JUDGMENT : Das, J. - The appellate Bholanath Das has been convicted u/s 52 of the Indian Post Offices Act (Act 6 of 1898) and sentenced to R.I for three years and to pay a fine of Rs. 100 in default to undergo R.I for one month more. 2. The Appellant was working as a postman at the Baripada Head Post Office till 27-12 1962 when he was transferred to Rairangapur P.W. 36 the Inspector of Special Police Establishment, Puri, got some information from a secret source that the Appellant had secreted some postal articles, such as calendars, Punjikas, samples of medicines sent to some local people through post instead of delivering them to the respective addressees. On receipt of such information, he lodged F.I.R. (Ext. 24) on 3-1-1963 and proceeded to Baripada and secured the house said to have been in occupation of the Appellant, on 5-1-1963. He seized some articles under seizure list, Ext. 14 and submitted 80 charge-sheet for an offence u/s 52 of the Indian Post Offices Act. After due investigation the accused was put up for trial before the Special Judge, Puri, who convicted and sentenced him as stated above. 3. The accused pleaded not guilty and contended that he left the house from which the seizure had been made by the end of December 1962 when he was transferred to Rairangapur, and this case has been falsely instituted at the instance of some of his enemies such as p.ws. 17 and 19 two of the co-tenants of the said house. 4. In support of the prosecution case a number of witnesses have been examined. They may be classified as follows (1) Witnesses to occupation by the accused of the house from which the seizure was made. They are p.ws. 17, 19, 25, 26, 30 and 36; (2) Seizure witnesses such as p.ws. 19 and 30 (3); Witnesses connected with the despatch and delivery of postal packets containing calendars and Punjikas, said to have been recovered from the house of the accused. They are p.ws. 2, 3, 10 to 16 and 34(4) Witnesses connected with the despatch and delivery of sample medicine packets said to have been recovered from the house of the accused. They are p.ws. 1, 6, 31, 33 and p.ws. They are p.ws. 2, 3, 10 to 16 and 34(4) Witnesses connected with the despatch and delivery of sample medicine packets said to have been recovered from the house of the accused. They are p.ws. 1, 6, 31, 33 and p.ws. 4, 5, 7, 8, 32, 27, 28 and 29 some of whom are doctors, owners of drug-houses and representatives of drug-manufacturing firms and (5) Some other postal employees such as p.ws. 9, 18, 20, 21, 22 and 24. The I.O. who conducted the case is P.W. 36 and P.W. 23 is a witness who appears to have made a complaint against the accused for not properly delivering letters to him. 5. The most important question for consideration in this case is whether the house from which the articles are alleged to have been recovered was in fact in sole occupation of the accused. Admittedly the accused postman was absent from Baripada and was working at Rairangapur on the date of search. His wife who is a school mistress, was undergoing some medical treatment at Cuttack during that time. It is the case of the I.O. P.W. 36 that he did not personally know that the accused was in occupation of the house, but he was so informed by p.ws. 17 and 19 who admittedly occupy a different portion of the same premises. The I.O. has prepared a sketch-map (Ext. 13) of the premises. The house has a common passage and a common latrine which admittedly were being used by all the tenants. It is the evidence of P.W. 36 that though the accused and his wife were absent, their two sons. Haripada and Krishnapada, aged eleven and eight respectively, were present in the house. In course of the search the I.O. seized some calendars contained in postal book-post packets (M.O. II series) from a Bhadi in a common passage room and some medicine sample bottles contained in a box were also found from the common passage room. The 1.O. entered the bedroom of the accused and found two almirahs, one big and the other small one. The key of the bigger almirah was produced by Haripada, son of the accused. The small one' was open. Some of the sample medicines are alleged to have been found from the bigger almirah and some from the smaller one. The 1.O. entered the bedroom of the accused and found two almirahs, one big and the other small one. The key of the bigger almirah was produced by Haripada, son of the accused. The small one' was open. Some of the sample medicines are alleged to have been found from the bigger almirah and some from the smaller one. Some other articles such as some postal bags and telegraph wires were also found from the premises but they are not the subject-matter of the case. It is said that some departmental action was called for in respect of these articles. The I.O. made the search in the presence of p.ws. 19 and 30 and prepared a seizure list, Ext. 14. To prove the occupation of the house by the accused, reliance was placed mainly on the evidence of p.ws. 17, 19 and 26 P.W. 26 Krushna Gopal Ghose is the owner of the house. According to him, he had let out a portion of the house to the accused and the other portion to P.W. 17 admittedly P.W. 19 was also residing in a portion of the said house. The prosecution strongly relied upon Ext. 16, a counterfoil of the rent-receipt granted by P.W. 26, in support of its story of possession of the house by the accused. This receipt is dated 6-1-1963. According to P.W. 26 the accused obtained the counterfoil of receipt on 6-1-1963 after paying the rent to him. From Ext. 16, it appears that the name of the accused, Bholanath Das, was first written on it and later it was struck out and the name of Ahalya Kumari Ghose was written. Ext. 16 relates to the payment of rent for the months of November and December, 1962 and not for January, 1963 with which we are now concerned. When the witness was confronted as to why the name of Bholanath Das was struck out and the name of Ahalya Kumari Ghose was written, his reply was that the accused wanted that the name of his wife should be written as be had been transferred to Rairangapur and his wife would continue to live in the house. This hardly inspires any confidence. There was nothing wrong if the wife continued to stay in the house taken by her husband. This hardly inspires any confidence. There was nothing wrong if the wife continued to stay in the house taken by her husband. Further, the witness could not satisfactorily explain as to why Ahalya Kumari Ghose was written instead of Ahalya Kumari Das. According to him it was by mistake and because Ahalya was born in a Ghose family he wrote like this. If the receipt had been granted in the presence of and to the accused, there probably was no scope to commit such mistake or correct the writing. If the accused wanted on 6-1-1963 that the receipt should be granted in the name of his wife, there was no necessity for the landlord to write out the name of the accused first and then to correct it and the accused could never have accepted a receipt incorrectly granted in the name of his wife as Ahalya Kumari Ghose. Under the circumstances, it is reasonable to infer that the correction was made at the back of the accused and at the sweet will of the landlord. It may be mentioned that the search took place on 5-1-1963 and it is extremely doubtful that immediately on the day following the search, the accused would have paid rent to P.W. 26 and obtained a receipt so as to create evidence against himself regarding possession of the house. It may be remembered that it is the case of the accused that he left the house on the 27th and 28th of December when he went to Rairangapur and thereafter his children were staying in the house of one Keshab Das. It is the evidence of P.W. 26 that the accused went on paying him rent from January, 1963 and he was in arrears for the last three months. The witnesses deposed in January 1964. Therefore, according to his evidence the accused paid him rent until the end of September, 1963. The witness admitted that the counter foil of the rent receipts were with him, but not a single counter foil has been filed to show that in fact the accused continued to pay the rent from January, 1963 onward, that is, even after his transfer to Rairangapur and the house was still under his occupation. The witness admitted that the counter foil of the rent receipts were with him, but not a single counter foil has been filed to show that in fact the accused continued to pay the rent from January, 1963 onward, that is, even after his transfer to Rairangapur and the house was still under his occupation. In view of the aforesaid position, the evidence of P.W. 26 the main witness for the prosecution regarding occupation of the house by the accused appears to be wholly unsatisfactory and cannot be accepted. 6. We shall next examine the evidence of the other two co-tenants, p.ws. 17 and 19. It is admitted that P.W. 17 was in occupation of the other portion of the premises, along with P.W. 19. It is the evidence of both these witnesses that the house was in occupation of the Appellant. It was contended on behalf of the Appellant that these witnesses are in the nature of accomplices as they themselves admitted to be in occupation of the adjoining portion of the premises from which the articles were recovered, and in case, they were using the common passage wherefrom M.O.I series was recovered, and just to extricate themselves from the offence they have passed on the liability to the accused. Further, it was suggested that P.W. 19 being a Pharmacist of Baripada, it is not improbable that he himself had kept some of these sample medicinal bottles or packets. Even without examining the question whether they are accomplices, or not, it is necessary to examine the prosecution evidence on this point with great care to find out if the accused was ill exclusive possession of the articles, particularly when neither the accused nor any adult member of his family was I present and the rooms in occupation of the accused and p.ws. 17 and 19 formed but one compact block with common latrine and common passage etc. I have already said that the evidence of the landlord P.W. 26 and the rent receipt, Ext. 16 do not satisfactorily establish that the Appellant was in possession of the house on 5-1-1963 even after his transfer to Rairangapur. It is the case of the Appellant that when he was transferred, he left his children at Baripada in the house of his relation Keshab Chandra Das. 16 do not satisfactorily establish that the Appellant was in possession of the house on 5-1-1963 even after his transfer to Rairangapur. It is the case of the Appellant that when he was transferred, he left his children at Baripada in the house of his relation Keshab Chandra Das. It is in evidence that the Appellant had two sons, aged eleven and eight and also a small daughter aged five years. It is also the evidence of P.W. 17 that Keshab was residing in the rooms to their west separated by a partition wall. P.w. 17 however wants to conceal from the Court the fact that the children of the accused were taking their meals in Keshab's house. Though before the police he made such a statement, in Court his version was quite different when he said that the sons of the accused were taking their meals with the postal accountant. It was rightly commented by the learned Counsel for the Appellant that P.W. 17 wants to conceal the fact just to probablise a story that the children were not staying with Keshab at all, but were staying in the house in question and taking meal in the house of the postal accountant. It is difficult to believe that the accused would have left his three children of tender years alone when some of his relations were staying nearby. That the house was open when P.W. 36 arrived there for search is admitted both by p.ws. 19 and 36. It further appears that the house was accessible to all and sundry. It is in evidence that by the Bhadi in the passage room, one can pass on to the bedroom from where the articles were seized. It is the evidence of P.W. 17 that the family members of the accused used to lock that bedroom when the husband and wife went on their duty and when the sons went to school. Who those family members are not clear from the evidence. In that case also admittedly other persons had access to the room. P.w. 19 admitted that the common passage room was meant for all of them the Bhadi of the common passage room the M.O. II series and from the room itself a wooden box containing some medicine bottles were recovered. In that case also admittedly other persons had access to the room. P.w. 19 admitted that the common passage room was meant for all of them the Bhadi of the common passage room the M.O. II series and from the room itself a wooden box containing some medicine bottles were recovered. Thus, on the evidence neither the bedroom nor the common passage room was in exclusive possession of the accused even if it be held that he was let out the house by P.W. 26 from January, 1962. 7. It is the case of the prosecution that there were two almirahs found in the bedroom and the key of the bigger almirah was supplied by Haripada to the 1.0. On opening the almirah the I.O. seized some sample medicine bottles and packets. The small almirah was already open. It is not under stood why Haripada was not examined. He would have been in a position to say how he got the key and whether the almirah was accessible to others. It may be mentioned here that some other articles were also found by the I.O. in the almirah but he did not seized them. It is not in evidence to whom those other articles belonged. In this connection, it is necessary to refer to a decision of the Supreme Court in Radhakishan Vs. State of U.P.. In that case the allegation against the accused was that he either stole, or secreted five registered letters and fabricated three receipts showing that the registered letters were in fact received by the addressees. These very articles were found in an almirah the key of which was produced by the father of the accused. Their Lordships held that all that the prosecution had been able to prove was that those articles were found in an almirah of the house in which the accused lived jointly with his father and of which the key was furnished by the father, and in the circumstances, it would not be legitimate to infer that the almirah was even in the accused's joint, much less in his exclusive possession. The circumstances that the almirah contained, apart from the registered articles in question certain other articles belonging to the accused, cannot sustain an inference that the almirah was in the accused's possession exclusively or even jointly with his father. The circumstances that the almirah contained, apart from the registered articles in question certain other articles belonging to the accused, cannot sustain an inference that the almirah was in the accused's possession exclusively or even jointly with his father. In the circumstances, their Lordships held that the prosecution had failed to prove that those letters were in exclusive possession of the Appellant and they refused to draw any presumption against the Appellant and acquitted him of an offence u/s 52 of the Post Offices Act. The facts of that case are absolutely identical to the facts in the present case. In the present case, it was the son of the accused who gave the key of the almirah. There is no evidence to show that the accused in fact handed over the key to his son, or he himself was in exclusive possession of the articles. We have already seen that the accused was not in exclusive possession of the house. In the absence of any other evidence it cannot also be said that the accused was in exclusive possession of the almirah from which the articles were found. 8. It was argued by the learned Counsel for the Appellant that even if it be held that, the accused was in possession of the house or even of the almirah, there is evidence to show that the search has not been carried out properly. For this he laid emphasis on some statements of p.ws. 19 and 36 made some comments on the unsatisfactory nature of the search. According to the evidence though P.W. 19 was present at the time of the search, he had also been shown to have been on his duty at the hospital at the same time. In fact, P.W. 19 himself admitted this position in his evidence. He said 1 did not attend duty in the morning of the date of search. I was shown to have attended regular duty that morning. According to P.W. 19 however, that was by the arrangement of the I.O. p.w.30 though claimed to have been a search witness and signed the seizure list, Ext. 14, was unable to say what was written by the, I.O. in Ext. 14. Ext. 14 was signed by Haripada Das said to be the son of the accused. According to P.W. 19 however, that was by the arrangement of the I.O. p.w.30 though claimed to have been a search witness and signed the seizure list, Ext. 14, was unable to say what was written by the, I.O. in Ext. 14. Ext. 14 was signed by Haripada Das said to be the son of the accused. It is the prosecution evidence that the search took place in the presence of the two sons of the accused, one is aged eleven and according to P.W. 30, the younger son, aged about seven years, was not able to talk well. The presence of two boys of such tender years during the search is wholly meaningless. On the basis of this kind of search evidence, it was contended that the search was only an one-man show of the 1.0. and not a search in the legal sense. Whatever might be the infirmities in the evidence of p.ws. 19 and 30, there is no reason to discard the evidence of the I.O. who conducted the search and made certain recoveries under Ext. 14. 9. It was next contended on behalf of the Appellant that there is nothing to show that any of recovered articles was postal article in course of transmission by post so as to attract Section 52 of the Post Offices Act. The expression postal article ha been defined u/s 2(i) of the Post Offices Act to include sample packets and every article or thing transmissible by post. The term 'transmissible' means nothing more than that it is capable of being transmitted from one place to another (See in Re: Govindan Nair). Section 3(a) of the Post Offices Act clearly lays down that until an article despatched by post is delivered or can be said to be delivered, it will be deemed to be in course of transmission. 10. In support of the fact that the recovered articles were despatched by post and yet remained undelivered, the prosecution has laid some evidence which I shall presently deal. P.w. 3 is the manager of B.P. Ghosh & Co. who has said that their firm which prepare calendars and Panjikas had sent some calendars by post, to different customers in Mayurbhanj district. M.O. II series are the postal packets sent by the above firm. P.w. 3 is the manager of B.P. Ghosh & Co. who has said that their firm which prepare calendars and Panjikas had sent some calendars by post, to different customers in Mayurbhanj district. M.O. II series are the postal packets sent by the above firm. P.w. 2 the postmaster of Bali has deposed that the said packets bore the seal of the Bali post office from where they were despatched. Some of the addressees (p. ws. 10 to 16) in M.O. II series have been examined to prove that they have not been delivered their packets. Thus, it can be, easily inferred that these packets, M.O. II series were the serial articles which were in course of transmission. There is no evidence to suggest that M.O. II series were collected after such delivery to correct addresses were made. In that view of the matter, there would not have been any difficulty to sustain a conviction under 52 of the Post Offices Act, if it would have been proved that the accused was in exclusive possession of the M.O. II series, but as we have found from evidence these were recovered from the Bhadi of the passage room which was accessible to p.ws. 17 and 19 and probably to many others. 11. With regard to the medicinal samples p.ws. 1, 6, 31 and 33, the employees of some of the manufacturing concerns I have been examined to prove that some of the medicine samples, were despatched by their respective firms to some doctors at Baripada. Most of these medicine sample bottles are without any cover so as to be identifiable that these were transmitted by post. In fact, all these witnesses admitted that there is nothing to show that these sample M.Os. were sent, by post and that such samples might not have been sent through their representatives. The doctors p.ws. 4, 5, 7, 8 and 32 have been examined to prove that they did not receive any such samples but in the absence of proof of despatch of any such sample medicines to them by post, their evidence has no relevancy. In one of the medicinal sample packets such as M.O. XVI, there is a torn cover with a postal seal to show that it was sent to Baripada, but there is nothing to show to whom it was addressed. The covers of some magazines M.Os. In one of the medicinal sample packets such as M.O. XVI, there is a torn cover with a postal seal to show that it was sent to Baripada, but there is nothing to show to whom it was addressed. The covers of some magazines M.Os. XVII and XVIII also bore postal seals. There also the names of the addressees are not found and there is nothing to show that they were found in course of transmission. To make out a case u/s 52 of the Post Office Act, it is necessary to establish that the articles were in the process of transmission. That apart, we find all these articles were also not found from the exclusive possession of the accused.. The evidence of the postal employees does not throw any light of this question. They only state about the procedure adopted in sorting out the postal articles and the accused as a postman used to take part in the same. The learned trail Court was conscious of the paucity of evidence and held It is true that no such direct evidence is forthcoming that the very sample seized in the case were transmitted by post but all the same he proceeded to convict the accused merely on the suspicion as he was of the view that the articles must have been transmitted by post and could not have come to Baripada by any other means. It is well settled that no conviction can be sustained on mere suspicions, however, strong they may be. Thus, the prosecution has failed to make out a case against the Appellant beyond all reasonable doubt. The order of conviction and sentence is set aside and the accused is directed to be set at liberty forthwith. In the result the appeal is allowed. Final Result : Allowed