TMI Blog1972 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... ut one of the drawers of the old cupboard which had glass shutters. Then an article wrapped in paper fell from under the drawer on the ground. That article, when unwrapped, was found to contain one gold pellet of 10 tolas embossed with 'Jhonson Mathev, London 9990 . Besides this two gold coins and 3 other pieces of gold were also found. The weight of all the gold found was 208.50 grams. They were seized under panchanama Ex. P-11. Then the accused along with the gold was produced before P. W. 2. P. W. 2 recorded the statement of the accused Ex. P-4, on the next day, that is on 21-12-1968. The gold seized in the case was sent to the Mint Master and he issued a certificate. Ex. P7. Thereafter the Collector of Customs and Central Excise. Bangalore, gave sanction to prosecute the accused, A complaint was filed against the accused in the Court of the Judicial Magistrate First Class. Chikodi, charging the accused with having committed the above mentioned offences. 3. The case of the accused was that he was residing in the said premises with his father, grandfather, wife and children and that he was not aware of the gold found in the house. The accused also stated that the supplemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recovery of the contraband gold from the house, where he lives jointly with his father and grand-father, is erroneous. It is pointed out that the accused has admitted that he is the 'karta' of the family and in a case like this Section 16(2)(g) of the Gold Control Act would he applicable. It is contended that in Ex. P3 his statement recorded by P. W. 2 the accused has admitted that the gold in question was found in the drawer of the cupboard in his dwelling house. It Is also contended that the accused has admitted in Ex. P4 as the gold was found In his house, he is liable. It is contended from these admissions made by the act cused. the only inference that could be drawn is that the gold seized belonged to the accused and that he was in possession of the same. The learned Counsel has also relied on Section 99 of the Gold Control Act which says that any person who has in his possession, custody or control any primary gold, article on ornament shall be presumed, unless the contrary is proved, to be the owner thereof. The learned Counsel has strongly relied on Channa Basappa v. State of Mysore, in support of the contention that where a person has admitted his guilt, the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it was proved that the accused had the knowledge, he would not be held guilty of the offence under Section 135(b) of the Customs Act. 8. Sri Mandagi, learned Counsel appearing on behalf of the respondent has contended that a 'Karta' of the family cannot be held liable for any contraband articles found in the house unless he had knowledge that the contraband article was kept in the house. He has also stressed that the word 'possession' used in Section 135(b) of the Customs Act means 'conscious possession'. He has strongly relied on the decision of the High Court of Allahabad in Baladin v. State, 1964 All LJ 562. In the said decision, their Lordships have followed the Full Bench decision of the Lahore High Court in Emperor v. Santa Singh. AIR 1944 Lah 339 (FB). Their Lordships have quoted the observations made by Harries. C. J. of the Lahore High Court which read as follows:-- In my judgment there Is no presumption that a father or head of a family is in possession of everything contained in his house; neither can it be presumed that he is in control of anything so found. In my view, possession and control mean something more than mere constructive or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistance to him. The question of making a declaration under the above section would arise only by a person who owns, or who has possession or control of gold. Unless this is so. there will be no obligation on the part of the person to make a declaration. We may also point out that in the instant case, the accused is not prosecuted for not making a declaration in the capacity as karta of the family. 10. From what has been stated above, it is clear that the prosecution has not established that the accused had knowledge that the said contraband gold was in the house- The prosecution has not proved that the accused was in conscious possession of the contraband gold found in the house where he was living. We have pointed out that the gold was found in an unlocked drawer of a cupboard in the house which was inhabited not only by the accused but also by other members of the joint family. 11. We are also of opinion that in Ex. P3 the accused has made no admission that the gold found in the drawer belonged to him. In Ex. P-3 the accused stated that it was a fact that during the aforesaid search the above mentioned primary gold had been found in the drawer of the old stand kept in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused has simply stated that he became responsible for the gold simply because it was found in his residential house. He has not stated that cither he had kept the gold in his house or that he knew that it was there. Therefore, the recitals in Ex. P4 are not at all sufficient to fix up knowledge or exclusive possession or control of the attached gold to the accused. The law regarding confession and admissions of the accused is that an admission must be used as a whole or not at all. It is not open to the Court to split up and use the inculpatory part and reject the exculpatory part. In the instant case, both Ex. P3 and Ex. P4 are parts of the one and the same statement and the entire contents are to be read together and so read. Exts. P3 and P4 do not prove any knowledge or Possession of attached gold by the accused. Therefore, the evidence in the case is not sufficient to hold the exclusive possession or control of the seized gold by the ac-caused. Therefore the prosecution has to fall . In Khadu Morton v. State of Bihar, , their Lordships of the Supreme Court have pointed out that where the lower Court has found the accused not guilty, unless the conclusions reached by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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