Hassan (Criminal Appeal No. 437 of 1948) [1948] EACA 75 (1 January 1948)

## APPELLATE CRIMINAL

## Before Sir BARCLAY NIHILL, C. J.

## REX, Respondent (Original Prosecutor) $\mathcal{L}_{\text{max}}(x)$

## ISMAIL HASSAN, Appellant (Original Accused) Criminal Appeal No. 437 of 1948

Criminal law—Possession of property reasonably suspected of having been stolen, Penal Code, section 316-Circumstances under which the section can be used—Criminal Procedure Code, section 25. $\frac{1}{2} \left( \frac{1}{2} \right)^2$ $\mathcal{A} = \{x_1, \ldots, x_n\}$

A European employee on a farm encountered the appellant in circumstances in which he arrested him and took possession of the bedding upon which he had been sleeping; in this was found a .38 revolver. The appellant and this property were handed over to the Police and on the following day an askari found a packet of cartridges in the bedding. The appellant was charged with and convicted of an offence contrary to section 316 of the Penal Code. He appealed.

Held (27-9-48).—That before a person can be put to account for his possession of an article<br>under section 316 of the Penal Code, the circumstances set out in section 25 of the Criminal Procedure Code must be present: .................................... $\mathcal{O}(\mathcal{M}) \to \mathcal{O}(\mathcal{M})$ $\mathcal{L} = \mathcal{L} \mathcal{L}$ $\mathcal{L} = \mathcal{L}$ $\mathcal{L} = \{1, 2, \ldots, n\}$

Appeal allowed. $\mathcal{C}_{\mathcal{A}}$ $\mathcal{F}_2 = \mathcal{F}_1$

Circular to Magistrates, No. 16 of 1939, 18 K. L. R. 215, referred to. (The case reported in this Circular explains that section 316 of the Penal Code only applies to cases in which the accused, having been detained by a police officer under section 25 of the Criminal Procedure Code, is found to be conveying, or in possession *ejusdem generis* with conveying of, property reasonably suspected of having been stolen.—*Editor*.) having been stolen.—*Editor.*) $\mathfrak{D}^{\mathcal{M}}(x) = \mathbb{E} \left[ \mathcal{L}^{\mathcal{M}}(x) \right] \mathcal{L}^{\mathcal{M}}(x)$

$\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}(x) = \mathcal{L}^{\mathcal{A}}(x)$

$\sim \epsilon_{\rm s}^{-1}$ $\mathcal{A} \in \mathcal{A}^{\times}$

Couldrey for the Appellant.

Modi for the Crown.

JUDGMENT.—The appellant was convicted under section 316 of having in his possession property reasonably suspected of having been stolen and of failing to give a satisfactory account thereof to wit a .38 revolver and 21 rounds of ammunition. The Magistrate has overlooked, however, the fact that before a person can be put to account for his possession of an article under the above section of the Code the circumstances set out in section 25 of the Criminal Procedure Code must be present. In the case now before me they were not. The articles were found not by a police officer or a person authorized in writing in that behalf of the Commissioner of Police and they were not being conveyed anywhere by the appellant as they were found in his bed roll. It is surprising that some Magistrates and some police officers seem unable to distinguish the ingredients necessary to constitute proceedings under this section of the Code, a section based on a well known provision in the Metropolitan Police Act. The circumstances under which the section can be used or cannot be used are set<br>out in Circular No. 16 of 1939, 1938-39 Vol. XVII K. L. R. at page 215 and I take this opportunity of again calling the attention of Magistrates to its terms. The appeal is allowed. The conviction and sentence are quashed and I order the appellant, if in custody, to be liberated forthwith. and an article