N.M. Golvalkar, J.
1. This revision petition is by the accused whose appeal against his conviction under Rule 126-P (2) (II) read with Rule 126-I (10) of the Defence of India Rules for having been found in unauthorised possession of 100 Tolas of gold. contained in 10 biscuits of 10 Tolas each, has been dismissed by the Additional Sessions Judge, Khandwa.
2. The petitioner, along with one Parshuram Sindhi, had travelled from Bombay by Punjab Mail on way back to Indore. As soon as they got down from the said train at Khandwa in order to take the train from there to Indore the Central Excise Authorities apprehended them and in course of search of their persons, 100 Tolas of primary gold of foreign make, in the shape of 10 biscuits weighing 10 Tolas each, was discovered found tied round the petitioner's waist. These facts are no longer in dispute.
3. However, accordant to the petitioner, he was merely a carrier of the gold which had been acquired by his companion Parshuram at Bombay and tied to his waist for being taken to Indore for delivery to Sajandas who dealt in gold at Indore and that it was he who had sent Parshuram with the requisite amount of money to obtain the same at Bombay. The (petitioner asserted that he was sent by Sajandas, his employer-he was serving as driver to him-for purchasing motor car accessories and also to receive and carry back to Indore such other articles as may be entrusted to him by Parshuram at Bombay. He urged that he did not know what was being tied round his waist for carrying back to Indore. He thus claimed to be merely a carrier and hence committed no offence.
4. Both the Courts below, relied on the presumption that in the absence of any proof to the contrary, possession of gold by the petitioner rendered him its owner and as such, guilty. Accordingly he was convicted as stated in the beginning.
5. I heard Shri R. N. Rai, Advocate for the petitioner and Shri R. P. Sinha, Advocate for the Central Excise Department. In my opinion, the Courts below committed a manifest error in convicting the accused. The relevant provision permitting presumption as aforesaid, reads as under:
Any person, who is in possession, custody or control of any article, ornament or primary gold, shall be presumed, until the contrary is proved, to be owner thereof.
6. The question, therefore, is whether the evidence on record-it makes no difference that the accused has himself led no evidence in defence-can foe held to have reasonably rebutted the aforesaid presumption of ownership of the gold on the part of the accused.
7. Before I proceed to examine the evidence on record, it will be proper to point out the law with regard to the aforesaid kind of presumption, and what kind and extent of proof the person affected thereby, is required to place on record in order to urge that the said presumption stands rebutted.
8. What the law is has been laid down by the Supreme Court in the case of State of Assam v. Krishna Rao AIR 1973 SC 28 : 1973 Cri LJ 169. True it is that the presumption which was being examined by the Supreme Court, was with regard to the presumption under Section 4 of the Prevention of Corruption Act But the relevant words of the aforesaid section of Prevention of Corruption Act are not only identical, but the nature of the presumption also is the same. After pointing out how the legal position was recognized earlier in the cases of S. N. Bose v. State of Bihar AIR 1968 SC 1292 : 1968 Cri LJ 1484; C. I. Emden v. State of U.P. (1960) 2 SCR 592 : 1960 Cri LJ 729; Dhanwantrai v. State of Maharashtra AIR 1964 SC 575 : (1964) 1 Cri LJ 437 and Jhingan v. State of U.P. (1966) 3 SCR 736 : 1966 Cri LJ 1357, the Supreme Court has pointed out the legal position as under:.the words 'unless the contrary is proved' mean that the presumption raised by Section 4 has to be rebutted by proof and not by bare explanation which may be merely plausible. The required proof need not be such as is expected for sustaining a criminal conviction : it need only establish a high degree of probability.
(The underlining is by me).
9. It will thus be seen that if the evidence on record, the use of which cannot be denied to the accused, does reasonably show to a high degree of improbability on the part of the petitioner to acquire 100 Tolas of gold at a cost of about Rs. 15,000.00, the presumption that the accused was the owner of the gold, is not available to the prosecution, and the conclusion is inevitable that the accused was not the owner of the gold recovered from his possession. It would then follow that he held the gold for and on behalf of some one else and he was merely its carrier as stated by him.
10. It is inherently impossible, especially in the absence of any evidence to the contrary, that the petitioner who was merely a motor driver, could possibly purchase and own all that gold. In this connection, I may refer to the statement of the petitioner (Ex. P-2) before the Authorities of Central Excise in which he has made no secret of his visit to Bombay along with Parshuram, the Munim of his employer, and the purchase of gold made by the said Parshuram there and how it was tied round his waist when they both started on their journey back to Indore. It is now well settled that confessional statement of an accused, when admissible in evidence, has to be read as a whole or rejected wholesale unless any exculpatory part of the same is demonstrated to be false. If that is the law with regard to admissible confessions of an accused. I am unable to see how the aforesaid statement of the petitioner can be treated differently. In fact it has been admitted in its entirety,
11. That apart, Parshuram, the companion of the accused petitioner in the journey from Indore to Bombay and back, was also examined by the Central Excise Authorities and a true copy of the same was duly supplied to the petitioner at the time of his trial. The learned Counsel has filed that statement before me with an application praying for its being taken on record as his defence evidence. In the peculiar circumstances of this case, the Central Excise Authorities ought to have very fairly and properly prosecuted not only Parshuram, but also his and petitioner's employer Sajandas, the real owner of the gold. But having very unfairly and improperly omitted to do so, the petitioner accused was, in all fairness, entitled to tender as his evidence the statement of Parshuram which he did in this Court and accordingly I allowed that statement to be placed on record. In that statement, Parshuram has made no secret of the purpose of his visit to Bombay at the instance of his master Sajaindas and not only has stated therein wherefrom he acquired the gold, but also how he proceeded to carry it back to Indore by tying it round the waist of the petitioner. This statement completely destroys the presumption legally permitted to be drawn against the petitioner. It is thus not a mere plausible explanation of the accused for being in possession of the gold, but is a proof positive that the owner of the gold is Sajandas of Indore.
12. Thus in the aforesaid state of evidence, it has to be held, disagreeing with both the Courts below, that the petitioner, although was found in possession of all that gold of 100 Tolas, was and is not its owner, its owner is his employer Sajandas who had acquired it for himself through his Munim Parshuram at Bombay for him. Parshuram, although had played a very intimate and serious part in its acquisition, stands, however, in the same position as the petitioner.
13. Therefore, in the view that I have taken as aforesaid, I hold that the conviction of the petitioner is unsustainable. Accordingly I set aside the same and acquit the petitioner. His bail bond shall stand cancelled and fine amount, if recovered from him, be refunded to him.
14. Then in the circumstances as are on record, I am of opinion that Sajandas, the employer of the petitioner, is the real offender and liable to be prosecuted. It is really amusing that the Central Excise Authorities proceeded depart-mentally and that too against Sajandas end imposed a fine of Rs. 5,000.00 on him. However, even now it is not too late for those Authorities to prosecute Sajandas.