Rex v Njuguna (Criminal Appeal No. 146 of 1946) [1945] EACA 47 (1 January 1945)

## APPELLATE CRIMINAL

### BÉFORE HORNE, J.

#### REX, Respondent

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# JOSEPH MBITIRU WA NJUGUNA, Appellant (Original Accused No. 3)

#### Criminal Appeal No. 146 of 1946

Criminal law-Having in possession or conveying property reasonably suspected of having been stolen—Section 316 Penal Code—Unlawful possession of military property—Regulation 15 (2) Defence (H. M. Forces) Regulations— Burden of proof—Possession—Explanation of accused.

The appellant was the hired driver of a motor vehicle which on being stopped by the police was found to be fitted with two military tyres. He was charged and convicted of conveying property reasonably suspected of having been stolen contra section 316 Penal Code and of unlawful possession of stores in Regimental Charge *contra* Regulation 15 (2) of the Defence (H. M. Forces) Regulations 1941. The appellant appealed.

Held $(27-7-45)$ .—(1) Once the circumstances envisaged by either of the above enactments are established to the satisfaction of the Court the burden of proof is thrown upon the accused to justify his possession.

(2) The accused being merely the servant of the owners of the lorry was not in possession of the suspected tyres.

Quaere: Whether a driver of a vehicle on which some tyres are reasonably suspected to be stolen is a person conveying such tyres?

Appeal allowed. Convictions quashed.

Kohli for the Appellant.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted under section 316 of the Penal Code and also under Regulation 15 (2) of Defence (H. M. Forces) Regulations.

Under both these enactments the burden of proof is thrown upon the accused after the circumstances envisaged by the respective enactments are established to the satisfaction of the magistrate. Under section 316 the accused person after being detained under the powers given to the police "is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of being stolen or unlawfully obtained". Regulation 15 (2) provides that where military property "is found in the possession or keeping of any person" he may be brought before the magistrate. As it has long been held that section 316 does not apply to possession at large but only to such possession as a man has when he is conveying the object, I do not think the magistrate was right in calling upon the appellant under section 316.

It seems to me far-fetched to hold that a man who is driving a vehicle on which two of the tyres on the rear wheels are reasonably suspected by the police officer to be stolen is a person conveying those tyres. Consequently no case had been made out giving the magistrate jurisdiction to call upon the appellant under section 316 to give an explanation satisfactory to the Court. Having so called upon him under this section the magistrate should have accepted his explanation. No reason is given for not taking into account the fact that the appellant was merely the hired driver. While it is true the appellant was a liar either in telling the police that he received the tyres with instructions to fit them from the first accused or in giving evidence to the magistrate that he received the tyres and the order to fit them to the vehicle from accused No. 2, the fact that he is employed to drive is indisputable and the fact that accused No. 1 and No. 2 were held to be engaged in conveying suspected stolen property will not affect their employee unless it is shown that there is some joint interest in the property.

The prosecution having put in evidence, quite unnecessarily in my opinion. a statement made by the accused to the police subsequent to the detention of the vehicle and the seizure of the tyres, which clearly shows that the accused was a servant it was hardly proper to call upon the accused under Regulation 15 (2) for clearly the tyres were "found in the possession or keeping" of the owners of the vehicle.

The magistrate does not make any distinction between the two charges. However the accused having been called upon on the count under Regulation 15 (2) his explanation ought to have been accepted by the magistrate. The appellant is illiterate and had the fact that he is a servant been taken into account it would become obvious that he is not keeping the tyres, it is either accused No. 1 or No. 2 who is so doing.

The appellant's convictions are quashed and the sentence is set aside.