1. This criminal revision case is against the judgment of the learned Sessions Judge of Pudukottai, confirming the conviction of the revision petitioner under Section 135(b)(ii) of the Customs Act and the sentence of rigorous imprisonment for one year thereunder passed by the learned Chief Judicial Magistrate of Pudukottai.
2. The allegation against the revision petitioner, who was the first accused in the court of the learned Chief Judicial Magistrate, was that he and his wife, who was the second accused in the trial court, knowingly acquired possession of and were concerned in concealing and harbouring and keeping nutmegs and mace which had been smuggled into India and were liable for confiscation and thereby committed an offence punishable under Section 135 of the Customs Act read with Section 11 of the same Act and Section 3(2) of the Import and Export Control Act.
3. On 11-11-1971, P.W.I, an inspector of Customs, Nagapattinam, and a party of Customs officers under him searched the premises bearing door No. 7/82 South St. Kottapattinam, in the presence of P.W. 2, the village Headman, and P.W. 3, on ex-President of the Panchayat Board and found 30 bags of nutmegs and three bags of mace. They were moist and smeared with sea sand. Each bag consisted of two gunnies, with a Polythene cover in between the gunnies. The building was found locked. The lock was opened with a key alleged to have been given by the second accused, the wife of the revision petitioner. The bags of nutmegs and mace found inside the building were seized under cover of the mahazar, Ex. P.I. which was attested by P. Ws. 2 and 3. A copy of the mahazar was served on Ameena Bivi, the second accused and her acknowledgment was obtained. Ameena Bivi gave a statement, Ex. P. 2. Subsequently, the Assistant Collector of Central Excise, Nagapattinam, issued notices to the revision petitioner and his wife. Ex.P.3 is a copy of the notices sent. The goods were confiscated and a penalty of Rs. 5000 was imposed on the revision petitioner. Thereafter, the prosecution against the revision petitioner and his wife was instituted. The wife of the revision petitioner, who was the second accused in the trial court, was acquitted, but the revision petitioner was convicted and sentenced to rigorous imprisonment for one year by the learned Chief Judicial Magistrate. The question to be considered is, whether the prosecution has established that the revision petitioner was in possession of the contraband goods.
4. There is absolutely no evidence to prove that the revision petitioner was in possession of the premises in which the 30 bags of nutmets and 3 bags of mace were seized. The building belongs to one Balkis Ammal. The case of the prosecution that the revision petitioner has taken the building on lease from Balkis Ammal and was in exclusive possession of the same is not spoken to by any of the witnesses for the prosecution. On the other hand, P.W. 2, the Village headman, who is a competent witness to speak about possession of the house, has stated even in the course of his examination-in-chief that on the date of the contraband goods, Balkis Ammal was in possession of the house. He has not been treated as hostile by the prosecution. No doubt, P-W. 3, another mahazar witness, has endeavoured to make out that Balkis Ammal has leased the premises to Ameen Bivi, P.W. 3 does not say that he was present at the time of the lease. Even if we assume that his evidence is true, there is no case against the revision petitioner, because he does not say it was the revision petitioner who took the building on lease and who was in possession of the building on the date of the raid.
5. Ameena Bivi, the second accused, has given a statement Ex. P.2 to P.W. 1. She has admitted that they, meaning herself and probably her husband, had taken this building on lease on a monthly rent of Rs. 7, and that they wanted to stock paddy therein only from the month of Thai succeeding the date of the statement. She has not admitted that either she or her husband was in physical possession of the building. Even if such an admission can be read into the statement of Ameena Bivi, that admission cannot be used against the revision petitioner herein us substantive evidence, to come to the conclusion that the petitioner was in possession of the building and therefore, the contraband goods found therein had been concealed by him. In these circumstances, I find that the prosecution has not proved the case against the revision petitioner. Hence the revision is allowed and the revision petitoner's conviction under Section 135(b)(ii) of the Customs Act and the sentence of rigorous imprisonment for one year thereunder was set aside.