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Asstt. Collector Of Central vs Rikabdas Tejmal Shah

1972 (2) TMI 104 - Karnataka High Court

Dated:- 16-2-1972 - M Santhosh And S R Gowda, JJ. JUDGMENT Santhosh, J. 1. This is an appeal filed by special leave by the Assistant Collector of Customs and Central Excise, Belgaum Division, against the acquittal of the respondent of the charges punishable under Section 135(b)(ii) of the Customs Act, 1962 and Section 85 of the Gold Control Act 1968, by the learned Judicial Magistrate, First Class. Chikodi in C. C. No. 90 of 1970. 2. The prosecution case briefly stated is as follows: P. W. 2 Fre .....

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front room of the first floor there were cupboards. P. W. 1 pulled out 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 panchanam .....

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th 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 supplementary statement Ex. P-4 was got from him under threat of arrest and prosecution of his wife, mother and father and that he became aware of the gold only after the Customs Officers showed it to him. In the written statement filed b .....

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of his father and tenants also resided in the house of the first floor which was accessible to all the occupants of the house. The accused produced 5 documents, Exts, D1 to D5 to show that the house and business establishment were registered in the name of his father. 4. The learned Magistrate, after reviewing the evidence held that the alleged gold found in the house was not in the exclusive possession and control of the accused. He also held that the mere fact that the accused was the 'Kar .....

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ive possession of the gold seized in the instant case and therefore the prosecution had not made out the 2 charges framed against the accused and acquitted him of both the charges. 5. Sri M. Papanna Jr. Central Government Pleader appearing on behalf of the Union, has contended that the inferences drawn by the trial Court from proved and admitted facts are erroneous. He contended that the only inference that can be drawn from the facts and circumstances of the case was that the accused was in pos .....

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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 .....

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t the accused was the owner or in possession or custody of the gold seized from the premises in question. It is clear from the evidence that this gold was found in a cupboard In the first floor of the residential building and that cupboard was not locked. It is also clear from the evidence that the accused was living in the premises along with his father, grandfather and other members of the family. From the documents Dl to D5 produced by the accused, it is clear that the house was owned by the .....

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contraband article without the knowledge of the Manager, we are of opinion that the Manager cannot be held criminally liable. Unless there is evidence to show that the contraband article has been kept in the house with the knowledge of the Manager he cannot be held criminally liable for offences either under Section 135(b) of the Customs Act or Section 85 of the Gold Control Act. 7. Tn Supdt. of Central Excise Aramugam Pillai, (1967) 2 Mys LJ 63 = (AIR 1967 Mys 175) a Bench of this Court has he .....

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eized from the possession of the accused, In the said case the Court held that from the mere fact that the accused were passengers in the car no inference would be drawn that they had knowledge or reason to believe that gold was secreted in the said car and that unless 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 ' .....

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re 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 legal possession or control. Can .....

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ething before he can be said to control it or have it under his control. It must be remembered that under these sections of the Explosive Substances Act and Arms Act, mere possession of incriminating articles constitutes serious criminal offences and there must be in my view mens rea or guilty knowledge before a person can be convicted of such posses- sion. If a father or house master is to be convicted merely because he is in possession of a house and therefore everything in it, then he can be .....

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cle is recovered from inside a house in the occupation of more than one member of the family does not raise a presumption that everyone of them is in possession and control of it; nor does it follow that the karta of the family must be presumed to have knowledge of its existence. Where a person is charged with a criminal offence, the prosecution has to prove mens rea or guilty knowledge before a conviction can be founded on the basis of mere recovery of an incriminating article from inside the h .....

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session 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 consc .....

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gold had been found in the drawer of the old stand kept in the house. It may be, pointed out that in the said statement, Ex. P-3, the accused has repeated 4 or 5 times that he did not at all know that the gold was kept in the cupboard in question. We have already pointed out that the evidence discloses that the cupboard was found unlocked and the prosecution has not let in any evidence to show that the cupboard was in the exclusive possession of the accused or that he had the key of the cupboard .....

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in possession of the same. The decision Channa Basappa v. State of Mysore, , relied on by Sri Papanna is of no assistance as in the said case in a departmental enquiry the delinquent in question admitted that charge and on his own plea, the person conducting the enquiry held the charge proved. Their Lordships have pointed out that it wag only a departmental enquiry and the person concerned there was not on trial for a criminal offence. We are also of opinion that Section 99 of the Gold Control A .....

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does not arise. in the case. There is therefore no force in any of the contentions urged by Sri Papanna on behalf of the appellant. 12. After assessing the entire evidence, the learned Magistrate has summarised the position very correctly as follows: ".....In Ex. P3 the accused has stated that he is karta of the family and he did not know, when and who kept that gold there. In Ex. P3 the accused denied knowledge of the gold found in his house. In Ex. P4 the accused has simply stated that he .....

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