How to ascertain that a person was dealing with stolen property?

 To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the Accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.

{Para 15}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1503 of 2022 

Shiv Kumar   Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

K.M. Joseph and Hrishikesh Roy, JJ.

Author: Hrishikesh Roy, J.

Decided On: 07.09.2022

Citation: MANU/SC/1114/2022

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Whether Charge Of Retaining Stolen Articles Of Dacoity is tenable If Prosecution Fails To Prove Offence Of Dacoity?

  Mr. Ayan Bhattacharya, learned lawyer appearing for the

appellant as Amicus Curiae vehemently argues that while the

charges under Sections 395/397, IPC have not been proved, the

appellant/accused could not be held guilty under Section 412, IPC

which forms an integral part of the charges under Sections

395/397, IPC. In support of his argument learned counsel has

cited a decision in the case of K. Venkateshwar Rao alias

Venkatal alias I. Rao-Vs- State Represented by Inspector of

Police, A.P. reported in (2002) 6 SCC 247. In the decision as

cited supra the Hon’ble Apex Court has held that while the charge of dacoity has not been proved by the prosecution, the charge under Section 412, IPC of retaining the stolen articles of dacoity fails automatically. In such context it will be apposite to refer to Section 412, IPC. Section 412, IPC provides that whoever

dishonestly receives or retains any stolen property, the possession

whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. The language employed in the Section clearly shows that the articles an accused retains shall be related to those articles captured or received during the commission of dacoity. While the charge of dacoity fails, the charge under Section 412, IPC automatically fails in the light of the decision as cited supra.

IN THE HIGH COURT AT CALCUTTA

Criminal Appellate Jurisdiction

Appellate Side

C.R.A. 21 of 1991

Ramabatar Rajbar @ Ramawatar Nimtar Rajwar Vs The State of West Bengal

PRESENT :

 JUSTICE RABINDRANATH SAMANTA

Judgment On: 18.05.2022

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Whether the court can convict a accused for murder if stolen property is seized from his possession?

In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murdered. Suspicion cannot take the place of proof. “

(Emphasis supplied)

33. In the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder), what are the tests:

i. The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate 7 that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer [Sanwant Khan (supra)];

ii. The nature of the stolen article;

iii. The manner of its acquisition by the owner;

iv. The nature of evidence about its identification;

v. The manner in which it was dealt with by the accused;

vi. The place and the circumstances of its recovery;

vii. The length of the intervening period;

viii. Ability or otherwise of the accused to explain its possession [See Baiju v. State of Madhya Pradesh, (1978) 1 SCC 588].”

12. The only material which may possibly be taken against the appellant is, thus extremely weak. There is no other material on record which could even remotely be taken against the appellant. On the strength of the law declared by this Court, the appellant is, therefore, entitled to benefit of doubt.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 753 OF 2021 

TULESH KUMAR SAHU VERSUS STATE OF CHHATTISGARH

Coram: UDAY UMESH LALIT, J; S. RAVINDRA BHAT, J; PAMIDIGHANTAM SRI NARASIMHA, J.

Author: Uday Umesh Lalit, J.

Dated: February 24, 2022

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Supreme court lay down tests for determining when a person in possession of the stolen property is the murderer.

In the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder), what are the tests:

i. The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer [See Sanwant Khan (supra)];

ii. The nature of the stolen article;

iii. The manner of its acquisition by the owner;

iv. The nature of evidence about its identification;

v. The manner in which it was dealt with by the accused;

vi. The place and the circumstances of its recovery;

vii. The length of the intervening period;

viii. Ability or otherwise of the accused to explain its possession [See Baiju (supra)].

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.57 OF 2013

SONU @ SUNIL  Vs  STATE OF MADHYA PRADESH 

K.M. JOSEPH, J.

Dated:MAY 29, 2020.

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Notes on offence of receiving of stolen property

Receiving stolen property (S 410- 414)

Ordinarily a culprit who obtains property by theft of other criminal means would be anxious to dispose it of,mainly with a view to destroy evidence,and also to convert it into money.If the receiver were to go unpunished,robbers and thieves would prosper.S 411 to 414 are enacted to punish receivers of stolen property.Thus receiving or obtaining stolen property,knowing it to be such,is punishable with imprisonment for 3 years or fine or both.(S 411 of IPC)

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Whether property obtained by misappropriation amounts to stolen property?

Stolen property as used in this section has been defined in section Section 410 :

"410. Stolen Property.--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 designed as "stolen property", whether the transfer has been made, or the misappropriation or breach of 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."

Section 410 accordingly defines stolen property. A property is stolen for the purpose of this section when its possession is transferred by theft, extortion, robbery, dacoity or criminal breach of trust or which was obtained under misappropriation committed whether in India or outside.

An extended meaning is given to the words `stolen property' which are used in the four subsequent sections. Not only things which have been stolen, extorted or robbed but also things which have been obtained by  criminal misappropriation or criminal breach of trust are within the meaning assigned to these words.

Criminal - Stolen Property - Section 411 of Indian Penal Code - Not only things which have been stolen, extorted or robbed but also things which have been obtained by criminal misappropriation or criminal breach of trust are within the meaning of stolen property.

Supreme Court of India

Mir Nagvi Askari vs C.B.I on 7 August, 2009

Bench: S.B. Sinha, Cyriac Joseph
Citation: AIR2010SC528, (2009)15SCC643, 

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Leading Supreme Court Judgment on basic concept of possession in criminal law

 When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term "possession" is fundamentally dominated by Savigny- ian "corpus" and "animus" doctrine. Distinction has also been made in "possession in fact" and "possession in law" and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession". Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another.

9. The term "possession" consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. One of the definitions of possession given in Black's Law dictionary is as follows: "Having control over a thing with the intent to have and to exercise such control. Oswald v. Weigel[6]. The detention and control or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. The law, in general, recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint."

In the said dictionary, the term "possess" in the context of narcotic drug law means:-

"Term "possess." Under narcotic drug laws, means actual control, care and management of the drug. Collini v. State[7]. Defendant 'possesses' controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises "dominion or control" over substance. State v. Hornaday[8]."

And again "Possession as necessary for conviction of offense of possession of controlled substances with intent to distribute may be constructive as well as actual, U.S. v. Craig[9]; as well as joint or exclusive, Garvey v. State[10]. The defendants must have had dominion and control over the contraband with knowledge of its presence and character. U.S, v. Morando- Alvarez[11].

Possession, as an element of offense of stolen goods, is not limited to actual manual control upon or about the person, but extends to things under one's power and dominion. McConnell v. State[12].

Possession as used in indictment charging possession of stolen mail may mean actual possession or constructive possession. U.S. v. Ellison[13].

To constitute "possession" of a concealable weapon under statue proscribing possession of a concealable weapon by a felon, it is sufficient that defendant have constructive possession and immediate access to the weapon. State v. Kelley[14]."

10. In Stroud's dictionary, the term possession has been defined as follows:

""Possession" (Drugs (Prevention of Misuse) Act 1964 (c. 64), s.1 (1)). A person does not lose "possession" of an article which is mislaid or thought erroneously to have been destroyed or disposed of, if, in fact, it remains in his care and control (R. v. Buswell[15]).

11. Dr. Harris, in his essay titled "The Concept of Possession in English Law[16]" while discussing the various rules relating to possession has stated that "possession" is a functional and relative concept, which gives the Judges some discretion in applying abstract rule to a concrete set of facts. The learned author has suggested certain factors which have been held to be relevant to conclude whether a person has acquired possession for the purposes of a particular rule of law. Some of the factors enlisted by him are;
 (a) degree of physical control exercised by person over a thing, 
(b) knowledge of the person claiming possessory rights over a thing, about the attributes and qualities of the thing,
 (c) the persons' intention in regard to the thing, that is, 'animus possessionis' and 'animus domini',

(d) possession of land on which the thing is claimed is lying; also the relevant intention of the occupier of a premises on which the thing is lying thereon to exclude others from enjoying the land and anything which happens to be lying there; and Judges' concept of the social purpose of the particular rule relied upon by the plaintiff. 

The learned author has further proceeded to state that quite naturally the policies behind different possessory rules will vary and it would justify the courts giving varying weight to different factors relevant to possession according to the particular rule in question. According to Harris, the Judges have at the back of their mind a perfect pattern in which the possessor has complete, exclusive and unchallenged physical control over the subject; full knowledge of its existence; attributes and location, and a manifest intention to act as its owner and exclude all others from it. As a further statement he elucidates that courts realise that justice and expediency compel constant modification of the ideal pattern. The person claiming possessory rights over a thing may have a very limited degree of physical control over the object or he may have no intention in regard to an object of whose existence he is unaware of, though he exercises control over the same or he may have clear intention to exclude other people from the object, though he has no physical control over the same. In all this variegated situation, states Harris, the person concerned may still be conferred the possessory rights. The purpose of referring to the aforesaid principles and passages is that over the years, it has been seen that courts have refrained from adopting a doctrinaire approach towards defining possession. A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word "possession" in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object.

Supreme Court of India

Mohan Lal vs State Of Rajasthan on 17 April, 2015

Bench: Dipak Misra, S.A. Bobde

Citation;(2015) 6 SCC 222.

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When offence of receiving stolen property is not made out?

In the present case the accused is a
police officer. Hence, he accepting car from
any person, undoubtedly is against the norms
and ethics of public servant, however, that is
misconduct violating service rules.
This cannot be said that he had knowledge that the
car was stolen especially when accused No.2 is
acquitted from the offence of robbery. The
knowledge on the part of accused that
property is stolen has a direct nexus with the
receiving dishonestly knowledge stolen property.
The or his awareness that the property
is stolen has to be proved by the prosecution
by 
oral
tendering
or
evidence
circumstantial.
either
documentary,
However,
in
the
absence of such evidence, fact of possession
alone cannot constitute all the circumstances
completing the chain of the evidence. This may
be a suspicious situation and is helpful to do
guess work, but it is unsafe to come to the

conclusion of the proof of offence.
In the present
case in the absence of nexus between the accused and the offence,

I am of the view that the learned Judge has
committed error in coming to conclusion that
offence under Section 411 of the IPC is made
against
impugned.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.416 OF 2009
Ajay Parmar,

V/s.

The State of Maharashtra

CORAM : MRS. MRIDULA BHATKAR, J.
DATE
: 19th June, 2014
Citation;2015 ALLMR(CRI)1403

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No Right to Privacy When it Comes to Stolen Property

Word to the wise: In the field of Fourth Amendmentprotections, individuals have no expectation of privacy when it comes to stolen property.

A cell phone thief in San Francisco saw his defense strategy shot down by an appeals court when he tried to argue that police violated his rights by remotely tracking down the phone and arresting him.

Lorenzo Barnes robbed a couple at gunpoint near the marina at Fort Mason in 2009 and ran away, according to a local news report. The woman immediately contacted police and gave them permission to have her provider ping the phone’s location.

Within an hour, police found Barnes driving a car in the Mission District and arrested him. He was sentenced to 13 years in prison, but tried to win his freedom on appeal based on an unlikely and ultimately unsuccessful argument.

Expectations of Privacy

The defense wanted to get the evidence tossed by claiming the phone pinging was a warrantless search in violation of the Fourth Amendment.

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