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Asstt. Collector of Central Excise and Customs Vs. Rikabdas Tejmal Shah - Court Judgment

LegalCrystal Citation
SubjectCustoms;Criminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 248 of 1970
Judge
Reported inAIR1972Kant329; AIR1972Mys329; 1973LC1(Karnataka); (1972)1MysLJ520
ActsCustoms Act, 1962 - Sections 123 and 135; Gold (Control) Act, 1968 - Sections 16(2), 85 and 99; Code of Criminal Procedure (CrPC) , 1898 - Sections 423(1); Arms Act
AppellantAsstt. Collector of Central Excise and Customs
RespondentRikabdas Tejmal Shah
Appellant AdvocateM. Papanna, Adv.
Respondent AdvocateM.A. Mandagi, Adv.
DispositionAppeal dismissed
Excerpt:
.....in primary school. no such right is conferred on the state by this provision and such a right do not flow from this article. - it is pointed out that the accused has admitted that he is the 'karta' of the family and in a case like this section 16(2)(g) of the gold control act would he applicable. 13. for the reasons mentioned above, we are of opinion that there are no good grounds made out to interfere with the order of acquittal of the respondent passed by the learned magistrate......has admitted that he is the 'karta' of the family and in a case like this section 16(2)(g) of the gold control act would he applicable. it is contended that in ex. p3 his statement recorded by p. w. 2 the accused has admitted that the gold in question was found in the drawer of the cupboard in his dwelling house. it is also contended that the accused has admitted in ex. p4 as the gold was found in his house, he is liable. it is contended from these admissions made by the act cused. the only inference that could be drawn is that the gold seized belonged to the accused and that he was in possession of the same. the learned counsel has also relied on section 99 of the gold control act which says that any person who has in his possession, custody or control any primary gold, article on.....
Judgment:

Santhosh, J.

1. This is an appeal filed by special leave by the Assistant Collector of Customs and Central Excise, Belgaum Division, against the acquittal of the respondent of the charges punishable under Section 135(b)(ii) of the Customs Act, 1962 and Section 85 of the Gold Control Act 1968, by the learned Judicial Magistrate, First Class. Chikodi in C. C. No. 90 of 1970.

2. The prosecution case briefly stated is as follows: P. W. 2 Frederik, Superintendent Central Excise issued a search warrant on 20-12-1968 (Ex. PI), to search the business and residential premises of the accused. P. W. 1, Sirdeshpande, another Superintendent of Central Excise proceeded to the place with the warrant and searched the premises in the presence of panchas. The accused was present at that time. No incriminatory article was found in the business premises and the ground floor of the residential premises. Then P. W. 1 searched the first floor. In the front room of the first floor there were cupboards. P. W. 1 pulled out one of the drawers of the old cupboard which had glass shutters. Then an article wrapped in paper fell from under the drawer on the ground. That article, when unwrapped, was found to contain one gold pellet of 10 tolas embossed with 'Jhonson Mathev, London 9990'. Besides this two gold coins and 3 other pieces of gold were also found. The weight of all the gold found was 208.50 grams. They were seized under panchanama Ex. P-11. Then the accused along with the gold was produced before P. W. 2. P. W. 2 recorded the statement of the accused Ex. P-4, on the next day, that is on 21-12-1968. The gold seized in the case was sent to the Mint Master and he issued a certificate. Ex. P7. Thereafter the Collector of Customs and Central Excise. Bangalore, gave sanction to prosecute the accused, A complaint was filed against the accused in the Court of the Judicial Magistrate First Class. Chikodi, charging the accused with having committed the above mentioned offences.

3. The case of the accused was that he was residing in the said premises with his father, grandfather, wife and children and that he was not aware of the gold found in the house. The accused also stated that the supplementary statement Ex. P-4 was got from him under threat of arrest and prosecution of his wife, mother and father and that he became aware of the gold only after the Customs Officers showed it to him. In the written statement filed by the accused, the accused submitted that he was neither the owner nor the master of the house and that the premises stood in the name of his father, and even the business was registered in the name of his father and the hall on the first floor from where the seizure was effected was not under his control and that the gold was not recovered from his possession or control He also stated that the first floor was accessible to all and that apart from him, his father his grandfather, wife, servants of his father and tenants also resided in the house of the first floor which was accessible to all the occupants of the house. The accused produced 5 documents, Exts, D1 to D5 to show that the house and business establishment were registered in the name of his father.

4. The learned Magistrate, after reviewing the evidence held that the alleged gold found in the house was not in the exclusive possession and control of the accused. He also held that the mere fact that the accused was the 'Karta' of the family, does not make him, liable for the recovery of the contraband gold from the house wherein his father, grandfather and others resided. The learned Magistrate also held that both the statements made by the accused, Exts. P2 and P3 have to be read together and there was no admission by the accused that the gold found in the house belonged to him or that he had knowledge of the same. He held that the evidence in the case was not sufficient to hold that the accused was in exclusive possession of the gold seized in the instant case and therefore the prosecution had not made out the 2 charges framed against the accused and acquitted him of both the charges.

5. Sri M. Papanna Jr. Central Government Pleader appearing on behalf of the Union, has contended that the inferences drawn by the trial Court from proved and admitted facts are erroneous. He contended that the only inference that can be drawn from the facts and circumstances of the case was that the accused was in possession of the gold seized from the house. It is also argued that the finding of the trial Court that the 'karta' cannot be held criminally responsible for the recovery of the contraband gold from the house, where he lives jointly with his father and grand-father, is erroneous. It is pointed out that the accused has admitted that he is the 'karta' of the family and in a case like this Section 16(2)(g) of the Gold Control Act would he applicable. It is contended that in Ex. P3 his statement recorded by P. W. 2 the accused has admitted that the gold in question was found in the drawer of the cupboard in his dwelling house. It Is also contended that the accused has admitted in Ex. P4 as the gold was found In his house, he is liable. It is contended from these admissions made by the act cused. the only inference that could be drawn is that the gold seized belonged to the accused and that he was in possession of the same. The learned Counsel has also relied on Section 99 of the Gold Control Act which says that any person who has in his possession, custody or control any primary gold, article on ornament shall be presumed, unless the contrary is proved, to be the owner thereof. The learned Counsel has strongly relied on Channa Basappa v. State of Mysore, : [1971]2SCR645 in support of the contention that where a person has admitted his guilt, the Court can act upon It and find him guilty.

6. The important point for consideration in this case is whether the prosecution has proved that the accused was the owner or in possession or custody of the gold seized from the premises in question. It is clear from the evidence that this gold was found in a cupboard In the first floor of the residential building and that cupboard was not locked. It is also clear from the evidence that the accused was living in the premises along with his father, grandfather and other members of the family. From the documents Dl to D5 produced by the accused, it is clear that the house was owned by the father of the accused and that business was also run in the name of the father. The question that arises for consideration is that if the accused is a 'Karta' or the Manager of the family, whether he could be liable for any contraband articles found in the house. It is not possible for us to agree with the contention of Sri Papanna that if any contraband article is recovered from the house the Manager would be criminally liable for the same. If one member of the joint family keeps some contraband article without the knowledge of the Manager, we are of opinion that the Manager cannot be held criminally liable. Unless there is evidence to show that the contraband article has been kept in the house with the knowledge of the Manager he cannot be held criminally liable for offences either under Section 135(b) of the Customs Act or Section 85 of the Gold Control Act.

7. Tn Supdt. of Central Excise Aramugam Pillai, (1967) 2 Mys LJ 63 = (AIR 1967 Mys 175) a Bench of this Court has held that in spite of the fact that the burden to prove that the goods seized were not smuggled goods is on the accused under Section 123 of the Customs Act, in a prosecution under Section 135(b) of the Act, it is the duty of the prosecution to prove that the accused was carrying gold knowingly to evade prohibition which the law imposed. The Court has also pointed out that the prosecution cannot rely on Section 123 of the Customs Act as the presumption will arise only when the smuggled goods arc seized from the possession of the accused, In the said case the Court held that from the mere fact that the accused were passengers in the car no inference would be drawn that they had knowledge or reason to believe that gold was secreted in the said car and that unless it was proved that the accused had the knowledge, he would not be held guilty of the offence under Section 135(b) of the Customs Act.

8. Sri Mandagi, learned Counsel appearing on behalf of the respondent has contended that a 'Karta' of the family cannot be held liable for any contraband articles found in the house unless he had knowledge that the contraband article was kept in the house. He has also stressed that the word 'possession' used in Section 135(b) of the Customs Act means 'conscious possession'. He has strongly relied on the decision of the High Court of Allahabad in Baladin v. State, 1964 All LJ 562. In the said decision, their Lordships have followed the Full Bench decision of the Lahore High Court in Emperor v. Santa Singh. AIR 1944 Lah 339 (FB). Their Lordships have quoted the observations made by Harries. C. J. of the Lahore High Court which read as follows:--

'In my judgment there Is no presumption that a father or head of a family is in possession of everything contained in his house; neither can it be presumed that he is in control of anything so found. In my view, possession and control mean something more than mere constructive or legal possession or control. Can it be said for the purposes of the criminal law that a man in fact possesses or has under his control something, the existence of which he has no knowledge. It may be said that he possesses it but only on the assumption that a man possesses everything in the house which he possesses. In my view, however, possession and control required to constitute offences under the Explosive Substances Act and Arms Act, must mean conscious possession and actual control. A man must know of the existence of something before he can be said to control it or have it under his control. It must be remembered that under these sections of the Explosive Substances Act and Arms Act, mere possession of incriminating articles constitutes serious criminal offences and there must be in my view mens rea or guilty knowledge before a person can be convicted of such posses- sion. If a father or house master is to be convicted merely because he is in possession of a house and therefore everything in it, then he can be held to be guilty where no mens rea exists and when he is entirely ignorant of the presence of an offending article. No presumption can be made that the head of a family or house master must know of everything which may be concealed in his house and unless such a presumption can be made, he cannot be convicted on mere evidence of recovery with nothing more'.

In paragraph 18 of the judgment, their Lordships have observed as follows:

'It follows therefore, that the mere fact that an article is recovered from inside a house in the occupation of more than one member of the family does not raise a presumption that everyone of them is in possession and control of it; nor does it follow that the karta of the family must be presumed to have knowledge of its existence. Where a person is charged with a criminal offence, the prosecution has to prove mens rea or guilty knowledge before a conviction can be founded on the basis of mere recovery of an incriminating article from inside the house. The mere recovery of an incriminating article from a house in the occupation of more than one person would not necessarily import their possession or control over it'.

We are in respectful agreement with the observation made in the above said decision.

9. We are of opinion that Section 16 (2) (g) of the Gold Control Act relied on by Sri Papanna is of no assistance to him. The question of making a declaration under the above section would arise only by a person who owns, or who has possession or control of gold. Unless this is so. there will be no obligation on the part of the person to make a declaration. We may also point out that in the instant case, the accused is not prosecuted for not making a declaration in the capacity as karta of the family.

10. From what has been stated above, it is clear that the prosecution has not established that the accused had knowledge that the said contraband gold was in the house- The prosecution has not proved that the accused was in conscious possession of the contraband gold found in the house where he was living. We have pointed out that the gold was found in an unlocked drawer of a cupboard in the house which was inhabited not only by the accused but also by other members of the joint family.

11. We are also of opinion that in Ex. P3 the accused has made no admission that the gold found in the drawer belonged to him. In Ex. P-3 the accused stated that it was a fact that during the aforesaid search the above mentioned primary gold had been found in the drawer of the old stand kept in the house. It may be, pointed out that in the said statement, Ex. P-3, the accused has repeated 4 or 5 times that he did not at all know that the gold was kept in the cupboard in question. We have already pointed out that the evidence discloses that the cupboard was found unlocked and the prosecution has not let in any evidence to show that the cupboard was in the exclusive possession of the accused or that he had the key of the cupboard. In Ex P-4 the second statement recorded from the accused on the next day, all that is stated is that as the gold was seized under the panchanama in his dwelling house, he became liable for the same. It is also pointed out by the accused that the second statement was re-corded by P. W. 2 under threat of arrest and prosecution of his father, wife and mother. The contention of the accused throughout has been that he had no knowledge that contraband gold was kept in the drawer and that he was not in possession of the same. The decision Channa Basappa v. State of Mysore, : [1971]2SCR645 , relied on by Sri Papanna is of no assistance as in the said case in a departmental enquiry the delinquent in question admitted that charge and on his own plea, the person conducting the enquiry held the charge proved. Their Lordships have pointed out that it wag only a departmental enquiry and the person concerned there was not on trial for a criminal offence. We are also of opinion that Section 99 of the Gold Control Act relied on by Sri Papanna is not applicable to the instant case. Section 99 of the Gold Control Act says that any person who has in his possession, custody or control any primary gold, article or ornament shall be presumed, unless the contrary is proved. to be the owner thereof. In the instant case, as already pointed out, the prosecution has not made out that the accused was in possession or custody or control of the gold seized from the house and the presumption that he is the owner thereof does not arise. in the case. There is therefore no force in any of the contentions urged by Sri Papanna on behalf of the appellant.

12. After assessing the entire evidence, the learned Magistrate has summarised the position very correctly as follows:

'.....In Ex. P3 the accused has stated that he is karta of the family and he did not know, when and who kept that gold there. In Ex. P3 the accused denied knowledge of the gold found in his house. In Ex. P4 the accused has simply stated that he became responsible for the gold simply because it was found in his residential house. He has not stated that either he had kept the gold in his house or that he knew that it was there. Therefore, the recitals in Ex. P4 are not at all sufficient to fix up knowledge or exclusive possession or control of the attached gold to the accused. The law regarding confession and admissions of the accused is that an admission must be used as a whole or not at all. It is not open to the Court to split up and use the inculpatory part and reject the exculpatory part. In the instant case, both Ex. P3 and Ex. P4 are parts of the one and the same statement and the entire contents are to be read together and so read. Exts. P3 and P4 do not prove any knowledge or Possession of attached gold by the accused. Therefore, the evidence in the case is not sufficient to hold the exclusive possession or control of the seized gold by the ac-caused. Therefore the prosecution has to fall'.

In Khadu Morton v. State of Bihar, : 1971CriLJ20 , their Lordships of the Supreme Court have pointed out that where the lower Court has found the accused not guilty, unless the conclusions reached by it are palpably wrong or based on an erroneous view of the law or that its decision is likely to result in grave injustice, the High Court should be reluctant to interfere with its conclusion. If two reasonable conclusions can be reached on the basis of the evidence on record, then the view in support of the acquittal of the accused should be preferred.

13. For the reasons mentioned above, we are of opinion that there are no good grounds made out to interfere with the order of acquittal of the respondent passed by the learned Magistrate. In the result the appeal fails and the same is dismissed.


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