Report No. 69

III. Facts Suggesting an inference

7.171. Facts suggesting an inference.-

In many.of these cases, the decision as to the applicability of section 11 may be said to agree with common sense. Difficult question, however, arise concerning facts suggesting an inference. The Calcutta case of Booth v. Emp., 1914 ILR 41 Cal 545 (Mookerjee and Beachcroft, JJ.), is interesting in this context. On January 13, 1913, one Kali Charan, handed over to Cox & Co. (Shipping agents in Calcutta), a bill of lading and invoice relating to certain goods then on board the steamship, "Borneo", and paid them Rs. 30 on account of clearing charges. The invoice described the goods covered by it as 6 bales of old wearing apparel, shipped by C. Potter & Co. of London, to one Ram Prasad at Darjeeling, containing 900 ladies' jackets.

The bill of lading stated the goods to be 6 packages of old wearing apparel "R.P., Darjeeling Via Calcutta Nos. 479 to 484" and purported to bear the endorsements of C. Potter & Co. and Ram Prasad. The goods arrived in Calcutta by the ship "Borneo" and were seized in the Customs House before clearance. They were opened on the same day to Cox & Co. to receive delivery, but was taken to the Customs House and was ultimately made over to the police, placed on trial and convicted by the Chief Presidency Magistrate of unlawfully importing and being in possession of the cocaine in violation of section 46 and 52 of the Bengal Excise Act, 1909. On revision, the High Court altered the conviction to one of attempting to import cocaine under section 61 of that Act.

7.172. It appears that the appellant, Booth, was also suspected by the customs authorities in connection with the above transaction, and, before Kali Charan was convicted, the customs authorities had obtained an order to detain all letters addressed to G. Potter & Co., London, and, later on, also obtained an order to stop the delivery of all letters addressed to the appellant, Booth. A letter addressed to C. Potter & Co. dated 28th January, 1913, was, accordingly, intercepted at the Post office and was found to be entirely in the hand-writing of the appellant, Booth. Two telegrams purporting to have been sent by C. Barker, 71, Canning Street-the business place of the appellant Booth-were also intercepted by the authorities.

Of these, one was addressed to the telegraphic address of C. Potter & Co. and the other to some other name, each containing the single word "Mills". The other addressee was, or had been, a partner of the appellant. The handwriting of the name and address of the sender in the telegram was found to have been that of the appellant. Two letters posted in England and addressed to the appellant, of which one stated "your mills received", were also intercepted at the post office and delivery withheld.

The appellant was tried before the Second Presidency Magistrate for unlawfully importing cocaine, and convicted. There was an appeal to the High Court. The principal argument on behalf of the Appellant was that the only evidence on which the conviction could be based was the letter dated 28th January, 1913, addressed by the appellant to C. Potter & Co. The letters posted in England and addressed to the appellant never came into his possession. They were not, therefore, admissible against him, according to his contention.

As regards the letter dated 28th January, 1913, written by the appellant, it was contended that it was not written by him, and even if it was written by him, it only showed partnership with consignor of the goods. The consignors were the exporters from London, but they were not importers into Bengal. The importer under the Bengal Act is the buyer in India. The property in the goods passed to Ram Prasad, and no connection was shown between Ram Prasad and the accused, and, therefore, there was no importation into Bengal on behalf of the accused.

7.173. Dismissing the appeal, the Calcutta High Court held, firstly, that the letter was written by the appellant; secondly, that even though the letter was not signed, it was well-settled that a letter written by the accused person, when self-disserving, is prima facie evidence against him, if it relates distinctly to a relevant point. It is enough if it is traced to the writer (in this case, the handwriting was proved to be that of the appellant on the expert evidence of Mr. Hardless and other evidence). Thirdly, it was immaterial that the accused was not the consignee; he was certainly an importer, and he did attempt to import cocaine in contravention of the law, even though it was not possible to determine with precision the benefit that might have accrued to him under a successful venture.

Fourthly-and this is the point most material for the purpose of section 11-"the fact that a reply from Potter & Co. posted immediately after the telegram purporting to be sent by C. Barker and referring to the telegram, was addressed to Booth, would be a relevant fact under section 11 of the Evidence Act1 and cogent evidence to show that Booth was the sender of the telegram". The High Court followed the English case of Queen v. Cooper, (1875) 1 QBD on this point. In that case, A was charged with obtaining and attempting to obtain money by false pretences from four persons by an advertisement offering employment to all who sent him one shilling in stamps.

Letters from 282 other persons expressed to be in answer to the advertisement, and each enclosing twelve one penny stamps, were held to be admissible, although the letters had been intercepted at the post office and had never, in fact, reached A and could consequently be deemed at best, only constructively in his possession.

1. Emphasis supplied.

7.174. While the above Calcutta case is one where section 11 was applied, we may refer to another Calcutta case,1 where the section was regarded as inapplicable. A and B were charged with theft committed in 1914 in the house of a prostitute; evidence was brought forward to show that C and D committed a theft in the house of another prostitute in 1918, in somewhat similar circumstances. It was held that the evidence was not admissible either under section 9 or under section 11 to prove that A and B were the same persons as C and D. Presumably, the court did not regard the earlier theft as rendering the fact in issue in the present case "highly probable".

1. R. v. Panchu Das, 1920 ILR 47 Cal 671: AIR 1920 Cal 500 (FB) (Chaudhuri, J. dissenting), followed in Katabuddin, AIR 1927 Cal 230.

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