DAYALAL N SHAH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The case for the prosecution is that on the 6th April, 1974 a group of Customs Officers belonging to the Collectorate of Customs, Calcutta, searched a two-roomed flat on the second floor of the premises No. 49, Ezra Street, Calcutta. The accused was a tenant of that flat and he was then absent. The search was made under orders of authorisation which had been issued under the Customs Act and Gold (Control) Act. In a bedroom of that flat an almirah there was the key of which was supplied by the wife of the accused. After the almirah was opened with that key, primary gold bars, gold coins, gold ornaments and other articles were found and they were seized because the wife of the accused could not give any satisfactory evidence to explain the lawful possession thereof. The Customs Officers opened a locker in the joint names of the accused and of his wife at the Brabourne Road Branch of the Oriental Bank of Commerce. From that locker gold ornaments and gold sovereigns were also recovered. On 9-5-1974 the accused was intercepted in the Mohammad Ali Park on Central Avenue, Calcutta. His person was searched and gold sovereigns etc. were recovered and seized. On the 20th January, 1975, a petition of complaint was filed with an authorisation made by the Collector of Customs, Calcutta. Charge was framed against the accused for commission of offence under Section 85(i)(ii)(vi) and (viii) of the Gold (Control) Act, 1968. The defence was a plea of innocence.

(2.) The learned Metropolitan Magistrate, 10th Court, Calcutta, convicted the accused under Section 85(i)(ii) of the Act and sentenced him to suffer rigorous imprisonment for eighteen months and also to pay fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for six months more. He also convicted the accused under Section 85(i)(ii) of the Act and sentenced him to suffer rigorous imprisonment for six months and also to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for three months more. The order was that the sentences of imprisonment would run concurrently. Against that decision an appeal was filed. The learned Chief Judge, City Sessions Court, Calcutta, allowed the appeal in part, confirming the conviction of the appellant under Section 85(i)(ii) of the Act, but the sentence was reduced to one year's rigorous imprisonment and a fine of Rs. 2,000/- was imposed by him. The order was that in default the appellant would suffer rigorous imprisonment for three months more. The other conviction as well as the sentence was set aside. Hence this revisional application by the accused petitioner.

(3.) Mr. Dilip Kumar Dutt, learned advocate appearing on behalf of the accused petitioner, has contended that the learned Chief Judge convicted the accused petitioner under Section 85(i)(ii) of the Act, simply because he was assumed to be the head of the family and as the head of the family he was in possession, custody or control of the primary gold pieces in question. There is no legal evidence to show that the petitioner was the head of the family or he was in possession, control or in custody of the primary gold in question. Hence the Rule must be made absolute.