B.N. Maitra, J.
1. The case for the prosecution is that on the 6th April, 1974 a group of Customs Officers belonging to the Collectorate of Customs, Calcutta, searched a two-roomed flat on the second floor of the premises No. 49, Ezra Street, Calcutta. The accused was a tenant of that flat and he was then absent. The search was made under orders of authorisation which had been issued under the Customs Act and Gold (Control) Act. In a bedroom of that flat an almirah there was the key of which was supplied by the wife of the accused. After the almirah was opened with that key, primary gold bars, gold coins, gold ornaments and other articles were found and they were seized because the wife of the accused could not give any satisfactory evidence to explain the lawful possession thereof. The Customs Officers opened a locker in the joint names of the accused and of his wife at the Brabourne Road Branch of the Oriental Bank of Commerce. From that locker gold ornaments and gold sovereigns were also recovered. On 9-5-1974 the accused was intercepted in the Mohammad Ali Park on Central Avenue, Calcutta. His person was searched and gold sovereigns etc. were recovered and seized. On the 20th January, 1975, a petition of complaint was filed with an authorisation made by the Collector of Customs, Calcutta. Charge was framed against the accused for commission of offence under Section 85(i)(ii)(vi) and (viii) of the Gold (Control) Act, 1968. The defence was a plea of innocence.
2. The learned Metropolitan Magistrate, 10th Court, Calcutta, convicted the accused under Section 85(i)(ii) of the Act and sentenced him to suffer rigorous imprisonment for eighteen months and also to pay fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for six months more. He also convicted the accused under Section 85(i)(ii) of the Act and sentenced him to suffer rigorous imprisonment for six months and also to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for three months more. The order was that the sentences of imprisonment would run concurrently. Against that decision an appeal was filed. The learned Chief Judge, City Sessions Court, Calcutta, allowed the appeal in part, confirming the conviction of the appellant under Section 85(i)(ii) of the Act, but the sentence was reduced to one year's rigorous imprisonment and a fine of Rs. 2,000/- was imposed by him. The order was that in default the appellant would suffer rigorous imprisonment for three months more. The other conviction as well as the sentence was set aside. Hence this revisional application by the accused petitioner.
3. Mr. Dilip Kumar Dutt, learned advocate appearing on behalf of the accused petitioner, has contended that the learned Chief Judge convicted the accused petitioner under Section 85(i)(ii) of the Act, simply because he was assumed to be the head of the family and as the head of the family he was in possession, custody or control of the primary gold pieces in question. There is no legal evidence to show that the petitioner was the head of the family or he was in possession, control or in custody of the primary gold in question. Hence the Rule must be made absolute.
4. Mr. J.N. Ghose, learned Advocate appearing on behalf of the complainant opposite party No. 2, has contended that the evidence on record has established the guilt of the accused petitioners beyond reasonable doubt. The Gold (Control) Act is a special enactment. In view of Sections 98B(ii) and 99 of the Act the learned Chief Judge of the City Sessions Court arrived at a right conclusion regarding the petitioner's possession, control or custody of the primary gold in question since he was the head of the family. He was further contended that in view of the examination of the accused petitioner under Section 313 of the Code of Criminal Procedure the court must hold the petitioner guilty, because he was stated that the primary gold in question belonged to his deceased sister. An almirah was found in his bed room. His family consisted of his wife and of his adult son. The almirah did not belong to his wife or to his adult son. He is the owner of the flat in question. Hence the petitioner cannot escape the conviction under Section 85(i)(ii) of the Act. The learned Public Prosecutor has supported this contention.
5. We may refer to the case of Onkarnath Singh and Ors. v. The State of Uttar Pradesh reported in : 1974CriLJ1015 , where Sarkaria J. has held that it is the duty of the prosecution to stand on its own legs and it cannot take advantage of the weakness of the defence.
It is first necessary to see whether the prosecution has succeeded in proving beyond reasonable doubt that the primary gold in question was in possession, control or custody of the accused petitioner. There is evidence on record that the petitioner was the tenant of the flat in question. Apart from that, there is no cogent evidence on the important question whether he used the bedroom in question in which almirah was found, wherefrom the primary gold was detected on search. In this respect, we can refer to the evidence given by P.W. 6 Madan Kumar Sil. He has stated in his cross-examination that he cannot say which particular bed of the room in the flat was being used by which particular inmate of the house and he cannot even say who is the owner of the particular articles seized.
6. Here we can pause for a moment, because Mr. J.N. Ghose has contended that in view of the definition of article incorporated in Section 2(b) of the Act an article means anything (other than ornament) in a finished form. P.W. 6 Madan Kumar Sil meant gold, sovereigns and other articles and not primary gold when he stated in his cross-examination that he could not say as to who was the owner of the particular articles. This contention cannot be sustained, because this witness stated that he could not say as to who was the owner of the particular article seized. Here only gold sovereigns etc. were not seized because along with the gold sovereigns etc. primary gold was also seized. Hence the evidence given by P.W. 6 Madan Kumar Sil in this respect embraces all the items seized by the Customs Officers on that date. Hence was find that the prosecution failed to establish as to who was the owner of the primary gold in question and who was in custody, control and possession of the same. This finding is sufficient to knock the bottom out of the prosecution case.
7. The learned Chief Judge of the City Sessions Court arrived at a finding that since the accused was the head of the family he was in possession, custody or control or the primary gold in question in such capacity. But that was not the prosecution case. No evidence was adduced by the prosecution that the accused was the head of the family, and hence the learned Judge made a conjecture in this respect and arrived at an erroneous finding that the accused was the head of the family. There is a difference between the position of a person being in possession of primary gold and of a person being in possession simply because he is the head of the family. The matter does not end here. The clear prosecution case is that the key of the almirah was supplied by the wife of the accused petitioner and the accused was then absent.
8. Now, we refer to the provisions of sections 98B(1) and 99 of the Act. Section 98B(1) of the Act says :-
'In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be open to the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.'
Section 99 of the Act says :-
'Any person who has in his possession, custody or control any primary gold, article, ornament shall be presumed, unless the contrary is proved, to be the owner thereof'.
Now, Sub-section (2) of Section 98B of the Act says :-
'For the purposes of this section a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability'.
9. It has also been indicated that the ownership, control, custody and possession of the primary gold in question was not established. Hence it is not a case in which the fact in quesiton has been proved beyond reasonable doubt so as to invoke the provisions of Section 98B(1) of the Act and to draw the presumption envisaged by Section 99 of the Act. It will be allowing the prosecution to take advantage of the weakness of the defence if the opposite parties' submissions are accepted. Hence the contention put forward by the opposite parties nos. 1 and 2 cannot be sustained.
10. We, therefore, hold that the prosecution has failed to establish by clear and cogent evidence that the primary gold in question was in possession, control or custody of the accused petitioner. He, therefore, cannot be found guilty of the charge under Section 85(i)(ii) of the Gold (Control) Act, 1968.
11. The Rule is, therefore, made absolute. The conviction and sentences of imprisonment imposed upon the accused petitioner be hereby set aside and he is acquitted. The fine, if already paid, shall be refunded.
12. Let the petitioner be discharged from his bail bond.