M. Kuppuswami Chettiar vs State

Krishnaswami Reddy, J.—The revision petitioner Kuppuswami Chettiar was convicted u/s 135(b)(ii) of the Customs Act and Rule 126-P

(2) and (iv) and (vi) of Part XII-A Gold Control-Chapter IV of the Defence of India Rules, 1962, read with Rule 126-B (2) (d) of the said Rules

and was sentenced to simple imprisonment for six months under each count, the sentence to run concurrently and also to pay a fine of Rs. 200/-

under the second count, in default to undergo simple imprisonment for one month, by the Chief Presidency Magistrate, Madras.

The Assistant Collector of Central Excise, Madras, filed a complaint against the revision petitioner u/s 135(b)(ii) of the Customs Act, 1962 read

with Sections 111 and 112 of the said Act and Rule 126-P (2) and (iv) of the Defence of India Rules, 1962. After the preliminary enquiry, the

learned Chief Presidency Magistrate framed charges u/s 135(b)(ii) of the Customs Act and Rule 126-P (2) (ii) and (iv) of Part XII-A Gold

Control-Chapter VI of the Defence of India Rules read with Rule 126-H (2) (d) of the said rules. The learned Chief Presidency Magistrate has not

recorded any finding in respect of the charge under Rule 126-P (2) (ii) of the Gold Control Rules.

The facts of the prosecution case are briefly these: The revision petitioner who is a native of Karaikudi, Ramnad Dt. alighted from the Raichur-

Madras Passenger at the Madras Central Station at about 5-45 p.m. on 15-9-1965. On suspicion, P. W. 1, the Inspector of Central Excise

intercepted the petitioner and took him to the room of the Assistant Station Master. The petitioner was found to be in possession of a cloth bag.

But nothing incriminating was found in the cloth bag. The person of the petitioner was searched and while untying his dhoti, P. W. 1 found a cloth

pouch tied around his waist. P. W. 1 seized the cloth pouch in the presence of P. W. 2, the Deputy Superintendent of Central Excise. The pouch

contained small compartments, in which there were 12 bits of gold bars with foreign markings, weighing 120 tolas and 20 gold sovereigns. The loin

cloth ""Kowneenam"" worn by the petitioner was also searched and it contained three gold sovereigns wrapped in a paper and tied in the loin cloth.

They were seized under mazahar Ex. P. 1. Two railway tickets were also seized from the petitioner and one of those tickets was a reserved ticket

from Bombay to Madras. The petitioner was thereafter taken to the Customs Office where he gave a statement Ex. P. 2. The petitioner stated that

he went to Bombay at the instance of one Mani and brought 12 bits of gold and 20 gold sovereigns from Bombay by concealing them on his

person, that he purchased three gold sovereigns for his own use for Rs. 315/- and that he had them concealed in the kowneenam.

A show cause notice Ex. P. 3 under the Customs Act and another show cause notice Ex. P. 4 under Gold Control Order were served on the

petitioner. The petitioner sent a reply to the show cause notices under Ex. p. B confessing his guilt and also stating that he had nothing more to add

to what he had already stated in his statement under Ex. P. 2, He also pleaded that as he was the first offender, he might be dealt with leniently.

The Collector of Customs ordered the confiscation of the contraband gold.

The case of the petitioner before the lower Court as disclosed in his statement u/s 342, Cri. P. C. was that he visited his relative''s house at

Renigunta and that while he was at Renl-gunta railway station, one Salt met him and took him to the waiting room and told him that if he could

carry some articles to Madras, he would be paid Rs. 150 to Rs. 200. His further case was that the said Sail tied some cloth pouch in his waist

saying that it was a pledged article and asking him to deliver the same to him at Arkonam or Central Station, The petitioner admitted the seizure of

the gold from his person, but he would say that he was not aware of the contents of the cloth pouch.

So far as the conviction u/s 135(b)(ii) of the Customs Act is concerned, there cannot be any difficulty in sustaining the same in view of the

overwhelming evidence against the petitioner and admissions made by him. The learned counsel for the petitioner is unable to challenge the

conviction'' under the said section. As already noted, it was admitted by the petitioner that gold was seized. It bore foreign markings. There is little

doubt that the gold had been imported into India from a place outside India and the gold is liable to be confiscated u/s 111(d) of the Customs Act.

u/s 123(1) of the said Act, if any goods were seized by the officers in the reasonable belief that they are smuggled goods, the burden of proving

that they are not sumggled goods shall be on the person from whose possession the goods were seized. The petitioner has not discharged that

burden. He has admitted in Ex. P. 2 and P. 5 that he was carrying the gold at the instance of a third party. It is difficult to believe the case of the

petitioner, set up by him in his statement u/s 342, Cri. P. C. that he did not have knowledge about the gold. It was in cloth pouch. He tied it to his

waist. He must have necessarily known as to what the pouch contained. Therefore, the conviction u/s 135(b)(ii) is confirmed.

The learned Counsel for the revision petitioner strenuously contended that the conviction under Rule 126-P (2) (ii) and (iv) read with Rule 126-

H (2) (d) of the Gold Control Order cannot be sustained as it cannot be said under any stretch of imagination that by having been in possession of

gold as Carrier the petitioner acquired it within the mischief of Rules 126-H (d) and 126-P (2) (ii) and (iv). There appears to be force in the

contention of the learned Counsel. It is, therefore, necessary to note the relevant provisions of the Gold Control Rules. Rule 126-H (2) (d) is as

follows --

Save as otherwise provided in this part-- ..... (d) no person other than a dealer licensed under this part shall pay or otherwise acquire or agree to

buy or otherwise acquire, gold, not being ornament, except (i) by succession, intestate or testamentary or (ii) in accordance with the permit granted

by the Board in this behalf:

Provided that a refiner may buy or accept gold from a dealer licensed under this part.

Rule 126-P (2) (iv) makes the contravention of the Rule 126-H (2) (d), an offence punishable under (vi) of the same rule which is as follows--

(iv) Whoever buys, or otherwise acquires, or accepts gold in contravention of any provision of this part. ..... shall be punishable with imprisonment

for a term of not less than six months, and not more than two years and also with fine"".

It is material to note that a minimum sentence is provided for the offence under this rule whereas no such minimum sentence is provided u/s

135(b)(ii) of the Customs Act. From these provisions, it is contended by the learned Counsel for the petitioner that the petitioner by carrying the

goods as a carrier, as admitted by him in Exs. P. 2 and P. 3 and even in his statement u/s 342 , Crl P. C. it cannot be said that he acquired the gold

as a carrier. He further contended that mere possession of gold cannot be equated with acquisition. To acquire according to the learned Counsel is

to get some interest in the property in contradistinction with possession where a person can possess even without acquiring interest in the property,

for instance, the possession by carrier who carries for hire.

According to the Oxford English Dictionary, the word ''acquire'' means, to gain or get as one''s own (by one''s own exertions or qualities).

According to Ramanatha Iyer''s Law Lexicon, the word ''acquire'' means, to become the owner of property; to make property one''s own.

""Acquire"" means, to have gain or to get interest in the property. A carrier of goods for hire cannot be said to acquire interest in the property

which he carries. It is true, a carrier is in possession of the property while he carries but without any interest in the property. It is very significant to

note that in contradistinction to the language used in Rule 126-P (2) (iv), Rule 126-P (2) (ii) creates a separate offence for mere possession of any

quantity of gold in contravention of Rule 126-1 (10). Rule 126-P (2) (ii) is as follows:--

Whoever has in his possession or under his control any quantity of gold in contravention of any provision of this part shall be punishable .....

If the petitioner has been convicted under this rule the conviction would have been perfectly justified. I, therefore, hold that the petitioner was

only a carrier and as carrier, he was in possession of the contraband. He has not acquired the gold, in the sense that he has acquired any interest in

it. The conviction and sentence under Rule 126-P (2) (iv) and (vi) are set aside and the petitioner is acquitted of that offence and the fine amount, if

paid, will be refunded to him.

The conviction u/s 135(b) is confirmed. There is no minimum sentence for this offence. It appears that the petitioner had been in jail for a short

term. The gold was confiscated. Taking these circumstances, I reduce his sentence of imprisonment to the period already undergone, but instead, I

impose a fine of Rs. 250 in default to undergo simple imprisonment for two months.

The revision petition is dismissed with the modification mentioned above.