Sambasiva Rao, J.
1. The Additional Munsif Magistrate, Tenali convicted the respondent for offences under Sections 435(b)(ii) of the Customs Act and Section 85(ii) of the Gold Control Act and sentenced him to suffer rigorous imprisonment for six months and also to pay a fine of Rs. 1, 000/- in default to suffer rigorous imprisonment for two months, under each of the two counts. The sentences, excepting the one in default, were directed to run concurrently. The first additional Sessions Judge. Guntur on appeal confirmed the convictions and also the sentence of fine, but reduced the sentence of imprisonment to the period already undergone. The State has brought this revision case for enhancement of the sentence.
2. Learned Counsel for the respondent has exercised his right under Section 439(6), Criminal P.C. and has endeavoured to show cause against his conviction. Consequently, I am now called upon to consider not only the sufficiency of the sentence but the correctness of the conviction as well.
3. Before I go into these aspects it is convenient to briefly state the circumstances of the case. The charge against the respondent is that on 6-2-1969 at about 11 a. m. a raid was made 'by the Customs Officials on his residential premises. Though nothing was found in the actual residential premises, the Officials found two packets near a Boppas tree in the open space of the compound of the respondent, which was surrounded by a compound wall. Since the earthen surface near the tree was covered with loose sand, bricks and deal-wood boxes, the searching officials got suspicious and dug out the place. There they found the two packets, one containing 13 gold slabs marked M. Os. 1 to 13 and the other containing 10 slabs marked as M. Os. 14 to 23. The gold slabs bore marks 'Compagne Metaux preceiux' Ric and 'Johnson Mathx London 99-0' Each slab weighed about ten tolas P.W. 1 the Superintendent of Central Excise, who led the search, auestioned the respondent whether he had any permission from the Gold Administrator to. import foreign gold and the respondent stated that he had no such documents. Thereupon, the gold was seized under Mahazar, Exhibit P-24. Then the pres-cribed procedure for seizing the gold was followed. P.W. 1 Questioned the respondent regarding the possession of the gold in the presence of mediators and the statement he gave was recorded and the same was filed as Exhibit P-25. After the gold was discovered one Ganeshlal Gopaji arrived on the scene and stated that it was he who came to the house on 5-2-1969 in the afternoon, dug the ground and put the packets containing the 23 gold ingots. He added that they were given to him by an individual at Bombay on 2-2-1969. P.W. 1 sent the report to the Collector of Customs for adjudication, who, after enquiry into the matter, passed an adjudication order, Exhibit P-27 confiscating the gold and imposing penalty of Rs. 10, 000/- against 'the respondent. Samples of slabs of the gold were sent to the mint for opinion and after testing the mint authorities expressed their opinion that the gold was pure in quality and was of foreign origin. Thereupon, the Collector. Central Excise sanctioned prosecution of the accused under both the charges. Exhibits P-30 and P-31 are the sanction Orders.
4. The prosecution attempted to charge the two persons together. But, the other accused could not be apprehended and So the case against him was separated and the present respondent was proceeded with in C. C. No. 140/70. I am now informed that the other person who had agreed that he had brought the sold from Bombay. was charged separately and convicted and that the conviction became final since he did not prefer any appeal. It appears that he had even completed the sentence of imprisonment imposed on him. The respondent who was the sole accused in C. C No. 140/70 pleaded not guilty. His plea was that his signatures were taken on the alleged 'statements and the mediators' report without being informed of its contents and he was not aware of the presence of gold in his premises. He, however, admitted his signatures on the mediators' report for the seizure of the gold ingots, Exhibit P-24 and also his statement. Exhibit P-25. The prosecution examined three witnesses and marked 36 documents. They also produced the gold slabs.
5. The trial Court as well as the appellate Court accepted the prosecution case and found that the charges were made out against the accused. The appellate Court thought that it should take a lenient view on the basis of a memo filed before it on behalf of the accused on the grounds that he was suffering from dysentery and that it was his first offence. So. it confirmed the sentence of fine but reduced the sentence of imprisonment to the period already undergone.
6. Sri M.S.K. Sastry for the respondent contends before me that the prosecution has not been able to bring home the guilt to the respondent. Apart from the circumstances that both the lower Courts have concurrently found that the charges against the respondent were proved, I am not inclined to uphold this contention for the defence, going by the evidence on record. P.W. 1 was the Superintendent of Central Excise, who led the raid. Armed with a search warrant and accompanied by three mediators he raided the house of the respondent. Some Inspectors and Sub-Inspectors also helped him in the raid. It began at 11 a. m. on 6-2-1969. The respondent was inside the house. After showing him the search authorisation and explaining the contents thereof they searched the house. No gold or any articles of foreign make were found in the house. In front of the house there was open space surrounded by a compound wall. Near the wall there was a Boppai tree. Near the tree they found some sand with a few bricks and deal wood boxes. Getting suspicious they excavated the place upto 8' depth. Then they found the two packets containing the slabs. Noticing the foreign markings they got the slabs weighed. Each slab weighed 10 tolas. When asked the respondent could not produce documents to import foreign gold. In fact the respondent said that he had no such permission. He, however, stated that the Sold did not belong to him and he did not know who concealed the gold at that place. Thereupon a mediators report was prepared and the signatures of the mediators and the accused (respondent) were taken on it. That is Exhibit P-24. Then he recorded a statement of the respondent, which is Exhibit P-25. It was signed by the respondent in his presence. In the cross-examination it was elicited that there was only one entrance in the compound wall and it was not easily accessible to others. The three mediators were also licenced gold dealers of the locality and the locality was a busy one. The statement of the respondent was recorded in Telugu and the witness denied that it was read over to the respondent before he signed it. It may be noted here that the respondent is a Marwadi and has been doing business in Tenali for a long time. His case is that though he knew Telugu and could understand it, he could not read and write it. So when he affixed his signature on Exhibit P-25 he did not know what its contents were. This defence cannot be accepted because P.W. 1 clearly stated that Exhibit P-25 was read over to the respondent before he signed it. The respondent admitted that he could understand Telugu if it was readout. Indeed without understanding Telusu he could not have carried on his business in Tenali for such a length of time.
7. P.W. 2 who accompanied the party of the raiders spoke about all the details of the search and the seizure. He stated that the respondent signed Exhibits P-24 and P-25. In fact, it was he who recorded the statement of the respondent. A copy of the statement was also given to the respondent, who acknowledged its receipt.
8. Thus, there is no doubt that Exhibits P-24 and P-25 were signed by the respondent knowing their contents. It is not disputed that the gold was seized from the open space in the premises of the respondent. The respondent admitted this. In the beginning he denied any knowledge of the concealment of the gold in his premises. In the very nature of things, this is a wholly improbable, if not an impossible story. The respondent himself conceded that the value of the gold thus concealed was nearly Rupees 45, 000/-. It is inconceivable that gold of such value could have been concealed in the respondent's premises without his knowledge and even consent.
9. It is true that after the discovery was made the other person came and stated that he had concealed the gold in that place. It might have been so. But, the question is whether the respondent had in his possession, custody or control this gold which was discovered. Section 85 (ii) of the Gold Control Act says:
Whoever, in contravention of the provisions of this Act or any rule or order made thereunder, owns or has in his possession, custody or control any primary gold, shall without prejudice to any other action that may be taken under this act. be punished with imprisonment for a term which shall not be less than six months but not more than three years and also with fine.' Section 135 (b) (ii) of the Customs Act, 1962 lays down that:
Without prejudice to any action that may be taken under this Act, if any person--
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 and he shall be liable to be sentenced with imprisonment for a term which may extend to two years, or with fine, or with both.
There is no doubt that the gold that was dug out from the premises of the respondent was of foreign make. The question now is whether he was harbouring, keeping or concealing any goods which he knows or has reason to believe are liable to confiscation under Section 111. Keeping foreign gold without permission is liable to confiscation under Section 111 of the Customs Act. Likewise, Section 85 (ii) of the Gold Control Act also makes possession, custody or control of any primary gold an offence. If the respondent had no knowledge at all of the concealment of the gold in his premises, then of course he is not liable to be convicted. But, could it be said, in the light of the circumstances of the case and the evidence on record that he had no knowledge of the keeping and concealing of the gold in his premises and that it was not in his possession, custody, or control.
10. I have already referred to the probabilities of the case, it is impossible to believe that anybody could have concealed the gold without the knowledge of the respondent. There was only one entrance into the premises of the respondent. It may be that there are other members in the family. But, it is not disputed that the respondent was the master of the house. Exhibit P-25, his own statement makes the position quite clear. In it, the respondent stated that after the officers dug the site covered with sand near the Boppai tree in the vacant site in front of the house, two paper packets at a distance of one foot from each other hidden in the site adjoining the eastern wall were found. The gold was made in Paris and each ingot weighed 10 tolas. He disclaimed the ownership of the gold. But. the following statement contained in Exhibit P-25 is very material. He said the 'Ganeshlal Sombaji son of Sonfaji (the accused in the other case) native of Rajasthan brought this gold -- these foreign gold ingots, on 5-2-1969 and hid them in the vacant site in front of my house. The said Sonfaji came at 3 p. m. on the said previous day. He knew Ganeshlal Sonfaji for two or three years. The above individual came to Tenali for the first time. The said person hid these 23 gold ingots in the sand in his house. This part of the statement makes it abundantly clear that the respondent fully knew about bringing the gold and its concealment in his premises even on 5-2-1969. He further admitted that no other person other than himself was residing in the entire house. There cannot, therefore, be any iota of doubt about his knowledge of the concealment of the gold. When the gold was concealed in his premises with his knowledge and consent, it must necessarily follow that he had possession and custody of the gold and he was keeping it in his premises. This statement shows beyond all doubt, that the respondent was guilty of the two offences with which he was charged. It is thus manifest that according to his own statement his guilt was fully established. His defence that he put his signature on Exhibit P-25 without knowing its contents cannot be accepted as I said.
11. In fact, even the lower appellate Court, which took a lenient view was inclined to hold that the charges were fully established. After referring to Exhibit P-25. it observed that,
the said facts stated by the appellant (respondent) in Exhibit P-25 clearly indicate that the appellant is in know of the existence of the gold slabs, M. Os. 1 to 23 within his premises and not the other inmates of his house. It is an undisputed fact that these recovered sold Blabs, M. Os. 1 to 23 are of the value of Rs. 45, 000. This also clearly indicates that the appellant should have given his consent to the other accused Ganeshlal to hide M. Os. 1 to 23 within his premises. This circumstance also clearly established that the appellant has got interest in the said property and so he allowed the other accused to keep the property within his premises ....Thus, the accused is in conscious possession of the property to the exclusion of all except himself as observed by the lower Court.
12. Realising this the learned Counsel, who appeared for the respondent before the appellate Court filed a memo on 7-6-1971 praying that the Court may take a lenient view of the case in respect of the sentence. That should have been clearly on the basis that the charges were fully established against the respondent. So, I hold that the two charges were made out against the respondent.
13. Coming to the sentence, Section 85 (i) of the Gold Control Act, 1968, lays down that:
Without prejudice to any other action that may be taken under this Act (the person who has contravened the provisions of the Act) shall be punished with imprisonment for a term which shall not be less than six months but not more than three years and also with fine.
The language used in the provision is very meaningful. Once the offence is established a minimum sentence of imprisonment of not less than six months should be imposed on the culprit. Fixing the minimum for sentences is not of common occurrence in Statutes. The minimum has been fixed under the Gold
Control Act obviously with the intention of checking contravention of its provisions and anti-social elements. Otherwise, the Statute should be imposed on a culprit. There is no doubt that the proviso to Section 85 says that the Court, if it is satisfied that the special circumstances of the case so require may impose a sentence of imprisonment for a term which may be less than six months. These special circumstances must be of extraordinary nature. Otherwise, the proviso would defeat the very purpose of the main provision. Can dysentery be one such special circumstance? Dysentery comes and when treated disappears within a short time. In my opinion that cannot be considered as special circumstances. Learned Counsel endeavours before me that the other ground stated by the appellate Court that it is the first offence of the respondent cannot be a proper ground to bring the offence within the scope of the proviso. The section while fixing the minimum punishment at six months also prescribes the maximum of three years. If it is the first offence the minimum sentence may be awarded. If it is the second time or the third time a higher sentence may be imposed. Because it was the first offence of the accused, the trial Court manifestly gave the minimum sentence to the accused. To let him off with a sentence of imprisonment which has already been suffered would be tantamount to defeat the provisions of Section 85 of Gold Control Act, 1968 and misusing its proviso. Likewise, Section 135 of the Customs Act also makes it obligatory on the part of the Court to impose imprisonment for a term Which may extend to two years or with fine or with both. I do not, therefore, see any justification for the lower appellate Court reducing the sentence of imprisonment only to the period of that had already been undergone.
14. I may also take notice of two other contentions out forward by the learned Counsel for the respondent. One is that the sanction accorded for the prosecution was not one given after the appropriate authority applying its mind to the circumstances of the case and this defect goes to the very root of the prosecution. There is no merit in this objection. Exhibits P-30 and P-31 are the sanction orders. They clearly show that the authority accorded sanction in view of the gravity of the offence and the large value of the gold concealed.
15. The second submission is that benefit should be given to the respondent under the Probation of Offenders Act, since it is the very first offence. In my opinion, giving such benefit to the respondent would be perverting the provisions of that Act. The respondent is not a young person nor an ignorant one. He had been a successful businessman. Having migrated to Tenali from his native Rajasthan years ago he had prospered well. ' When such a person committed an offence of this nature, which is positively anti-social and highly injurious to the society and administration, he should not be shown any leniency or given any benefit under the Probation of Offenders Act. I am, therefore unable to accede to either of these two arguments.
16. I, therefore, set aside the punishment the appellate Court awarded and restore and confirm the sentences imposed on the respondent by the trial Court. The sentences of imprisonment are directed to run concurrently. The revision case is thus allowed.