Judgment: The State, represented by the Public Prosecutor, has preferred this appeal challenging the correctness and propriety of the judgment of the learned Sessions Judge, Tirunelveli, made in G.A. Nos. 25 and 28 of 1974, dated 22nd April, 1974 acquitting both the accused of the offence punishable under section 3 of the Madras Gift Goods (Unlawful Possession) Act, 1961 (Madras Act XL1X of 1961) (hereinafeter referred to as the Act), of which they were convicted and sentenced by the Sub-Divisional Judicial Magistrate, Kovilpatti in C.C.No. 217 of 1973 by his judgment dated 31st January, 1974. 2. The crux of the indictment as per the prosecution case is as follows: On 15th February, 1973, at about 9-15 p.m.. on information, the Tahsildar and Executive II Glass Magistrate, Kovilpatti (P.W.I), along with the Taluk Supply Officer and party, searched accused-1’s Lorry Booking Office, Kovilpatti, and seized 33 packets of American Soya Bean Salad Oil, each packet containing six tins in the presence of the first accused. On the same night, on information furnished by the first accused, he seized 424 packets of Soya Bean Salad Oil at Vinayagar Match Factory and Sivagami Match Factory, belonging to his (accused-1’s) son and wife respectively. These contrabands(457 packets in all, containing 2742 tins) were sent by accused-2 of Trivandrum to the first accused at Kovilpatti for disposal and. transport. The evidence of P.W. 1. is to the effect that the 1st accused told him that these contrbands were brought by the son-in-law of accused-2 and one Kolappan Pillai through a lorry bearing Registration No. MDK 1448 at 9 a.m. on 15th February, 1973 and were entrusted to him for the purposes of transporting some of them to Madurai and selling the rest in the nearby villages. P.W. 1 would further testify that accused-1 had no Katchathu (voucher) or any document for the custody of these contrabands in the above said premises. These properties were seized under exhibits P-l to P-3 between 11. P.M. on 15th February, 1973 and 1-30 a.m. on 16th February, 1973. P.W. 1 would further testify that accused-1 had no Katchathu (voucher) or any document for the custody of these contrabands in the above said premises. These properties were seized under exhibits P-l to P-3 between 11. P.M. on 15th February, 1973 and 1-30 a.m. on 16th February, 1973. When questioned by him, according to P.W. I, accused-1 told him that accused-2 contacted him over phone from Trivandrum at 11 p.m. on 1.4th February, 1973 and informed him that he would be sending American Soya Bean Salad Oil in a lorry with a certificate from the Commercial Taxes Department as though 70 packets of wheat were being transported, to which proposal accused-1 lad agreed. P.W.1 recorded a signed statement from accused-1 under Exhibit P-4, which was read over to and accepted by accused-1. The said, document Exhibit P-4 is also attested by the Special Deputy Tahsildar, the Taluk Supply Officer and an Assistant in the Taluk Office, who were presentthere. The goods that were seized by P.W. 1 were gift goods since some of the packets had been affixed with a label “CARE”, whereas the remaining packets were affixed with the rubber stamp impression “Cathwel”. Then, he sent a report about the seizure on 16th February, 1973 to the District Collector, who hereafter preferred a complaint to the Superintendent of Police. P.W. 5, the then Sub-Inspector of Police, Kovilpatti on receipt of the complaint Exhibit P-9 from the Collector of Tirunelveli on 24th February, 1973 registered a case in Crime No. 76 of 1973 under section 3 of the Act and investigated. He examined P.Ws. 1 to 4 and other witnesses and filed a charge-sheet. Thereafter, both the accused surrendered before the Court. Of the witnesses examined, P.W. 2, Mr. D’Silva, is the Administrative Assistant, Catholic Relief Service, United States Catholic Conference, New York, attached to the Catholic Relief Service, Madras Zonal Office. It is his evidence that generally consignments of goods of this nature are sent by the United States to the Food Corporation of India, which in turn distributes the same to various consignees such as convents and other similar institutions, the Corporation of Madras, etc., as per their allocations, and these gift goods are never consigned to private individuals. It is his evidence that generally consignments of goods of this nature are sent by the United States to the Food Corporation of India, which in turn distributes the same to various consignees such as convents and other similar institutions, the Corporation of Madras, etc., as per their allocations, and these gift goods are never consigned to private individuals. While distributing, the consignments of Soya Bean Oil should be distributed in loose condition but not in bulk, and the maximum quantitity of oil which is distributed to the beneficiary is not more than three lbs. per month. He would say that each tin contains 7.7 lbs. of Soya Bean Oil. All the material objects except one, according to him, are in the original packing as packed in the United States, as seen from the iron band over the packet. Then, the witness describes the particulars of the consignments and the manner in which these consignments are sent through ships. P.W.3 is the Field Officer attached to “CARE”, Tamil Nadu, situated at the D.P.E. Buildings, Madras. On 9th April, 1973 he inspected the goods in question at the warehouse in Kovilpatti. 80 cartons were found to bear the labels “CARE” and they are marked as M.Os. 1 to 80. It is his positive evidence that they received these M.Os. 1 to 80 as gift goods from the United States. The witness further deposes that the majority of the beneficiaries are the poor section of the school children and the other beneficiaries are pre-school children and pregnant and lactating mothers and these gift goods should not be sold in India. P.W. 4 is the Deputy Assistant Administrative Officer attached to CARE Tamil Nadu. As per his evidence, M.Os. 1 to 76 are “CARE” goods which arrived by the ships covered by the Bills of Lading Exhibits P-7 and P-8, and those goods are intended to be distributed to the poor people. M.Os. 77 to 80 bear the “CARE” label. But, the shipment numbers are torn. All the properties seized from various places are marked as M.Os. 1 to 45. 3. When the accused were examined under section 251-A (2), Criminal Procedure Code, accused-1 admitted all the facts except the fact that the goods Were kept by him for purposes of sale. M.Os. 77 to 80 bear the “CARE” label. But, the shipment numbers are torn. All the properties seized from various places are marked as M.Os. 1 to 45. 3. When the accused were examined under section 251-A (2), Criminal Procedure Code, accused-1 admitted all the facts except the fact that the goods Were kept by him for purposes of sale. He added that he was keeping 457 packets of Soya Bean Salad Oil to be sent to the various places to which accused-2 might direct him to send. Accused-2 stated that he had purchased these goods from various places and sent the same to accused-1, so that accused-1 could send them to other places as per his direction. But, he would add that he never directed accused-1 to sell the . oil. Once again, after taking the evidence, when these accused were examined under section 342, Criminal’ Procedure Code, with regard to the incriminating circumstances appearing against them, both the accused reiterated the same statements as given under section 251-A, Criminal Procedure Code. Accused-1 would admit recovery of M.Os. 1 to 457 from his lorry shed and from the match factories standing in the names of his wife and son and would add that these properties were brought by the son-in-law of accused-2 who contacted him through phone on the previous night on 14th February, 1973. He claimed no knowledge about the other facts spoken to by P.Ws. 2 to 5. In addition to his oral statement, he also submitted, a written statement. Accused-2 has stated that he had purchased these goods from various places and sent them to accused-1 for being transported to the other places according to his direction. In addition to that, he would add that Soya Bean Salad Oil was sold in the open market. However, he denied that he contacted accused-1 over the phone. No defence witness was examined. 4. The learned Sub-divisional Judicial Magistrate, after elaborately and meticulously discussing the evidence and meeting out all the points raised by the defence, found both the accused guilty of the offence with which they stood charged and convicted them thereunder and sentenced accused-1 to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,000, in default to suffer rigorous imprisonment for two months, and sentenced accused-2 to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000, in default to suffer rigorous imprisonment for two months, and sentenced accused-2 to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000, in default to suffer rigorous imprisonment for three months. By this judgment, the learned Magistrate ordered M.Os. 1 to 457 to be confiscated to the State, directing that the properties should be given to the District Educational Officer at Kovilpatti, for being distributed according to the rules after the expiry of the appeal time. 5. Aggrieved by the said judgment, both the accused preferred C.A. Nos. 25 and 28 of 1974 respectively before the Court of Session, Tirunelveli. The learned Sessions Judge held (1) that accused-1 had satisfactorily accounted as to how he came to possess the Soya Bean Oil, that there was nothing to show that the goods were stolen from anywhere as there was no complaint from any quarters that the Soya Bean Oil had been lost or stolen away and that therefore accused-1 could not be held responsible for possessing any of the gift goods, (2) that there is no evidence worthy of credence to show that the goods were supplied either to any State Government or to the Central Government or to any person on behalf of such Government and that if anybody in charge of distributing the articles chose to abuse that position and diverted the gift goods, the person who purchased or collected them cannot be saddled with any criminal liability without proof or shown to have received the goods from the suppliers either on behalf of the State Government or the Central Govenment; if there is any contravention of the procedure for food distribution by any agent or “contact person” of the Relief Organization, it is a matter between the concerned Relief Organization and its “contact person.” and not a matter which comes within, the mischief of section. 3 of the Act. Relying on the decisions in Sheik Abubaker, In re1, and in Ayyavu Chetty, In re2, he further held that the prosecution had not proved beyond all reasonable doubt that Soya Bean Salad Oil had been supplied to any State Government or the Central or to any other person on behalf of such Government and that they could be suspected of having been stolen or unlawfully obtained. Besides he had also taken the view that the fact that the properties were not straightway produced into Court on their being seized from accused-1, is an infirmity in. the prosecution case. In the light of the above observations, he found both the accused not guilty and acquitted them of the offence with which they stood charged. He ordered the return of M.Os. 1. to 457 to the appellant in C.A. No. 28 of 1974 (second accused herein). Aggrieved by the said judgment, the State has preferred this appeal. 6. The learned Public Prosecutor raises the following contentions:(1) The prosecution has satisfactorily established that all the ingredients necessary to make out an offence punishable under section 3 of the Act are present in this case. (2) The prosecution, by letting in satisfactory and clinching evidence, has proved the ingredients of the first part of section 3 of the Act and therefore the lower appellate Court ought to have confirmed, the conviction made by the trial Court as there is absolutely no explanation whatsoever on the side of the defence explaining as to how the accused came into possession of the goods. (3) The lower appellate Court has erred in comparing section 3 of the Act with, section 65 of the Tamil Nadu City Police Act, to base its conclusion. (4) The reason of the lower appellate Court that there is no complaint of theft of Soya Bean Salad Oil from any quarters as to hold the said properties as stolen properties, is erroneous as it is not necessary that there should be a report of theft of the goods concerned; but at the same time it is sufficient if the facts and circumstances disclose that the property is reasonably suspected of having been stolen or unlawfully obtained. According to the Public Prosecutor, there is over whelming and formidable evidence to hold that the properties concerned viz., M.Os. 1 to 457 are either proved to bear the character of stolen goods or proved to have been unlawfully obtained. When once these limbs of section 3 are established, then the burden shifts to the accused to account satisfactorily as to how they came into possession of the goods. Finally he would urged that the order of the learned Sessions Judge, directing the return of M.Os. 1 to 457 to the accused is illegal. 7. Mr. When once these limbs of section 3 are established, then the burden shifts to the accused to account satisfactorily as to how they came into possession of the goods. Finally he would urged that the order of the learned Sessions Judge, directing the return of M.Os. 1 to 457 to the accused is illegal. 7. Mr. Venugopal, appearing for the accused, laid emphasis on the definition of the term "Gift Goods" as contemplated in section 2 (1) of the Act and contended that the prosecution has miserably failed to prove that the goods M.Os. 1 to 457 were Gift Goods within the definition of the Act and that there is no satisfactory evidence to establish that the goods in question are Gift Goods reasonably suspected of having beer stolen or unlawfully obtained. Further, he would submit that the evidence of the witnesses P.Ws. 2 to 4 cannot be taken as conclusive evidence in the light of their admissions in the cross-examination that there are various institutions such as churches, convents and hospitals, through which Soya Bear. Salad Oil is supplied during times of natural calamities like flood etc., and therefore it cannot be safely concluded, in the absence of specific evidence, that the goods concerned in this case are the goods supplied by way of gift by any Relief Organization to any State Government or to the Central Government or to any other person on behalf of such. Government by say Relief Organization specified in the schedule appended to the Act. The failure of the prosecution to produce the accounts, showing the receipt and distribution of the goods of the "CARE" and Catholic Relief Services, materially affects the prosecution. As no vice is attached to the character of the property, in the absence of specific provision for confiscation, any order confiscating the properties would tantamount to an illegality. 8. The Counsel appearing on behalf of both parties have cited a catena of decisions in suppot of their respective contentions. All these properties, M.Os. 1 to 457, were seized from the constructive possession of accused-1 as admitted by him, and it is also admitted that accused-2 is the owner of the goods who sent them, after having purchased the same from various places, to accused-1, with a request to send them to various places as per the directions to be giver, by him. 1 to 457, were seized from the constructive possession of accused-1 as admitted by him, and it is also admitted that accused-2 is the owner of the goods who sent them, after having purchased the same from various places, to accused-1, with a request to send them to various places as per the directions to be giver, by him. Therefore, the question that remains for consideration is whether these goods are Gift Goods and whether they could reasonably be suspected of" having been stolen or unlawfully obtained and whether the accused have accounted satisfactorily as to how they came by the same. 9. Before entering into a detailed discussion of the oral and documentary evidence, adduced by the prosecution, I shall now advert to the relevant provisions of the Act. The preamble of" the Act reads thus: "An Act to provide for the punishment of the offence of unlawful possession of gift goods supplied by certain relief organizations." Section 3 is the penal provision, which is reproduced hereunder: "Unlawful possession of gift goods.-If any person is found, or is proved to have been, in possession of any gift goods reasonably suspected of being stolen or unlawfully obtained, and cannot account satisfactorily how he came by the same, he shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both.“ It is apparent on a plain reading of the above section, that there are three ingredients which must be satisfied in order to attract the applicability of the said section and bring home the guilt of the accused. They are: (1) the accused must be found or proved to have been in possession of the Gift Goods; (2) the property must be one in respect of which, the Court has reason to suspect that it was either stolen or unlawfully obtained; and (3) the accused must be unable to account satisfactorily for his possession. If these ingredients are well established, then the accused would be liable to be convicted of the offence under this section. The term”Gift Goods“is defined in section 2 (1) of the Act, which, as it stands after the amendment as per the Madras Act I of 1966, reads as follows: ”In this Act, unless the context otherwise requires. If these ingredients are well established, then the accused would be liable to be convicted of the offence under this section. The term”Gift Goods“is defined in section 2 (1) of the Act, which, as it stands after the amendment as per the Madras Act I of 1966, reads as follows: ”In this Act, unless the context otherwise requires. ‘gift goods’, means any of the following goods, when supplied by way of gifts by any relief organization to any State Government or to the Central Government or to any other person on behalf of such Government, namely: (a) corn-meal; (b) milk powder; (h) vegetable oil (soya bear, oil or sunflower seed soil); (d) any other goods, which the State Government may, by notification, from time to time, specify.“ Relief Organization is defined in section 2 (2) thus: ”......‘relief organization’ means any organization specified in the schedule appended to this Act.“ The following relief organizations are mentioned in the schedule: 1. United Nations International Children Emergency Fund (UNICEF). 2. Co-operative for American Relief Everywhere (CARE). 3. Church World Service. 4. Luthedan World Relief. 5. Catholic Relief Service. It cannot be disputed that in proceedings for imposing penalty under section 3, the burden of proving that the goods are gift goods is none-the-less on the prosecution notwithstanding the burden cast on the accused to account satisfactorily for possession of the goods. This is the fundamental rule relating to proof in all criminal and quasi-criminal proceedings, in the absence of any statutory provision to the contrary. All that it requires is the establishment of such. a decree of probability that a prudent man may on its basis reasonably suspect in the existence of the fact and the circumstances proved. The spirit of section 3 would show that the prosecution is not required or expected to prove its case with mathematical precision to a demonstrable degree. It has been observed by the Supreme Court in Collector of Customs, Madras v. Broormull1: ”Legal proof is not necessarily perfect proof. Often it is nothing more than a prudent man’s estimate as to the probabilities of the case........Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.” 10. Often it is nothing more than a prudent man’s estimate as to the probabilities of the case........Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.” 10. Therefore, if the first two requisite conditions mentioned above, as enumerated in the earlier part of section 3 of the Act, have been fulfilled by the prosecution by letting in unimpeachable evidence to the satisfaction of the Court,, then it can be held that the possessor is guilty of illegal possession of the Gift Goods (which finding continues to hold the field), unless the accused satisfactorily accounts for such possession. Thus it is seen that the burden of satisfactorily accounting for such possession which section 3 lays on the accused, will have to be discharged by him only after the prosecution advances prima facie evidence for sustaining the initial belief regarding the property being stolen or being unlawfully obtained. 11. The Legislature has advisedly used the expression “account satisfactorily.” The emphasis must be on the word “‘satisfactorily” and the Legislature has thus deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came to be in. possession of those goods, but also to satisfy the Court that his explanation is worthy of acceptance. A reading of the latter part of the section unequivocally and unmabiguously shows that it is obligatory on the part of the accused to prove by acceptable and reliable evidence and satisfy the Court as to how he came by that possession. No doubt, the burden is only undertaken by the accused if the prosecution establishes that in the absence of such satisfactory account, he would be guilty of the offence charged. Therefore, if the prosecution once establishes its part, and if the accused thereafter fails to establish a satisfactory account, the charge stands proved. 12. The next question that arises for consideration is as to what is the nature of proof placed upon the accused person in satisfactorily accounting for his possession. It is well-established that where the burden in issue lies upon the accused, he is not required to discharge that burden. by leading evidence to prove his case beyond all reasonable doubt. 12. The next question that arises for consideration is as to what is the nature of proof placed upon the accused person in satisfactorily accounting for his possession. It is well-established that where the burden in issue lies upon the accused, he is not required to discharge that burden. by leading evidence to prove his case beyond all reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged the onus of proving the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him by the latter part of section 3. It is sufficient if the accused person succeeds in proving a preponderence of probability in favour of his defence. Therefore, the degree and character of proof which the accused person is expected to furnish in support of his plea, cannot and should not be equated with those expected from the prosecution. At the same time, it must be. noted that any sort of explanation would not and could not be acceptable. But, the explanation should give a satisfactory account of his possession. 13. Section 106 of the Indian Evidence Act reads that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. When a fact to be proved, “whether affirmative or negative” is peculiarly within the knowledge of a party, it is for him to prove it. Therefore, the liability of proving a fact always lies on the person who has special knowledge of it. In cases of this nature, it is only the person found to be in possession of goods which are proved to be gift goods, who can explain how he came into possession of those goods. “Possession”, as an element of crime, must relate to conscious possession or actual control or mens rea or guilty knowledge. These elements must be proved by the prosecution, when invoking a penal provision of a statute. 14. “Possession”, as an element of crime, must relate to conscious possession or actual control or mens rea or guilty knowledge. These elements must be proved by the prosecution, when invoking a penal provision of a statute. 14. Learned Counsel for the accused cited a number of decisions in support of his contention that the onus of proving that the articles in question are gift goods lies on the prosecution and that it does not shift by virtue of section 106 of the Evidence Act, as that section could not be used to undermine the well established rule that the burden is on the prosecution: vide Abba Lal v. Union of India and others1 Gian Chand and others v. State of Punjab2, Sbeik Abubaker In re,3Ayyavoo Chetty, In re4, Collector of Customs, Madras and others v. Bboormal5and Mothilal, In re6. The above proposition is quite well-established, and therefore the above contention of the learned Counsel should be accepted. 15. Bearing the above principles in mind, now I shall discuss the evidence adduced by the prosecution and see whether the requisite ingredients are proved in this case. The first question that arises for discussion is whether M.Os. 1 to 457 are Gift Goods. It is the evidence of P.Ws. 2 to 4 that Soya Bean Salad Oil is not meant for sale or exchange. The evidence makes it clear that the Food Corporation of India clears these goods on being gifted by the U.S.A. under the terms of the Indo U.S. Agreement renewed in 1958. As spoken to by P.W. 3, each Department of the Government receives and distributes these goods to the beneficiaries through institutions like schools, convents and hospitals. Fundamentally it is for the prosecution to establish that Soya Bean Oil which is catalogued in the category (c) of section 2 (1), viz., under the heading “vegetable oil” has been supplied by way of gift by any relief organization to any State Government or to the Central Government or any person on. behalf of such Government. The evidence of P.W. 2, the Administrative Assistant in Catholic Relief Services, U.S. Catholic Conference, “New York, attached to the Catholic Relief Service, Madras Zonal Office, which is one of the relief organisations mentioned in the schedule, is that M.Os. 81 to 188 bore the rubber stamp ‘‘Cathwell India” with the contract number “M.P. (FF.) 49653” printed on it; similarly, M.Os. 81 to 188 bore the rubber stamp ‘‘Cathwell India” with the contract number “M.P. (FF.) 49653” printed on it; similarly, M.Os. 189 to 349 also bore the same rubber stamp “Cathwell India” with the contract number “MP (FF) 49608.” Though M.0.350, according to him, contained the stamp “Cathwell India,” the contract number on it had been erased. In M.Os. 351. to 391, there is no stamp mark “Cathwell India” but mere the contract number “M.P. (FF) 49653”, similar to the one an M.Os. 81 to 188. In M.Os. 392 to 455, there is not the mark “Cathwell”, but they bore the contract number “M.P. (FF) 49608” similar to the one in M.Os. 189 to 349. In M.O. 456, the mark “Noon day” is stamped with the contract number “M.P. (FF), 49608”. Exhibits P-5 to P-8 are the copies of the Bills of Lading which are marked subject to proof and of which, Exhibits P-7 and P-8 are the certified copies. Though these documents are marked subject to proof, Mr. Venugopal, appearing on behalf of the accused, has not seriously challenged the admissibility of these documents in this appeal. Even apart from this, the question of admissibility of these documents is not going to decide the issue in question. As such, I do not propose to deal with this question at length. These documents are marked only for the purpose of showing that the material objects bear the rubber stamp marks and the contact numbers found on the respective packets. P.W. 2, who speaks about the identity of the goods M.Os. 81 to 456, world say in the cross-examination that the consignments bearing the same contract numbers might be distributed to organizations like the Catholic Relief Service, which is one of the relief organizations mentioned in the schedule to the Act besides the CARE, the Church World Service, L.W.R. etc., and these are the four organizations, according to him, which are getting the Gift Goods from the United States where itself the allotments are made to various organizations, and the organization of P.W. 2, viz., the Catholic Relief Service, in supplying the Soya Bear. Salad Oil to churches, convents and hospitals, whenever there is any natural calamity, as emergency programme. Salad Oil to churches, convents and hospitals, whenever there is any natural calamity, as emergency programme. He would further admit that he does not know whether these churches or CARE supply the goods in large quantities to the public and he has not seen these material objects before coming to Court and without comparing the registers he cannot say what particular cargo was consigned in a particular ship. According to him, he gives this evidence that these 377 cartons seized at Kovilpatti belong to their concern, only on seeing a report given by one Danraj of CARE, which was shown to him by the Sub-Inspector of Police. Further, he would admit that he could not say to whom these 377 cartons were sent and he had not received any complaint regarding the said consignment. He, for his part had not sent any report to any authority before the properties were seized. However he would say that there are receipts in his office showing the receipt and despatch of the Gift Goods as furnished by the Food Corporation of India. But he had not produced those documents Relying on the admissions made by P.W. 2 in the cross-examination, Mr. Venugopal, has vehemently urged that the evidence adduced on the side of the prosecution in respect of these 377 cartons (M.Os. 81 to 457) cannot conclusively establish that these goods were sent either to any State Government or to the Central Government or to any other person on behalf of such Government by any relief organization. Though P.W. 2 would claim that he is giving evidence on behalf of the Catholic Relief Service, he would, admit, as stated supra, that he cannot say to whom these 377 cartons were sent in spite of the fact that he has given positive evidence that normally the packets marked "CATHWELL" would not be given either to CARE or to any other organisation. Therefore, it stands to reason that when once the prosecution has chosen to examine P.W. 2, it ought to have let in evidence that these properties M.Os. 81 to 457 had been supplied by one of the relief organizations either to any State Government or to the Central Government or to any other person on behalf of such Government. Therefore, it stands to reason that when once the prosecution has chosen to examine P.W. 2, it ought to have let in evidence that these properties M.Os. 81 to 457 had been supplied by one of the relief organizations either to any State Government or to the Central Government or to any other person on behalf of such Government. In the light of the admissions of P.W. 2, that in the United State itself, the allotments are made to various organizations and in the absence of specific evidence that the Catholic Relief Service received the goods on behalf of either the State Government or the Central Government, I am of the view that no safe conclusion could be arrived at or. the basis of the bill of lading alone, that these M.Os. 81 to 457 come within the definition of "Gift Goods" in section 2 (1) of the Act. 16. Then, we are left with the question whether M.Os. 1 to 80 are proved to be gift goods. P.W. 3, the Field Officer attached to "CARE" would testify that out of the 457 cartons containing Soya Bean Oil, 80 cartons marked as M.Os. 1 to 80 found to bear the "CARE" label, and they received these M.Os. 1 to 80 as gift goods from the United States and the Government of India took delivery of those goods and distributed the same to the different departments and the CARE makes no direct distribution of these goods to the institutions. It may be noted that in respect of all the goods M.Os. 1 to 457, the defence has not challenged that these goods were not gift goods. Of course, the mere failure of a suggestion cannot be a ground to discard the defence version. But, the failure on the part of the defence to make such kind of suggestion in respect of M.Os. 1 to 80 assumes some importance, because the prosecution has let in specific evidence that these goods were received by the Central Government as gift goods. P.W. 4, giving evidence on behalf of CARE would give a detailed account of the procedure as to how the goods are transhipped and received in: India, and would say that they used to hand over the original bill of lading to the Food Corporation of India, who would clear the goods as their clearing agents. P.W. 4, giving evidence on behalf of CARE would give a detailed account of the procedure as to how the goods are transhipped and received in: India, and would say that they used to hand over the original bill of lading to the Food Corporation of India, who would clear the goods as their clearing agents. He also speaks about the identity of M.Os. 1 to 80 as goods belonging to CARE. To this witness also, no suggestion has been made that M.Os.. 1 to 80 are not gift goods. Under these circumstances and in the light of the unimpeachable positive evidence of P.W.s. 3 and 4, I unhesitatingly hold that the goods M.Os. 1 to 80 are gift goods coming within the definition under the Act. As there is no dispute that these gift goods were found in possession of the first accused, or. being sent by accused-2, there is no need to go into the question regarding the possession of these goods. 17. Now that these M.Os. 1 to 80 are held to be gift goods, found to be in possession of the accused, I have to consider whether the said goods could be reasonably suspected of having been stolen. Mr. Venugopal, lays stress on the fact that the prosecution has utterly failed to establish that the goods seized were stolen goods, much less that there are reasons to suspect the properties to have been stolen goods. In support of his contention, he relies on the admissions of the witnesses P.Ws. 1 to 4 that there was no complaint or report made by any one in respect of theft of these properties and contends that these goods, therefore, cannot be characterised as stolen goods. The. term "stolen goods" is not defined in this Act. Section 410 of the Indian Penal Code defines "stolen property"‘. It reads as follows: "Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as ‘stolen property’, whether the transfer has been made, or the misappropriation or breach trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property." When section 3 of the Act is read in conjunction with the definition given in section 410 of the Indian Penal Code, it can be seen that the word "possession" used in section 3 of the Act in its largest sense implies the custody or control, whether temporary or permanent, or exclusive of or with the other. Manual possession is not necessary. For example, if A picks the pocket of B and finding a valuable watch therein, passes it on to C, who deposits it with D. A is the thief. But, C and D are the receivers of stolen property from him, though the watch was not in the manual possession of C provided C and D are proved to have knowledge that the watch was a stolen property. Therefore, the property, possession of which has been transferred by theft or other allied offences, is designated as stolen property. The property acquires the character of stolen property when the possession of it becomes wrongful by reason of the act or intention which constitutes either of those offences enumerated in section 410, Indian Penal Code. 18. Illustration (a) to section 114 of the Indian Evidence Act says that where the accused is found to be in possession of a stolen property, a presumption could be drawn either of his being a thief or of having received the property knowing it to be stolen unless he accounts for his possession. In other words, if the evidence against him shows his recent possession of stolen property for which, he was not able to give a. satisfactory explanation, the better presumption would be that he is guilty of being a receiver of the stolen property. 19. If the prosecution fails to establish reasons for suspecting that the gift goods are stolen properties, what the section requires alternatively is that it must be proved that the gift goods in question were unlawfully obtained by the accused. The expression "reasonably suspected of being stolen", like the other juxtaposed expression "unlawfully obtained" in the same section, is the attribute, stamp or character of the "property" found or proved to have been in possession of the accused. The expression "reasonably suspected of being stolen", like the other juxtaposed expression "unlawfully obtained" in the same section, is the attribute, stamp or character of the "property" found or proved to have been in possession of the accused. If the said property is capable of being described as stolen property or property unlawfully obtained by whom so ever it might have been stolen or unlawfully obtained, that would be sufficient to comply with the requirements of section 3 of this Act. If we look at the plain language of the section, it is clear that it is not the intent of the Legislature that the accused must be reasonably suspected to have stolen or unlawfully obtained the goods. If the intention of the Legislature were that the property should be stolen or unlawfully obtained by the accused, then nothing would have been easier for the Legislature than to use appropriate words such as "reasonably suspected of being stolen or unlawfully obtained by him." Thus, it can be seen that this section merely speaks of the character of the property. The theft or the illegally obtaining of the property may be by any person. It is not the act of stealing or illegally obtaining that is sought to be hit by this section. The only enquiry which the Court if called upon to make while dealing with the offences under this section is whether on the material on record, there is reason to believe that the property found in possession of the accused can be described as a stolen property or property illegally obtained, whoever may be the person who stole it or illegally; obtained it: Vide Champaklal Ganeshmal v. State of Maharashtra1. 20. Now, I shall come to the point raised by Mr. Venugopal, that there was no complaint or report in respect of of any theft of these goods. Both the parties have not cited any decided authority relating to section 3 of the Act. Therefore, it will be advisable to refer to the cases decided on other enactments analogous to the provisions of this Act. Venugopal, that there was no complaint or report in respect of of any theft of these goods. Both the parties have not cited any decided authority relating to section 3 of the Act. Therefore, it will be advisable to refer to the cases decided on other enactments analogous to the provisions of this Act. Section 3 of the Railway Stores (Unlawful Possession) Act of 1955, which Act has now been repealed by the Railway Property (Unlawful Possession) Act, 1966, read as follows: "If any person is found, or is proved to have been in possession of any article of railway stores reasonably suspected of being stolen or unlawfully obtained, and cannot account satisfactorily, how he came by the same, he shall be punishable with imprisonment for a term which may extend to five years or with fine or with both." It may be noted that except for the words "any article of railway stores" and the quantum of punishment provided, both section 3 of the Railway Stores (Unlawful Possession) Act and section 3 of the Gift Goods Act are very similar. Section 3 of the Railway Property (Unlawful Possession) Act, 1966, which is in force bow, reads as follows: "Whoever is found or is proved to have been in possession of any railway property reaonably suspected of having been stolen or unlawfully obtained, shall, unless he proves that the railway property came into his possession lawfully, be punishable........" A reading of this section also shows that no substantial change has been effected except for some verbal changes. Therefore, the authorities dealing with these sections can be usefully considered. 21.In Public Prosecutor, Andhra Pradesh v. Shaik Galib1, the Andhra Pradesh High Court, while dealing with an offence under section 3 of the Railway Property (Unlawful Possession) Act of 1966, has held as follows: "It is not necessary that there should be a report of the theft of the railway property. It is sufficient if the facts and circumstances disclose that the property is reasonably suspected of having been stolen." The property once proved to be stolen retains that character so long as it remains out of the possession of the person lawfully entitled to it. A complaint or report in respect of the theft, extortion, robbery etc., in respect of a property, is only intended to be; made to the authorities to set the law in motion. A complaint or report in respect of the theft, extortion, robbery etc., in respect of a property, is only intended to be; made to the authorities to set the law in motion. Its secondary, though equally important, object is to obtain early information of an alleged criminal activity to record the circumstances before there is time for such circumstances to be forgotten or embellished. Though ordinarily the law is set in motion on information received by authorities, the receipt of information is not a condition precedent for investigation or enquiry. Supposing that there is no complaint made in respect of the theft of a property, can it be said that there was no theft, or can it be understood that the property does not carry the character of stolen goods? The failure to make a complaint may be due to various reasons personal to the owner of the goods. In short, whether there is a theft or not is a question of fact, which arises before the complaint is given. In other words, the existence of a theft does not depend on the fact of a complaint. The complaint only arises subsequent to the theft, and the giving of such a complaint is solely at the discretion of the owner of the goods so stolen. The non-reporting of the theft will not in any way deface the vice attached to the character of the property so stolen. The above opinion of mine is fortified by the observation of the Privy Council in The Emperor v. Nazir Ahmad,2which reads as follows: "..........But, in any case, the receipt and recording of an information report is not a condition precedent to the setting in motion of a criminal investigation. No doubt, in the great majority of cases, criminal prosecutions are undertaken as a result of information received and recorded in this way but their lordships see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed., should not of their own motion undertake an investigation into the truth of the matters alleged." 22. Now, let me go into the question as to whether there are reasonable grounds to suspect that the goods were unlawfully obtained. Now, let me go into the question as to whether there are reasonable grounds to suspect that the goods were unlawfully obtained. The word "unlawful" is not defined eiher in the Indian Penal Code, or in this Act. But, it may be taker to correspond with the word "illegal" defined in section 43 of the Indian Penal Code. The word "illegal" appearing in section 43, Indian Penal Code, is applicable to everything which is an offence or which is prohibited by law or which furnishes a. ground for a civil action. Mr. Venugopal, cited some decisions in support of this proposition. In Mewa Lal v. The Emperor1, it has been held, while dealing with section 122 of the Indian Railways Act, that the word "unlawful" means "contrary to the law laid down in the statute". In another decision reported in Chandai v. The Emperor2, a Division Bench of the Allahabad High Court, while discussing section 122 of the Railways Act, has observed that the word "unlawful" has practically the same meaning as "illegal" which can be interpreted as including "actionable". In R. v. Chapman3, the word "unlawful" has been defined as one forbidden by law. Relying on the above decisions, Mr.Venugopal, would contend that the accused cannot be said to have in any way obtained the goods unlawfully, as the prosecution, has failed to prove that there is statutory prohibition against the holding of these goods. As discussed supra, it is not necessary that the prosecution must prove that the accused unlawfully obtained the goods. But, what the section requires is that the goods in question should have been reasonably suspected of having been unlawfully obtained by whomsoever. Hence, this contention of the learned Counsel is not acceptable and the decisions cited by him are not helpful to his case. 23. There is ample evidence on the side of the prosecution that these goods are not available in the open market for sale and that they are never consigned to profit individuals. According to P.W. 2, these goods are not intended to be sold or exchanged and there is a condition imposed by the Food and Agriculture Department of the United States and their organizations in India that these goods are not to be sold, or exchanged. It is not the case of either of the accused that these goods are freely available in the open market. It is not the case of either of the accused that these goods are freely available in the open market. But, the second accused would say that he purchased the goods from various places and send them to accused-1. He also says in this section. 342 statement that he purchased the goods from some other markets and the goods are freely available in the open market. But, it is pertinent to note here that the accused have completely failed to satisfactorily account for their possession of the goods, with which I shall deal a little later. No witness has been examined on the side of the defence nor has any document been produced, to show that the goods were purchased from the open market. Under these circumstances, I have no other option, but to hold that the accused should have come into possession of the goods from persons who had unlawfully obtained them, if not by theft 24. Then, an argument was advanced on the side of the accused that some of the institutions to which the gift goods in question should have been supplied, might have violated the Rules prohibiting them from selling, and thus might have sold them to others from whom these accused should have purchased, and in such circumstances the accused, who received the goods, cannot be made punishable. As I have mentioned above, the meaning of the term "stolen property" is not confined to "property transferred by theft, extortion or robbery", but would also include "property criminally misappropriated or in respect of which a criminal breach of trust has been committed". In the absence of any acceptable explanation from the accused as to how they came to be in possession of the properties, it is not open to the accused to raise such a contention. In the absence of any such explanation, a presumption can be drawn that they are receivers of stolen goods or goods unlawfully obtained within the meaning of section 3 of the Act. Therefore, in cases of this nature, it is sufficient if the facts and circumstances disclose that there are reasonable grounds to suspect that the properties in question have been lost due to any of the offences like theft, robbery, extortion, criminal misappropriation or criminal breach of trust, whether committed within or without India, or have been unlawfully obtained. Therefore, in cases of this nature, it is sufficient if the facts and circumstances disclose that there are reasonable grounds to suspect that the properties in question have been lost due to any of the offences like theft, robbery, extortion, criminal misappropriation or criminal breach of trust, whether committed within or without India, or have been unlawfully obtained. Unlike section 411, Indian Penal Code, which deals with punishment for dishonest receipt, of stolen property, the present section 3 of the Act does not require the element of dishonesty on the part of the accused, nor does it involve the necessity of showing that the accused who received the goods had knowledge or or had reason to believe that the goods were stolen or unlawfully obtained. 25. Finally, we have to see whether the accused have accounted satisfactorily for their possession of these gift goods. I have already discussed the meaning of the expression “account satisfactorily”. The learned Public Prosecutor brought to my notice the decision in C.S.D. Swami v. State1, where the Supreme Court, while discussing the scope and effect of section 5 (3) of the Prevention of Corruption Act (11 of 1947), has observed that the section 5 (3) does not create a new offence but only lays down a rule of evidence, enabling the Court to raise a presumption of guilt in certain circumstances-a Rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him, that the Legislature has deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but;also to satisfy the Court that his explanation was worthy of acceptance, and that the words “satisfactorily account” used by the statute are peremptory and the burden must lie all the time on the accused to prove the contrary. It further observed that as soon as the requirements of section 5 (3) have been fulfilled, the Court will not only be justified in making, but is called upon to make, the presumption that the accused person is guilty of criminal misconduct within the meaning of section 5 (1) (d) and conviction can be had on the basis of the presumption. Apart from the decisions, ever, on a mere reading of section 3 of the Act, it will be clear that the accused has to account satisfactorily for possession of the gift goods. Accused-1 has not denied the fact of recovery of the material objects from his possession. But, his explanation is that he was keeping all these materials to be sent to various places to which accused-2 might direct him to send. It is the case of accused-2 that he purchased these goods from various places and sent them to accused-1 that the goods would be sent to various places as per his directions. Accvsed-1, in his statement under Exhibit P-4, has stated that on 15th February, 1973 at 9 a.m., accused-2’s son-in-law and one Kolappa Pillai brought these material objects in a lorry bearing registration No. MDK 1448 and handed over the same to him stating that some of the properties might be transported to Madurai and the rest could be sold in the neighbouring villages. He would further admit that on 14th February, 1973 at about 11 P.M., accused-2, himself phoned up to him, intimating that he was having American Soya Bean Salad Oil and that he would send the same in a lorry with a certificate from the Commercial Taxes Department as though 70 bags of wheat were being transported. Mr. Venugopal, contends that this document Exhibit P-4 cannot be made use of against the accused as this statement was made in the presence of the police officials. In support of his contention, he would rely on the admission of P.W. 1, wherein he has admitted that the police were present till the material objects were produced in the warehouse. But, from the reading of the evidence of P.W. 1, I find that there is no specific evidence that the accused was in the custody of the police at the time when he made Exhibit P-4. When accused-1 was questioned with reference to the statement Exhibit P-4, he would only say that the statement was not read over to him, but he was asked to sign and so he signed. When accused-1 was questioned with reference to the statement Exhibit P-4, he would only say that the statement was not read over to him, but he was asked to sign and so he signed. Learned Counsel for the accused relies on two decisions viz., in Raghavan v. State of Kerala1and Nika Ram v. State of Himachal Pradesh2, In the former, it has been held that once an accused is arrested by a Police Officer and is in his custody and is temporarily left in charge of a private individual, that does not terminate the police custody and the accused shall still be deemed to be in police custody. In the latter decision, the accused appeared before the Second Class Magistrate who sent for police who arrested him, and then the Magistrate recorded a statement and handed over to the police. On those facts, it was held that the statement recorded by the Magistrate was inadmissible. In the instant case, the accused were not arrested and they were not in the police custody. On the other hand, both surrendered before the Court. It cannot be said in this case that the first accused came into the hands of the Police Officer or had been under some form of Police surveillance or restriction on his movements by the Police. In fact, there is nothing to infer that the Police Officer was present at the time when he made Exhibit P-4 or that he was coerced or influenced by any body. Further even if Exhibi P-4 is eschewed, there is the unassailable evidence of P.W. 1 that when he questioned accused 1, he made a confession before him as mentioned in Exhibit P-4. Therefore, de hors Exhibit P-4, there is ample evidence to show that the first accused was well aware of the fact that the goods have been brought to Kovilpatti and handed over to him in a clandestine manner. Coming to the explanation of accused 2, bereft of the general statement that he purchased them in the open market, there is not even an iota of evidence or receipt or voucher to substantiate the same. Thus, it can be seen that no plausible explanation acceptable to the Court, as to how both of them came into possession of the goods, has been given. Thus, it can be seen that no plausible explanation acceptable to the Court, as to how both of them came into possession of the goods, has been given. In view of this, 1 hold that the finding of the lower appellate Court (sic) that the accused had satisfactorily accounted as to how he came into possession of the properties, is not correct. For the reasons mentioned above, 1 hold that the necessary ingredients to make out an offence under section 3 of the Act are satisfactorily proved by the prosecution. 26. Then, a faint argument was put forth that there is a misjoinder of persons in this case, relying on the observations of Krishnan, J., taking a contrary view from the one expressed by Sen, J., sitting in the same Bench, in Lachman Nanda In re3. In that case, H.R. Krishnan, J., observed that the expression “misjoinder of charges” in section 537 (b) means “misjoinder either of the offences or of the persons alleged to have committed the offences”, while Sen J., was of the view that misjoinder of charges cannot mean joinder of accused persons charged for an offence, but it can only mean different charges joined together against the provisions of law, that is, the charges Which are of different kinds and which cannot be joined together in the procedure prescribed in the old Code, section 234 to 239. But, in this case there are ample materials to hold that the offence in question has been committed during the course of the same transaction though accused-1. is at Kovilpatti and accused-2 is at Trivandrum. Therefore, I am of the view that in any event there is no misjoinder of charges in this case. 27. Before concluding the judgment, I may point out that the lower appellate Court has misdirected itself by applying the principles laid down in Public Prosecutor, Andhra Pradesh v. Dr. H.P. Sundar4. The facts of the said case are totally different from the facts of the present case. In view of my above finding the principles laid down in that case will not be applicable to the facts of the present case. H.P. Sundar4. The facts of the said case are totally different from the facts of the present case. In view of my above finding the principles laid down in that case will not be applicable to the facts of the present case. Further, the finding of the lower appellate Court that the prosecution has not proved that the Soya Bean Salad Oil had not been supplied to any one of the persons mentioned in section 2, is also not correct in view of try finding that there is ample evidence in respect of M.Os. No. 1 to 80. The other reason that the properties have not been sent to the Court straightaway and as such there is an infirmity on the side of the prosecution, is also totally unjustified as the evidence showing that the goods marked in this case as M.Os. 1 to 457 were the same goods as seized by P.W. 7, stands unchallenged. 28. For the above compelling and substantial reasons, I set aside the order of acquittal passed by the lower appellate Court and convict both the accused of the offences with which they stood charged, so far as M.Os. 1 to 80 are concerned. 29. Before going to the question of sentence, 1 shall now deal with the confiscation of the properties. It is very strange to note that the lower appellate Court has straightaway directed all the properties to be returned to the accused even without waiting for the expiry of the period within which the State could take recourse to the filing of an appeal against this judgment. Now that I have found that M.Os. 1 to 80 alone are proved to be gift goods, the accused are entitled to the return of M.Os. 81 to 457 and therefore the order of the lower appellate Court directing return of those material objects (M.Os. 81 to 457) will hold good. But, so far as M.Os. 1 to 80 are concerned, in the absence of specific provision in this Act for confiscation, section 517, Criminal Procedure Code which empowers and authorizes the Court to confiscate the properties can be invoked and the Court can direct such confiscation or dispose of the properties as provided therunder But, as M.Os. But, so far as M.Os. 1 to 80 are concerned, in the absence of specific provision in this Act for confiscation, section 517, Criminal Procedure Code which empowers and authorizes the Court to confiscate the properties can be invoked and the Court can direct such confiscation or dispose of the properties as provided therunder But, as M.Os. 1 to 80, which have been returned to the accused, may not be now available with them, I direct the trial Court to fix the value of the said properties, after taking further evidence on this aspect, by giving opportunity to both sides, so that the State can recover the said value. 30. Coming to the question of sentence, as the offences are said to have been committed in February, 1973, i.e., nearly three years before, and as the prosecution has established the case beyond all reasonable doubt only in respect of M.Os. 1 to 80, 1 feel that a deterrent sentence is not called for in this case, though normally the offences of this nature should be dealt with severely. Accordingly, I sentence accused-1 to pay a fine of Rs. 1,000, in default to suffer rigorous imprisonment for two months and accused-2 to pay a fine of Rs. 2,000 in default to suffer rigorous imprisonment for four months. Time for payment of fine, for each of the accused, two months from the date of receipt of this order by the lower Court. The appeal is allowed.