Santhosh, J.:— Crl. A. No. 244 of 1969 is by the Assistant Collector of Central Excise, Bangalore, against the acquittal of the respondent-accused-1 of the charge under Rule 126P(2)(ii) of the Defence of India Rules, 1962. The learned Magistrate convicted the respondent (accused-1) under S. 135(b) of the Customs Act, 1962 and sentenced him to undergo simple imprisonment for 6 months. In the course of this judgment, the respondent will be referred to as accused-1. Along with accused-1, accused-2 was also charged for having committed the said two offences. The learned Magistrate acquitted accused-2 of both the charges. No appeal has been filed by the Assistant Collector challenging the said order of acquittal of accused-2. Accused-1 filed an appeal against the said conviction under S. 135(b) of the Customs Act to the Sessions Judge, Bangalore and the same was dismissed and the conviction and sentence passed on accused-1 was confirmed. Crl. R.P No. 414 of 1970 has been filed by accused-1, challenging the legality of the said order of conviction passed on him. Both the appeal and the revision petition are dealt with together as they both arise out of one and the same case.
2. The prosecution case is that accused Nos. 1 and 2 travelled from Bombay to Bangalore by plane and came to Bangalore air-port on 9-12-66 at about 4-30 P.M Accused-1, after getting down from the plane, was found carrying a black leather hand bag MO. 1. On suspicion, the Customs Authorities detained both accused Nos. 1 and 2. When questioned about the contents of the bag which he was having, accused-1 stated that the key of the bag was with accused-2. But, PW. 1 Raghunatha Rao, Inspector of Central Excise and Customs, pushed the button of MO. 1 and it opened. Inside the bag they found 59 pieces of gold of foreign origin with marks ‘Johnson Matthey 9990 London 10 Tolas’. He questioned accused-1 whether he had any permit for possession of or for the transport of 59 gold pieces and accused-1 told him that he had not got any such permit. When accused-2 was questioned, he also told them that he had no permit. Accused-1 was having an air ticket bearing the false name of R.B Shah. Accused-2 was having an air ticket bearing the name of A.S Shah. When the bag MO. 4, which accused-2 was having was searched, they found a key MO. 5 which fitted with the lock of MO. 1. No contraband articles were found in the hand bag of accused-2. Thereafter, PW. 1 sent a phone message to PW. 3. Superintendent of Central Excise. PW. 3 came to the place and recorded the statement of accused-1 which has been marked as Ext. P5. He also recorded the statement of accused-2 as per Ext. P6, 59 pellets of gold found in the hand bag MO. 1 were got tested by PW. 5 a jeweller and gold appraiser for Syndicate Bank PW. 5 has opined that the gold was of 24 carat and of foreign origin and issued a certificate Ext. P3. After completing the investigation and getting necessary sanction and permission from authorities, a complaint was filed against both the accused in the Court of the Second Magistrate, Bangalore. After the trial, the learned Magistrate held that the 59 gold pellets in question were found in the possession of accused-1. He rejected as false the contention of accused-1 that he was not aware that the hand bag MO. 1 which he was carrying contained 59 pellets of gold with foreign markings and that the hand bag had been given to him by accused-2. He held that the theory put forward by the accused was an after-thought and that he was in possession of gold of foreign origin, for which he had no licence or permit of any kind. He found accused-1 guilty of having contravened S. 135(2) of the Customs Act and convicted him of that offence. But, the learned Magistrate held that accused-1 was a mere carrier and had no interest in the gold and as such he would not be liable for an offence under Rule 126(2)(ii) of the Defence of India Rules and acquitted him of the second charge.
3. Shri Papanna, learned standing Counsel for the Central Government, contended that the finding of the learned Magistrate that accused-1 was only a carrier and not owner of the gold was not warranted by the evidence on record. He argues that the finding of the learned Magistrate is vitiated by his failure to draw legal presumptions that arise under Rule 1261(11) of the Defence of India Rules. It is contended that if the first accused was in possession or control of the gold, under Rule 1261(11) of the Rules, it is for him to prove that he is not the owner. The learned Counsel also relied on the presumptions arising under S. 110 of the Indian Evidence Act. He argues that mere statement of the accused as per Ext. P5 that he had no knowledge that the bag contained gold is not sufficient. Accused-1 must prove affirmatively that he was not the owner. It is also argued that similar presumptions of law arise under S. 4(1) of the Prevention of Corruption Act. Strong reliance is placed on State of Madras v. Vaidyanatha Iyer(1), Swami v. State(2) and Dhanvantrai v. State of Maharashtra(3), in support of the contention that mere explanation given by the accused is not sufficient but he must prove by evidence in the instant case that he was not the owner of the gold. It is further contended that even if accused-1 was only a carrier of gold, still he would be liable for contravening Rule 126I(10) of the Rules, punishable under Rule 126P, (2)(ii) of the Rules. In support of this contention, reliance was placed on two Bench decisions of this Court in Supdt., Central Excise v. Malaviya(4) and Supdt., Central Excise v. Tharachand(5). It was also pointed out that the latter decision had been affirmed by the Supreme Court in (1970) 3 SCC 507 : All India Reportor 1971 SC. 781. It is, therefore, submitted that the finding of the learned Magistrate that accused-1 is not guilty of an offence of contravening Rule 126P(2)(ii) of the Rules is clearly illegal and deserves to be set aside.
4. Shri J. Jeshtmal, learned Counsel appearing on behalf of accused-1, has contended that the gold seized in the instant case belonged to accused-2 and accused-2 had just handed over the bag MO. 1, to accused-1 when getting down from the plane. It is argued that accused-1 had no knowledge that the bag contained gold and as such he has not committed any offence. The necessary mens rea or knowledge has not been established by the prosecution in the instant case. In the statement made at the earliest point of time (Ext. P5), accused-1 has clearly stated that the bag MO. 1 belonged to accused-2 and that he had no knowledge that the bag contained gold. It is argued that the degree of proof to rebut the presumption under Rule 126I(11) of the Rules is lighter in the case of an accused. If the accused makes out preponderance of probabilities in his favour, it is sufficient to find him not guilty and legally it is not necessary for the accused to prove, beyond all reasonable doubt, the contention taken up by him. In support of the said contention, reliance is placed on Jhungan v. State of U.P(6) and Bhoomal v. Collector of Customs(7). Mere possession of hand bag, without the knowledge that it contained gold would not make accused-1 liable for the offence with which he is charged. It is contended that, as accused-1 did not have the requisite mens rea and knowledge that the band bag contained gold, legally he cannot be held liable. In support of the said contention, learned Counsel relied on 1968 (2) All England Reports, page 356 and 1969 (1) All England Report page 347. Learned Counsel has also contended that if a person is a mere carrier of gold, he cannot be convicted of contravening Rule 126P, (2)(ii) of the Defence of India Rules and has relied on (1969) 2 Mys. L.J 485 in support of the said contention.
5. The first important question that arises for consideration is, whether the gold seized in this case belonged to accused-2 and whether accused-1 had no knowledge that the bag MO. 1, which he was carrying, contained gold.
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6. But, after carefully going through the evidence, we are of opinion that both accused Nos. 1 and 2 knowingly brought the gold from Bombay for disposal at Bangalore.
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7. From the facts and circumstances of the case, the only inference that can be drawn is that accused-1 knew that the bag MO. 1 contained gold and the gold was brought by accused Nos. 1 and 2 from Bombay for disposal at Bangalore. The learned Magistrate has also held that the version that the gold belonged to accused-2 and that he did not know that the bag MO. 1 contained gold, is not true. At para 8 of his judgment, the learned Magistrate has observed as follows:
“Therefore, the story put forward by the first accused that he was not aware of the contents of the bag MO. 1 cannot be accepted as true.”
8. Since we have found that accused-1 had the necessary mens rea and knowledge that the bag that he was carrying contained gold, it is unnecessary for us to consider the English cases cited by the learned Counsel for the defence with regard to knowledge and mens rea.
9. Accused-1 was undoubtedly found in possession of 59 pellets of gold with foreign markings. He has himself admitted that the bag MO. 1 containing the gold pellets was with him. In a case like this, provisions of sub-clause (11) of Rule 126I of the Rules would apply. The said sub-clause states that any person in possession or control of any gold, not being ornament, shall be presumed, until the contrary is proved, to be the owner thereof. Accused-1 has not rebutted the presumption arising from sub-clause (11) of Rule 126I of the Rules that he is presumed to be the owner of the gold recovered in the instant case. In support of his version, he has only relied on his own self serving statement Ext. P5. We have already pointed out that the statement made therein that the gold belongs to accused-2 and that he had no knowledge that MO. 1 contained gold is not true. Even applying the test of preponderance of probabilities relied on by the learned defence Counsel, we are of opinion, after reviewing the evidence, that the preponderance of probabilities are against the version of the accused that he had no knowledge that the bag MO. 1, which he was carrying, contained gold. It is clear from the evidence that accused-1 did not have any permit for being in possession of this gold. He had also not made any requisite declaration with regard to this gold and as such it is clear that he has contravened the provisions of Rule 126P(2)(ii) of the Defence of India Rules.
10. There is no force in the contention of the defence that a person in possession of gold or a mere carrier of gold, does not contravene any of the provisions of the Defence of India Rules relating to gold control. Sub-clause (10) of Rule 1261 of the Rules makes possession or control over undeclared gold an offence. That this is the position of law has been laid down in a series of Bench decisions of this Court. In Supdt. Central Excise v. U.N Malaviya a Bench of this Court has observed at page 23 as follows:
“The evidence clearly discloses that the respondent was in possession of 43 pieces of foreign gold and had not made the requisite declaration under the Gold Control Rule; nor did he have any permit issued by the Gold Control Authority. Hence, in our opinion, the charge under Rule 126P(2) of the Defence of India Rules that he was in possession or had in his control some quantity of gold in contravention of the Defence of India Rules has been clearly made out.”
11. Again in Supdt. of Central Excise v. Tharachand, another Bench of this Court at page 234 has observed as follows:
“The learned Magistrate has found that the respondent was found in possession of 16 pieces of gold of foreign origin. The evidence in this case also establishes that the respondent travelled from Bombay to Bangalore with this gold. He is not a dealer or a refiner having a licence. He was found in possession of gold without making a declaration. Therefore, he has clearly committed an offence punishable under Rule 126P(2).”
12. Correctness of the above said decision has been affirmed by the Supreme Court in (1970) 3 SCC 507 : AIR. 1971 Supreme Court page 781.
13. It is clear from what has been stated above that the view of the learned Magistrate that a mere carrier of gold is not liable under the Defence of India Rules relating to gold control is manifestly erroneous and has to be set aside.
14. For the reasons mentioned, we allow the appeal and set aside the order of acquittal of respondent (accused-1), of the charge under Rule 126P(2)(i) of the Defence of India Rules and convict him for the said offence.
15. Taking Crl. RP. No. 414 of 1970 the contentions urged by the learned Counsel are the same as those urged in the Criminal Appeal i.e accused-1 had no knowledge that the bag MO. 1 contained 59 pellets of foreign gold. We have already dealt with this point fully in the Criminal Appeal and we have held that accused-1 had knowledge that the bag MO. 1 he was carrying, contained 59 pellets of foreign gold and that he along with accused-2, had brought this foreign gold for disposal at Bangalore.
16. We have already pointed out that it is not disputed that accused-1 was found in possession of 59 pellets of gold. S. 123 of the Customs Act would apply to the instant case. S. 123 of the Act reads as follows:
“Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.”
17. In Vallabhdas Liladhar v. Asst. Collector of Customs(8), in para 11 of the judgment their Lordships have observed as follows:
“Once it is proved that the gold is smuggled gold, it follows that it was brought into the country without payment of duty or in violation of the prohibition or restriction in force and whosoever brought it and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the section must be held to have the intention of evading the payment of duty or violating the prohibition or restriction.”
18. It is therefore, clear that accused-1 had contravened S. 135(b) of the Customs Act and that he has been rightly convicted of the said offence.
19. It has been finally contended by the learned Counsel appearing on behalf of accused-1 that this is a fit case where the Court may act under the Probation of Offenders Act and release accused-1 under the provisions of the said Act. Learned Counsel has cited Boota Singh v. State(9) in support of the said connection. In the said decision, the accused was charged for contravening Section 167(81) of the Sea Customs Act of 1878. As the accused in that case had already undergone sentence of imprisonment for one month and the accused had been released on bail, the Court did not consider it necessary to send him back to jail and converted the remaining period of imprisonment into fine of Rs. 300. It may be pointed out that it is not obligatory on the part of the Court to sentence the accused for the minimum term of imprisonment under the Sea Customs Act. But, under the provisions of Rule 126P(2)(ii) of the Defence of India Rules, the Court has no option but to impose imprisonment for a term of not less than six months in case it comes to the conclusion that, the accused has contravened the provisions of Rule 126P(2)(ii) of the Defence of India Rules. In Crl. A. No. 271 of 1965(10), dealing with the request of the accused in a similar case that he may be released either under S. 4 or S. 5 of the Probation of Offenders Act, 1958, a Bench of this Court at page 20 has observed as follows:
“Before applying the provisions of either S. 4 or S. 5 of the Probation of Offenders Act, the Court must be satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him with admonition or on probation of good conduct. It is therefore necessary in the instant case to consider the circumstances of the case and the nature of the offence. It may be pointed out that smuggling of gold is an anti-social act affecting the very economy of the country. We are therefore of opinion that it is not desirable to apply the provisions of the Probation of Offenders Act to a person who is involved in smuggling gold.”
20. Following the said ruling, we are of opinion that it is not desirable to apply the provisions of the Probation of Offenders Act in the instant case to accused-1.
21. In the result, for the reasons mentioned above, we dismiss Crl. RP. No. 414 of 1970 and confirm the conviction and sentence of simple imprisonment for six months passed on accused-1. We also sentence accused-1 to undergo simple imprisonment for six months for the offence of contravening the provisions of Rule 126P(2)(ii) of the Defence of India Rules. We direct both the sentences to run concurrently. The appellant is directed to surrender to the bail and undergo the sentence of imprisonment passed by this Court.