State v. Radha Kishan s/o Dewan Singh — 1960 DIGILAW 19 (ALL)

JUDGMENT J. N. Takru, J. :- These are three appeals by the State against the judgments and orders of acquittal passed by the Additional Session Judge of Bulandshahr in three Sessions Trials, Criminal Appeal No. 2011 of 1958 arises out of Sessions Trial No. SO of 1957 while Criminal Appeals Nos. 2012 of 1958 and 2013 of 1958 arise out of Sessions Trials Nos. 28 of 1957 and 29 of 1957 respectively. The circumstances under which they arise are as follows : 2. In April 1956, S. N. Singh (P. W. 16) who was then posted to Kanpur as Inspector, C.I.D., Investigation Branch, U. P. was entrusted with the investigation of a case under Section 420 Indian Penal Code. In connection with the investigation of tile said case he went to Bulandshahr and arrived there on the night of the 9th May 1956. Next day, he obtained orders from the District Magistrate of Bulandhshahr for inspecting the postal records of the General Post Office, Bulandhshar, because the case which he was investigating related to those records. Armed with that order he went to the G.P.O., contacted the Post Master, and inspected the record. In the course of that inspection he discovered that the respondent to these appeals, Radha Krishan by name, was one of the three postmen who were concerned with the distribution of some of the money orders and other postal articles which formed the subject-matter of the investigation of that case. He, therefore, requested the Superintendent of Police, Bulandshahr, on the 11th May 1956 to give him a police force, so that he (S. N. Singh) could take the house search of those postmen, including the respondent. The Superintendent of Police gave the necessary orders to the S. O. Kotwali and the latter deputed Masood Murtaza, S.I. (P.W. 2) S. P. Tyagi and Saxena to make the said searches the former being entrusted with the search of the house of the respondent. Masood Murtaza went to the house of the respondent in Mohalla Teliwala at about 6 A.M. on the 12th May 1956, in the company of Harpal Singh, S. I. (C. W. 1) and two constables. He also took with him two persons from the public, viz. Dharam Prakash and Babudeo Sharma (P. W. 14) to act as witnesses of the search. He also took with him two persons from the public, viz. Dharam Prakash and Babudeo Sharma (P. W. 14) to act as witnesses of the search. When Masood Murtaza reached the house of the respondent the latter was not at home, but his father Dewan Singh was present. After complying with the legal formalities which precede searches, Masood Murtaza along with his party entered the house of the respondent. In one of the rooms there they found a locked almirah. On being asked Dewan Singh gave the key of that almirah to Masood Murtaza. The almirah was then opened in the presence of Dewan Singh and the witnesses and from inside it a number of postal articles, including five registered letters. 247 postcards and 121 envelopes were recovered. All these letters were undelivered letters. After getting a recovery list of the five registered letters, the 247 postcards and the 121 envelopes duly prepared and attested, they were put in a bag and sealed, while another and a more exhaustive list of the remaining postal articles which were also recovered in that very search was likewise prepared and attested. After completing the search Masood Murtaza returned to P. S. Kotwali Bulandhshahr and on reaching there he wrote a report about it in the general Diary at 10 o'clock the same morning. The same night at 10-45 o'clock a First Information report was dictated by him to Lajja Ram, the Head Clerk of that Police Station. 3. Meanwhile S. N. Singh, Inspector C.I.D., came to learn from Dhani Ram, one of the other two postmen whose houses were similarly searched, that the respondent had gone to Delhi. He, therefore, went in search of him to Delhi in the company of Dhani Ram. The respondent, however, could not be found there and S. N. Singh and Dhani Ram returned to Bulandhshahr the same afternoon at about 4-30 P.M. At 6 P.M. S. N. Singh come to learn on the telephone about the recovery of the registered letters, postcards, envelopes and other articles from the house of the respondent. He thereupon directed Masood Murtaza to prepare detailed lists of all the articles which had been put in the sealed bundle in the presence of two witnesses. He thereupon directed Masood Murtaza to prepare detailed lists of all the articles which had been put in the sealed bundle in the presence of two witnesses. Masood Murtaza then sent for two public witnesses, Raj Kishore (P. W. 5) and Sarfaraz Ahmad Khan, and in their presence the sealed bundle was opened and a detailed list of the registered letters, envelopes and postcards which were inside it was prepared and attested by those witnesses. Five registered letters purporting to bear Nos. 838, 123, 129, 424 and 155 were amongst the said articles. Of these registered letters Nos. 424 and 155 form the subject-matter of the trial which has resulted in Criminal Appeal No. 2011 of 1958, while registered letter No. 838 forms the subject-matter of the trial which has given rise to Criminal Appeal No. 2012 of 1958 and registered letters Nos. 23 (123) and 29 (129) form the subject-matter of the trial which has resulted in Criminal Appeal No. 2012 of 1958. One of the charges common to all these three appeals is under Section 52 of the Indian Post Office Act - hereinafter to be referred to as the Act - though in Criminal Appeals Nos. 2012 and 2013, there are charges under Sections 467 and 471 Indian Penal Code as well. The acquittal of the respondent of the latter two charges does not concern us in these appeals as no grounds challenging the correctness thereof have been taken in the Memoranda of Appeal relating thereto. The only point, therefore, which falls for our determination in these appeals is the one concerning the correctness of the acquittal of the respondent of the charge under Section 52 of the Act. 4. The respondent denied the prosecution case and stated that he had been falsely implicated as a result of party factions. He totally denied the recovery of the said postal articles from his house and in the alternative pleaded that even if they were recovered from his house they could not beheld to have been recovered from his exclusive and conscious possession. In support of his defence the respondent examined five witnesses. 5-6. The prosecution relied upon both oral and documentary evidence to prove its case against the respondent. Of the two registered envelopes which formed the subject-matter of the trial resulting in Government Appeal No. 2011 of 1958, the one bearing R. L. No. 424 (Ex. In support of his defence the respondent examined five witnesses. 5-6. The prosecution relied upon both oral and documentary evidence to prove its case against the respondent. Of the two registered envelopes which formed the subject-matter of the trial resulting in Government Appeal No. 2011 of 1958, the one bearing R. L. No. 424 (Ex. P-2) was sent by Sri Bisheshwar Dayal, Advocate, Meerut to Messrs. Chuttan Lal Murari Lal of Bulandshahr, while the other bearing R. L. No. 155 (Ex. P-3) was sent by Sri S. N. Mathur, I.P.S., to Sri Rajeshwar Swarup, Executive Engineer, Bulandshahr (His Lordship examined the evidence regarding the dispatch from Meerut and Delhi and receipt at Bulandshahr of these registered envelopes, and proceeded.) The despatch of registered envelopes bearing R. L. 424 and R. L. 155 from Meerut and Delhi respectively and their receipt at the Bulandshahr G.P.O. thus stands fully proved. 7. Registered envelope bearing R. L. 838, (Ex. P-15) of Criminal Appeal No. 2012 of 1958, was sent by Saadat Husain (P. W. 12) Sales Inspector, Jawahar Kanta, 3 Vidhan Sabha Marg, Lucknow, along with acknowledgment due receipt (Ex. Ka-16) to the Education Department of District Board, Bulandshahr. (After examining the evidence, His Lordship proceeded). The evidence of these witnesses clearly proves the despatch of R. L. 838 from Lucknow and its receipt at the Bulandshahr G. P. O. on the 6th October 1955. 8. Registered envelopes R. L. 29 (Ex. P-3) and R. L. 23 (Ex. P-5) of Crl. Appeal No. 2013 of 58 were both sent from Madhoganj in District Pratapgarh and were addressed to the President, District Board, Bulandshahr and to the Secretary Education Office, District Board, Bulandshahr, respectively. (His Lordship examined the evidence and continued.) The evidence of these witnesses clearly establishes the despatch of these registered envelopes from P. O. Madhoganj and their receipt at G.P.O. Bulandshahr on the 8th and 10th October 1955. 9. The Prosecution case in regard to these registered envelopes may now be stated. So far as R. L. 424 and R. L. 155 are concerned, the prosecution case is that the respondent committed theft of those envelopes, though the indictment against him was only for his having dishonestly and fraudulently secreted and concealed them in his house. 9. The Prosecution case in regard to these registered envelopes may now be stated. So far as R. L. 424 and R. L. 155 are concerned, the prosecution case is that the respondent committed theft of those envelopes, though the indictment against him was only for his having dishonestly and fraudulently secreted and concealed them in his house. As for R. L. 838, R. L. 23, and R. L. 29, the prosecution case is that the said envelopes were given to the respondent for delivery to their respective addressees, but instead of doing so, he dishonestly and fraudulently secreted and concealed them in his house. We may mention here even at the risk of repetition that so far as R. L. 838, R. L. 23 and R. L. 29 are concerned, there were additional charges under Sections 467 and 471 Indian Penal Code but as in the grounds of the appeals concerning those envelopes, the State has made no grievance of the acquittal under those charges, we are relieved of the necessity of going into the evidence led to prove those charges. Our enquiry is, therefore, a short one embracing the correctness or otherwise of the finding relating to the charge of secreting and concealing the said postal articles while they were in the course of transmission by post. 10. The learned Sessions Judge, on a consideration of the evidence led by the prosecution and the respondent, held that the recovery of the said five registered envelopes from the possession of the respondent had been satisfactorily proved by the prosecution. Ho however was of the opinion that the mere recovery of those envelopes could not prove the commission of the offence under Section 52 of the Act by the respondent, as those envelopes were not in the course of transmission by post, when they were stolen, secreted or concealed by him. Ho however was of the opinion that the mere recovery of those envelopes could not prove the commission of the offence under Section 52 of the Act by the respondent, as those envelopes were not in the course of transmission by post, when they were stolen, secreted or concealed by him. In these appeals before us, it was strenuously contended on behalf of the State that the learned Sessions Judges had clearly misconstrued the scope and effect of Section 52 of the Act and that on a correct interpretation thereof, the guilt of the respondent under that section stood fully proved, while on behalf of the respondent, his learned counsel, while supporting the construction, placed upon that section by the learned Sessions Judge, challenged the finding recorded by him on the question of the recovery of the said envelopes from the respondent's possession. We shall, therefore, proceed to consider these contentions, beginning with the contention of the learned Counsel for the State, and shall assume for that purpose that the findings of the court below on the questions of recovery and possession are correct. 11. In order to appreciate the merits of the rival contentions canvassed before us, it will be convenient and appropriate to refer to Section 52 of the Act at this very stage. That section runs thus : "Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates, or, for any purpose whatsoever, secretes, destroys or throws away, any postal article in course of transmission by post, or anything contained therein, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be punishable with fine." 12. The expression 'in course of transmission' is defined in Section 3 of the Act, as follows : For the purposes of this Act : "(a) a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Ch. VII : (b) the delivery of a postal article of any description to a postman or other person authorised to receive postal article of that description for the post shall be deemed to be a delivery to a post office; and (c) the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee". 13. The expression "Officer of the Post Office" is defined in Section 2(2) of the Act. According to that definition, "The expression "Officer of the Post Office" includes any person employed in any business of the Post Office or on behalf of the Post Office." 14. A plain reading of the aforesaid sections shows that for making out an offence under Section 52 of the Act, it is necessary for the prosecution to establish three ingredients : (1) that the person concerned was an Officer of the Post Office, (2) that he committed theft in respect of or dishonestly misappropriated or, for any purpose whatsoever secreted, destroyed or threw away any postal article, and (3) that the said postal article or anything contained therein was in the course of transmission by post. 15. The word 'secrets' has not been defined in the Act. Consequently it will have to be given its ordinary dictionary meaning of 'put (object or person) into place of concealment'. 16. In these appeals before us it was not contended on behalf of the respondent that he was not an 'officer of the Post Office' on the date in question, and it was only half-heatedly contended that the prosecution had failed to prove that the respondent had secreted or concealed the various postal articles - including the five registered envelopes - which were alleged to have been recovered from his possession. The finding of the court below on the first question must therefore be upheld. The finding of the court below on the first question must therefore be upheld. As for the question of 'secreting' or 'concealing' having regard to the fact that the registered envelopes with which we are concerned in these appeals were recovered about 8 months afterwards from a locked almirah from the house of the respondent, there can be no manner of doubt that the respondent was guilty of secreting or concealing them. 17. The main controversy in the present case has revolved round the question concerning the interpretation of the second and the third ingredients of the offence mentioned above. 18. According to the learned counsel for the respondent, it was necessary for the prosecution to establish (1) that the secreting, destroying or throwing away of any postal article was done with a fraudulent or dishonest intention, and (2) that the said dishonest secreting, destroying or throwing away of any postal article or anything contained in it was done when the said article was in the course of transmission by post. On behalf of the State, while it was conceded that the duty of proving that the secreting, destroying or throwing away of the postal article was done when that article was in the course of transmission was on the prosecution, it was contended very strongly that it was not necessary for the prosecution also to prove that the said secreting, etc. had been done with any fraudulent or dishonest intention. Having heard the learned counsel for the State and the respondent on this point, we are of the opinion that the construction contended for by the learned counsel for the respondent is not borne out by the language of that section. It will be noticed that when referring to 'misappropriation' the said section uses the word 'dishonestly' in connection with it, but no such qualifying word is used where the act complained of is the 'secreting, destroying or throwing away of any postal article'. On the contrary the expression used in connection with those acts, viz., 'for any purpose whatsoever' clearly shows that for the said acts, no mens rea on the part of the officer of the Post Office is necessary to be proved. On the contrary the expression used in connection with those acts, viz., 'for any purpose whatsoever' clearly shows that for the said acts, no mens rea on the part of the officer of the Post Office is necessary to be proved. We are, therefore, clearly of the view that for an act involving the secreting, destroying or throwing away of any postal article, it is not necessary for the prosecution to prove any fraudulent or dishonest intention on the part of the officer of the Post Office concerned. 19. But while Section 52 does not require the proof of any dishonest or fraudulent intention of the part of the officer of the Post Office responsible for the secreting, destroying or throwing away of any postal article, it does require the prosecution to establish that when any of the said acts was committed the said article or anything contained therein was 'in the course of transmission by Post.' According to the definition of the expression "in the course or transmission by post" (ubi supra), a postal article is deemed to be in the course of transmission from the time it is delivered to a Post Office till the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Ch. VII of the Act. According to the definition of the expression 'delivery to the addressee' (see Section 3 (c) quoted above) the delivery of a postal article at the house of the addressee or to the addressee or his servant or agent or other person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addressee, has been held to amount to delivery to the addressee. It is not the case of the respondent that the registered envelopes in question in the three appeals had been disposed of in accordance with the provision of Ch. VII of the Act when they were recovered from his house. It is also not his case that the said registered envelopes had not been delivered to the various Post Offices for transmission to their respective addressees. VII of the Act when they were recovered from his house. It is also not his case that the said registered envelopes had not been delivered to the various Post Offices for transmission to their respective addressees. The sole point, therefore, which has to be decided is whether the prosecution, can be said to have succeeded in establishing that the said registered envelopes were, or must be deemed to have been, in the course of transmission when they were recovered from the possession of the respondent. On this point the contention of the learned counsel for the respondent was that as the prosecution had failed to produce the addressees of those registered envelopes to prove that they had not received the said envelopes, there was no evidence to show that the said registered envelopes were 'in the course of transmission of post' when they were recovered from his house. He, therefore, contended that as the prosecution had failed to prove one of the ingredients of the offence punishable under Section 32 of the Act, the respondent could not be convicted under that section. 20-24. Having heard the learned counsel for the parties on this point we find ourselves unable to hold - as the learned counsel for the respondent would have us to do - that the omission on the part of the prosecution to produce the addressees of the registered envelopes with which we are concerned in these appeals to prove that they did not receive the registered envelopes addressed to them, is necessarily fatal to the prosecution's case. It is common place that a fact can be proved either by direct evidence or by circumstantial evidence. If the contention of the learned counsel for the respondent is accepted then it will do away with an important branch of evidence on which the prosecution, like any other private litigant, is entitled to rely. The point, therefore, which has to be decided is whether on the facts found established in these appeals, it would be possible to hold that the conclusion sought, to be derived from those established facts satisfies the test laid down in the definition of the word 'proved' in Section 3 of the Evidence Act. It is in the light of these observations that we shall examine the evidence led by the prosecution to prove that the five registered envelopes, R. L. 424 Exs. It is in the light of these observations that we shall examine the evidence led by the prosecution to prove that the five registered envelopes, R. L. 424 Exs. P-2 and R. L. 155 P-3 of Criminal Appeal No. 2011 of 1958 and R. L. 838 Ex. P-15 of Criminal Appeal No. 2012 of 1958 and R. L. 23 Ex. P-5 and R. L. 29 P-3 of Criminal Appeal No. 2013 of 1958 were still in the course of transmission by post when they were recovered from the possession of the respondent. But before we do so we might mention that this objection of the learned counsel would apply only to registered envelopes R. L. 424 Ex. P-2 of Criminal Appeal No. 2011 of 1958 and R. L. 838 Ex. P-15 of Criminal Appeal No. 2012 of 1958, because so far as the other three registered envelopes are concerned, viz. R. L. 155 Ex. P-3 of Criminal Appeal No. 2011 of 1958, and R. L. 29 Ex. P-3 and R. L. 29 Ex. P-5 of Criminal Appeal No. 2013 of 1958, the prosecution has led evidence to show that they were not received by their respective addressees. (His Lordship examined this evidence and the evidence that other articles were in the course of transmission, when they were recovered and then continued). 25. Finally it is to be remembered that if the finding on the question of possession is correct - a matter which we shall go into presently - then under Section 106 of the Evidence Act it was for the respondent to prove how he came by those registered envelopes, since it was a matter which was especially within his knowledge. In this connection the observations made by a Bench of this Court in State of U. P. v. Randhir, 1959 All LJ 519 : (A.I.R. 1959 Allahabad 727) to which one of us was a party, may be usefully quoted. Say their Lordships : "Section 101 of the Evidence Act lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. Say their Lordships : "Section 101 of the Evidence Act lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience." 26. The failure of the respondent to give even a reasonable explanation as to how he came by those envelopes is an additional circumstance which supports the prosecution case that the said envelopes were 'in the course of transmission by post' when they were recovered from the possession of the respondent. The respondent must accordingly be held guilty under Section 52 of the Act, provided the finding of the court below on the question of the recovery of the said registered envelopes from the possession of the respondent is upheld. We shall, therefore, take up the consideration of that question without any further delay. 27. So far as the question of the said recovery is concerned, the case of the respondent, which has been outlined earlier in this judgment, is that the said registered envelopes and other postal articles as detailed in recovery lists (Exs. Ka 8 and Ka 9) were not recovered from his house, and alternatively that even if they be held to have been recovered from his house, they cannot be held to have been recovered from his conscious and exclusive possession, so that the respondent cannot be held guilty under any provision of Law. 28. (His Lordship set out the evidence relied upon by the prosecution on the question of recovery of the articles from the possession of the respondent). 29. On behalf of the respondent, it was contended that the search in question was illegal for a variety of reasons. In the first place it was argued that as the provision of the Section 103 (3) Criminal Procedure Code which requires that a copy of the list of the seized articles, signed by the witnesses must be delivered to the occupant of the place searched or some person in his behalf had not been complied with in the present case, the search was vitiated. This contention has no merits. The court below found that no such list was given by Masood Murtaza to Dewan Singh and has given cogent reasons for taking that view. Mr. Katju, learned counsel for the appellant has not been able to advance a single reason which would persuade us to take a different view. It must, therefore, be held that Masood Murtaza committed a breach of this provision of law. But though there has been a breach of this provision of Section 103 (3) Criminal Procedure Code, we fail to see how it can result in vitiating the search, the legality of which does not depend upon the observance of the said provision of law, though it might affect the probative value which is to be attached to the recovery of the incriminating articles - a matter which we propose considering next. 30. So far as the search itself is concerned, it was argued that as the two search witnesses were not residents of the locality the provisions of Section 103 (1) Criminal Procedure Code were not complied with. The two search witnesses in the present case were Basudeo Sharma and Dharam Prakash. As stated earlier, Basudeo Sharma (P. W. 15) was examined in Sessions Trial No. 30 of 1957 (Criminal Appeal No. 2011 of 1957) and Sessions Trial No, 29 of 1957 (Criminal Appeal No. 2013 of 1957), while both, he (P. W. 10) and Dharam Prakash (P. W. 7) were examined in Sessions Trial No. 28 of 1957 (Criminal Appeal No. 2012 of 1958). Basudeo Sharma stated that on the day in question he was staying with his brother-in-law Kanchhi Lal Gautam about 20 yards from the house of the respondent. Early on the morning of the 12th of May 1956, when he was standing outside the house of his brother-in-law, a Head-constable came up to him and asked him to witness a search. He went with that Head-constable to the house of the respondent. Dharam Prakash the other witness was returning from an early morning walk when he was asked to witness the present search. He did so. He went with that Head-constable to the house of the respondent. Dharam Prakash the other witness was returning from an early morning walk when he was asked to witness the present search. He did so. Both these witnesses thereafter testified as to how they along with Masood Murtaza and some other police men entered the house of the respondent after giving their searches to Dewan Singh and each other, how from inside a locked almirah in a room upstairs - the key of which was supplied by Dewan Singh - the incriminating registered envelopes along with a number of other postal articles were recovered, how two lists thereof were prepared and signed by them and finally how the registered envelopes in question and some other postal articles were placed in a bag and sealed. In his cross-examination, Basudeo Sharma admitted that he was a resident of Kaupur but at the time of the search was staying with his brother-in-law in Bulandshahr. The fact that he was not a permanent resident of the locality in which the respondent's house is situate, would not take him out of the category of witnesses referred to in Section 103 Criminal Procedure Code. Dharam Prakash is of course a witness of the locality as his house is situate 100 or 125 paces from that of the respondent. The respectability of these witnesses not having been challenged before us, we have to take it that they are respectable witnesses. Consequently so far as these witnesses are concerned, they satisfy both the conditions required of them. The evidence of Masood Murtaza is to the same effect as that of the two witnesses just referred to above. All these witnesses were cross-examined at length but nothing has been elicited from them to show that they had any animus against the respondent or that Basudeo Sharma and Dharam Prakash were in any way under the influence of the Police. It is true that Qamaruddin (P. W. 4) has stated that there was Parti bandi amongst the employees of the Bulandshahr G.P.O. and Ram Pratap Singh (D. W. 1), Keshawa Chandra (D. W. 3) and Gondha Ram (D. W. 4) have testified that there were two such parties, one headed by the respondent and the other by some other persons, including Kanchhi Lal, at whose house Basudeo Sharma was staying when the search took place. But in our opinion the fact that Basudeo Sharma was staying with Kanchhi Lal when the search took place would not make him an interested witness, as the evidence shows that the former had arrived in Bulandshahr only the previous evening, and it is impossible to believe that Kanchhi Lal would have posted him overnight with all the news about the partibandi in his Post Office. Besides, the raid took place more or less suddenly without any previous warning and there is nothing to show that Kanchhi Lal was even aware that it was going to take place or that he happened to be present when it took place. There is thus no reason for holding that Basudeo Sharma was an interested witness. It is true that the evidence of Dharam Prakash shows that some lawyers and Mukhtars live near the house of the respondent, and they could be asked to witness the search, but as they were not at their houses and had gone for their morning walks, (vide Masood Murtaza), they could not naturally be asked to witness the said search. 31. Another argument which was advanced in this connection was that the incriminating articles were planted by the police either on their own or at the instance of the respondent's enemies. No weight can be attached to this submission for the simple reason that the number and sizes of the postal articles recovered make the planting thereof without the knowledge of the search witnesses, and particularly the father of the respondent, impossible. If there had been any truth in the planting theory, the least the respondent could have done was to have produced his father as a witness to prove that fact. There is thus not an iota of evidence on the record, even to suggest - much less to show - that the search in question was not conducted in a proper and legal manner. 32. Another argument addressed to us was based upon the failure of S. N. Singh, Inspector C.I.D., to observe the provisions of Section 165 Criminal Procedure Code, before ordering the search. 32. Another argument addressed to us was based upon the failure of S. N. Singh, Inspector C.I.D., to observe the provisions of Section 165 Criminal Procedure Code, before ordering the search. The court below has found that inasmuch as S. N. Singh failed to record his reasons as to why the search was necessary and further did not state as to what was to be recovered and also did not send information about it to a Magistrate who could take cognisance of the matter, he had undoubtedly violated the provisions. of Section 165 Criminal Procedure Code. But it held that such irregularity did not affect the merits of the case, as S. N. Singh had no reason even to suspect the presence of the incriminating postal articles in the possession of the respondent. In our opinion the view taken by the court below is correct. No question of complying with the provisions of Section 165 Criminal Procedure Code could arise when the postal articles in question were recovered in connection with a search for some other postal articles not connected with them. Learned counsel for the respondent has been unable to satisfy us that the non-observance of this provision of law has in any way affected the case on merits. This contention has also, therefore, to be rejected. 33. It was also argued on behalf of the respondent that the recovery list (Ex. Ka. 8) was not prepared at the house of the respondent, but was written out at the Kotwali and the registered envelopes with which we are concerned in these three appeals were given to the police by the enemies of the respondent. We are unable to accept either of these contentions. (After giving reasons His Lordship proceeded). 34. Learned counsel for the respondent also contended that as none of the registered envelopes alleged to have been recovered from his possession bore number R. L. 23 and R. L. 29, his prosecution for secreting or concealing them was illegal. This contention is also devoid of all force. (His Lordship examined this contention and continued). 35. 34. Learned counsel for the respondent also contended that as none of the registered envelopes alleged to have been recovered from his possession bore number R. L. 23 and R. L. 29, his prosecution for secreting or concealing them was illegal. This contention is also devoid of all force. (His Lordship examined this contention and continued). 35. Lastly it was argued on behalf of the respondent that even if the search was legal and the alleged recoveries are held to have been made from the house of the respondent, still he cannot be held guilty in the absence of any evidence to show that the respondent was in conscious and exclusive possession of the articles so recovered. This contention was based on two grounds : (1) that the key of the lock was given by Dewan Singh, and (2) that the almirah also contained papers belonging to Dewan Singh. The suggestion of the respondent thus was that the said postal articles must be deemed to have been in the possession of Dewan Singh. We are however unable to accept this suggestion for a number of reasons. In the first place, the respondent alone had the opportunity and the means to secure such a large number of postal articles, (2) that at least nine of those postal articles were addressed to the respondent himself (vide Ex. Ka-9, serial No. 66), (3) that Dewan Singh, who, we are informed is a very old man, would not foist the said incriminating articles on his son and thus ruin his career for ever, and (4) that the respondent alone can be said to have had some motive for secreting and concealing the registered letters and other postal articles in question. We have deliberately used the expression 'can be said to have had some motive' instead of giving a firm finding on this matter, because that is a matter which rests to some extent on speculation, the foundation for which is to be looked for in the letter (Ex. Kha-6) dated the 13th February 1956 which the respondent sent to the Post Master of Bulandshahr. In this letter, which was sent by registered post, the respondent blamed the Post Master for the alleged losses of some letters and money orders addressed to him (the respondent) and informed him that for future losses of his letters etc.; he would hold the Post Master responsible. In this letter, which was sent by registered post, the respondent blamed the Post Master for the alleged losses of some letters and money orders addressed to him (the respondent) and informed him that for future losses of his letters etc.; he would hold the Post Master responsible. He ended up that letter by stating that there was partibandi in the Bulandshahr Post Office and as he (the Post Master) was the leader of the party of Liladhar, the respondent could not hope to get any justice from him. The motive for the respondent secreting and concealing postal articles on such a big scale may therefore, very well have been a desire on his part to cause embarrassment to the Post Master as he would be the officer who would be held blameworthy for their losses. For all these reasons, we are satisfied that the prosecution must be held to have established all the ingredients of the offence under Section 52 of the Act beyond reasonable doubt. The finding of the court below to the contrary and the order of acquittal based upon that finding are thus manifestly erroneous and must be set aside. 36. As regards the question of sentence, we are of the opinion that in view of the fact that the respondent did not secret or conceal the postal articles in question for any pecuniary reason, a sentence of one year's R. I. in each of these appeals, would be sufficient to meet the ends of justice. As the offences are separate and distinct, we direct the said sentences to run consecutively. 37. The result therefore is that all these three appeals are allowed, the orders of acquittal are set aside, and the respondent is separately sentenced to one year's R. I. in each of these appeals - the sentences being directed to run consecutively. The respondent is on bail. He shall surrender forthwith and serve out the sentences imposed upon him.