M. HIDAYATULLAH, C.J.
1. In this appeal by certificate under Articles 132(1) and 134(1)(c) of the Constitution, the appellant Jethamal Nihal Chand Jain appeals against the judgment of the High Court of Bombay, February 2, 1967. He was prosecuted before the Presidency Magistrate, 23rd Court, Bombay on the complaint of the Assistant Collector of Customs and Central Excise, Marine and Preventive Division, Bombay for offences under Section 135(a) and (b) of the Customs Act, 1962 and Rule 126 P(1)(i) and (2)(ii), read with Rule 126(1), sub-rule (i) of the Defence of India Rules. He was acquitted of the charge under the Customs Act but was convicted under the Defence of India Rules and sentenced for each of the offences to six months' rigorous imprisonment which sentences were to run concurrently. The facts of the case are as follows.
2. On February 10, 1963, Naik Sub-Inspector, Paltan Road Police Station, Bombay raided Room No. 32 on the 2nd floor of Lucky House, 272, Shahid Bhagat Singh Road, Bombay. He was accompanied in this raid by other Inspectors, constables and Panchas. The room occupied by the appellant was searched and in a steel almirah which had a safe receptacle in it were found over 300 wrist watches, 9 slabs of gold, 1000 gms each and some foreign currency. Naik had carried out this raid because of an information received by him that Jain had a stock of narcotics and drugs stored in the flat. When no narcotics and drugs were found but other contraband articles were discovered, Robb, Superintendent of the Central Excise was informed. He came and attached the gold and other articles. Since there was no declaration regarding gold as required by the Defence of India Rules, the accused was prosecuted for breach of the Rules. For the other contraband articles he was prosecuted under the Customs Act. As stated already he was acquitted of the charges under the Customs Act but convicted under the Defence of India Rules and sentenced as already stated. His appeal to the High Court failed. The High Court granted a certificate under Article 132(1) and also under Article 134(1)(c) of the Constitution.
3. Prosecution evidence disclosed that Jain was a servant employed by one Trivendra Singh but the room was in Jain's exclusive possession and he used to sleep there. There was not a single article belonging to his master in that room except that the almirah had a name-plate which showed the name of Trivendra Singh. The keys of the door of the almirah as well as the safe compartment were with Jain. According to Sub-Inspector Naik he produced them from his person from the pocket of his Pyjamas and opened the almirah when asked to do so. He was held to be in possession of this contraband gold in respect of which he had not made any declaration. Consequently he was convicted. Jain's defence was that the almirah and its contents belonged to his master, that the keys of the almirah and the safe compartment were not with him but were lying on top of the almirah. Therefore the gold was not in his possession but in the possession of his master. The constitutional question on which the certificate appears to have been granted by the High Court under Article 132(1) related to the gold bonds scheme under which people in possession of contraband or undeclared gold could purchase gold bonds and did not then run the danger of prosecution. The plea was that this discriminated against those who were prosecuted because they did not have the chance of escaping prosecution by declaring the gold by purchase of gold bonds.
4. The last point has been answered by us in Criminal Appeal No. 34(N) of 1967 (Ambalal Chimanlal Chokshi v. State of Maharashtra) in which we have delivered the judgment today. As regards the first point both the High Court and the Chief Presidency Magistrate have concurrently held that the possession was of Jain, for the simple reason that he had the room exclusively to himself and lived and slept there, that not a single article of his master was found there and that Jain had the keys of the almirah including the safe compartment. It is probable that the master was using Jain as his instrument but even so there would be possession of Jain over the gold because he had dominion over it. In any event, both the High Court and the Presidency Magistrate had concurred in holding that it was Jain who was in possession of the gold. As he had failed to declare this gold the offence was accordingly held to have been committed by Jain. We are, therefore, satisfied that there is no merit in this appeal which fails and is dismissed.
It is surprising that while granting the certificate under Article 132(1) the High Court should have added a certificate under Article 134(1)(c) in it without giving any reasons for the grant. This case did not justify the grant of such a certificate and but for the fact that it was a composite certificate under Articles 132(1) and 134(1)(c) we would have cancelled the certificate or disregarded it.