# RADHAKISHAN v. STATE OF U. P

- **Citation:** [1963] Supp. 1 S.C.R. 408
- **Court:** Supreme Court of India
- **Decided:** 1960-01-20
- **Case number:** Criminal Appeals Nos. 160 to 162of1960
- **Bench:** S. J. Imam, N. Rajagcpala Ayyangar, j. R. MUDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/radhakishan-v-state-of-u-p-2716
- **Pages:** 11

## Headnote

Criminal Trial-Secreting of postal articles-Entrustment
of article, if necessary ingredient of offence-Exclusive poss.JS·
sion-Articles recovered from almirah--Accused and his fa.ther
both living in house-Key Produced by father-Whether accused
in exclusive possession-The Post Offices Act, 1898 (VI of 1898),
s. 52.
The appellant, a postman, and his father were living in
the same house.
Certain undelivered postal articles were recovered from an almirah in the house, the key of which was
produced by the father. The appellant was tried and convicted
of an ofTcnce under s. 52 Po,t Offices Act for secreting
postal articles. The appellant contended that since it had not
bcrn proved that he had been entrusted with these articles the
offence under s. 52 was not made out and that he could not be
held guilty of secreting as he was not in exclusive possession of
these articles.
lleld, that entrustmcnt was not an essential ingredient of
the ofTcnce under s. 52. Where the legislature intended to make
cntrustn1ent an ingredient of the offence it had used appropriate
\\'ords to n1akc it clear.
It had used no such words ins. 52.
1'o secrete means to hide.
In a case like the present, the retention of an undelivered postal article in an almirah for an
inordinately long period would be tantamount to hiding that
article.
Held., further, that •he appellant was not in exclusive
possession of the postal articles and no inference could be drawn
1 S.C.R. SUPREME COURT REPORTS
409
that he had secreter! them. As the key was produced by the
1962
appellant's father it could not b~ infeITed that the appella~t
&dhakitlm
\vas in joint possession of the alm1rah much less that he was in
v.
exclusive possession of it. No inference could be drawn from
Stall of U. P.
the fact that the almirah contained certain other articles belonging to the appellant as it also contained a large number of
articles belonging to the father.

## Text

1962
Tulsi Ram
.,,
Stai. of U. P.
Mudholkar7 J.
1962
S1ptunber, 27.
408 SUPREME COURT REPORTS [1963] SUPP.
Lachhimi Narain who was the lcarta of the family. We
modify the sentences accordingly.
Appeals partly allowed.
RADHAKISHAN
v.
STATE OF U. P.
(S. J. IMAM, N. RAJAGCPALA AYYANGAR and
j. R. MUDHOLKAR, jj.)
Criminal Trial-Secreting of postal articles-Entrustment
of article, if necessary ingredient of offence-Exclusive poss.JS·
sion-Articles recovered from almirah--Accused and his fa.ther
both living in house-Key Produced by father-Whether accused
in exclusive possession-The Post Offices Act, 1898 (VI of 1898),
s. 52.
The appellant, a postman, and his father were living in
the same house.
Certain undelivered postal articles were recovered from an almirah in the house, the key of which was
produced by the father. The appellant was tried and convicted
of an ofTcnce under s. 52 Po,t Offices Act for secreting
postal articles. The appellant contended that since it had not
bcrn proved that he had been entrusted with these articles the
offence under s. 52 was not made out and that he could not be
held guilty of secreting as he was not in exclusive possession of
these articles.
lleld, that entrustmcnt was not an essential ingredient of
the ofTcnce under s. 52. Where the legislature intended to make
cntrustn1ent an ingredient of the offence it had used appropriate
\\'ords to n1akc it clear.
It had used no such words ins. 52.
1'o secrete means to hide.
In a case like the present, the retention of an undelivered postal article in an almirah for an
inordinately long period would be tantamount to hiding that
article.
Held., further, that •he appellant was not in exclusive
possession of the postal articles and no inference could be drawn
1 S.C.R. SUPREME COURT REPORTS
409
that he had secreter! them. As the key was produced by the
1962
appellant's father it could not b~ infeITed that the appella~t
&dhakitlm
\vas in joint possession of the alm1rah much less that he was in
v.
exclusive possession of it. No inference could be drawn from
Stall of U. P.
the fact that the almirah contained certain other articles belonging to the appellant as it also contained a large number of
articles belonging to the father.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 160 to 162of1960.
Appeals by special leave from the judgment and
qrder dated January 20, 1960 of the Allahabad High
Court in Criminal Government Appeals Nos. 20ll to
2013 of 1958.
B. 0. 2Uisra and P. K. Ohakravarti,
for the
appellant.
G. 0 .. Mathur and 0. P. Lal, for the respondtJnt.
1962. September 27. The Judgment of the
Court was delivered by
MuDHOLKAR, .J.-Thcsc three appeals arise out
Mudholkar, J.
of three separate trials before the Additional Sessions
Judge, Bulandshahr, but were argued together as they
arise identical questions.
In all these trials, the appellant, who was a postman attached to the Bulandshahr post office was tried for offences under s. 52
of the Indian Post Office Act, 1898 (VI of lSDS)
and in two of them, also for offences under ss. 4() 7 and
471 of the Indian Penal Code. Briefly stated the
allegations against the appellant were that he either
stole or secreted five registered letters and tlJat he
fabricated three receipts showing that the registered
letters were received by the addressees. The learned
Additional Sessions Judge acquitted the appellant of
all these offences. The State then preferred an appeal
against his acquittal in these three cases to the High
Court of Allahabad but restricted the 1ppcal to tl1e
acquittal of the appellant in respect of offences under
1962
Radhakishan
••
State of U. P.
Mudholkar, J.
410 SUPREME COURT REPORTS [1963]SUPP.
s. 52 of the Indian Post Office Act, 1898 (hereafter
referred to as the Act). The High Court held that
the appellant had secreted the five registered letters in
question and on this finding set aside his acquittal and
convicted him in each of the three appeals for offences
under s. 52 of the Act and sentenced him to undergo
rigorous imprisonment for a period of one year in
each case. The appellant has come up to this Court
by special leave.
Briefly stated the proseculion case is that when
the house in which the appellant lives along with his
father Diwan Singh, a retired Police Head Constable,
was searched by the C.I.D. Inspector, S.N. Singh,
along with Masood Murtaza, Sub-Inspector of Police,
Bulandshahr on May l:l, 1956, in connection with a
case against Messrs Greenwood Publicity, they accidentally discovered a large number of letters and
postcards and also the five registered letters in question.
At the time of the search the appellant who
happens to be a trade union official, was not in
Bulandshahr but was away on leave at Delhi in
connection with a postal conference.
These articles
were found in an almirah, the key of which was produced by the appellant's father.
The articles were
not listed at the spot but were taken to the Kotwali
in a: scaled packet and later on listed there.
A 1mmber of other articles were also seized at that time but
we arc not concerned with them as thcv have no cbnnection with the charges against the appellant.
Bricflsy, the appellant's defence in all these
cases is that there are two factions in the Bulandshahr
post office and that these articles were planted by
the opposite party.
According to him, the planting
must have occurred in the Kotwali when the SubInspector purported to make a list of the articles
seized from the house in which the appellant Jives.
Further, according to him, neither the house nor the
almirah from which the articles arc said to have been
)
1 S.C.R.
SUPREME COURT REPORTS
411
seized was in his exclusive possession.
He statedand that fact is not denied-that the house which
consists of two rooms only has been rented in his
father's name, that both of them live in tl1osc two
room~ and tl1at the almirah was i11 his fothcr"s possession inasmuch as the key was produec<l by him.
On behalf of the appellant lvir. ll. C. Misra has
raised the following six points :
(1) That on the findings arrived at by the
High Court no offence under s. 52 uf the
Post Office A.:t has been made out.
(2)
That it has not been established that i he
five registered letters were in the exclusive
possession of the appellant.
(3)
That the search was illegal inasmuch as it
was in contravention of the provisions of
ss. 10:1 and 165 of the Code of Criminal
Procedure.
(4) That in examining the appellant the Additional Sessions Judge did not comply with
the requirements of s. 342 of the Code of
Criminal Procedure.
15) That the High Court has not found that
there were compelling reasons for setting
aside the appellant's acquittal.
(6) The sentences in thl three cases having
been ordered to run consecutively the total
sentence is excessive.
We w. 1 Jeal with the last four points first.
So
far as the alicged illegalitv of the search is concerned
it is sufficient to say th~t even assuming that the
search was illegal the seizure of the articles is not
vitiated. It may be that where the provisions of
ss. 103 and 165, Code of Criminal Procedure, are
1962
Radhakishan
v.
State of U. P.
Aludholkar, J
1962
BadMJ:isha11
y,
Stat. of U. P.
Mudholka., J.
412 SUPREME COURT REPORTS [1963] SUPP.
contravened the search could be resisted by the person
whose premises are sought to be searched. It may
also be that because of the illegality of the search the
Court may be inclined to examine carefully the
evidence regarding the seizure. Hut beyond these two
consequences no further consequence ensues.
The
High Court has chosen to accept the evidence of the
prosecution with regard to the fact of seizure and
that being a question to be decided only by the Court
of fact, this Court would not re-examine the evidence
for satisfying itself as to the correctness or otherwise
of the cortclusions reached by the High Court. In so
far as the contravention of provisions of s. 342, Code
of Criminal Procedure, are concerned it is sufficient
to point out that no grievance was made either before
the Court of the Additional Sessions Judge or before
the High Court that there was such a contravention
and the appellant was prejudiced and we cannot
allow the pomt to be raised for the first time here, the
reason being that whether there was prejudice is a
question of fact and cannot be permitted to be
agitated for the first time in an appeal under Art.
136 of the Constitution.
As regards the fifth point,
it is sufficient to say that this Court has held that an
appeal from acquit ta! need not be treated differently
from an appeal from conviction anr.l if the High
Court finds that the acquittal is not justified by the
evidence on record it can set aside the acquittal without· coming to the conclusion that there were compel!·
ing reasons for doing so.
In so far as the sen Lenee is
concerned, bearing in mind the fact that th" m'tximum
sentence awarded under s. 52 of the Act is seven
years it would not be right to say that in ordering
the sentences in the three cases to run consecutively
the appellant is being very severely punished.
In so far as s. 52 of the Act is eoncerned the
argument is that th~ prosecution having merely shown
that the registered letkrs were recovered from an
almirah in the ,house fo which the appellant lives the
-
1 S.C.R. SUPREME COURT REPORTS
413
utmost that could be said is that he was in possession
of letters, that is, assuming that he was in the
exclusive possession of the house and the almirah.
The mere fact of possession, according to learned
eounsel, does not suffice to show that the letters were
secreted by the appellant. It is contended that for
an officer of the post office to be found guilty for any
of the acts specified in s. 52 it has further to be shown
that he was entrusted with the postal article with
respect to which he is alleged to have committed any
of those acts. Section 52 of the Act runs thus :
"Penalty for theft, dishonest, misappropriation,
secretion, destruction, or throwing away of
postal li'rticles.-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."
The first act referred to in this section is theft.
Surely it cannot be contended that any 'entrustment'
is necessary with regard to that act.
Indeed, if
entrustment were proved and the article entrusted is
not found to have been disposed of in the manner
permissible under the Act, the offence committed
would be not theft but criminal breach of trust. But,.
according to Mr. Misra, the appellant cannot be said
to have secreted the letter just because it was found
in the almirah which is said to have been in his
exclusive possession. To secrete means, occording to
the dictionary "to hide". In connection with a postal
article addressed to some person the fact that it is
retained in his possession by an officer of the post
office in an almirah and that too for an inordinatelv
long ?eriod would be
t~tamount to hiding that
1962
Radhakishau
v.
State ofU. P.
Mudholkar, J.
1962
Radhakishan
v.
State of U. P.
Ji.fudholkar, J,
414 SUPREME COURT REPORTS [1963] SUPP.
article.
Of course, what act amounts to "secreting"
would necessarily depel\d upon the facts of each case
and in our opinion in a case like the present, what
has been established by the prosecution would sustain
an inference of secreting.
Further, a perusal of s. 55
makes it clear that where the entrustment of an
article is made an ingredient of an
offence, the
legislature has used appropriate words to make the
matter clear. If, therefore, it was the intention of
the legislature that for an officer of the post office to
be punished for secreting,
destroying or throwing
away a postal article in the oucrse of transmission by
post, entrustment of that article to him was essential
it would have used language similar to that used by
it ins. 55. It seems to us that bearing in mind the
fact that an officer of the post office having in the
course of his duties access to postal articles kept or
lying in the post office, the legislature has deliberately
enlarged the scope of s. 52 so as
to encompass
secretion, destruction or throwing away of postal
articles by an officer of the post office even though
they may not have been entrusted to him or even
though the arc not articles with which he is required
or is competent to deal in the course of his duties. The
object of the provision is to prevent postal articles 'in
course of transmission by post' from being tampered
with, and so the 'secreting, destruction' etc., of postal
articles to which the provision is directed is to such
secreting, destruction etc., as would frustrate or tend
to frustrate their delivery to the addressees.
Then Mr. Misra contended that it would not
be correct to say that the five registe.red letters
recovered from the almirah were in the course of
transmission by post because that recovery was made
7 or 8 months after those letters had been despatched
and that no complaint had ever been made regarding
their non-deliverv by the senders or the addressee& of
those letters.
H~ further referred to the fact that at
]east in respect of three of the registered letters
1 S.C.R. SUPREME COURT REPORTS
415
acknowledgments purporting to be from the addressee
were obtained and were with the post office.
He
admitted that the prosecution allegation wa~ that
those documents were fabricated but that case having
failed before the Court of Sessions and the Government not having appealed against that part of the
decision of that court it must be held that at least
three of those letters were duly received by the
addressees.
The expression ''in course of transmission by post" has been defined ins. 3 (a) of the Act
as follows :
"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 Chapter VII."
The mere fact that there is even a delay of
several months in delivering a postal article to the
addressee would not mean that the article had ceased
to be in coun:e
of transmission. It is common
experience that delivery of postal articles is now and
again delayed for a considerable length of time---may
be through accident or through the negligence of the
postal employees.
It is prob:i oly for this reason that
the definition clearly lays down that until an article
despatched by post is delivered or can be said to be
delivered that it will be deemed to be in course of
transmission. We cannot, therefore, accept the first
part of this contention of Mr. Misra.
As regards the other point, that is, based on the
fact that there were acknowledgments in respect of
three letters in the post office we may point out that
the existence of these acknowledgments would no
more than raise a presumption that those articles were
delivered to the addressees. The addressees have been
examined in this case and they have deposed that the
le~ters in question were not received by them.
Their
1962
RadhakUhan
v.
State of U. P.
Mudholkar, J.
1962
Radhakislzan
v.
State OJ U. P.
Mudholkar, J.
416 SUPREME COURT REPORTS [1963] SUPP.
evidence has been believed by the High Court and
therefore,
there
is
an
end
to
the
matter.
In the circumstances, therefore, we do not accept
Mr. Misra's contention that the act of an officer of
the post office in being in possession of a postal article
for an inordinate length of time has no significance
and cannot justify the conclusion that he had secreted
the article.
The next and in our opinion the most important
question to be considered is whether the prosecution
has established that the five registered letters in
question were recovered from the possession of the
appellant.
As already stated, all that the prosecution
has been able to prove is this case is that these letters
were found in an almirah of the house in which the
appellant lives jointly with his father and of which the
key was furnished by the father. Dealing with this
question the High Court has observed as follows :
"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
th<' registered letters and other postal articles in
question."
Before the High Court could take into ~onsidera
tion the circumstance that as between himself and
ms father the appellant had a better opportunity to
I S.C.R.
SUPREME COURT REPORTS
417
get at postal arti< k> it had to find aftirmatively that
the almirah was in the exclusive possession of the
appellant. We ha vc not been able to discover any·
thing_ in the jud~ment which directly bears on th\s
quest10n.
As the key was produced by the appellant s
father and there is no evidence that it was ever with
the appellant it would not be legitimate to infer that
the almirah was even in the appellant's joint, much
less in his exclusive, possession.
The circumstance
that the almirah contained, apart from the registered
letters in question, certain other articles belonging to
the :.ppellant cannGt sustain an inference that the
almirah was in the appellant's possession exclusively
or even jointly with his father.
We may recall that
the almirah contained a large number of articles
belonging to the father and since he had the key
with him it must be he who must be deemed to be in
possession of the almirah and consequently of its
contents including the registered letters in question.
Apart from that, out of the four reasons given
by it, the last, as pointed out by the High Court
itself, is a speculative reason and must, therefore, be
left out of consideration.
The second 'reason' is no
reason at all because a very large number of articles
found i1:1 the almirah admittedly belong to the father.
The third reason that the father would not foist
articles to incriminate the son and thus ruin his
career assumes that had the father kept the articles
he could have clone so only if he wanted to incriminate . the son.
We cannot understand why the
father, 1f he happened to get possession of the articles
fron: so~e source may not have kept them in the
almirah m the same way in which he had kept the
other articles belonging to him. That leaves, therefore,
only the first reason.
We doubt if on the basis of
this reason alone the High Court could have held
that though
the locked almirah
w:is not in the
exclusive possession of. the appellant, these articles
were in his exchisive possession,
Jf the point to be
1962
Radhak ishari
v,
Stal• of U. P.
Mrtdholkar, J.
1J62
Radliakisban
v.
Stall of U. P.
Mudhollcar, J,
418 SUPREME COURT REPORTS [1963] SUPP.
established was whether the appellant had availed
himself of the opportunity to procure the articles it
could have been established by showing that he was
in their exclusive possession. But to say that he must
be deemed to be in exclusive
possession of these
articles and not merely in their joint possession along
with his father because he had the opportunity to get
at the articles and then infer that he must have
utilized the oppmtunity and was therefore in their
exclusive possession would be arguing in a circle.
Moreover since entrustment of the articles has not
been established, the taking away of the articles by
the appellant from the post office (if that is how he
came by the articles) would be theft but it has not
been found that he committed any theft. Indeed,
had it been so found he could have been convicted
under s. 52 without the Court having to consider
whether he had secreted the articles. We may mention that Mr. l\1athur who appears for the State does
not even suggest that the articles were stolen by the
appellant. Therefore, the contention that he had an
opportunity to get at the articles loses all significance
and can possibly have no bearing on the question as
to the nature of possession attributable to the
appellant.
In the circurnstauces we must hold that the
prosecution has failed to prove that these letters were
in the exclusive possession of the appellant. No
presumption can, therefore, be drawn against him
that he had secreted them from the mere fact that
they were found in the almirah which, at best, may
be regarded as being in the joint possession of himself
and his father. But, as already stated, even an
inference of joint possession would not be legitimate.
For these reasons we allow the three appeals
and set aside the conviction and sentences passed
against the appellant.
Appeal all.ow&l.