[1955] EACA 325

## COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL (President), GRIFFIN, C. J. (Uganda), and BRIGGS, Justice of Appeal

## CHHOTABHAI LALLUBHAI PATEL, Appellant (Original Accused) $\nu$ .

#### REGINAM, Respondent

#### Criminal Appeal No. 947 of 1954

(Appeal from the decision of H. M. High Court of Uganda, Ainley, J.)

Possession of property unlawfully obtained—To what "which may reasonably be suspected of having been stolen" in section 299 (1) Penal Code refers-Theft—Claim of right—Penal Code, sections 245 (1), 247, 252, 260 and 299 (1) Criminal Procedure Code, section 117.

The appellant was convicted on two counts of being in possession of property unlawfully obtained contrary to section 299 (1) of the Penal Code.

Pursuant to a search warrant issued under section 117 of the Criminal Procedure Code, a large number of tablets which a police officer took to be " $M \& B$ " tablets were taken away. In view of the large number of tablets, the police officer suspected that the appellant had obtained them unlawfully. The Crown contended that there was no obligation upon the prosecution when the matter came into court, to prove that the tablets contained a prohibited drug, i.e. a drug which, without a doctor's prescription, could not lawfully have come into the possession of the appellant. Before the magistrate the appellant was asked to account for his possession thereof. His explanation did not satisfy the court.,

Section 299 (1) of the Penal Code provides: "When any police officer has... searched any building... pursuant to a search warrant issued under section 117 of the Criminal Procedure Code and has seized anything which may reasonably be suspected of having been stolen or unlawfully obtained, and if the person in whose possession such thing was found shall not give an account to the satisfaction of the court of how he came by the same, he shall be guilty of a misdemeanour."

The appellant was also charged with theft as an agent contrary to section 252 and 260 of the Penal Code and found guilty of stealing a certain sum. There was prosecution evidence that the appellant was entitled to receive a certain commission from the complainant, which had not been paid to him and which slightly exceeded the said sum and that the buyers, of whom the appellant was one. when accounting for a balance in hand sometimes deducted their commission therefrom.

Section 245 of the Penal Code defines theft thus: "(1) A person who fraudulently and without claim or right takes anything capable of being stolen...is said to steal the thing".

Held (23-2-55).-(1) In section 299 (1) of the Penal Code, "which may reasonably be suspected of having been stolen" refers to the time of trial; it cannot only refer to the time of seizure, and, if something happens between the time of seizure and the time of trial to allay the suspicion, or to establish another offence, such as larceny, it is improper to lay a charge under the sub-section.

(2) As the prosecution could not prove that the retention of the money was without a claim of right, an ingredient of the offence of larceny was absent, and the accused could not be guilty of that offence.

Appeal allowed.

Cases referred to: R. v. Williams, 37 C. A. R. 71; Flatman v. Light and others, (1946) $K. B. 414.$

#### Wilkinson for appellant.

#### Greeenwood for respondent.

JUDGMENT (read by Nihill (President)).—This is a second appeal from a judgment of the District Court of Mbale sitting at Tororo in Uganda. The appellant was convicted on one count of stealing by an agent contrary to section 252 and 260 of the Uganda Penal Code and on two counts of being in possession of property unlawfully obtained contrary to section 299 (1) of the Code. On appeal to the High Court of Uganda the convictions were upheld.

As we have already announced at the hearing, this Court has allowed this appeal on all three counts and we now give our reasons for so doing.

The facts are fully set out in both judgments in the courts below and we need not refer to them again in detail. It will be convenient, however, to dispose of the possession offences first, as these were quite distinct from the stealing charge and arose in the following way. The appellant, who had been entrusted by his employers with a large sum of money for the purpose of buying cotton, was suspected of having cheated them. A search warrant was obtained and executed on the appellant's shop for the purpose of obtaining documentary evidence to support a charge of stealing by an agent. During the search the Police Inspector conducting it came across a large number of white tablets which he took to be M & B tablets. The Inspector knew, that if they were what is commonly known as M & B tablets, that they contained a drug on the prohibited list. In view of the large number found, he suspected that the appellant had obtained them unlawfully. Accordingly, he took them away from the shop and subsequently the appellant was asked to account for his possession of them before the magistrate's court, in accordance with the provisions of section 299 (1). He gave an explanation which did not satisfy the court. We say at once that we consider that the initial suspicion of the searching police officer may well have been reasonable. We cannot agree, however, with Mr. Greenwood that if this is conceded, then, by the wording of the section, there was no obligation on the prosecution when the matter came to court, to prove that the tablets in fact contained a prohibited drug; that is to say a drug which, without a doctor's prescription, the appellant could not lawfully have come possessed of. In our opinion, the words "which may reasonably be suspected of having been stolen" used in the section must refer to the time of trial or put in another way, it cannot only be taken to refer to the time of seizure. If something happens between the time of seizure and the time of trial to allay the suspicion, or to establish another offence such as larceny, then it is improper to lay a charge under the section. What was required in the instant case was that the police should have satisfied themselves that the suspicion of the searching inspector was well founded. If on examination by a qualified person, the tablets seized had been found to contain a prohibited drug, then it would have been reasonable to take the appellant to court, otherwise it was not, for the tablets were as innocuous as a bag of sweets and there was no basis for supposing that the appellant could not have obtained possession of them lawfully. As it was, when the case came to trial, all that the prosecution was in a position to do was to call a doctor who, after looking at the tablets, said that they resembled M & B tablets which could not lawfully be obtained without a doctor's prescription. He was not able to say that the tablets before him contained the prohibited drugs "sulphapridine" and "sulphathiazole", specified in the two counts on the charge sheet. On this state of the evidence, the appellant should not have been called on to give an account as to how he came into possession of the tablets, because the basis of the reasonable suspicion that the tablets must have been unlawfully obtained was no longer there.

In the appellate court below the learned Judge did not consider this aspect of the matter. He thought, as we do, that the suspicion of the Police Inspector was reasonable enough, and as he thought also that the rejection of the appellant's explanation was also reasonable he refused to intervene. Mr. Wilkinson has argued in the alternative that the rejection of the explanation was unreasonable but as to that we offer no opinion since, as already stated, we consider that the appellant should not have been required to give an explanation at all.

We now come to the more serious charge preferred against the appellant. In count one of the charge sheet it was alleged that he had stolen a sum of Sh. 13,942/50 from his employers, Messrs. Uganda Ginners & Millers. The magistrate found, for reasons which we need not go into, that the appellant was guilty only of stealing a sum amounting to Sh. 6,581/50, which represented a discrepancy of 13,163 lb. of cotton at 50 cents per lb., between the amount stated by the appellant himself in his weekly reports as having been purchased, and the amount of cotton actually sent to the ginnery. During the course of the prosecution's case it emerged from the evidence of the managing director of the employer's firm that the appellant was entitled to receive a commission of 85 cents per every 100 lb. of cotton purchased by him; that this commission had not been paid to him, and that the amount due to him exceeded slightly the sum of Sh. 6,581/50. This witness also stated, and this is all important, that it was the practice at the end of each buying season, for their buyers, when accounting for the balance of cash in hand, sometimes to deduct their commission. In spite of this evidence the learned Judge in the court below upheld the conviction because he considered that on the hypothesis that the money advanced to the appellant by his employers was given with the sole direction that it should be expended on buying cotton, then the appellant's act in retaining the unexpended balance in order to recoup himself for his commission earned amounted to theft within the meaning of sections 245 and 247 of the Penal Code. With respect to the learned Judge, we think he overlooked that on the evidence of the managing director it is really impossible to find with any certainty that there was not at least an implied direction that cotton buyers employed by the company could deduct from the money advanced their commission earned, either at the end of the buying season or from time to time as the commission accrued. Indeed, one would expect such a practice to exist for it would be mutually convenient to both parties. In any case we are fully persuaded that, on the evidence given by the managing director, the bottom fell out of the charge of theft brought against this appellant, for the prosecution could not show that the retention of this sum by him was without claim of right. (See definition of theft in section 245 (1).) No doubt there was a case for suspecting false accounting by this appellant which justified the initiation of this prosecution. Nevertheless, once the magistrate had found that the sum proved to have been retained was not Sh. $13,942/50$ as set out in the charge, but in fact a sum less than the amount earned and due to him as commission, he should have acquitted him.

As already stated, the three convictions entered against this appellant have been quashed and the sentences passed in respect of them set aside.