JUDGMENT
G.N. Prasad, J.
1. Jamuna Prasad, the petitioner, has been convicted under Sections 52 and 53 of the Indian Post Office Act, 1898, The trial court sentenced him to undergo rigorous imprisonment for three years under Section 52 and for one year under Section 53, but in appeal, the sentences have been reduced to one year and six months respectively, to run concurrently.
2. These offences are alleged to have been committed by the petitioner in August, 1961. It is not in dispute that at the relevant time the petitioner was attached to the General Post Office at Patna as a Postal peon. He was employed in the third batch of Beat No. 12, which covered the Hardinge Road, the Service Road behind the Hardinge Road, Taylor Road, Polo Road, Flying Club and the Government Poultry Farm. His duties began from 12 noon and he was expected to return to the Post Office at 5-30 P.M. after delivering the letters and other postal articles entrusted to him for delivery.
3. The prosecution case is that between the 1st. August, 1961 and the 1lth. August, 1961, the petitioner had not delivered a number of postal articles which had been handed over to him for delivery to the addressees of his beat. This was detected on the 12th August, 1961, when a Postman Overseer, Balram Singh (P. W. 5), went to then Postmen’s Tiffin Room situated in the compound of the General Post Office to search for a mug. The Postman Overseer noticed a number of undelivered letters lying below a broken rack in the inner verandah of the Tiffin Room and he made a report (Ext. 4) about it to the Supervisor Ganesh Lal (P. W. 6), who forwarded it to the Deputy Postmaster incharge of the office of the Postmaster. Thereupon several officers, including the Deputy Postmaster Jagdhari Singh (P. W. 4), visited the Tiffin Room and recovered 35 undelivered letters and packets from beneath the rack in the inner verandah of the Tiffin Room. All these Postal articles were found to relate to Beat No. 12-A 1st (Ext. 1) of the postal articles in question (Exts. I to 1/34) was prepared by Rajendra Narayan Choudhary (P. W. 1) and signed by the Deputy Postmaster (P. W. 4) and the postal articles in question were made over to the Postmaster. Thereafter a departmental inquiry was conducted by Narayan Prasad Sinha, Town Inspector of Post Offices (P. W. 8), before whom the petitioner submitted a written statement (Ext. 10) on the same day (12-6-1961). On 14-8-1961, the Town Inspector made a report (Ext. 9) to the Officer-in-charge Kotwali police station on the basis of which a first information report ;(Ext. 11) was drawn up. The police investigated into the case and submitted a chargesheet against the petitioner. Cognizance was taken, and after an inquiry under Chapter XVIII of the Code of Criminal Procedure, the petitioner was put on trial before the 5th Assistant Sessions Judge, Patna.
4. The petitioner pleaded not guilty and took the defence that he had been falsely implicated by some postal employees as they were annoyed with him because he had not joined a strike which the other postal employees had organised with a view to vindicate their grievances against the authorities. He also examined a defence witness on his behalf.
5. Both the Courts below have rejected the defence and accepting the prosecution case to be true, they have convicted the petitioner in the manner already stated.
6. Learned Counsel for the petitioner fairly conceded that he could not reasonably assail the concurrent findings of the courts below of the facts relating to the prosecution case. The relevant findings are these:
(i) The postal articles Exts. 1 to 1/34 were recovered by P. W. 4 and others from beneath a broken rack kept in the inner verandah of the Tiffin Room of the Postmen situated in the compound of the General Post office and they all related to Beat No. 12;
(ii) The petitioner was on duty in Beat No. 12; and at least 29 of the postal articles in question related to his batch of the said beat;
(iii) The circumstances brought on the record led irresistible to the conclusion that it was the petitioner himself who had kept those postal articles beneath the rack of the Tiffin Room;
(iv) Among those postal articles, two should have been delivered on the 7th August 1961, ten on the 8th August 1961, six on the 9th August 1961, five on the 10th August, 1961 and ten on the 11th August, 1961; and,
(v) The petitioner had confessed his guilt in his statemest (Ext. 10) which he gave to Narayan Prasad Sinha (P. W. 8) on 12-8-1961 in course of the departmental inquiry and his confession was true and voluntary. The confession, though retracted at the
trial, had been corroborated by independent evidence adduced by the prosecution.
7. The first contention of the learned Counsel for the petitioner is that the conviction of the petitioner under Section 53 of the Indian Post Office Act, hereinafter to be referred to as the ‘Act’, is bad for two reasons. Firstly, it is pointed out that for this offence it was requisite, having regard to the provision of Section 72 of the Act, that the complaint upon which cognizance was taken in this case should have been made “by order of, or under authority from, the Director General or a Post Master General”. But no document has been brought on the record in order to prove that any such complaint had been made by the order of, or under authority from, the Director General or a Post Master General. Only an oral
statement has been made by Alakh Pd. (P. W. 2) on recall that the Post Master General had authorised Ramadhin Pd. of his office to file complaints relating to postal Offences, and the said Ramadhin Pd. made a note in the note-sheet (Ext. 7) that “S.D.O. Patna may be approached for taking cognizance of the case”. But Ramadhin Pd. himself had not made any complaint nor he was examined as a witness in this case. My attention was also drawn to a letter (Ext. 8) dated 16-9-1961 purporting to have been signed by one S. Mitra for the Post Master General, wherein it was mentioned that for prosecuting the petitioner, under Section 53 of the Act, “the S.D.O. Patna may kindly be approached for taking cognizance of the case”. The writer, Sri S. Misra, has not been examined, and no evidence has been led that he had issued the letter (Ext. 8) under the order of, or authority from the Post Master General.
8. Secondly, it was contended that upon the facts found by the Courts below, no offence under Section 53 of the Act has been made out. In my opinion, both the grounds urged in order to assail the conviction of the petitioner under Section 53 are well-founded., In this case cognizance was taken upon the charge-sheet which the police had submitted after investigation, and not upon any complaint, as required by Section 72 of the Act. It does not appear at all from the ordersheet of the Magistrate’s court, which is Ext. 14 in case, that any complaint was filed before the Magistrate by order of, or under authority from the Director General or the Post Master General in pursuance o£ Exts. 7 and 8. There is also nothing to show that Exts. 7 and 8 were filed in the Magistrate’s court. No reference to them is to be found in the commitment order or in the ordersheet (Ext, 14) of the learned Magistrate. The Subdivisional Magistrate by order dated 25-2-1963 had taken cognizance of the offence under Section 52 of the Act only. That being so, the court was not empowered to take cognizance of the offence under Section 53 of the Act.
9. The charge framed against the petitioner under Section 53 of the Act was that he had “wilfully detained and delayed 35 Postal articles in course of transmission to the respective addressees between 1-8-61 and 11-8-61”. The question, therefore, arises, had the petitioner “wilfully” detained or delayed the Postal articles Exts. I series? The meaning of the words “wilfully detains or delays”, which are to be found in Section 53 of the Act, was explained in Ramchandra Narasimha Kulkarni v. State of Mysore . The majority view expressed in this decision of the Supreme court was that the word “wilfully” was used by the legislature in Section 53 to mean only such detention which was deliberate and for some purpose. But where the delay or detention is not deliberate and on purpose, but the result of either inadvertence or carelessness or negligence, the accused cannot be said to have detained or delayed the articles willfully. In the reported case, the prosecution had alleged definite purpose for the detention of the Postal article, but the existence of that purpose had not been established and it was not suggested what other purpose the accused could have had in detaining the article.
In these circumstances, their Lordships held:
There is therefore no escape from the conclusion that the detention was not deliberate and on purpose, but as a result of either inadvertence or carelessness or negligence. So, the appellant cannot be said to have detained or delayed the article ‘wilfully’.
In the present case, the prosecution did not allege any definite purpose for which the petitioner had detained or delayed the postal articles in question. Therefore, it is not possible to hold that the petitioner had ‘wilfully’ detained or delayed the postal articles in course of transmission by post. It would follow that the action of the petitioner in delaying the delivery of the postal articles in question falls within the ambit of Clause (c) of Section 49 of the Act, the relevant portions of which are as follows:
Whoever, being employed to carry or deliver any mail bag or any postal article in course of transmission by post:
(a)…
(b)…
(c) loiters or makes delay in the conveyance or delivery of any such mail bag or postal articles as aforesaid, or
(d)…
shall be punishable’ ; with fine which may extend to fifty rupees.
I am, therefore, of the opinion that the conviction of the petitioner under Section 53 of the Act must be altered to a conviction under Section 49(c) of the Act.
10. The second contention of the learned Counsel is in respect of his conviction under Section 52 of the Act. That Section provides:
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.
11. It is not indispute that the petitioner was an officer of the post office. The expression “officer of the Post Office” has been defined in Clause (e) of Section 2 of the Act to include “any person employed in any business of the Post office” or on behalf of the Post office. The charge which was framed against the petitioner was for having secreted 35; postal articles in course of transmission. It is not the prosecution case that the “petitioner had either committed theft or dishonest misappropriation in respect of any of those, postal article. It is also not the prosecution case that he had destroyed or thrown away any of them the prosceution case is that the petitioner had secreted the postal articles in question in course of transmission by post. The meaning of the word “to secrete” Was explained in Radha Kishan v. State of Uttar Pradesh of the report, it was stated:
To secrete means, according to the dictionary to hide’. In connection with a postal article addressed to some person the fact that it is retained in his possiession by an officer of the post office in an almirah and that too for an inordinately long period would be tantamount to hiding that article.
It was, however, made clear that the question as to what act amounts to ‘secreting’ would necessarily depend upon the facts of each case. But it was further stated at the same page of the report:
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 Section 52 so as to encompass secretion, destruction or throwing away of postal articles by an officer of the post office even though they, pay not have been entrusted to him or even. though they are 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, 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.
12. In the instant case, the finding is that it was the petitioner himself who had kept the postal articles in question beneath the rack of Plaintiff in Room from where they had been recovered by P.W.4 and others on the 12th August, 1961. The postal articles should have been delivered to the addressees between the 7th and the 11th August, 1961 The spot from where they were recovered was certainly not meant for keeping them in safe custody pending their delivery. It is, therefore, reasonable to conclude that the petitioner had kept them below the rack in the Tiffin Room in order to hide or secrete them. It cannot be imagined what other purpose the petitioner could have in keeping them beneath the rack of the Tiffin Room.
13. It was, however, contended by the learned Counsel for the petitioner that the petitioner could have no purpose in hiding the postal articles in question which consisted merely of unregistered post cards, inland letters or envelopes or money order acknowledgments. But Section 52 comes into play even though any postal article in course of transmission by post
is secreted for any purpose what-so-ever”. In this respect Section 52 stands in sharp contrast with Section 33, inasmuch as the word “wilfully” which has been used in Section 53, is absent in Section 52, and in its place the words “for any purpose whatsoever” have been used therein. Therefore, to constitute an offence under Section 52, it is not necessary, as it is necessary to constitute an offence under Section 53, that secretion of the postal article in question should be deliberate or for some purpose. This distinction between the two Section s was noticed by their Lordships of the Supreme Court in Ramchandra’s case also where their Lordships observed.”
It is interesting to notice in this connection that in the procedring Section 52 the legislature after making punishable the offence of theft of a postal article or of dishonest misappropriation of the same, also made punishable the secretion, destruction or throwing away any postal article if done for any purpose whatsoever.
I am, therefore, unable to accept the contention of the learned Counsel that the offence under Section 52 has not been established by reason, of the non-existence of any purpose in secreting the postal articles, concerned which the petitioner could have achieved,
14. It was then contended that it was not a case of secreting the postal articles concerned be cause the Tiffin Room where they, were found lying was not a secret places but accessable to all the postal peons attached. to the General Post Office. But it is manifest that the action of the petitioner in keeping them below the rack of the Tiffin Room tendered n to frustrate, their delivery to the addressees and, therefore, considiering the object of Section 52, as explained, by their Lordships of the Supreme. Court in Radha Kishan’s case , the reasonable
conclusion must be that it was a case of secreting of the postal articles as it tended to fristrate their delivery to the addressees concerned Upon a true meaning of the Word “secreting”, I am, therefore, of the opinion that the offence under Section 52 has been brought home to the petitioner, even though the Tiffin Room might have been access able to other postal peons of the Post Office. I would, therefore, reject this contention of the
learn counsel.
15. Lastly, it was contender that it was not necessarily a case c secreting the postal articles in question as it was possible that the petitioner might have kept them below the rack of the Tiffin Room on the ground that he might not have been able to go round his entire beat which extended over about three miles from the Harding Road, or one end, to the Flying Club, on the other, on the due dates of their delivery, specifically when those dates fell during the rainy season. Alternatively, it was urged that it might have been a case of mere negligence whereby the delivery of the postal articles was delayed within the meaning of Clause (c) of Section 49. Neither of these two contentions appear to me to be sound. It is impossible to believe that among the other peons attached to beat No. 12, it was only the petitioner who was prevented from effecting delivery of the letters in question due to the length of the beat or to rains, while the other peons attached to the same beat had found it possible to deliver the letters relating to their batches under similar conditions. If for example, the petitioner was physically unable to deliver the letters which he should have delivered on the 7th, or the 8th or the 9th August, 1961, either due to
distance of or to rains, then there was no reason why he should not have delivered to them on subsequent days and should have left them lying below the rack of the Tiffin Route until the 12th August 1961. In this connection would refer to only two of the postal Articles Exts. 1/22 and 1/23, both of which were due for delivery on 8-8-1961. Ext. 1/22 had to be delivered at No. 1, Polo Road and Ext. 1/23 had to be delivered at No. 8- Hardinge Road, which is situated at the opposite end of Beat No. 12. It is impossible to believe that on 8-8 1961, the petitioner was prevented either on account of the length of his beat or account of rains from delivering these two postal articles at either of the two ends of his beat. Quite clearly, the petitioner had not moved out for making delivery of these two postal articles at either end of his beat, and with a view to hide his inefficiency, he, had thought fit to secrete them by keeping them beneath the rack of his Tiffin Room. Regarding the alternative submission of the learned Counsel, I am clearly of the opinion that it was not a case of mere delay in the delivery of the postal articles in question, because from the manner, in which they were left lying in the Tiffin Room, I am unable to hold that it was the intention of the petitioner to deliver them to the addressees concerned on a subsequent date. Quite clearly, the petitioner had hid them at the spot from where they were subsequently recovered. I, therefore, feel satisfied that the guilt of the petitioner under Section 52 of the Act has been amply established.
16. For the foregoing reasons, I uphold the conviction of the petitioner under Section 52 of the Act. But his conviction under Section 53 of the Act is altered into a conviction under Section 49 of the Act.
17. I now turn to the question of sentence. I uninformed by the learned Counsel for the petitioner that as at result of the1 departmental inquiry made against the petitioner, he has been dismissed from his Service. Besides, it appears that after the postal articles in question had been traced out by P.W. 4 and others, they were delivered to the addressees concerned tinder his orders. Therefore, although the ‘ petitioner had secreted them, they Were not destroyed, though their delivery was delayed. Considering these circumstances, I reduce ‘ the sentence imposed upon the petitioner under Section 52 of the Act to rigorous imprisonment for four months, and under Section 49 of the Act, under which I convict the petitioner in lieu of his conviction under Section 53 of the Act, I impose upon him a fine of Rs. 50/, in default of the paymemt of which he will undergo simple imprisonment for one month. With these modifications, the application is dismissed.
