Rex v Mithibuto (Criminal Confirmation Case No. 779/1934.) [1934] EACA 12 (1 January 1934)

### CRIMINAL CONFIRMATION.

#### Before WEBB J. and GAMBLE Ag. J.

## $REX$ (Prosecutor)

72.

#### M'ITIRITHIA S/O M'ITHIBUTO (Accused).

# Criminal Confirmation Case No. 779/1934.

Penal Code, section 296—"Having in his possession or conveying" property suspected of having been stolen.

Held (18-12-34).—That in the absence of evidence that accused was conveying the property in some manner or that his possession was ejusdem generis with conveying, he should not have been convicted under section 296 of the Penal Code.

Wallace for Crown.

Accused absent unrepresented.

The facts appear from the judgment.

JUDGMENT.-We are of opinion that this conviction cannot stand. The accused was charged under section 296 of the Penali Code with being in possession of a revolver suspected to have been stolen or unlawfully obtained. Before the magistrate he stated that he had bought the revolver from a passing Somali. The magistrate disbelieving his story convicted him without hearing any evidence.

Section 296 provides that "any person who shall be charged with having in his possession or conveying in any manner anything which may reasonably be suspected of having been stolen or unlawfully obtained, and who shall not give an account to the satisfaction of the Court of how he came by the same, is guilty of a misdemeanour". So drastic a provision which, unlike section 295 (as amended) dealing with "Receiving", requires no proof that the property in question has in fact been stolen or unlawfully obtained, and which, further, throws upon the accused the onus of justifying his possession, should be strictly construed. An identically worded section has already been considered by the High Court of Tanganyika in the case of Rex v. Huku bin Katega (Criminal Revision Case No. 3 of 1934); in that case the Court held following Hadley v. Perks (L. R.1 Queens Bench 444), which turned on the meaning of identical words—"having in his possession or conveying in any manner"-in 2 and 3 Vict. C. 71, $s.24$ , that section 296 did not apply to possession in any place or in any circumstances, but that its application is restricted to cases where the possession is ejusdem generis with conveyingto cases, that is to say, where a person is found carrying the object or the like, as distinguished from its being found upon his premises. As the Court pointed out, if possession in any place or in any circumstances will suffice to bring the section into: operation, the subsequent words "or conveying in any manner" are superfluous.

We agree with that decision and with the reasoning upon. which it is based. In the present case there was nothing to. show in what circumstances the accused was "in possession" of the revolver, and in the absence of evidence that he was conveying it in some manner or that his possession was ejusdem generis with conveying, he should not have been convicted under section. 296.

The conviction is therefore quashed and the case is remitted: to another Court of competent jurisdiction for re-trial. We think it right to remark further that a revolver is not, like a valuable piece of jewellery, an object the possession of which by a person. such as the accused necessarily raises a presumption that it must have been dishonestly obtained; although the section throws. upon the accused the onus of accounting to the satisfaction of the magistrate how he came by the object, we are of opinion. that he should not be convicted unless the magistrate thinks that after taking into account all the circumstances, including thenature of the article, his explanation cannot reasonably be true. And in this connection we would observe that in the present caseinquiries should be made to ascertain whether there is any record: of a licence having been issued in respect of the revolver and, if so, to whom.