ASSISTANT COLLECTOR Vs. PAVUNNI

JUDGEMENT

(1.) TWO hundred gold biscuits were disinterred from the residential Compound of the respondent when a team of customs officers raid on 6. 12. 1980. The biscuits had marks to indicate that they were of foreign origin. The total value of them exceeded rupees forty lakhs, as per the price prevailed then. The respondent was prosecuted for the offences under Sec. 135 (1) of the customs Act, 1962 (for short'the-Act') and Secs. 85 (1) (a) and 86 of the Gold Control Act, 1968 The trial Court acquitted him mainly on the ground that the prosecution did not prove that the contraband gold articles were in the conscious possession of the respondent. This appeal is by the assistant Collector of Central Excise, who filed the Complaint in the lower Court.

(2.) THE respondent (the accused in this case) is the managing Partner of a firm dealing in stationery articles. His residence is on St. Vincents Cross Road, ernakulam THE officers of the Central Excise and the Customs Department got secret information that smuggled gold articiess were hidden in the residential compound of the accused. P. W. 2, Superintendent of Customs (Preventive and intelligence Unit) , Cochin, accompanied by a team of officers of the Customs Department conducted a search of the house and premises of the accused on 6. 12. 1980. A box made of teak-wood was disinterred from the courtyard. THE box contained two hundred gold biscuits wrapped up in two bundles. Those articles were assayed by a gold-smith. Samples of them were got examined in the Mint. THE result of such examinations revealed that the gold in question had twnety-foar caret purity. Ext. P3 mahazar was drawn up by P. W. 2 for seizure of the gold biscuits along with the wooden box and the wrapper. Ext. P4 is the statement given by the accused (under his handwriting and signature) , as per Sec. 108 of the Customs Act.

(3.) CAN the presumption envisaged in the aforesaid provisions be stretched to the point that the person from whose property the contrabands were recovered, knowingly possessed them" The presumption is evidently in favour of culpable menial state which is required to constitute the offence. It arises only in cases where a culpable mental state is required to constitute the offence. Though culpable menial state includes knowledge "of a fact", that should be what is required to make up the offence. Sec. 135 of the Customs Act, which is the penal provision, envisages a particular knowledge to constitute the offence. If any person acquires possession of any goods "which he knows or has reason to believe are liable to confiscation", such acts shall be punishable with the punishment prescribed therein. So the "knowledge" must be that the goods in his possession "are liable to confiscation". It does not take in the knowledge that they were hidden in a particular place or even the belief that he is in possession of the aforesaid goods. If goods are found in the premises belonging to or in the possession of the person concerned, there cannot be a presumption that he is in possession of the goods knowingly or intentionally. Possession contemplated in the section is, no doubt, conscious possession and the question whether the person concerned has conscious possession is a matter which the prosecution has to establish in each case. The presumption envisaged in sec. 138-A of the Customs Act would thus be of no help in such context. Of course, in deciding the question whether the person from whose property the contraband goods were recovered had conscious possession, the Court is entitled to draw inferences from attending circumstances including broad probabilities. In some cases, even the very fact of possession of the place of concealment would help the Court in drawing inference regarding the mental state of the person in possession of that place, situations in those cases would justify such inference. The decisions in J. A. Naidu v. State of Maharashtra, A. I. R. 1979 s. C. 1537 and State of Maharashtra v. Natwarlal, A. I. R. 1980 S. C. 593, support the legal position that unless conscious possession of the contraband goods is established proscctuion cannot succeed in cases where possession of contraband would amount to offence. Learned counsel for the accused, in support of his contention that mere recovery of contraband goods from the property of the accused is not sufficient to establish conscious possession, has cited the decision in Chaganraju v. State of A. P. , A. I. R. 1980 S. C. 477. Learned magistrate has also relied on the said decision. But the facts in the said decision are so peculiar that the conclusion arrived at in that case is of no help in this case. Customs authorities found out contraband goods while digging the property of the accused in that case. Even when the articles were dug out, the accused strongly disowned having anything to do with them, and a few hours later another person who was interrogated by the officers, ad milled that the contrabands were buried by him in the same place. The person who owned the, responsibility was later convicted by the Criminal Court for the offence charged. It was in such circumstances that the Supreme Court concluded that the accused cannot be found guilty of the offence merely on the strength of recovery of such goods from his property.