In Re: Mala Naicker and anr.

- - 1. the two accused (very poor coolies) have been convicted and sentenced under section 20 of the treasure trove act (vi of 1878) read with section 4. 2. their contention in revision is that neither of them is a 'finder' of the treasure within the meaning of that term as used in section 4. the term 'finder 'is not defined in the act and the established fact is that the accused discovered the treasure buried in the ground while they were cutting a tree under the orders and in the presence of their employer. 5. as regards the sentences, the accused are stated by the sub-magistrate to be 'the poorest of the villagers 'there is no legal evidence that they obtained a substantial or any portion of the treasure trove and though it seems clear that some rich person or persons is or are assisting them in filing this revision petition and assisted them in their defence in the lower courts, i do not think that these facts can be taken into consideration in arriving at a conclusion as to what is the reasonable fine which could be imposed on the accused......act (vi of 1878) read with section 4.2. their contention in revision is that neither of them is a ' finder' of the treasure within the meaning of that term as used in section 4. the term ' finder ' is not defined in the act and the established fact is that the accused discovered the treasure buried in the ground while they were cutting a tree under the orders and in the presence of their employer.3. i think that the accused were 'finders ' of the treasure even though they found it in the course of the performance of labor for an employer. it is contended that because the concluding portion of section 4 imposes a duty on the ' finder ' ' to deposit the treasure in the nearest government treasury and etc,' a person who has not the physical control of the treasure found by him cannot be a ' finder' under that section, and that in this case, the accused's employer at once assumed control over the treasure.4. i think that the meaning of the term ' finder ' cannot be restricted by reason of one of the obligations imposed on the finder being to deposit the treasure in the treasury. if it is impossible for him to discharge that (particular obligation, he should be held absolved from its performance as nobody could be convicted under the criminal law for not doing an impossible act, unless the terms and intention of the statute are absolutely clear and inflict a penalty on even an innocent person. i therefore see no reason to interfere with the conviction.5. as regards the sentences, the accused are stated by the sub-magistrate to be 'the poorest of the villagers ' there is no legal evidence that they obtained a substantial or any portion of the treasure trove and though it seems clear that some rich person or persons is or are assisting them in filing this revision petition and assisted them in their defence in the lower courts, i do not think that these facts can be taken into consideration in arriving at a conclusion as to what is the reasonable fine which could be.....