[1955] EACA 332

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal and Briggs Justice of Appeal

SHANTILAL MANIBHAI PATEL, Appellant (Original Accused No. 3)

## REGINAM, Respondent

## Criminal Appeal No. 917 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, C. J., and Paget Bourke, J.)

Possession-Joint possession-Master and servant-Matters which may legitimately be considered to ascertain servant's joint possession—Indian Evidence Act. section 114.

The appellant, his father-in-law and another man, were charged and convicted of receiving stolen property. There was no evidence that the appellant had personally or physically received any of the said property, the receiving being inferred from possession, which possession was found by reason of the appellant working as a salesman for his said father-in-law in a firm behind whose facade he knew there operated a large-scale organization for the receipt and disposal of stolen goods, his having authority to sign cheques for the said firm, the habitual consignment by rail of goods by consignment notes made out and signed by him, his concealment, when the crimes were being investigated, of knowldege of a store used for storing stolen goods, the dispatch of the goods and the whereabouts of his said father-in-law and the making by him of untrue statements dissociating himself from the other accused person.

By section 114 of the Indian Evidence Act: "The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Held (28-3-55).—The real question was whether the proved acts of the servant indicated that<br>he was a participant in the master's criminal activities. For this purpose it was legitimate to take into account the family relationship of the parties and the authority of the appellant to sign cheques as indicating that the true relationship between the appellant and his father-in-law was likely to be closer than that necessarily obtaining between master and servant. It was also legitimate to consider why the appellant had given lying accounts<br>of his own and his father-in-law's activities, and, in the circumstances of the case, the making out of the consignment notes was an act so clearly done in pursuance and furtherance of a joint criminal purpose that it entitled an inference that the appellant was not<br>merely cognisant of the offences of receiving, but an active participant therein. It had thus been shown that he was jointly in possession of the stolen goods with the other criminals.

Appeal dismissed.

Case referred to: George Watson v. R., 12 C. A. R. 62. O'Brien-Kelly for applicant. Brookes for respondent.

JUDGMENT (read by Briggs, J. A.).—The appellant was tried jointly with two other persons and was convicted on four counts of receiving stolen property by the Resident Magistrate, Nairobi. On appeal to the Supreme Court of Kenya the convictions were affirmed and the sentences were slightly varied in form, though not in practical effect. The appellant appealed from the decision. We dismissed his appeal and now give our reasons.

There was no evidence that the appellant personally or physically received any of the goods in question. The receiving was inferred, and could only be inferred, from possession, and the only question raised before us was whether there was any evidence on which it could properly be found that the appellant was in possession of the stolen property at the relevant time.

The first accused at the trial was the father-in-law of the appellant. He was registered as a partner in a firm called British American Motor Spares which carried on business in Nairobi. The only other registered partner was one S. N. Patel, who appears ordinarily to have resided in Kampala, and who was a director of a company called Nakasero Motor Spares Ltd., which carried on business there. We were told from the Bar that S. N. Patel has absconded. The second accused at the trial and the appellant, who was the third accused, were both stated to be employed by British American Motor Spares as salesmen. There was no indication that any other person was connected with the firm, at least in any position of authority.

It was proved at the trial and accepted by both courts below that the firm was the cloak or facade behind which operated a large-scale organization for the receipt and disposal of stolen motor vehicle spares. The goods directly concerned in this case were valued at some $£4,500$ . It was found as a fact that the appellant knew of the existence and nature of this organization and of its operations, and counsel for the appellant did not attempt to attack these findings. He submitted, however, that the evidence against the appellant did not show that he took any part in the criminal operations which could suffice to show that he was in possession of the stolen goods jointly with the first and second accused.

It was proved that the appellant had authority to sign cheques on the firm's account, but it was never shown that he was in law a partner. Nor would this necessarily have been material. It was also shown that stolen goods were habitually consigned by rail to Nakasero Motor Spares Ltd. and that the appellant made out and signed consignment notes to them relating to certain goods charged in counts 1, 2 and 4. Lastly it was shown that when these crimes were being investigated the appellant made untrue statements with the apparent object of dissociating himself from the second accused, concealing his knowledge of a store in Canal Road used for storing stolen goods, concealing the dispatch of goods to Nakasero Motor Spares Ltd., and concealing the whereabouts and actions of the first accused. On this evidence it was found by both courts that the appellant was in possession of the stolen goods jointly with the other two accused and that it might therefore properly be presumed under section 114 of the Indian Evidence Act that he had jointly received them.

His counsel correctly pointed out that possession must be proved as a fact before any presumption of receipt could arise, and that the wide definition of "possession" contained in section 5 of the Penal Code did not apply for this purpose. He submitted that the definition of possession on which this Court should act was to be found in Stroud's Judicial Dictionary, 3rd Edition, Volume 3, page 2245, paragraph (43), where it is said: -

"Possession", as regards the criminal law and offences against property, has been thus defined: $-$

(a) "A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.

(b) A moveable thing is in the possession of the husband of any woman $(a, b)$ or the master of any servant, who has the custody of it for him, and from whom he can take it at pleasure. The word 'servant' here includes any person acting as a servant for any particular purpose or occasion.'

He then submitted that such degree of control as the appellant could be said to have assumed by executing the consignment notes was exercised by him solely in his capacity as a servant of the firm on the firm's behalf, and was therefore no evidence of possession in him. It was not proved that he actually delivered the goods to the railway, and it was submitted that the preparation of consignment notes was a purely ministerial act, indicating at most custody and not possession.

We think counsel's argument might fairly be summarized as follows. Mere guilty knowledge cannot affect the quality of a servant's' act done by him as such servant on his master's behalf. An act of control will not in such a case indicate possession, although the goods are known to be stolen, unless it would suffice to indicate possession in the servant where the master's possession was lawful. Counsel freely admitted that he could point to no authority for this last proposition, and we think it is wholly erroneous. The definition of possession cited above is concerned with questions different from those involved here, and particularly with the question of a change of possession where goods are, or should be, in the lawful possession of a master. Where, as here, the possession of the master was and was known to be unlawful and in furtherance of a criminal purpose, the acts of the servant should be judged by entirely different standards. The court was not concerned with an unlawful taking from the possession of the master, or with the fine distinctions which determine whether receipt by the servant does, or does not, create possession in the master, and so whether an improper disposal by the servant is, or is not, larceny at common law. The real question was whether the proved acts of the servant indicated that he was a participant in the master's criminal activities. For this purpose it was legitimate to take into account the family relationship of the parties and the authority to sign cheques, as indicating that the true relations of the first accused and the appellant were likely to be closer than those necessarily existing between master and servant. It was also legitimate to consider why the appellant had given a lying account of his own and his father-in-law's activities.

Of course it is possible that a dishonest master should have an honest servant, and it is possible for an honest servant to suspect dishonesty in his master without being involved in it; but if he is fully aware of the extent and nature of the dishonest operations, he can hardly claim to be an honest man if he remains silent about them. If he lies to the police in order to conceal them, he crosses the border between merely blameworthy and criminal conduct. In that situation he is not entitled to say that his actions should be viewed in the same light as if he were an honest man engaged in lawful transactions. Had this been an ordinary law-abiding business and had the consignments to Kampala been made in the ordinary course of lawful business, no one could seriously have suggested that to make out the consignment notes involved an assumption of possession; but we considered that in the circumstances of this case it was an act so clearly done in pursuance and in furtherance of a joint criminal purpose that it entitled the learned magistrate to infer that the appellant was not merely cognizant of the offences of receiving, but an active participant therein. The point may be put in another way. Making out the consignment notes was the exercise of some degree of control over the goods. In normal circumstances that exercise of control would not suffice to raise any inference of possession; but in these circumstances no honest man would have been willing to exercise any degree of control whatever; there was a system of joint dishonest conduct and the willingness of the appellant to assist in the unlawful disposal of these goods raises an inference that he had a personal interest in them, in other words that he was jointly in possession with the other criminals.

We think direct support for this view of the law may be found in the case of George Watson 12 C. A. R. 62. The appellant and two others were jointly convicted of receiving. The other two did not appeal and it was clear that they were in possession of some 36 ounces of stolen gold. The appellant met them and they told him they had it, and that it was stolen. The appellant went to a jeweller and offered to sell 36 ounces of stolen gold to him. The three accused were seen together later that day. The jury were directed that they could convict the appellant of receiving if they found that he assisted in disposing of the stolen goods. They found that he was "a negotiator, and in the full knowledge that the goods were stolen". On appeal it was held that the conviction was wrong, since the verdict need mean no more than that the appellant was an accessory after the fact, an offence with which he had not been charged, and of which he could not be convicted under the charge of receiving. But Lord Reading, L. C. J., in referring, at page 65, to the summing- up said: $-$

"It is not quite clear to us what the Recorder meant by his direction. Had he directed the jury that if they came to the conclusion upon the evidence that the appellant was in possession of the stolen property either by himself or jointly with the other prisoners, in the sense that he had either exclusive or joint control of it, and the jury had accepted that view on the facts, the conviction might have been supported. But we cannot find in the direction any indication to the jury that that was the point to which they must direct their attention, and we must come to the conclusion that the direction as it stands cannot be supported. Moreover the jury, by their verdict have left it in doubt, to say the least of it, whether the appellant was in their view in sole or joint possession of the stolen property, or whether he had possession in the sense of having control. They found that he was a negotiator for disposing of the jewellery, in the full knowledge that the goods were stolen, but in our opinion this is not a finding that he was in possession or control of the goods. If he was merely a person directing the other two to a place where they might conveniently dispose of the stolen property, or was merely acting in the capacity of a messenger or conduit pipe between the intending purchaser and the receivers, he could not be convicted of the offence of receiving. Therefore, there is a direction which is not right in law, and a verdict which does not affirm against the appellant that which might have been found on the evidence if there had been a proper direction."

The court was thus clearly stating that a conviction for receiving could properly have been based on the facts proved. The court was one of high authority and this dictum, although not necessary to the decision, must carry great weight. We think the active participation of the appellant in the present case was at least as substantial as that of *Watson* and that the court was equally entitled to find joint possession from it.

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A further point was taken against the appellant. It was contended that in this case the criminal organization was established on a long-term basis involving a continuous series of receipts and disposals of stolen goods, and that in the circumstances the disposal of any one consignment might so facilitate the receipt of another as to amount to abetment of the later receipt. It was said that in this sense the appellant had abetted the offence of receiving, even if he had not himself received anything, and that he could properly be convicted as a principal<br>under the provisions of section 22 of the Code. We think this point may have been more ingenious than sound, but it is not necessary to express any concluded opinion on it.

Counsel for the appellant sought finally to persuade us that the facts proved indicated at most an offence under sub-section (3) of section 317 of the Penal Code. This sub-section, introduced comparatively recently, is valuable in many cases, where receiving cannot be established. In this case, however, we thought the courts below were fully entitled to find that the more serious offence was proved.

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