S.K. Chakravarti, J.
1. This appeal is at the instance of a firm M/s. Shvamlal Sen & Co. and three of its four partners. The fourth partner is a minor and so was not prosecuted. On the 21st May 1965 a party of Customs Officials led by Sri Julka (PW 7). the Assistant Collector and Superintendent Preventive Service, Customs. Calcutta. raided the premises No. 7. Nalini Seth Road in which the firm has its office and shop and the appellants Nos. 2-4 the partners were found in the office room in the first floor of the premises. It has been alleged on behalf of the prosecution that during the search in a room on the terrace namely the second floor of the premises. a bundle was recovered which. on opening was found to contain 142 pieces of round shaped (size of a mohur) gold discs each weighing about one tola and valued at about Rs. 8.876/-. It has not been challenged that there has not been any declaration given by or on behalf of the firm (accused no. 1) regarding this gold and the evidence unmistakably shows that it was smuggled sold. As a matter of fact that fact has also not been challenged be fore us. It has also not been challenged that from the ground floor currency notes of the value of Rs. 24.900/- as well as. some documents were also seized. The/ were prosecuted under Section 135(ii) of the Customs Act having been concerned in keeping. concealing and dealing with smuggled gold which was liable to confiscation. As they were in unlawful possession of this old without making any declaration as required by the Defence of India Rules, there was a further prosecution under Rule 126P (2) (ii) of the Defence of India Rules. All the accused persons pleaded not guilty. Along with these four appellants one of their employees was also out up on trial but the learned Presidency Magistrate who had tried this case found him not guilty and acquitted him. The accused disowned ownership or possession of the gold discs seized by the Customs Officers and had also pleaded ignorance of the existence and seizure of the gold discs. The learned Magistrate however accepted the prosecution case and convicted these four appellants under Section 135(ii) of the Customs Act and under Rule 126 P (2) (ii) of the Defence of India Rules and sentenced the firm (accused appellant No. 1) to pay a fine of Rs. 500/- on each of the two counts. He also sentenced the appellants Nos. 2-4 to suffer S. I. for nine months each and also to pay a fine of Rs. 100/- each: in default. to suffer 15 days' S. I. each for the conviction under Rule 126-P (2) (ii) of the D. I. Rules and sentenced each of them to Pay a fine of Rs. 500/-: in default. to suffer S. I. for two months each for the offences punishable under Section 135(ii) of the Customs Act. Against this order of conviction and sentence. the instant appeal has been filed.
2. The first point that has been pressed before us by Mr. Nalin Chandra Banerjee learned Advocate for the appellants, is that the prosecution has failed to prove that the old discs concerned had been recovered from the kitchen or any room on the second floor of the premises No. 7. Nalini Seth Road. Mr. Banerjee relies in this connection on the evidence of P W. 11. Sri Patit Paban Laha, one of the witnesses to the alleged seizure. The evidence of Mr. Laha would show that he was taken to a room on the top at No. 7. Nalini Seth Road. by the Customs Officers who showed him the goods said to have been recovered from the roof and he was shown some old discs. On this Mr. Banerjee contends that Sri Laha did not see the actual seizure of the sold discs from inside the kitchen. But at the same time. the evidence of Sri Julka (P W. 7) as also of the other Customs personnel namely Sri A. K. Roy Chowdhury (P. W. 3) and the other Preventive Officers P. W. 2 B. C. Roy, P. W 5. M. N. Mukherjee, P. W 6 Shvamapada Mukherjee. P. W. 1 A. G. Chakraborty. P. W. 9 C. R. Dutta would show quite clearly that these gold discs were recovered from inside the oven in that room on that second floor and we see no reasons to disbelieve their testimony in this respect. We are therefore quite satisfied that these gold discs had been recovered from the room on the second floor of this premises.
3. Mr. Banerjee has next contended, and this is his most serious contention. that the prosecution has failed to prove that that room which has been shown as a kitchen appertained to the tenancy of the appellants or was in the possession of the appellants. It would appear from the evidence that premises No. 7. Nalini Seth Road consists of two parts the southern portion being in the possession of the appellants and the northern portion of Shyamlal Sen Co. The landlord appears to have been examined by the police but he was not produced before the trial court to show that actually the kitchen appertained to the tenancy of the appellants But the evidence also makes it clear that each part had a staircase and the staircase of the other portion in the possession of Shyamlal Sen Co. reached up to the first floor only and not upto the second floor whereas the staircase in the portion of the appellants reaches up to the second floor. P. W. 9 C. R Dutta has specifically stated that and he has not been cross-examined on the Point. It was not suggested to any one of the P. Ws. that the other portion in the possession of Shyamlal Sen Co. had any independent access to the terrace or the second floor of the building. When the only staircase leading up to the second floor is in the portion of the appellants, there can be no doubt of the fact that the room on the terrace would also be in their tenancy and not in the tenancy of Shvamlal Sen Co. which has got no access straightway to the terrace. The unchallenged evidence of P. W. 1 Sri Chakraborty would show that the room on the 2nd floor is on the southern side. Moreover even in the Memorandum of Appeal it has not been alleged that Shyamlal Sen Co. has any independent access to that room or to that terrace. The only Grievance that was made was that it had not been shown that it was in the exclusive possession of the Appellants. But the very fact that the only staircase leading up to that terrace is in the portion of the appellants would go unmistakably to show that that room would be prima facie in the exclusive possession of the appellants even though there was no wall on the terrace separating the two portions. There is nothing to show that the apparent is not the real state of the things.
4. Mr. Banerjee has next contended that the evidence on record would show that it is possible from the staircase on the side of Shyamlal Sen Co. to jump into the staircase on the side of the appellants and that the Customs Officers themselves had jumped on the second floor of premises No. 7. Nalini Seth Road from the terrace of premises No. 3. Nalini Seth Road. In the circumstances. Mr. Banerjee contends that it is quite possible that someone else might have put in the gold discs there specially in view of the fact that the evidence discloses that the Customs people were raiding some other places of business on that date and at that time. Though it might be physically possible for someone else to place the gold discs inside the oven in the kitchen on the second floor, still it is highly improbable. It is not for the prosecution to eliminate all possible defences and circumstances which ray exonerate the accused persons. It is not necessary that any extravagant hypothesis should be built up to sustain the principle that the inculpatory fact must be inconsistent with the innocence of the accused and in the instant case as the learned Magistrate has pointed out there is no such reasonable hypothesis. On the other hand the evidence would clearly show that when the Customs people came there and wanted an entrance into this portion of premises No. 7. Nalini Seth Road the persons who were in occupation of that portion. tried their best to prevent them from entering. The gate of the house was closed later on and there was no light in the front portion. The persons in occupation were called upon to open the gate but instead of complying with that reasonable request they ran upstairs. Then the officers had to move over to premises No. 5. Nalini Seth Road and therefrom they jumped on to the terrace of No. 7 and heard also the pattering of feet across the staircase going down. One of the doors of that room was also closed from inside. Even when they reached the ground floor room the persons in occupation played some tricks with the switch of the light and the switch of the room on the terrace was also put off. Even the main switch on the ground floor was out off and it should be noted that the appellants Nos. 2-4 were inside the office room on the first floor. Later on the plug of the main switch was also broken. It seems absurd that they would have no knowledge of what was going on. It is not reasonable to hold that some outsiders made their entrance from across the terrace and did all these mis-chiefs with the appellants Nos. 2-4 blissfully ignorant of what was going on inside the premises. Taking into consideration all these facts and circumstances we have no hesitation in holding that the accused persons themselves or someone with their knowledge or on their behalf or at their request or behest had placed these gold discs inside that oven so that the same might not be found out by the Customs people.
5. We have already pointed out that these gold discs were not covered by any declaration and there is every reason to hold that the same had been smuggled. The accused persons were definitely in possession of these gold discs. The appellants 2-4 daily came from Chin-sura to carry on the business of the firm. They must be found guilty of the charges they had been tried under.
6. But Mr. Banerjee lastly contended that it. is not proper to convict the appellants both under the Customs Act as also under the D. I. Rules. Mr. Banerjee in this connection has relied on the decision of this Court in Aravinda Mohan Sinha v. Prohlad Chandra Samanta : AIR1970Cal437 . In that case the accused were prosecuted under the Customs Act for possession of smuggled gold and under Rule 126P for failure to Rive necessary declaration. Here also the prosecution is for the smuggled gold under the Customs Act and also under Rule 126P though not for failure to give necessary declaration but for possession of gold other than ornament in contravention of the Rules. In the decision referred to above, it has been clearly held that 'Rule 126P makes possession of undeclared gold punishable. Obviously declaration under Rule 126P would not protect smug sled old or the smuggler and the legislature also never expected that smuggled gold would be declared. Looking at the object of this Control Order and the time and manner in which it came in the Statute Book. it seems that declaration under Rule 126P is in respect of 'legal' gold, as opposed to smuggled gold. Customs Act deals with smuggled sold of foreign origin or making illegally imported into India and penalty including seizure is provided for in the Customs Act. The question of declaration in respect of that does not arise at all. The conviction under the D. I. Rules was set aside. If the smuggled gold does not call for any declaration under the D. I. Rules the possession of such gold in contravention of the D. I. Rules namely without making. any declaration should not be dealt with under the D. I. Rules. Of course if the prosecution was not very sure as to whether it was smuggled gold or not. it would be open to the prosecution to prosecute the accused on the alternative charges under the Customs Act and the D. I. Rules. But to charge them substantively under both these laws for the same set of facts viz. possession would be against the principles of justice. We may look at it also from different angles. The Customs Act is permanent Act and the D. I. Rules was an emergency legislation which was of a temporary nature. If the permanent law could fit in with the facts and circumstances of the case it is not proper to convict a person for infringement of the Permanent law as also for the temporary statute. Moreover, if a person is to make any declaration in respect of the smuggled gold he will have to explain as to how he came by that gold or in other words he will be compelled to be a witness against himself and that would also violate the provisions of Article 20 of the Constitution. In this view of the matter we would respectfully agree with the decision in Aravinda's case. : AIR1970Cal437 and hold accordingly that the prosecution both under the Customs Act and the D. I. Rules is not legal. in the facts and circumstances of this case. In this particular case the prosecution rests on the fact that it is smuggled gold. It is on that basis that the investigation started and the seizure was also made. We would therefore, hold that in this particular case the conviction should be made under the Customs Act and not under the D. I. Rules. We. therefore. set aside the conviction and sentence as passed by the learned. Magistrate under the D. I. Rules. but confirm the conviction and sentence as passed by the learned Magistrate under the Customs Act.
7. The appeal fails and is dismissed with the modification referred to above.
8. The appellants be discharged from their bail bonds.