G.N. Deshpande vs Ishwaribai U. Ahuja and others

This appeal by the Assistant Collector of Customs, Marine & Preventive Wing challenges the acquittal of the respondents Nos. 1 and 2 upon a charge of commission of an offence of possession of undeclared primary gold in contravention of the provisions of S. 8(1)(i) of the Gold Control Act read with S. 85(1)(ii)(a) thereof.

The Respondents Nos. 1 and 2 Ishwaribai wife of Udhhavdas Ahuja and Gopaldas Udhhavdas Ahuja are respectively the widow and the son of one Udhavdas Kewalram Ahuja who died sometime in the year 1973. Udhavdas''s grand mother was one Bhojibai. She died in the year 1951. The respondent accused No. 2 Gopaldas was born in Feb. 1950. His mother Gopibai died within three or four days after the delivery. In July 1950 Udhavdas married a second time, this time to the present accused No. 1 Ishwaribai. It is also not in dispute that from this second wife Ishwaribai, a female issue was born to Udhhavdas, her name being Mohini. Mohini was married sometime in May 1974. This marriage, it appears, was celebrated with such pomp and show as was dazzling enough and a very remote suggestion therefore is that it was this celebration of the marriage which made the Income Tax authorities strongly suspicious. It is to be further mentioned that the banking business in which the accused Nos. 1 and 2 were partners was being conducted at Madras also as one of the branches. However, otherwise the accused Nos. 1 and 2 formed a joint Hindu family.

Upon secret information received by the Deputy Director of Inspection (Intelligence) Shri V. V. Vaidya about large undisclosed assets held by the accused persons, a search of the premises of the accused was decided to be taken. A proper authorisation in that behalf was issued in favour of the Assistant Director of Inspection (Intelligence) R. D. Mahadeshwar and another, Shri Shrivatsav.

On the 20th August 1974 Mahadeshwar accompanied by Kandalgaonkar PW-6 and some other officers including Inspector Miss Anju Mirani proceeded to the house of the accused persons, in the Shivaji Park area at Dadar. They were residing in a Bungalow named Gopika Kunj. The ringing of the call bell brought the servant who opened the door and it was at that very point of time that the accused No. 2 Gopaldas accompanied by some four or five persons also arrived at the house. Mahadeshwar disclosed his identity as also the fact of the authorisation issued in his favour for search of the premises. Mahadeshwar asked Gopaldas for two persons of his choice who may be called as panchas. One of these panchas whose services were accordingly used for the search of the premises was one Sharma, and old man aged about 70 years and working as a Manager of the accused No. 2 at that time. The other person was one Narayanan, who was a tenant in some other part of the building.

Residential premises of the accused consisted of six rooms in all and though all these rooms had come to be searched, the discovery of the contraband gold, according to the prosecution, was from four out of these six rooms. The first is the eastern bed room which was in the use of accused No. 2. The second was the western bed room which was in use of accused No. 1 Ishwaribai; the third was a room in which the telephone was kept and hence called the telephone room and the fourth one was called the pooja room because it was there that the idols and deities were installed for worship. It was from this pooja room that gold idols were found alongwith gold ornaments and furnishes and the seizure of these items resulted in the prosecution of the accused persons for commission of the offence u/S. 86 of the Gold Control Act and for which they were convicted also at the trial. The gold idols and the contravention of the provisions of S. 86 of the Act are, therefore, not the subject-matter of dispute and criminal liability any more. The accused Nos. 1 and 2 were convicted u/S. 86 and sentenced to imprisonment till the rising of the Court and fine Rs. 3000/-. This conviction has not been challenged by them.

According to the prosecution, the search of these three rooms, the eastern bed room, the western bed room and the telephone room led to the recovery of huge quantities of gold, primary gold, in the form of ingots weighing approximately 13 1/2 kgs., and as many as seven gold bars including cut piece of a gold bar, several gold sovereigns, gold coins, etc. Out of this total haul, a major portion came from the eastern bed room. In one of the steel cupboards, in the eastern bed room, all cupboards having been an ornamental top the gold as seized was found except that one gold bar was found in a cupboard in the western bed room and two more in the telephone room. This gold apart, since the raid had been carried out not specifically by the Gold Control authorities but by the Income Tax authorities for the purposes of ascertaining of undisclosed assets several other articles of diamond jewellery, a very large number of foreign goods such as cinema projectors, tape-recorders and other things were also seized at that time. According to the prosecution, the accused No. 1 Ishwaribai was not present on the premises at the time when Mahadeshwar and his party went to the premises. She was away at Madras at that time. However, it also transpired that she was to return from Madras that very evening. The recovery of one single gold bar from a cupboard in the western bed room which she used to occupy, came to be made, as is the prosecution case, at the instance of accused No. 1 Ishwaribai herself in as much as the key to a very secret locker in the almirah in the western bed room had come to be provided by her after she arrived at Bombay and on the premises in question by about 5.00 or 5.30 p.m. One undisputed fact which may be mentioned is that the raiding party having come to know about her expected arrival from Madras by an evening flight, some other members of the raiding party from the Department were kept waiting at the airport and as soon as she arrived, a search was taken of her person. In that search she was found to carry nine hundies of Rs. 5000/- each. The search of the eastern bed room was carried out, as was not even disputed by the accused No. 2, right in his presence. There were in all four or five steel cupboards in the eastern bed room each having an ornamental top. All these cupboards were found in a locked condition. The key to only one of these cupboards was with the accused and when that cupboard was opened, no primary gold or gold of any kind or description was found therein but some other valuables which were taken over by the authorities. One other steel cupboard having an ornamental top virtually turned to be a gold mine. The ornamental top was required to be opened with the help of a lock-smith who had to use steel saw, hammers, screw driver, etc. The officers of the raiding party had, in the absence of any keys available, found it unavoidable to use the services of that expert lock-smith and the services of one were accordingly commissioned. The lock-smith Dhirubhai Parmar PW-5 arrived at about 1-30 or 2-00 p.m. On his arrived he was asked to prepare a key to one of the cupboards in the western bed room, with the key improvised by him the cupboard was opened and a bunch of keys was found therein so also some items of jewellery. One key from out of the said bunch tried on the other cupboard worked to open it. This cupboard was found to contain a fire proof safe and two drawers. Some more keys were also found in this drawer with the help of which the secret safe and drawers were opened and these disclosed some items of jewellery. This was just as Inspector Kandalgaonkar returned from lunch and he was the person who was having the key to the eastern bed room which had been locked during the lunch recess taken by the members of the raiding party.

Upon return of Kandalgaonkar, the eastern bed room was therefore opened and at the asking of Mahadeshwar, a key to one of the cupboards in that room was also prepared. When the cupboard was opened with the improvised key, another bunch of keys was found and working with these keys the other cupboards in the rooms were opened. What was found in these cupboards were items of jewellery and silverware. During inspection of these several cupboards in the eastern bed room an observation was made of the fact that these had ornamental tops as their distinctive mark; suspicion was thereby aroused and the accused No. 2 was asked about them. The accused No. 2 expressed his ignorance about them. The ornamental tops of one of these cupboards was therefore inspected very closely by one of the members of the raiding party. That showed that these ornamental tops had actually come to be screwed on firmly and squarely to the main cupboards as such and secondly that one of the several screws was however found to be a little loose and the ornamental top one portion of which was also found to be jutting out of the top edges of the cupboard. It was, therefore, suspected that this was a place for keeping or secreting things. The lock-smith was therefore called upon to attend to this. He opened the top and a cavity with a small key hole was revealed so also a handle in the centre. Using one of the keys with him, the lock-smith Dhirubhai Parmar opened lid when another cavity was found. Having discovered the existence of secret cavity on the top of these cupboards, a suspicion was aroused that such a secret cavity must also be there at the bottom of the cupboards and one was eventually explored by the lock-smith. The pressing of a spring catch opened the bottom compartment having two drawers but nothing was found therein.

The ornamental tops of all other cupboards were also decided to be opened. They were actually opened accordingly. Inspector Kandalgaonkar had given one key to the lock-smith with which he opened the top of the cupboard. It was there under the ornamental top and in the secret cavity under it that one gold ingot (brick), gold bars, gold sovereigns and gold coins were found. The gold ingot weighing 13 1/2 kgs., had an inscription of Bank of England, Rand Refinery. The gold coins had the inscription Manilal Chimanlal & Co. on them. In the search of the secret cavities under the ornamental tops of the order cupboards nothing was however found.

So far as the search of the western bed room was concerned, there were two cupboards in that room, also having ornamental tops. By the time the search of the western bed room was taken up in earnestness, the accused No. 1 had arrived. In one of these cupboards on the right side entrance door which had come to be checked earlier also but was given a second look over, a cavity was found between the drawer and the side of the cupboard. Jewellery and diamonds were recovered from this cavity. On top of the right side drawer, sarees had been found. These were removed and in the process a piece of newspaper which had been laid over the portion also came off accidentally and revealed a small cut hole. The accused No. 1 Ishwaribai was then asked for providing the key thereto. According to the prosecution, she obliged. With the key provided by her, the secret receptacle was opened and one cut piece of a gold bar and some items of jewellery were found.

The search of the telephone room also yielded results. There was a small or ''half size'' as it has been called, steel cupboard there and from this two more gold bards were also recovered. It was thus, a very big haul of jewellery and primary gold that was made by the Assistant Director, Mahadeshwar and the Commissioner of Income Tax, the Deputy Director, Vaidya and Customs authorities were promptly informed. Deputy Director Vaidya also therefore visited the Gopika Kunj premises of the accused.

As required by S. 132 of the Income Tax Act and Rule 112 of the Income Tax Rules detailed panchanamas were required to be drawn there and then. However, the suddenness of the raid and the search caused a shock to the accused No. 1 who suddenly took ill, upon realisation of the trouble in which she had landed, she was therefore unable to associate any further with the raiding party. Appreciating that the drawing of several panchanamas in respect of the search of several rooms, several cupboards in each of them, the different nature of items of seizure, a long time would be taken, the accused No. 1 and her Advocate one Shri Harish who had been asked to remain present at the search, made a request that the drawing of these detailed panchanamas be proceeded with not at the said premises but at the office. What was therefore prepared at the spot was, what the prosecution describes as being a ''skeleton'' panchanama (Exh. V). All the gold, the jewellery, documents, etc., other valuables, foreign imported items, etc., were carried away in large trunks.

The Assistant Director, Mahadeshwar then recorded the statement of the accused No. 2 Gopaldas and the recording of the statement of the accused No. 1 was postponed to 6-9-1974. After this statement of the accused No. 2 was recorded by Mahadeshwar as per Exhibit ''C'', two more statements of him were recorded by Shahpurkar, the Superintendent of Gold Control as per Exhibits ''E'' and ''I'' on 5th September 1974 and 7th September 1974. On 30th August 1974 the Gold Control Authorities, under proper panchanamas took charge of the entire gold, primary in the form of ingots and bars as also sovereigns and coins including one half gold coin. The papers of investigation were submitted to the Collector of Customs and he directed the Assistant Collector of Customs one Parakh to file a complaint. Upon that authority issued on 9th December 1976, a complaint u/S. 85(1)(ii) read with S. 8(1)(i) as also u/S. 86 read with S. 16(1) of the Gold Control Act came to be filed.

After preliminary enquiry at which the prosecution witnesses went without any cross-examination as such, a charge was framed against the accused persons. The accused were charged that on or about 30th August 1974 they owned or had in their possession, custody and control of primary gold weighing 31,954.700 grams valued at Rs. 14,71,336.80 at the local market rate, that they owned or possessed and had custody or control over this primary gold in contravention of the provisions of S. 8(1)(i) of the Gold Control Act and had thereby committed an offence punishable u/S. 85(ii) thereof. They were further charged that on or about the same day at Bombay, not being licensed gold dealers or certified goldsmiths, they failed to make a proper declaration in the prescribed form in respect of the gold articles in the form of gold articles, sovereigns, gold coins and pooja ceremony gold articles collectively weighing 5,702.200 gramms valued at Rs. 3,58,152.85 at the local market rate in contravention of S. 16(1) of the Gold Control Act; that they had thereby committed an offence punishable u/S. 86 of the said Act. To this charge, the accused Nos. 1 and 2 both pleaded not guilty and claimed to be tried.

The main plank of their defence is that they were entirely unaware of the presence and existence of this cleverly secreted gold, apart from the gold idols and the pooja articles in the pooja room. They were entirely unaware even of the said huge quantity of gold kept in their house. Secondly, according to them, in the course of search of the entire six room flat, all the cupboards, almirahs and other receptacle and other places therein, whatever gold was recovered was from only one place viz., one steel cupboard in the eastern bed room having ornamental top. That this ornamental top actually constituted a cover and the inner secret lockers or cavities was never a matter of knowledge to them. They never had anything therefore, to do with this large quantity of gold kept at only and only that one place. It was an entirely false charge that any gold came to be found and recovered from the western bed room and the telephone room. So far as the gold recovered from the ornamental top of the cupboard in the eastern bed room was concerned, the accused took the stand that all these gold ingots and bars had been in all probability stored there by Bhojibai, the grand mother of Udhavdas Ahuja who was the husband of accused No. 1 Ishwaribai and father of accused No. 2 Gopaldas. Therefore, according to them, they could not be held, in fact and in law, as being in conscious possession of all this large quantity of gold and not being in such possession, control or custody, they could not be said to have committed any offence u/S. 8(1)(i) of the Act. As to their defence contention in regard to the gold idols and gold pooja equipment articles, one need not deal with in detail in as much as the accused Nos. 1 and 2 were convicted for the offence u/Ss. 18, 16(1) read with S. 86 and did not challenge that conviction either.

Dealing very exhaustively with the entire evidence the principal witnesses at the trial being Assistant Director, Mahadeshwar, the Income Tax Inspector, Kandalgaonkar, the other Inspector, Kum. Anju Mirani, who at the time of her evidence was married and became Mrs. Thadani as also the evidence of lock-smith Dhirubhai Parmar - the learned Magistrate came to the conclusion that the prosecution had completely failed to prove the charge. He held that though the gold was found in the secret cavities of the steel cupboard in the eastern bed room, that finding itself or even coupled with the fact that accused Nos. 1 and 2 had been residing in the flat, was still not sufficient to impute them with being consciously in possession of that gold. In that view of the matter, the trial Court held that the charge u/S. 8(1)(i) read with S. 85(1)(ii) of the Act has not brought home to the accused Nos. 1 and 2. They were, therefore, acquitted of that charge, and hence this appeal by way of an exception to such an acquittal.

In his judgment, the learned Additional Chief Metropolitan Magistrate observed that though such a meticulous Income Tax raid has been arranged, carried out or executed at length, though a very large haul of primary gold, gold idols, diamonds and other jewelleries had been made on that day, though the search of the premises and the completion of the raid had lasted from about 10-30 a.m. on 28th August 1974 till about 2.00 a.m. on 29th August 1974 yet no contemporaneous record of the extensive search had been made or drawn up, to show where, the gold in question was found, viz., what specific articles or items of gold bars, bricks, sovereigns, coins, etc. had come to be recovered from what particular place or spot in the house. All this had not come to be documented on that very day nor, as he observed, disclosed in the statement of the Assistant Director, Mahadeshwar who was the head of the raiding party. The learned Magistrate also observed that the account of the entire raid as given by the witnesses Mahadeshwar, Kandalgaonkar, Thadani-nee-Mirani and the Lock-smith Dhirubhai Parmar was indeed so discrepant, so much at variance inter se from their respective versions in the Court and before the Collector of Customs, and ultimately, so contradictory with the versions of one another that it was impossible to believe that the search of the western and the telephone room had come to be effected in the presence of the accused Nos. 1 and 2 at all. So far as the search and recovery of gold from the eastern bed room was concerned, the account of how these ornamental tops came to be removed, what was the condition thereof, how the secret cavities were reached at, whether the keys to the secret drawers there had been prepared by the lock-smith or found in the house from out of the bunches that were found was so inconsistent that it could not be relied upon. The learned Magistrate also made a very serious note of the fact that the prosecution evidence could not satisfy the Court to determine whether there was only one or two or many more keys which had been got prepared from the lock-smith, Dhirubhai Parmar on that day. What was even more serious according to him, was the fact that the keys with the help of which the various cupboards were opened, the keys with the help of which the secret cavities and drawers were reached at had not come to be seized and maintained in separate packets, so as to be produced before the Court and shown to witnesses. It remained, therefore, a matter of grave doubt as to whether the lock-smith Dhirubhai Parmar had prepared the keys for all the cupboards and the secret cavities or they were the keys which were found in these bunches of keys found in the cupboard and with the help of which, some particular cupboards in the rooms had come to be opened. The learned Magistrate, considering the entire evidence expressed a very serious doubt about the arrival and presence of the accused No. 1 Ishwaribai until the very completion of the raid and search. Therefore, he firmly disbelieved the prosecution evidence that any key to a secret drawer in the cupboard in the western room had at all come to be provided by her so as to enable the prosecution to contend that she at any rate was consciously in possession of the gold that was found in that cupboard in the western bed room. The learned Magistrate also took note of the fact that the prosecution evidence was entirely silent as to the manner in which the cupboard in the telephone room came to be opened. Whether it was or was not in a locked condition in the first instance, whether the key to the inside secret cavities or the drawers thereof had come to be prepared by the lock-smith or had been found out from amongst one or the other bunches of keys that are said to have been found on the premises was left unestablished. Be it noted that no such bunches were also seized for there appears no specific panchanama in that behalf or about the seizure of such bunches and subsequently, the return thereof to the custody of the accused persons for the purposes of their daily use. Most importantly, according to the learned Magistrate, the condition of the ornamental top in the eastern bedroom under which the secret cavity containing the gold ingot and bars was discovered, was such as was only consistent with the fact that this ornamental top had not even come to be touched by any person at any time for several years in the past.

These questions of facts apart, the learned Magistrate rejected certain strongly pressed arguments of learned prosecutor who fortunately for this Court is also the counsel conducting the present appeal and, therefore, has been of admirable assistance to the Court. The arguments of the learned Counsel were principally directed to establish the position that the moment the discovery of this large quantity of gold in the Gopika Kunj premises resided in by the accused Nos. 1 and 2 became a fact, the element of consciousness in that possession was not further required, to be established by the prosecution in the first instance, that at any rate, if it was required to be so, established, there were even so, tell-tale pieces of evidence available which would however suffice to establish the element of such consciousness in the possession. And when such possession, which would have to be taken as conscious, was established, the only escape according to him, for the accused Nos. 1 and 2 was, in terms of the provisions of S. 98(B) of the Act, to establish beyond reasonable doubt that they were not in possession of any such gold with a guilty conscious mind. That is, according to the learned Counsel, the accused persons must stand to be straightway convicted u/S. 8(1) read with S. 85 of the Act, the moment, the substantial presence of the gold and peripheral having been found there awareness of which is held by the prosecution. Not merely therefore, the onus but very substantially the burden itself must, according to him, shift to the accused persons, before they can free themselves of the charge levelled against them. The liability incurred by reason of the proof of such possession, it was argued in the Trial Court and as has also been argued here, was therefore a very material and strong as well as a very absolute one. That contention was rejected by the Trial Court. Upon arguments as have been advanced at considerable length, this contention has also to be found as being the most important one advanced here.

But that, in my opinion, would indeed require not merely a skeletal but a substantial reassessment of the facts as come on record during the evidence. I propose to deal with the evidence, therefore, in a room wise manner so to say and further in that confine, in a witness wise manner who are not at the same time the fact of presence or otherwise of one or the other prosecution witness to corroborate them, the fact also of the presence or otherwise of the panchas as the search proceeded from one room to another.

There is no dispute about the fact so far as the presence of the accused persons is concerned, that it was only the accused No. 2 who was present at the commencement of the search. The raiding party headed by Mahadeshwar PW-1 and his officials Kandalgaonkar PW-6, Miss Anju Mirani PW-3 and others such as Balkrishna Shivshankar and others reached the Gopika kunj residence of the accused persons by about 10-30 a.m. The accused No. 2 had returned home at almost that exact point of time. He does not also himself dispute that fact, nor the fact that the raiding party duly identified itself and also presented the accused No. 2 with the necessary statutory authorisation for carrying out the search. The evidence of Mahadeshwar as also Kandalgaonkar therefore, makes it quite clear that for the purposes of witnessing the search of the premises and the seizures as might be effected during the course of it, the panchas required to be present had not been taken along by them. It was to the accused No. 2 Gopaldas that the duty of bringing two persons to act as panchas was given. The two persons whom he fetched, for acting as panchas at the search, were his own Manager Sharma, a seventy years old person and one Narayanan who was a resident of that very building. The argument advanced by the learned Counsel for the respondents that the prosecution evidence must be treated as being defective in the absence of the examination of any of these two panchas is sought to be met with by learned Counsel Shri Kher with the submission that the examination of these two panchas became entirely superficial and unnecessary for the reason that panchanama Exhibit 3 which was drawn up at that time had itself come to be admitted in evidence u/S. 294 of the Criminal Procedure Code with the consent of the accused persons. That, according to Shri Kher, means the formal proof of the document had come to be dispensed with. That, in my opinion, would not be and definitely so in the peculiar set of facts here be the meaning emerging in this case namely, that it is an omission which could be looked lightly at. It is difficult to accept the submission that it was not at all necessary to examine any of these panchas. What would be found to accentuate the need to examine these panchas would be the very eloquent silence on the part of the two main prosecution witnesses Mahadeshwar PW-1 and Kandalgavkar PW-6, to even mention that these two panchas had actually remained present at the time of the search of the eastern and western bedrooms respectively. The presence of Sharma is only vaguely mentioned by PW-3 Anju Mirani in respect of the search of the telephone room from the steel cupboard in which two gold bars are said to have been recovered. However, even she would appear not to have deposed specifically that she had started searching and actually found two gold bars in that cupboard during the presence and within the observation of this panch Sharma. There are more reasons to which I will at the proper time refer for holding that even at the search of this telephone room Sharma could not have been found present so that upon the oral evidence what is established is totally undisputably the absence of any panch at the search of any of these three rooms, the western bedroom, the eastern bedroom and the telephone room Another argument which learned counsel Shri Kher put forth, a still weaker one in my opinion, was that it was only to be expected that Sharma would not give evidence in favour of the prosecution he being an employee of the accused No. 2. There is no warrant for advancing this submission, in my opinion, for Mahadeshwar does not state that he was unaware that Sharma was an employee of the accused persons. Ordinarily upon the two persons being brought by the accused No. 2 to act as panchas both their credibility and reliability looked into by Mahadeshwar before he would proceed to accept them as panchas reliable though brought at the accused''s instance. It is, therefore, to be properly presumed that this care had been exercised by Mahadeshwar and he had also become aware of the fact that Shri Sharma was an employee and that, with that revealation, it was still open to Mahadeshwar to call some other person more disinterested and independent, to act as a panch. At any rate, such an argument is not available in the case of Narayanan, the other panch. He was a resident of the building but was not alleged to be under any obligation or under the influence of the accused persons. Therefore, in spite of the availability of two persons as independent witnesses, to the search, the prosecution has remained content with the evidence of its officers, viz. Mahadeshwar, Kandalgavkar and Mirani PWs. 1, 6 and 3 respectively. The unreliability or the absence of credibility so far as these witnesses are concerned, if revealed upon a proper appreciation of their testimony on merits, must, in my opinion, bring one to a conclusion that the prosecution has kept back independent and material evidence. To that comment and criticism the prosecution must be deemed to have rendered itself vulnerable.

One last submission in regard to the panchanama Exhibit ''V'' which was drawn up on that day and which in my opinion, was rightly rejected by the learned Magistrate as capable of making any impact is that a panchanama in such detail as is required was not and could not be drawn up on that day for the simple reason and pity generating fact that the accused No. 1 labouring under utter surprise, consternation and shock was unable to stand the further strain of the search and seizures before her own eyes; that she had virtually taken ill and, therefore, the drawing up of a panchanama in all the details was bound to cause a further torture to the lady, and, only therefore, a very tentative and hence cryptic, or skeletal panchanama was drawn. It is pointed out by learned counsel Shri Kher that indeed such a request was also made by the accused No. 2 Gopaldas and it was only on humanitarian ground therefore that a short panchanama came to be prepared as per Exhibit 6 without mentioning therefore the details of specific items of gold discovered from specific places in the house or without giving specific detailed description of each of the gold bars, bricks, etc. that come to be found and recovered from the premises. Now, the provisions of S. 132 of the Income Tax Act under which the raid was carried out by Mahadeshwar provide that upon belief that any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Income Tax Act, then, the entry and search including the breaking open of lock for that purpose and the seizure of all books of accounts, things, articles of jewellery and other valuables and place marks of identification of books of accounts, etc., is authorisable by the Deputy Director of Inspection, in favour of the Assistant Director. Rule 112 of the Income Tax Rules deals with search and seizures. Attention is drawn by the learned Counsel for the respondents specifically to sub-rule (7) of Rule 112 which provides that the search shall be made in the presence of the witnesses who will be respectable inhabitants of the locality and a list of all things found in the course of such search and of the places in which they were respectively found shall be prepared by the authorised officer and signed by such witnesses. It is pointed out by learned Counsel Shri Shirodkar that on cross-examination, the Assistant Director Mahadeshwar PW-1 very clearly admitted that he was fully aware of these requirements of the provisions of Rule 112(7) relating to the need to mention in the panchanama, the making a list not only of things and articles seized but also the need to make a specific note of the particular place or places from which these were seized. The non-examination of panchas as independent witnesses becomes a matter of more serious criticism, according to the learned Counsel for the respondents for the reason that in spite of this awareness, no record was made by Mahadeshwar of the respective places from which the respective articles of gold were recovered and seized. These defects in the conduct of the search and seizure becomes prominent and are of telling consequence in the submission of Shri Shirodkar for the reason that it is specifically the defence of the accused persons that no gold whatsoever was recovered from the western bedroom and the telephone room and further whatever gold was found was all entirely in the secret cavity under the ornamental top of the cupboard in the eastern bed room, and more importantly the key to which was admittedly not found with the accused No. 2, Gopaldas or in the bunches of keys found in the cupboards. If there had been a detailed panchanama drawn up progressively as the search proceeded, Shri Shirodkar argues, the defence would have been in a position of course provided that it was duly, truthfully and correctly drawn up to show that nothing was found in the western bedroom and the telephone room. The benefit of this omission, a failure designedly, to properly comply with the provisions of Rule 112, learned counsel for the respondents therefore, argues, is not for the prosecution to claim. If anything, it must help to probabalise further the defence taken that it was only in the cupboard in the eastern bed-room that the gold was found. It would, therefore, be necessary before coming to decide whether what was found in the eastern bedroom of Gopika Kunj was in possession conscious of the accused persons, for implicating them successfully in the contravention S. 8 to ascertain whether indeed, upon search taken thereof any gold bars were found in the two rooms one of them called the telephone room and the other one the western bedroom. A careful scrutiny of the entire evidence in this behalf, as I may say by way of a preface to this discussion, would indicate that in regard to both these rooms, the western bedroom and the telephone room, there are at least as many versions as there are witnesses. I may therefore, first deal with the telephone room in question. In this room, two persons claim to have made the find. The first one is the Inspector Miss Mirani PW-3. As stated earlier Miss Mirani was one of the Income Tax officers, who formed part of the raiding party. It was very rightly surmised by the learned Magistrate that a lady officer had been, presumably, taken as a member of the raiding party on purpose, the admitted position being that the Gopika Kunj premises were at that time in the occupation of both, the accused No. 2 Gopaldas and his mother accused No. 1 Ishwaribai. If need arose for taking a personal search of Ishwaribai then a lady officer had to be available. I would immediately contribute to this view of the learned Magistrate on the question as to why the lady Income Tax Inspector had also joined the raiding party or the search party. It is also in my opinion proper comment as also an inference that when the raiding party reached the Gopika Kunj premises accused No. 1 Ishwaribai was not found present. In a sense, the presence of Miss Mirani, therefore, became unnecessary or at any rate superfluous for the purposes of the search and seizures in particular. It is, therefore, that she appears to state that the duty then allotted to her was to attend to the telephone calls that would be coming from the Deputy Director Shri Vaidya or other Income Tax officers. Therefore, Miss Mirani says that she was allotted the job of attending to the telephone calls and secondly, to watch the main door of the premises. These statements, therefore, make it more than amply clear that the work of searching the telephone room as such was not given to her and it is even so that she now claims that she was the person who had gone about searching the telephone room and in particular the steel cupboard (which she does describe as ''half size'') kept there for finding if any gold could be found therein. She has also admitted that accused No. 1 was not present and quite definitely the accused No. 2 was also not there. She necessarily refers to the presence or absence of the accused No. 2 in the telephone room as such. And the learned Counsel Shri Kher has endeavored to show, with reference to the testimony of Mahadeshwar, the presence of the accused No. 2 only generally on the premises as such. None of these prosecution witnesses have testified to the fact that accused No. 2 Gopaldas was present at the time when the telephone room was searched or for that matter the steel cupboard therein from which the gold was found. Upon Mirani''s evidence, it therefore, became clear that the search of this telephone room had been carried out in the absence of accused No. 2 and that, it may be noted, is exactly what he has deposed before the Court as a defence witness, on oath. Mirani has stated that one panch witness was present viz., Sharma. As already noted Sharma has not been examined as a witness. And the reason put forth for not examining him is, as also noted, as unconvincing as any. If the prosecution chose to keep him present as a witness in spite of the awareness that he was an employee of the accused No. 2, then that very fact would not be made a shield for explaining away that he was not put into the witness box for fear that he might not support the prosecution case. The prosecution, in that view of the matter, was duty bound to examine Sharma and if it entertained any apprehension about his not supporting the prosecution case was, then the examination of Shri Sharma could as well have been commenced with a preliminary statement at the bar that the prosecution was not expecting him to support the case in view of his fiduciary relationship with the accused No. 2. Whatever that be, Sharma is not available to the Court to hold as duly corroborated the testimony of Mirani. There was yet another person who was not examined. He was also an officer of the Income Tax Department by name Balkrishnan. It is once again a matter of observation as curious as significant, that barring Mirani no one including Mahadeshwar, the Assistant Director and Kandalgavkar, the Income Tax Inspector speak of any actual participation by Balkrishnan in the search of any part of the premises including this telephone room. Whether or not examination of Balkrishnan as a prosecution witness was necessary for corroboration of the testimony of Mirani would be a question to be answered after first assessing the testimony of this lady witness. She says that during the search of this room one gold bar, a bunch of keys and some imitation jewellery was found. According to her, all these articles were found kept at the bottom of the cupboard; a key was brought and the bottom of this cupboard had been opened with that key. She does not say as to how this key was obtained and from whom or whether the steel cupboard as a whole was open or locked at that time. If it contained a gold bar as was the prosecution case, it is almost, I think, inconceivable that the steel cupboard would be left open and unlocked. Mirani says that the drawers of the steel cupboard had come to be opened with the help of the expert lock-smith Dhirubhai Parmar PW-5. Whether it was a single bar of gold or more is a matter of confusion displayed by this witness Mirani. She states that the Deputy Director Shri Vaidya PW-4 came to the premises after the search had been made. Quite consistently she mentions of "a gold bar" and not "gold bars" as recovered from the steel cupboard in that room. PW-1 Mahadeshwar and PW-6 Kandalgaonkar each of whom claim credit for having detected gold in this telephone room, nowhere bear a mention from Mirani. She claims to be herself the person who found out the gold and not Mahadeshwar or Kandalgaonkar. Vaidya too, whose presence seems to have been admitted, had met both these witnesses but does not himself claim that he was present in this telephone room at that time when the gold bar may have been found there. Now, starting with the fact that there was one gold bar found in the steel cupboard Mirani would be seemed to have then proceeded to mention that there were two gold bars which were found in the room. She asserted that she has herself lifted the gold bars in her hands, then adds that she had lifted more than one gold bar and finally goes on to say that she might have lifted two or even three gold bars. There is, therefore, a total lack of consistency which her cross-examination exposes. This again emphasises the fact that the examination of a panch as a much more independent person became not only essential but unavoidable for the prosecution to successfully accuse Ishwaribai and Gopaldas of having possessed by quantity of gold, a bar or two or three in that particular part of the building. In as much as reference has been made to the presence of the Deputy Director Shri Vaidya PW-4, I have already noted that he does not himself claim to have been present at this discovery made by Mirani. All the same he is also a witness who says that the gold was found in the said room. But the form and shape of this gold which he says was found is entirely different. He says that it was a gold brick or ingot that was found in this room and not the bar - whereas the prosecution case consistently put forth is that the gold ingot or ''brick'' as it has been described, weighing about 13 1/2 kgs. was actually found concealed in the ornamental top of the cupboard in the eastern bed room. It is not the case of any of these other witnesses that the gold ingot was recovered from the cupboard in the telephone room. Whatever the quantity of these bars, one, two or three, Mirani admits, the same had not been shown by her to any other person except Mahadeshwar. And it is, therefore, to the testimony of Mahadeshwar in regard to the discovery in the telephone room that one would usefully turn. According to Mahadeshwar it was only a small or what he particularly describes, a ''half size'' steel cup-board which he found in the telephone room. In this cupboard he says, two gold bars were found. And these were found, as he further states, in the presence of the Deputy Director Shri Vaidya whose presence at any time has already been very clearly discounted by Miss Mirani and the presence of Miss Mirani has been indisputable because she was the person who was attending to the telephone calls. Therefore, Mahadeshwar stands falsified on this very first statement of his, that gold was found by him in this room in the presence of Mr. Vaidya. While, as observed, Inspector Mirani has not elaborated upon how this steel cupboard was itself opened, in the first instance, whether it was unlocked, and therefore, opened, or whether it was opened with any key available from out of any bunch of keys that were found in the premises or whether it was opened by improvising a key at the hands of the lock-smith Dhirubhai Parmar. For all that what she has stated is that it was in the inner drawer or secret locker at the bottom of this cupboard that the gold was found. It was for the secret lower (locker ?) that for which a key has been prepared by Parmar and not for the lock on the outer pannels.

One more circumstances which has to be noted with regard to Mirani''s version about the number of gold bars is that when her statement was recorded on oath by the Collector of Customs Mr. Sonwane on 23-1-1979, she merely stated that ''some'' gold bars had come to be found in this cupboard in the telephone room. It would, therefore, be very difficult to place reliance upon the testimony of Miss Mirani, without corroboration and that corroboration, as per her own version, must be found and put up by the examination of Sharma as the panch and not by the testimony of Mahadeshwar and Kandalgaonkar whose presence itself, has been eliminated by her. Therefore, any endeavour on their part to corroborate her would only be further compounding the evidence.

Kandalgaonkar PW-6 has also stated that he had participated in the search of the telephone room. He says that he had an occasion to go to the telephone room, that Miss Mirani was there and it was from her that he learnt that she also recovered some gold bars during her search of that room. Most surprisingly therefore Kandalgaonkar squarely admits that nothing was discovered and seized from the telephone room in his presence as such. This is apart from the fact that Mirani does not mention that Kandalgaonkar had ever arrived in the room during her search of the premises, in particular the telephone room and the cupboard there. In the circumstances, so far as Kandalgaonkar''s evidence about the recovery of any gold in the telephone room is concerned, it becomes entirely a matter of grave doubt. And to this doubt so created, one more circumstance has to be calculated. Except to the witness Mahadeshwar, the gold ingots and the gold bars as the property before the Court were not shown to any of these witnesses neither to Miss Mirani nor to Kandalgaonkar. There is a third witness Dhirubhai Parmar PW-6 whose evidence is to the effect that he had been called to open a secret drawer or locker at the bottom of this steel cupboard. Apart from the fact that this version would become a matter of some doubt, in the absence of production of any key or in the absence of any independent support from Sharma, Dhirubhai Parmar is also entirely silent upon the finding of any gold bars in this cupboard, in the opening of which he is said to have given help. It is, therefore, that the recovery of any gold from this telephone room remains a matter of complete doubt. In turn, the failure to prove the recovery of any gold from this telephone room correspondingly probabalises, in degrees the defence taken by the accused that whatever was the gold that was found in the premises, it was all in the eastern bed room.

In the western bed room there were two cupboards. According to the evidence of the witness Mahadeshwar, one of these had come to be opened by a lock-smith and the other was opened with the help of a key from out of a bunch that was found in that cupboard. In respect of the search of this cupboard also there was no panchas present as Mahadeshwar himself admits. Physically the prosecution case is that when this cupboard was opened whether with the help of a key improvised by Dhirubhai Parmar PW-5, nothing incriminating was found in it in the first instance. There were only some sarees presumably of the accused No. 1 and some other articles. No gold as such was detected in the first instance. In fact the over enthusiastic Inspector Kandalgaonkar says that he still had his own suspicion to harbour about this cupboard and went on tapping the sides of this cupboard and he claims to have finally succeeded in finding one part of this cupboard which lay between the outer side of it and two drawers as being some sort of the secret vaults. The tapping sound gave him the clue and having become suspicious his search become more through and it led to his observing a very small key hole in one corner of the top hollow hold. It was then, according to the evidence of this witness that the accused No. 1 Ishwaribai was asked to provide the key. Now, in this behalf, Mahadeshwar''s evidence is that after the key hole was observed, Ishwaribai was asked whether there was any secret locker at the place. He has also stated that her reply was in the negative, meaning further that she knew nothing about the hollow and could not also have therefore apprehensive of the person who would be in possession of the key which could be put in the Key hole to open the secret drawer. Even so, the evidence now tendered is that having been questioned about the key which would open the secret locker, the accused No. 1 Ishwaribai had very obligingly taken the key out of her purse and handed it over. Would this be conceivable ? Certainly not if evidence is also to be accepted that as soon as Ishwaribai arrived at the Bombay Airport from Madras, she had been subjected to search. A panchanama of the cheque book and as many as nine hundies of Rs. 5000/- each found on her person had been drawn up. In the panchanama so drawn the presence of any key on her person was not mentioned. Rightly, therefore, a question was posed before the trial Court as to how if Ishwaribai has already been searched and if she were to have had in her possession at that time any key or any number of keys would these have escaped seizure and at any rate, a mention in the panchanama. The answer would obviously be in the negative. There would have been such a mention. Even so, let us proceed on a degree of assumption. Mahadeshwar says that upon search of this inner locker or secret repository some gold was found. Whether it was one bar or more is again a fact he has not satisfactorily explained and even ascertained. Once again as in the case of the telephone room, the key which is said to have been brought either by accused No. 1 or improvised by the lock-smith Dhirubhai Parmar has not come to be seized. The failure to prepare a proper panchanama which would include seizure of the various keys, either improvised or found from out of the several bunches of keys would and ought to have been a matter of record and seizure. The failure to do so as was rightly pointed out by the learned Counsel for the respondent, is a circumstance which must be said to have seriously handicapped the accused and resulted in causing prejudice to them in their defence. The defence that nothing had been found either in this western bed room or for that matter the telephone room. Mahadeshwar states in his examination-in-chief that it was a single bar of gold that was found. Before the Collector, again on oath, he admits to have however stated that he had mentioned finding of not only one bar but one cut piece of gold bar from the western bed room. According to Kandalgaonkar, it was only one cut piece of the gold bar. From Kandalgaonkar''s confidential report Exhibit Z-1 to the Deputy Director Shri Vaidya, some advantage was sought to be derived. This is a part from the fact whether this document could at all have been admitted in evidence in the first instance u/s 157 of the Evidence Act as had been claimed by the learned Counsel for the appellant. Without going into that legal aspect of admissibility of the document at the moment, on the assumption that this document would be of some use, even then what it provides is merely a discrepancy, a statement which is at variance with Kandalgaonkar''s examination-in-chief. For there he states that it was a gold bar and some gold coins which had been found which is not the evidence of Mahadeshwar. According to Kandalgaonkar, the total number of gold bars that had come to be seized was six. Of this, one gold brick and two gold bars were from the cupboard in the eastern bed room, two were from a second cupboard in the same eastern bed room and one cut bar from the western bed room. With reference to this part of his testimony, it may be once again appreciated that he has very categorically omitted to mention any specific findings and recovery from the telephone room. However, he probably attempted only to salvage the situation by saying that there were ''other'' gold bars also which were recovered but he omits to say from where and by whom. Evidence of this kind, which is slippery in nature, could certainly not be one which could have been acted upon and accepted. Further, Kandalgaonkar has also not stated which out of this seizure were the ones which had been found in the western bed rooms. Therefore, the question whether gold bar that was found in the western bed room was one from out of the articles ''D'' to "M" also remains to be answered. Unwillingly made though but of an almost devastating effect is also another statement which is made by Mahadeshwar. He states that ''probably'' all the bars had been found and seized before accused No. 1 Ishwaribai arrived. This statement, as rightly noted by the learned Magistrate gives a blow, a go bye to the prosecution story that it was after the arrival of accused No. 1 Ishwaribai from Madras that the western bed room was searched or that the key to a secret locker in one of these cupboards had came to be provided by her as such. Mahadeshwar''s cross-examination in regard to the search of the western bed room also brought it out quite clearly that the role which he played in this raid on the Gopika Kunj premises that day, was not to being personally a searcher, of a person who himself went around inspecting the premises and taking searches but of a person who had, so to say, kept supervising the search that was being carried out by the members of his raiding party. That is why he also appears to have made an admission that ''searches were going on simultaneously in various rooms in the flat''. Therefore, even Mahadeshwar could not have been a person present to witness the search of the cupboard in the western bed room and to assert that it was in his presence that a gold bar was recovered from that room. Qualitatively also, the evidence of these witnesses differs so materially as to lead this Court to believe in none of them.

That eventually brings me to the search of the eastern bed room. At the search of this room, the accused No. 1 was no doubt present. From this eastern bed room, out of the four or five steel cupboards, each having an ornamental top, one was found to contain the largest quantity of gold. The ornamental top of one of these steel cupboards, it is said, was observed to be in a rusted condition from outside. A close inspection also showed that the ornamental top has been fixed to the top of the original cupboard by means of several screws fitted into the holes that were there. It was also noticed that one of the screws had become loose and secondly a part of the edge of this ornamental top had also jutted out of the edge of the steel cupboard top. This condition of the ornamental top aroused a suspicion in the mind of the raiding party and, therefore, it was decided to be opened.

How it came to be opened is a matter of narration from these different witness in as many as different terms. I would, therefore, refer without going into details also the version of Mahadeshwar and Kandalgaonkar to weigh them, to the version of the lock-smith Dhirubhai Parmar PW-5. He states that it was first to the telephone room that he had been taken as soon as he arrived at Gopika Kunj which was at about 1.30 p.m. or so. Having prepared a key to the cupboard there, he says that he was taken to a bigger room in which there were four or five cupboards indicating that this was a eastern bed room. In the eastern bed room he opened two cupboards by making use of the bunch of keys which was found in another room i.e. presumably the western bed room. He applied the keys in the bunch and all three cupboards which he first opened had ornamental tops. He was asked by the officer present there to remove these ornamental tops. He unscrewed the top of each of these and opened them. In the top portion of the first ornamental nothing was found nor in the second one and in the case of the third ornamental top he says that he detected a very small key hole and a hollow after the top was removed. He applied a key from the bunch which he had brought and the secret drawer was readily opened giving a view of three big heads of gold. He adds to say that actually he was required to make use of two keys for opening the locker concealed by the ornamental top. The learned Magistrate has accepted the explanation and evidence of the accused No. 2 in this behalf, viz., that as per his explanation the lock smith has tried to make use of one key which was prepared in the first instance by him but with which the secret locker could not be opened. A second key was again prepared and it was this one which fitted, resulting in opening the locker. In cross-examination even Dhirubhai Parmar is found to have been far from consistent. He was asked whether his memory was serving him as rightly at the date of his deposition as it was when his statement was recorded on oath by the Collector of Customs Shri Sonawane. He asserted so; the statement as he had then made as a true one. According to him, he had prepared only one key in the premises of Gopika Kunj. Now this will therefore be found to give a complete go by to the prosecution case of keys having to be improvised for opening the lockers on the steel cupboards in the western bed room, the telephone room and also for the same or the other cupboards in the eastern bed room itself. He denied that he had prepared keys for two cupboards and lockers inside the cupboards but he explained that he had prepared only one key of only one locker inside the cupboard which would again make more than a probability. He concurred with his previous statement that he had prepared keys for both the cupboards and also the lockers inside the cupboard meaning more than one.

Considerable importance is attached and according to me not without reason to Dhirubhai Parmar''s description of that steel cupboard from the secret cavity under the ornamental top of which gold come to be recovered. He first admitted that it was an old cupboard. Secondly, that the screws thereof were completely rusted, so much so, that he was not able to unscrew them for taking out. He was in fact required to cut them by using a screw-driver, chisel and hammer. Added to this is also a further disclosure made by the Assistant Director Mahadeshwar PW-1 that when eventually this ornamental top which appeared old and rusted from outside was removed, the inside of it was however found in a well painted condition. This as the description of the cupboard, its outside, its inside, the manner of its fixtures, it is argued is the clearest pointer to the fact that this secret cavity concealed by the ornamental top, must never have been a matter of knowledge for any one living in the entire house-hold. Even so the argument advanced by the learned counsel Shri Kher is that this ornamental top, its inside, the cavity concealed by it and the huge quantity of gold secreted away in it were a matter of knowledge to the occupants in the house. He has laid stress upon the fact that according to Mahadeshwar one of the several screws used for fixing the ornamental top to the cupboard was found to have been become loose and also that part of this ornamental top was seen jutting beyond the top edge of that cupboard. These two physical observations of facts, learned Counsel argues, would also, be, in any event, sufficient to indicate that some attempt must have been made at sometime to remove this ornamental top or to remove it altogether. However, the entirety rusted condition of the rest of the top, the rusted condition of the screws, the fact that the locksmith has to cut them with a hacksaw are yet circumstances which do not afford any such conclusion. For, if there had been such removal at any time, it is equally understandable that the screws would have been put in its places rather than keeping any loose. It would be appreciated that otherwise there was no indication of the gold bars having been removed or entered in any manner. There is also evidence forthcoming from the witness that two of these gold bars were found wrapped in cloth piece which also appeared quite old in their looks. All these circumstances, in the opinion of the learned Magistrate as they must in my opinion also, very clearly show that the ornamental top, the gold contained into in the secret cavity and cavity which could be kept under lock, would never been a matter of knowledge on the part of the accused. Therefore, when the accused No. 2 admits that upon a search taken of the eastern bed room gold was detected and found therein what he only admits is the fact of the presence of the gold in the house in which he has been residing and not he had been knowing about the gold i.e. he was possessing this gold and possessing it consciously. Learned Counsel Shri Kher also made another valiant effort to establish guilty knowledge of the gold so concealed by reason of another circumstances. If appears to be the evidence that when this main cupboard in the eastern bed room came to be opened what was found in it in front room came to be opened what was found in it front room was what must have been in the use. Now, the very presence of these facts including the fact of use by the accused of the cupboard was admitted by the accused, he must also have been knowing what was concealed under the ornamental top.

Therefore, it was argued by the learned Counsel for the respondent that when no gold was seized except from this cavity concealed by the ornamental top, when this cupboard was in the eastern bed room, and when further the evidence in regard to the search and recovery of gold from the western bed room as also the telephone room is so unclear, so discrepant and so contrary to true position as also contradictory, then whatever was seized as per Articles ''D'' to ''M'', it must be held to have been seized only from this cupboard in the eastern bed room. Indeed, all that is averred according to learned Counsel for the respondent, has to be found to subscribe to no other view different from the defence evidence which has been led - that is, to substantiate that gold was recovered either from the eastern bed room or from the telephone room, in as much as recovery of any gold from western bed room and the telephone room, thus, stands as a facts unproved. At any rate, the argument which has been tried to be advanced or which was advanced in the trial Court becomes unsustainable; the argument was that assuming that the accused did not have knowledge of the gold in the cupboard in the eastern bed room, the fact that there was gold found in the western bed room and the telephone room must successfully connect to the accused with their illegal possession of contraband gold. Now, when these two facts cannot be accepted as proved, the fact that gold was found firstly in the western bed room and subsequently in the second room, the matter becomes confined to the recovery from the eastern bed room only. The prosecution can no more succeed - by implication - that upon the proof of gold found in the western bed room and the telephone room, possession of gold, equally consciously, in the eastern bed room must become factually attributable to the accused. On this premises, the prosecution no more proceeds. It has, therefore, to see whether the accused No. 2 therefore could not be said to have been found in possession of the gold and this brings me to the question as to what is to be considered as possession proved as against accused No. 1 and 2. The argument as has been advanced is that the prosecution must establish not merely the possession but also the element of consciousness of such possession. In this behalf, the argument advanced by the learned Counsel Shri Kher is that the scheme of Chapter XV of the Gold Control Act which lays down as to what constitutes offences punishable thereunder, is that some of the offence even specifically made culpable by reason of the state of mind of the person who commits them. For example one may refer to the several provisions starting with Section 86 to Section 96. Section 86 makes the failure or omission to make the declaration without a reasonable cause an offence. It also makes a declaration punishable when it is false to the knowledge of the maker or he knows it to be so false and which he has reason to believe is false or incorrect. Section 87 provides another illustration for keeping accounts or making statements which are false, or which are known or believed to be incorrect. Section 87 of course deal with keeping accounts or making statements which are false, or which are known or believe to be incorrect. Section 89 deals with punishment for use of counterfeit stamp with the intention of stamping any standard gold bars or ornaments with the intention of causing it to be believed that the primary gold upon which the stamp is put is of the purity mentioned in such stamp. Sub-section (iv) of Section 89 speaks of unlawful possession, custody or control etc., which is known or intended for refining of assaying primary gold. Knowingly allowing any person to use the premises as a refinery is made an offence u/s 90. Wilfully and maliciously giving false information is made punishable u/s 95(2). Wilful and maliciously giving false information which leads to any arrest, search or seizure under the Act is also made punishable. There are therefore, the instances where a culpable state of mind is required for establishment of the commission of the offence. According to learned counsel Shri Kher where an act or omission constitutes an offence when the presence of such culpable state of mind being the requisite element, such as the present case of possession of gold, in the absence of any specific culpable state of mind, what is being provided for being established, the absoluteness of the act must be accepted and the act for proving the culpable state of mind, being itself sufficient according to him, to shift to the accused persons the onus of showing that such a culpable state of mind did not exist. This has to be shown not by a mere preponderance of probabilities but by establishing so beyond any reasonable doubt. Accordingly to Shri Kher, the provisions of Section 98B must come to be attracted herein as much as possession of the gold in question has been established by him as being conscious and to the respondent''s knowledge by reason of the two circumstances to which I referred earlier viz., the condition of one of the screws on the ornamental top of the cupboard-having been found loosened-and the edge of the ornamental top jutting out from the flat top of the cupboard. Shri Kher concealed fairly that these are the only two circumstances on which the prosecution can reasonably rely but actually failed to establish that the ornamental top had something concealed and that this was a matter of knowledge of the accused. In this behalf, the argument which has been very strongly advanced for the respondent accused is that not merely the presence of the gold and gold articles in question but a definite degree of consciousness of possession exercised in regard thereto must be proved against the accused by the prosecution. For the appellants it is contended that, merely proving the fact of possession, without more - that is, without establishing specifically the element of consciousness in it, suffices for the prosecution to claim the conviction of the accused u/s 8(1)(i) read with Section 85(1)(ii). In regard to the character of possession to be proved, one of the earliest decisions of this High Court is Emperor v. Sumatibai Wasudeo Bachuwar 46 Bom LR 102 : 1944 Cri LJ 486. The accused Nos. 1 and 2 were husband and wife. They occupied a house which came to be searched by the police. The search was carried out while the accused No. 1 was away. A box was found inside the house. It was locked. The key to the lock of this box was found with the accused No. 2, wife. On locking and opening the box, some prejudicial reports as also some letters which had been received by the accused No. 2 wife - and who importantly enough was an elderly person - came to be found. In view of this prejudicial report both the man and wife came to be prosecuted under Rule 398 of the Defence of India Rules. The husband accused No. 1 was convicted by the trial Magistrate who held that the very fact that the box contained letters addressed to both the accused and that the accused No. 2 held the key to the box independently went to show that the box was in constant use of both the accused and they must be aware of the bills, pamphlets and the books kept in the said box and which was of a prejudicial nature. On appeal the conviction and sentences were upheld. In regard to the accused No. 2 wife, the Sessions Judge noting the argument that accused No. 2 was a woman and woman does not engage in any political activities as also the fact that she as the wife could not control the activities of her husband, it was still evidence of over-whelming character that she had the key to the box; that the box contained letters addressed to her in marathi, that she did not claim to be an illiterate and was therefore in a position literate enough to read the pamphlets.

In revision, this Court reversed the conviction of the accused No. 2 observing that prima facie the box was held to be in possession of the accused No. 1; that on the mere facts that in his absence he had left the keys with his wife did not make her in joint possession with him; that the fact of letters addressed to the wife found in the box did not mean that she, the accused No. 2 could not therefore be said to be in possession of the box and lastly she could also not be regarded in occupation of the house for under Rule 39 the occupation meant legal occupation which in the said case was of the accused No. 1 alone as the husband. The High Court observed 1944 45 Cri LJ 486 :

"In our opinion, therefore, the wife was not in possession of this box and the only further question is whether she can be said to come under sub-r. (2), that is to say, whether the documents in the box were on premises in her occupation or under her control. No doubt, a wife, in a loose sense occupies the house in which she lives with her husband. Equally so, do the husband''s children and servants. But when R. 39 speaks of a person in occupation, I apprehend that it means legal occupation, and the only occupier of the house in question is the husband so far as the evidence shows. The natural presumption would be that he is the occupier unless it is shown that the wife is that occupier and he is a mere appendix to her. But if he is the occupier, the house is under his control."

What is material to note in regard to this decision is that even if the wife''s possession of key to the box in which prejudicial report was found and even the fact that in this box letters addressed to her were also found, were still considered insufficient to impute knowledge and conscious possession of the box and its contents; therefore, she was acquitted.

The question which really arises is whether or not there is in existence any difference in degrees or categories in regard to the concept of possession, the consciousness of and possession with the mens rea as such. A distinction would still, in my opinion, be found to exist. As already pointed out with reference to the provisions of Section 86 and onwards (as enumerated above), mens rea is specifically provided as existing and as an essential of the offences contemplated under these various sections. Such however, is not the case with reference to the offence u/s 85 of the Act and the absence of such a mens rea specifically is also the indication provided by Section 91. For, Section 91 also mentions that whoever contravenes any provisions of this Act or any rule or order made thereunder for which no punishment is separately provided in this Chapter, shall be punished with imprisonment for a term which may extend to three months or with fine, or with both. A large number of offences, without mens rea being expressly made content of the offence will therefore be found to have been provided in the Act. Where therefore the question of possession simplicitor arises, the question is whether as in the case of offences enumerated above, in respect of which Section 98B would be obviously attracted could it also be said to be attracted in regard to sections defining offences punishable, without such specific mens rea ? In regard to the element of possession will it therefore contemplated that possession is therefore indeed to be absolute as such whether as is the law well settled, possession must be taken to be a conscious possession as such and the element of such consciousness required to be sufficiently indicated and established on merits of the facts as have come on record during the evidence. Learned Counsel Shri Kher submits that whatever slight degree of conscious awareness and knowledge of the existence of the gold in the house of the respondents is required to be established, the record does establish the same. The facts upon which he relies as being sufficient in that behalf are, to be enumerated once again;

(1) the looseness of the screw of the ornamental top of the steel cupboard in the eastern bed room;

(2) The admission of the accused No. 2 nay almost virtually his plea that he is the karta of the of joint Hindu Family.

(3) The circumstances that having made a reference to one Shyam Sunder as the person from whom he learnt that the gold in the ornamental top in the cupboard in the eastern bed room has been deposited or kept there by him (Shyam Sunder) under the instructions of Bhojibai, as the owner, the accused did not still examine him as their defence witness.

(4) The fourth circumstance pointed out by Shri Kher is that apart from examining himself as a defence witness, as many as seven or eight other persons have been examined in defence which, according to the learned counsel indicates the awareness on the part of the accused, the clear awareness about the offence being about to be otherwise proved against them, for the purposes of discharging that burden.

(5) One other circumstance which is also relied upon is, as per the evidence of Mahadeshwar PW-1 that at the time of the statement recorded by Mahadeshwar on 20-8-1974, the accused No. 2 had explained to him that he was of course not having any key to any of the steel cupboard in the eastern bed room except one, that the keys to the several other cupboards in the eastern bed room and for that matter the keys for opening the other cupboards in the other rooms in the flat would be either with the accused No. 1 Ishwaribai or these might be found in one or the other of the several steel cupboards on the premises.

This statement, learned Counsel Shri Kher argued, indicates all the same, his awareness of where the key might be and that this awareness whatever the degree attachable to it, indicated the fact of his conscious possession of the keys to the steel cupboards and, therefore, the possession of the cupboard and thereby the possession of the contents of the cupboards.

Dealing with these submissions, I have already observed that the circumstances that one of the screws with which the ornamental top was fixed to the steel cupboard would not be any indication of the said ornamental top having been at any time handled by the accused. So far as the non-examination of Shyam Sunder as the defence witness is concerned, it will be appreciated that it was not for the first time that the accused stated about Shyam Sunder''s disclosure to him when he was examined as a defence witness. For, at the time of his statement recorded by Mahadeshwar on 20-8-1974, he had himself provided the hypothesis that the gold as was found from the eastern bed room cupboards might have been kept by his great grand mother Bhojibai and no one was aware thereof since the gold in the form of bars which had been presented to his father and step-mother upon their marriage had been kept in one of these cupboards and all this gold had been invested in the Gold Bonds in the year 1960. It was rightly contended in the trial Court as it is here also, that in the event of their awareness and knowledge of the ornamental top to the steel cupboards in the eastern bed room containing such a large quantity of primary gold, all that gold would also have been invested in gold bonds since that was, at that time, the most profitable scheme for investment.

Shri Kher''s submission that the accused having claimed to be a Karta of Joint Hindu Family, possession must be taken to have been attributed to him as a conscious one, would appear to stand answered very squarely with reference to two decisions one of which has been cited by learned Counsel for the appellant himself. In Vijendrajit Ayodhya Prasad Goel Vs. State of Bombay, , the accused was charged as being the person in-charge of the godown for being found in possession of 20 gallons and eight drums of rectified spirit without permit as required by law. A careful perusal of the decision shows the distinguish ability on facts. What was found in that case was that the accused had denied having any knowledge of such a large quantity of rectified spirit having been stored in the godown in his charge. What was also observed that was that the witnesses who gave evidence as to the recovery of the rectified spirit from the godown, was not cross-examined on that point. Here, in the present case, the fact of possession conscious has been controverted squarely and forcefully, throughout the course of the trial. Another witness in Vijendrajit''s case had described the said godown as being the godown of the appellant and was not yet questioned on that point. The High Court observed that if fact of possession of the godown had been denied squarely - which was not so denied - then the prosecution would have been in a position to lead further evidence, as the prosecution also had at that time documentary evidence in the form of the rent receipts to establish the appellant''s possession. Lastly, it was noted that the appellant had in fact admitted that he was in-charge of the godown. It was in these circumstances that possession was held as established against the appellant Vijendrajit. Quite clearly the possession attributed to him was therefore a conscious possession.

Learned Counsel for the respondent relied upon a decision in Asstt. Collector of Central Excise and Customs v. Rikabdas Tejmal, 1973 Cri LJ 71 : AIR 1972 Mysore 329, where also it was held that the possession of the accused must be a conscious one; he must be conscious of the existence of the article, or must have actual control over it. And more importantly for the purposes of the argument advanced by learned Counsel for the appellant, the question of declaration by the Karta of joint family arises only after that karta''s ownership, control or possession over contraband gold has been established. Therefore, merely with reference to the fact of the accused No. 2 being the Karta of the Joint Hindu Family it would not be open to the prosecution to contend that with reference to that fact no further proof of possession has to be furnished to hold possession as established against the appellant.

On the question of the liability of the member of the Joint Hindu Family, learned counsel also relied upon a decision in Kamta Prasad Vs. State, , which indeed is a judgment very exhaustive for the purposes of deciding various concepts of possession. With reference to the material question of credibility of possession to the member of a Joint Hindu Family, the High Court however observed that the applicant there was not the sole owner of the house nor the head of the family and that he could be held to be in possession of the incriminating articles - in that case, arms without licence - jointly with his father and brother but there was no evidence of common intention or object and, therefore, he could not be presumed to be in joint possession with them. What was also pointed out and which reasoning will have to be applied to the present case, in my opinion, was that there was no evidence such as exclusive occupation of the room or the possession of key to prove that the revision applicant was in exclusive possession. The High Court refused to accept the fact of such exclusive conscious possession in spite of the fact that it appeared that articles viz., the arms there were not even in a hidden condition and it was argued that in the absence of these being found in the hidden condition there was all more ground for holding that these must have been present in the house with the knowledge of the revisional applicant. The High court explained that the knowledge on the part of the revisional applicant would not suffice as he could not be presumed to be in the sole possession of these arms, because his knowledge of their existence, would be quite consistent with the sole possession of either his brother or his father. In the present case, at any rate, it will be appreciated that the possession of the gold as found in the cupboards from the eastern bed rooms is not attributable either to the respondent accused No. 2, or even to his mother the respondent accused No. 1.

The criticism that it was because the accused was aware that the prosecution evidence had sufficiently covered him, irretrievably as it would appear on the fact of conscious possession, that he had led evidence of several witnesses in his defence. To state with great respect to the learned counsel, this is almost proceeding to seek conviction of the respondent on the basis of the conduct of the appellants. Such a conduct including their conduct in the matter of leading evidence in defence could never by itself be the foundation for handing down a verdict of guilt.

Learned Counsel Shri Kher also relied while dealing with the element on mens rea the presence or otherwise of it for the purpose of offence u/s 85 of the Gold Control Act, upon an oft-quoted decision in State of Maharashtra Vs. Hans George, . There was a dissenting judgment that came from Subba Rao, J. (as he then was) while the majority view was expressed Ayyangar and Mudholkar JJ. The majority view was, even as the decision sought to be relied upon that mens rea in the sense of actual knowledge that an act done is contrary to law, is not an essential ingredient of the offence u/s 8(1) read with Section 23(1A) of the Foreign Exchange Regulation Act, 1947. It was further held that unless the statute, either clearly or by necessary implication rules out mens rea as a constituent part of a crime an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind and that absolute liability was not to be lightly presumed but was required to be clearly established. This pronouncement came upon the foundation of facts very peculiar. The bringing or sending of gold in India was prohibited under the provisions of Section 8(1). This was watered down by a notification that the sending or bringing of gold in India would still be permitted if it was meant for an onward transport to any place beyond the territory of the union. A further notification came to be issued by the Government of India on the 24-11-1962 whereby a further requirement was imposed. The requirement was that not only the gold be brought or sent to India, only with a view to be taken out of it, either as the same bottom cargo or transhipment cargo but it was also required to be so declared in the manifest of the aircraft. The respondent accuse Mayer Hans George, a Swiss national left Zurich by a Swiss air plane and when the plane landed at Bombay in the morning of 28-11-1962, he was promptly apprehended by the customs, upon secret information which had already been received in regard to his carrying a huge quantity of gold. The admitted fact was also that the respondent accused had been found sitting in the aircraft only while it stood landed at the Bombay airport. The majority view was that irrespective of the argument that the respondent accused could not be deemed to have been aware of this second stringent restriction in regard to the declaration of the gold in the manifest, the contravention of the provisions of that notification had yet to be imputed to him and it was with reference to this circumstances that the observation was made that the mens rea in the sense of actual knowledge that the act done viz., the carrying of gold though for being taken to Manila without the necessary declaration in the manifest, was not an essential ingredient of the offence. It will, therefore, be appreciated that when it was found and not disputed also that the respondent accused Mayer Hans George was actually carrying the gold on his person in several concealed pockets, nothing more was required to prove that fact of his conscious possession of the gold. That is, therefore, a case which is still, in my opinion, totally distinguishable on the material facts of the case. Absolute liability could not, therefore, be fastened as in that case, merely upon a presumption of accused''s awareness of the act of possession being to his knowledge in contravention of the Act.

The question of the character of possession, even if otherwise found, was again dealt with by their Lordships of the Supreme Court in Inder Sain Vs. State of Punjab, . That was a case where the accused was charged with possession of opium punishable u/s 9(a) of the Opium Act, 1878. The facts as found were that the accused presented a railway receipt to the Parcel Clerk at a railway station. On the strength of which he took delivery of a consignment of a parcel of apples. The police already had a secret information that opium would be found in the said consignment. Police Head Constable kept a watch and with the help of his two colleagues, intercepted the accused while he was carrying the said parcel. The parcel was opened and found to contain 4.350 gms. of opium along with the apples. Dealing with the question of possession of opium which was denied altogether by the accused, the Supreme Court observed that in his statement u/s 342 of the Cr.P.C. the appellant had totally denied having anything whatsoever to do with the parcel. That is, the very possession of the parcel itself was denied by him. The Supreme Court observed that it was not his case that to his knowledge the parcel contained anything other than apples. That he had never put forward a case that he had bona fide believed that the parcel contained only apples and, therefore, he was physically in possession of the opium. In this manner he had no plea to put up that he did not know about it. It was therefore that their Lordships declined to confirm the conviction. While dealing with this case their Lordships referred to the observation of Lord Goddard, C.J. in Brend v. Wood (1946) 62 TLR 462. These were :

"It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

Their Lordships of the Supreme Court, therefore, observed that it was necessary to show that the accused had the article which had turned out to be opium and that the prosecution had to prove that the accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it though it was not necessary to show in fact that he had actual knowledge of that which he had. In the present case, however, a very particular distinguishing fact would be that while the accused Inder Sain in the case before the Supreme Court was found in actual physical possession of the parcel of apples, he had denied altogether the very fact of possession of parcel itself and not the fact of possession of it, as being the possession of only apples and nothing more. What made the difference according to their Lordships of the Supreme Court was that he had denied possession altogether of the entire parcel which contention would not be sustained in view of the evidence of the Police constables.

Yet another decision of the English Court was quoted with approval. The decision of Lord Justice Parker in Lockyer v. Gibb, (1967) 2 QB 243 was :

"In my judgment it is quite clear that a person cannot be said to be in possession of same article which he or she does not realise, is for example in her handbag, in her room or in some other place over which she has control. That I should have thought is elementary; if something were slipped into your basket and you had not the vaguest notion it was there at all, you could not possibly be said to be in possession of it."

In the present case, in my opinion, it would therefore, be appreciated that there is nothing in the evidence which establishes that the respondent accused Nos. 1 and 2 had realised that there was gold kept in the ornamental top of the steel cupboard in the eastern bed room, though this was a room in their use and occupation and could be said to be a place which was under their control. Therefore, the facts once again differ and in the premise of the decision of their Lordships, the onus of proof would be placed on the accused only when the prosecution has shown by evidence that the accused had dealt with the article or has had the physical custody thereof or was directly concerned with it. Therefore, in my opinion, in the absence of such evidence in the present case, either of the accused having dealt with the gold or having physical possession of it, or having directly concerned with it, possession conscious could not have been successfully imputed to them. The learned Magistrate therefore rightly accepted the premise that possession conscious was not established. That is why it is in these circumstances it would be useful to reproduce the conclusion of their Lordships of the Supreme Court in the Inder Sain Vs. State of Punjab, :

"In the last analysis, therefore, it is only necessary for the prosecution to establish that the accused has some direct relationship with the article or has otherwise dealt with it. If the prosecution proves detention of the article or physical custody of it, then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the legislature think that if the onus is place on the prosecution, the object of the Act would be frustrated."

But their Lordships further cautioned (Para 21) :

"It does not follow from this that the word ''possess'' in S. 9 does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word ''possess'' connotes, in the context of S. 9, possession with knowledge. The legislature could not have intended to make mere physical custody without knowledge as offence. A conviction under S. 9(a) would involve some stigma and it is only proper then to presume that the legislature intended that possession must be conscious possession."

Therefore, so far as the facts of the present case are concerned, what is the kind of possession, which the prosecution attributes to the respondent accused ? It is attributed to them, contending as proved, the only fact that the accused live in the same house in which the gold was found; that the gold was found in one room which was in the occupation and use of the respondent accused No. 2 Gopaldas; that the accused having taken the plea that Shyam Sunder has told him that Bhogibai has kept the gold there, had yet failed to examine him, that if the accused were not actually carrying the gold on their person, they had all the same claimed to be the owner. However, upon equally proving the fact that he could not be shown as having been aware of the very existence of this gold in this concealed manner, possession would not be attributed. The findings at best would, therefore, be that it was only a case of detection of the presence of gold in the house which is not to be equated with the accused being in conscious possession of it.

Learned Counsel for the respondents has also sought to invoke the principle of issue of estoppel to contend that the prosecution must become untenable in view of the decision in Writ Petition No. 2406 of 1982 decided on 11th September, 1990. This petition in the ordinary original civil jurisdiction of the Court was filed by the present respondent accused Nos. 1 and 2 following an order of confiscation together with imposition of a penalty purporting to fall under sections 71 and 74 of the Gold Control Act, 1968. The challenge was to the order of the Revisional Authority confirming the consistent orders of the authorities further followed in regard to the confiscation of the huge quantity of gold. Shri Shirodkar points out that upon the facts as were accepted by this Court in the said writ petition, it was concluded that the petitioners were undoubtedly in possession of gold bar and coins only in the broad sense but that they were yet not having requisite awareness which alone would have rendered them liable to make a declaration as required by the Act and the precursor Defence of India Rules. It was held that they being innocent possessors, had to be given the benefit of the proviso to Section 71(1). It is, therefore, urged by learned Counsel Shri Shirodkar that though this writ petition came to be decided after the decision of the Criminal Case in the Metropolitan Magistrate''s Court and during the pendency of the present appeal by the State against the acquittal, this decision of the writ Court during the pendency of the present appeal must conclude the appeal itself. It is for this contention that he seeks to invoke the doctrine of issue estoppel. As held by their Lordships of the Supreme Court in Masud Khan Vs. State of Uttar Pradesh, , the principle of issue estoppel was (para 4) :

"Principle of issue estoppel is simply this : where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute, an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different and distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law ....."

What is therefore required is that the proceeding referred to has to be a criminal proceedings. In the present case, the decision referred in regard to the net liability of the gold in question to confiscation was in a proceeding under the provisions of Section 71 of the Gold Control Act and was not in the nature of the prosecution as such. It was urged by learned Counsel Shri Kher for the appellant, that the evidence as led at the trial in the Court of the Metropolitan Magistrate earlier, could not be refused to be looked into at the stage of this appeal when it could not be said that the conclusion in regard to the innocent character of the accused''s possession arrived at by this Court during the decision of the writ petition was founded upon evidence which was not of the same extent as the evidence led at the trial. Basically, the character of the two proceedings has, however, be the same as must be observed and further it must be a proceeding to which the parties are also the same. In the decision in Masud Khan Vs. State of Uttar Pradesh, also it has been very specifically observed that the doctrine of issue estoppel would come into play only if the earlier and subsequent proceedings were criminal prosecutions. In Masud Khan''s case, the proceedings were in connection with the Foreigners (Internment) Order and these were not criminal proceedings. It was, therefore, held that where in a prosecution u/s 14 of the Foreigners Act the accused was acquitted on the ground that he was not a foreigner, that decision would not operate as issue estoppel to bar the subsequent action against the same person under the provisions of the Foreign (Internment) Order. Here also it has to be noted that the character of the proceedings, which was of the proceeding in a writ petition, was not in the nature of the prosecution but in the nature of proceedings for determining the liability of the gold to confiscation u/s 71 of the Gold Control Act. It is, therefore, difficult to accept the contention of Shri Shirodkar that the decision dated 11th September, 1990 in the Writ Petition No. 2406 of 1982 would operate as issue estoppel in regard to the consideration of the entire evidence as was led in the trial Court. In fact, it becomes quite clear that issue estoppel has been apparently confused with the principle of res judicata or for that of autretois acquit. It is neither, so far as the present case is concerned.

Very lastly, the submission of learned Counsel Shri Shirodkar is that by reason of their acquittal recorded by the learned Metropolitan Magistrate, the respondents have acquired a valuable right and the presumption of their innocence which is strengthened by the acquittal be disturbed only if the judgment would be found to be entirely perverse as was held in the decision of the Supreme Court in Khedu Mohton and Others Vs. State of Bihar, . Having given my anxious consideration to the entire judgment, I cannot but place it on record that the judgment is as exhaustive as encompassing all details as it is unexceptionable and, therefore, unassailable. I find that several material facts and issues, every sub-issue contained therein and the evidence on all these has been considered in such detail as must be no scope for advancing a contention that the learned Metropolitan Magistrate was either prejudiced against the prosecution witnesses or that he omitted to consider and apply his mind to any material part of the evidence led by the parties or that conclusions arrived at by him could even by the remotest chance be susceptible to disruption as even erroneous or perverse. In that view of the matter, the present appeal preferred by State would have to fail, to confirm the acquittal of the respondents accused Nos. 1 and 2 as recorded by the Trial Court. The appeal thus fails and is dismissed.

In so far as the order as regards the disposal of the property is concerned, it would however, have to be appreciated that no different order than the one passed by the Trial Court can properly be contemplated not only upon the view taken by the High Court in its decision on Writ Petition No. 2406 of 1982 but even upon the facts as they are in the present case. Therefore, the order in that behalf passed by the Trial Courts has also to be confirmed.

Appeal dismissed.