STATE OF GUJARAT v. SOMA JIVA — 1969 DIGILAW 3 (GUJ)

N. K. VAKIL, J. ( 1 ) THE State has come in appeal against the order passed by the Judicial Magistrate First Class Bulsar acquitting all the eight respondents before me of the charge of having committed the offences under Rule 132 (2) (d) and 132 (2) (e) of the Defence of India Rules 1962 The short facts regarding the prosecution case may be stated :- It will be convenient to refer to the respondents in this judgment by their original serial numbers as accused before the trial Court. ( 2 ) EXCEPTING accused Nos. 3 and 5 the rest of the accused are closely related. Accused No. 1 is the husband of accused No. 6 and accused No. 4 is their son. Accused Nos. 4 and 7 are husband and wife and accused No. 2 is their son. Accused No. 8 is the brothers daughter of accused No. 1. It is alleged by the prosecution that these accused persons were residing at village Bhadeli Jaglala of Bulsar District. Accused No. 3 is a resident of village Korlai in Murud Taluka of Kolaba District and accused No. 5 is a resident of village Kosamba of Bulsar District. ( 3 ) POLICE Sub-Inspector R. V. Bhatt in charge of the Bulsar Police Station received information on the 10th of June 1965 that a large hoard of small coins was made in the house of accused No. 1 at Bhadeli Jaglala. He therefore raided and searched the house of accused No. 1 at about midnight. He had taken two persons of the village to act as Panchas and had also kept with him other police constables. The doors of the house were found locked from within and accused No. 1 was awakened and made to open the doors. According to the prosecution besides accused No. 1 accused Nos. 2 3 and 6 to 8 were in the house. On examination of the floor of the room it was noticed that the dung plaster of the floor in some part near the eastern wall was freshly made. He ordered that the said place may be dug and it was found that there was a pit containing 120 bags. 68 of the bags were found to contain 25 paise coins and the remaining 52 contained 50 paise coins. A panchnama was drawn up and the bags were taken away to Bulsar Police Station. He ordered that the said place may be dug and it was found that there was a pit containing 120 bags. 68 of the bags were found to contain 25 paise coins and the remaining 52 contained 50 paise coins. A panchnama was drawn up and the bags were taken away to Bulsar Police Station. The bags were then weighed in the morning on the 11th of June 1965 and it was estimated that the coins in the bags collectively amounted to Rs. 3 60 35 A second panchnama in this respect was also made. Thereafter the first information of the offence was lodged. Accused were then arrested on different dates. It is alleged that on the 12th of June 1965 a search of the house of accused No. 5 was taken and a machine operated vessel was attached. On the 27th of June 1965 P. S. I. Bhatt received further information that one more bag containing coins was burried at some distance from the house of accused No. 1. Thereupon P. S. I. Bhatt went to the place and recovered that bag containing 25 paise coins aggregating to the amount of Rs. 2300/and odd. A panchnama of this find was also made. Some of the coins were sent for testing to the Mint Master and he reported that the specimen coins of 25 paise and 50 paise were genuine coins. It is disclosed in the evidence that the investigation also further revealed that certain persons had shipped the coins in the vessel of accused No. 5 and the cargo was intended to be smuggled out of India. However as the boat carrying the cargo developed some mechanical defect its course had to be changed and the cargo had to be unloaded and brought to the house of accuse No. 1. It would therefore appear that it was intended that all these bags of small coins were to be kept in the house of accused No. 1 till it was possible to again load the vessel after it was repaired and fit enough to resume the voyage. In short therefore the charge was against the accused that they had acquired and possessed small coins in excess of their personal and business requirements for the time being. In short therefore the charge was against the accused that they had acquired and possessed small coins in excess of their personal and business requirements for the time being. ( 4 ) AFTER the investigation was over all the accused were chargesheeted and were tried for the aforesaid offences by the learned Judicial Magistrate First Class Bulsar. Before the trial Court all the accused had pleaded not guilty to the charge. It appears that the stand of the accused was that the house from which the coins were alleged to have been found was not occupied by any body and that as a matter of fact the coins were not found in the house in question but that all the coins bags were found burried underground at the place from where the prosecution alleges to have found out one bag on the 21st of July 1965. It was further their case that none of the accused had acquired or possessed the coins that accused Nos. 1 and 6 were very old and had very poor vision and they lived with one Barsa Jiva brother of accused No. 1. that after the coins were found the police had sent for accused Nos. 1 and 6. They were taken to the police by accused No. 8 who was the daughter of Barsa Jiva. The stand of accused No. 4 was that for the last few years he has not been staying with his parents and that he has been staying at a temple at Kosamba Accused Nos. 2 and 7s case was that they stayed at the house of the brother of accused No. 7. Accused No. 5 who is an outsider has denied the allegation in toto. The stand of accused No. 3 was that at the relevant time he had come to this side of the country to purchase a country craft and as police found him sleeping at the temple of Bhadeli Jaglala he was falsely implicated by the police on mere suspicion. ( 5 ) AT the end of the trial the learned Magistrate came to the conclusion that the stand of the accused that the whole quantity of coins were not found from the house of accused No. 1 but were found from some place away from the house was not believable. ( 5 ) AT the end of the trial the learned Magistrate came to the conclusion that the stand of the accused that the whole quantity of coins were not found from the house of accused No. 1 but were found from some place away from the house was not believable. He also came to the conclusion that when P. S. I. Bhatt raided the house of accused No. 1 it was occupied and was being used and also that accused Nos. 1 2 3 6 7 and 8 were sleeping in the house when P. S. I. Bhatt awakened accused No. 1 and got the doors opened. He also came to the conclusion that the floor of the room of that house had been got dug up by the P. S. I. That night that is to say on the 10th of June 1965 and that the alleged number of bags containing respective quantity of coins were recovered therefrom. However on the interpretation of Rule 1 32 (2) (d) and (e) he came to the conclusion that these facts neither proved acquisition of the coins nor the possession of the said coins and that all the accused were therefore not guilty having regard to the facts of the case. ( 6 ) ). . . . . . . . . . . . . . . . . The question to be determined is whether the evidence on record go to establish either acquisition or possession of the coins by all or any of the accused in contravention of Rule 132 (2) (d) and (e ). ( 6 ) ). . . . . . . . . . . . . . . . . The question to be determined is whether the evidence on record go to establish either acquisition or possession of the coins by all or any of the accused in contravention of Rule 132 (2) (d) and (e ). ( 7 ) RULE 132 (2) (d) and (e) read as follows :-132 (1) xxx xxx xxx xxx xxx xxx (2) No person shall (a) xxx xxx (b) xxx xxx (c) xxx xxx (D) acquire coin to an amount in excess of his personal or business requirement for the time being which in case of an acquisition of coin from any Currency Office Treasury Sub Treasury or branch of the State Bank of India or of any of its subsidiaries doing treasury business or having small coin depots shall be determined by the officer in charge of such Currency Office Treasury Sub Treasury or branch whose determination shall be final and shall not be called in question in any legal procedings; or (e) possess small coin to an amount in excess of his personal or business requirements for the time being. (3) xxx xxx xxx xxx xxx xxx ( 8 ) AS regard acquiring of coins Mr. Vaidya the learned Assistant Government Pleader made a faint attempt to submit that the facts established would prove that the coins were acquired. I fail to understand how the facts established can amount to acquiring of the said coins by any of the accused. The concept of acquiring necessarily implies an effort or a positive act on the part of the accused to get those coins. An attempt was made by the prosecution to prove that accused No. 4 had carried these coins from a vessel to the house of his father accused No. 1 by examining P. W. No. 5 Mangalia Bhagwan (Ex. 31) but the said witness did not support the prosecution attempt He merely said that four or five months back accused No. 4 had called him at the river side at about 84 p. m. for some work. 31) but the said witness did not support the prosecution attempt He merely said that four or five months back accused No. 4 had called him at the river side at about 84 p. m. for some work. He went after taking his dinner but when he saw that there were some heaps of bags and some people had gathered there he suspected that there was something wrong and being afraid of being involved in some illegal activity he had gone away. This evidence is vague and does not prove anything even against accused No. 4 except the fact that he had been called once by accused No. 4 to the river side and that he saw some bags lying on the shore. The witness is not however certain about the day when he was called nor does he say anything about kind of bags he saw. Therefore it cannot be said that even if the witness is telling the truth he established that the bags he saw were the bags in question containing coins. There is neither any fixity of time nor identity of the things in question. I therefore agree with the trial Court that the prosecution failed to establish acquisition of the coins in question. ( 9 ) THE next question is whether the prosecution can be said to have established their case of possession by all or any of the accused of the coins in question. The learned Assistant Government Pleader urged that the word possession in clause (e) of Rule 132 (2) should not be strictly interpreted but must be liberally interpreted to mean mere custody and nothing more. He submitted that the Rules made under Defence of India Act were extraodinary provisions in the nature of emergency law to stabilise the economy of the country and if any strict or technical construction is placed on the word possession the object of the Legislature would be frustrated. He argued that the evidence accepted by the learned trial Magistrate was sufficient to prove custody of the accused of the coins and that was enough to hold the accused guilty of the breach of clause (e) of Rule 132 (2 ). He urged that the learned Magistrate erred in holding that mere custody was not enough and dominion over the property in question must also be proved to constitute possession within the meaning of clause (e ). He urged that the learned Magistrate erred in holding that mere custody was not enough and dominion over the property in question must also be proved to constitute possession within the meaning of clause (e ). ( 10 ) IN law the term possession has a well established connotation. It is well established that there exists a distinction between possession in fact and possession in law. Possession in fact for some purpose in the eye of law is mere custody or detention and not possession. Its is true that there are not two different ideas of possession viz. legal and natural or possession in fact because if that were so we need dot consider at all the possession in fact. But under certain principles acknowledged by law possession in fact does sot amount to possession in law. In Salmonds Jurisprudence these first principles are dealt with and I may with advantage refer to some of the observations made in the XI Edition by Glanville Williams on page 321 :what then is the exact nature of that continuing de facto relation between a person and a thing which is known as possession ? The answer is apparently this :- The possession of a material object is the continuing exercise of a claim to the exclusive use of it. It involves therefore two distinct elements one of which is mental or subjective the other physical or objective. The one consists in the intention of the possessor with respect to the thing possessed while the other consists in the external facts in which this intention has realised embodied or fulfilled itself. These two constituent elements of possession were distinguished by the Roman lawyers as animus and corpus and the expressions are conveniently retained by modern writers. The subjective element is called more particularly the animus cossidendi animus sibi habandi or animus domini. . . . . . . . . . . . . . . . . . . . . . . . . . . NO mere physical relation of person to thing has any significance in this respect unless it is the outward form in which the needful animus or intent has fulfilled and realised itself. A man does not possess a field because he is walking about in it unless he has the intent to exclude other persons from the use of it. NO mere physical relation of person to thing has any significance in this respect unless it is the outward form in which the needful animus or intent has fulfilled and realised itself. A man does not possess a field because he is walking about in it unless he has the intent to exclude other persons from the use of it. I may be alone in a room with money that does not belong to me lying ready to my hand on the table. I have absolute physical power over this money; I can take it away with me if I please; but I have no possession if it for I have no such purpose with respect to it. IN law therefore to constitute possession by an individual in relation to other persons there must be not only the physical power to possess but there must also exist dominion over it or the right to deal with it as he likes. ( 11 ) IN Strouds Judicial Dictionary the appropriate meaning of the word possession is to be found in para (31) at page 2244 (III Edition) as under :-IN general in technical language one is said to be possessed of goods when he has the property and an immediate right to have the goods dealt with as he will. Yet obviously the word is one largely dependent on the context. THEN again in para (43) the term is dealt with in special reference to criminal law. and offences against property as under :- (A) A moveable thing is said to be in the possession of any person when he is so situated with respect to it that he has the power to deal with it as an owner to the exclusion of all other persons and when the circumstances are such that he may be presumed to intend to do so in case of need. (B) A moveable thing is in the possession of the husband of any woman or the master of any servant who has the custody of it for him and from whom he can take it at pleasure. The word servant here includes any person acting as a servant for any particular purpose or occasion. (C) The word custody means such a relation towards the thing as would constitute possession if the person having custody had it on his own account. The word servant here includes any person acting as a servant for any particular purpose or occasion. (C) The word custody means such a relation towards the thing as would constitute possession if the person having custody had it on his own account. THE principle therefore that emanates from these observations is that a person can be said to have possession of a thing when he has not only the custody of it and has the physical hold on it but must also have the dominion over it to deal with it as he likes. ( 12 ) WHEN we turn to judicial precedents these principles are found to have been acknowledged and applied under different Acts. Neither party has cited any authority before me as direct decision to deal with the provision in question under the Defence of India Rules. The learned Assistant Government Pleader however tried to rely upon a decision of the Bombay High Court which dealt with the Defence of India Rules under the earlier Defence of India Act 1939 :- Emperor v. Nanabhai Nagindas A. I. R. 1946 Bombay 36. I however find that this is no authority on the question on hand in the present case. There no question arose as to the meaning and content of the concept of the term possession. The contention there raised was that in the absence of the word possesssion in sec. 2 (2) clause (22) of the Defence of India Act (1939) the Central Government (the rule making authority) had no power to make any rule prohibiting the possession of small coins. The appellate Court had held that the expression use or disposal did not include possession. The High Court however differed on that point with the appellate Judge and held that the said word empowered the Central Government to not merely to prohibit the use or disposal of coins but also to control it. It was further held that the word possession was not expressly used in the rule as the expression controlling the use has a very wide significance and includes controlling of the use of extra coins in swelling the cash balance in hand. It is to be noted that by the time the matter had reached the hearing before the High Court by amendment the Legislature had added the word possession in the said clause (xxii) of sec. 2 (2 ). It is to be noted that by the time the matter had reached the hearing before the High Court by amendment the Legislature had added the word possession in the said clause (xxii) of sec. 2 (2 ). In any case the said decision cannot be any authority on the point as regards the interpretation of the word possession. ( 13 ) MR. Vaidya then tried to rely upon the decision in Ismail Mohamed Hajee v. The King A. I. R. 1941 Rangoon 349. The decision dealt with a case arising under the Defence of Burma Act (1939 ). The provisions with which the High Court was concerned with were Rule 81 (4) of the Defence of Burma Rules made under the said Act and read with para 10 of the Control of Prices Order 1940 There one of the contentions raised by the counsel for the appellant was that the ordinary principle of criminal law is that no man should be punished for an offence which he himself has not committed and that this was the principle which underlies sec. (2) (1) sub-sec. (3) (ii) Defence of Burma Act. Therefore it was argued that para 6 of Control of Prices Order 1940 which punishes a master for the act of his employee or a partner for an act of his co-partner being contrary to the ordinary principle of the law was ultra vires. The learned Judge agreed with the learned counsel for the appellants that ordinarily a person should not be held liable for a criminal act of another. No person could be charged with the commission of an offence unless a particular intent or knowledge or to use the English term mens rea is found to be present. But in cases where a particular intent or state of mind was not of the essence of an offence the person could be held liable for the act or omission of another. New this has nothing to do with the interpretation of the word possession used in the provision of law with which we are concerned. But Mr. Vaidya strongly relied in the following observations of the learned Judge in that case to support his submission :-HERE in the present case the Defence of Burma Act is a piece of emergency legislation. New this has nothing to do with the interpretation of the word possession used in the provision of law with which we are concerned. But Mr. Vaidya strongly relied in the following observations of the learned Judge in that case to support his submission :-HERE in the present case the Defence of Burma Act is a piece of emergency legislation. It is designed and intended amongst others to prevent profiteering so as to ensure the proper working of the normal economic life of the people. The Act will entirely fail in its object if a master is not held liable for the act of his servant or a partner for the act of his copartner. Because of this para 6 of the Control of Prices Order 1940 has been enacted. SO the learned Judge in that case having regard to the special provisions with which he was concerned and the object of the Act came to the conclusion that a vicarious liability was intended to be attached to the master as well as to a partner. That may be so but that has no relevance to the question on hand. However relying upon the said observations it was urged on behalf of the State that we are also concerned with an emergency legislation it is designed and intended to prevent hoarding of coins so as to ensure proper circulation of small coins to enable the proper working of the normal economic life of the people. This object will fail if a technical interpretation is placed on the word possession and therefore it should be interpreted to mean mere simple custody and not given the technical or well acknowledged meaning to it. I am unable to accept this submission for it loses sight of the other well established and trite principles of interpretation of statutes. Where the language used is precise and unambiguous the Court has not to give the words used on any conjectural grounds a meaning which does not belong to it. Even the intention of the Legislature is to be gathered from no other evidence than its own statutory declaration. It would not be proper to suggest or infer that when the Legislature used the word possess it was ignorant of what it means or connotes in law and what elements constitute the concept of possession in legal parlance. Even the intention of the Legislature is to be gathered from no other evidence than its own statutory declaration. It would not be proper to suggest or infer that when the Legislature used the word possess it was ignorant of what it means or connotes in law and what elements constitute the concept of possession in legal parlance. It is reasonable to infer that had the Legislature meant to cover a case of mere detention or custody also it would have used the word custody rather than the word possession which has in jurisprudence and judicial precedents a particular connotation which requires over and above physical custody the presence of dominion over the property. Even when the word possession is tried to be interpreted in context with the other words used in the said clause (e) of Rule 132 (2) the fact becomes more emphasised that it is intended to mean as it is understood in law. As pointed out by the learned Magistrate the words in excess of his personal or business requirements would show that the personal requirement of the man in physical custody has to be taken into account which would by necessary implication indicate that he has dominion over it and he is in a position and has the right to make personal use of it. In any way these words in no case would lead us to accept the construction canvassed for by the State. No doubt we are dealing with an emergency legislation but at the same time it cannot be forgotten that it is an extraordinary provision restricting fundamental rights of the citizens to acquire and hold property and though it may be a reasonable restriction within the meaning of the provisions of the Indian Constitution it cannot be so widely interpreted by giving the word a meaning which is something other than the law has acknowledged. It is also important to note that the Legislature has not thought it fit in this legislation to provide for a specific presumption as it has in various other statutes like the Prevention of Gambling Act the Prohibition Act and the Prevention of Corruption Act by providing that the proof of mere custody of a person will amount to possession of the coins by him unless the contrary is proved by the accused. Mr. Mr. Vaidya in this respect tried to rely upon Rule 5 which reads as under :-5 Non compliance with these Rules or orders made thereunder :- If any person to whom any provision of these Rules relates or to whom any order made in pursuance of these Rules is addressed or relates or who is in occupation possession or control of any land building vehicle vessel aircraft or other thing to which such provision relates or in respect of which such order is made (A) fails without lawful authority or excuse himself or in respect of any land build ing vehicle vessel aircraft or other thing of which he is in occupation possession control to comply or to secure compliance with such provision or order or (B) evades or attempts to evade by any means such provisions or order he shall be deemed to have contravened such provision or order; and in these rules the expression contravention with its grammatical variations includes any such failure evasion or attempt to evade. BUT in my view this rule cannot help the prosecution in the present case. What the rule lays down is that if the prosecution succeeds in establishing a breach of any of the Rules unless a lawful excuse is given or shown by the accused he shall be held liable for such breach. Here in this case however what we are concerned with is the first question as to whether there is any breach of Rule 132 (2) (d) or (e ). ( 14 ) IN the view that I am taking as regards the meaning to be given to the word possession I am supported by the decisions of other High Courts. No doubt they are decisions concerning other Acts but all the same they are helpful. In re Wahib Pasha A. I. R. 1961 Madras 162 it was decided that the principle regarding possession is that a man has not the possession of that the existence of which he is unaware of. Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. This decision is also helpful from another angle viz. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. This decision is also helpful from another angle viz. the question of the liability joint or several of all the accused as the coins have been found from the house of accused No. 1 and except for accused Nos. 4 and 5 the other accused were found in the house at the time of the raid. I will deal with the facts of the present case a little later but it will be convenient here to note the observations made in the Madras case :-THE difficulty arises when prohibited articles are recovered from places under joint family possession. It is now however well settled that in such a case the head of the family is presumed to be in possession of any illicit article found in the house. The presumption is rebuttable and the weight attached to it must vary according to circumstances. It can be easily rebutted by showing that the room or receptacle in question was in the particular and exclusive possession of one member of the joint family. SIMILARLY where two or more persons are charged with joint illegal possession it is incumbent on the State to prove (a) that each of the accused had either physical or constructive possession of the property or (b) that one or more of them had possession thereof either physical or constructive on behalf of themselves and the other accused to the knowledge of the latter. IN all criminal charges the onus of proving the guilt of the accused rests on the prosecution and it never shifts on the accused by reason of sec. 106. ( 15 ) A. I. R. 1944 (Lahore 339 Emperor v. Santa Singh) is a Full Bench case where in this principle has been further emphasised. It has been observed therein :-THE words possession and control in sec. 19 (f) Arms Act and sec. 5 Explosive Substances Act mean something more than mere constructive or legal possession and control. Possession and control required to constitute offences under the aforesaid sections must mean conscious possession and actual control and as under these sections mere possession of incriminating articles constitutes serious criminal offences there must be mens rea or guilty knowledge before a person can be convicted of such possession. Possession and control required to constitute offences under the aforesaid sections must mean conscious possession and actual control and as under these sections mere possession of incriminating articles constitutes serious criminal offences there must be mens rea or guilty knowledge before a person can be convicted of such possession. Consequently where incriminating articles under sec. 19 (f) Arms Act and sec. 5 Explosive Substances Act are recovered from a place in the occupation or possession of more persons than one and it is not possible to fix the liability on any particular individual a Court is not bound to hold that the said articles were in possession or under the control of the head of the family. EXCLUSIVE possession or control of any particular person over an incriminating article is not required under sec. 19 (f) Arms Act and sec. 5 Explosive Substances Act. The possession or control might well be possession or control of two or more persons. Every case must depend upon its particular facts and the Courts must consider each case and come to a conclusion whether it is proved that the incriminating article is in the possession or under the control of any particular person or in the possession or under the control of more than one person. If on the evidence the Court cannot hold possession or control by any person or persons then the case is not established. It has further been observed : -. . . . IN cases where incriminating articles are recovered from a place in the occupation of possession of more persons than one and it is not possible to fix the liability on any particular individual it would not be legally permissible to call upon all the occupants of the place to account for the presence of the incriminating articles in their premises and in the absence of any satisfactory explanation on their part to hold all of them to be in possession or control of the same. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so they cannot be called upon after such evidence to establish their innocence. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima facie case against any one or more of them or all of them. In re Satyanarayana A. I. R. 1953 Madras 534 it was held :-THE word possession implies a physical capacity to deal with the thing as we like to the exclusion of every one and a determination to exercise that physical power on ones own behalf. It implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object. IT was also a case of a family living jointly in the same house and the incriminating substance found from it. The same principles as we have seen laid down in the earlier ruling were reiterated and followed by the Madras High Court. The learned Judge has also referred to the passage in Salmonds Jurisprudence to which I have already referred to. ( 16 ) WITH respect I am in agreement with all these principles which have been discussed and laid down by the High Courts in the aforesaid decisions. ( 17 ) I may now examine the facts of the present case in the background of the principles discussed. [ His Lordship after discussing the evidence further observed :- ] ( 18 ) THE above discussion would show that so far as all the accused except accused No. 1 are concerned the prosecution has failed apart from the factor of dominion to prove even conscious custody or guilty knowledge and the appeal against the order of their acquittal must fail. ( 19 ) THAT leaves the case of accused No. 1 to be considered. It was argued on his behalf that there is evidence to show that he had a very weak eye sight and was very old. ( 19 ) THAT leaves the case of accused No. 1 to be considered. It was argued on his behalf that there is evidence to show that he had a very weak eye sight and was very old. Therefore though he is the head of the family the guilty knowledge cannot be imputed to him even. It was further tried to be argued that he was a fisherman and that he may be out fishing on the sea and may not be actually present at the time in the house when the bags of coins were brought and put under the floor of his house. Now it is tried to be shown that accused No. 1 had almost lost his eye sight and was a doddery old person who would not even notice anything happening in his own house and in the same breath it is tried to be suggested that he may have gone out fishing when the bags might have been secreted underneath the flooring of his house. But neither of these submissions appeal to me. There is nothing to suggest that accused No. 1 was in a position to go out for fishing. As regards his age and eye sight also it is difficult to believe that if 120 bags full of small coins of 25 paise and 50 paise were brought to his house and big enough pit was made in the floor of his house to accommodate them he would be unaware of all these operations. The evidence shows that about five to six carts had to be brought to convey those 120 bags to the police station at Bulsar from the house of the accused. That gives us some idea as regards size of the pit and the time that must have taken to dig the pit and to put these 120 bags underneath the flooring. Besides it is also reasonable to infer that the coins in the bag would jingle and make sufficient noise to draw his attention that bags of coins were tried to be put into a pit. On an over all picture of the evidence it is difficult indeed to believe that accused No. 1 would be unaware of the fact of the bags having been secreted underneath the flooring of his house aged and short sighted though he may be. On an over all picture of the evidence it is difficult indeed to believe that accused No. 1 would be unaware of the fact of the bags having been secreted underneath the flooring of his house aged and short sighted though he may be. Therefore having regard to the principles laid down and discussed hereabove knowledge on his part has to be inferred and he being the head of the family must be considered to be in occupation and possession of the house and also in custody of the bags of coins. But all the same the question remains can he be said to be in possession in law or whether he was in mere custody thereof. As already pointed out there is no evidence whatever to show that accused No. 1 had acquired possession of the coins for himself or his business. Had the evidence on the part of the prosecution been entirely silent as regards the nature of his custody it would have been difficult to avoid an inference that he had either acquired it or possessed it for his own purpose. Even under Rule 5 he would be under an obligation then to render some legal excuse to escape the consequences of the breach of the relevant rule. But here the prosecution evidence itself shows what could be the nature of his custody. Police Sub Inspector Bhatt in answer to questions put by the Court has categorically admitted in his evidence that it had transpired in the investigation made by him that some persons other than the accused No. 1 and the other accused before Court were on their way in a boat with the coins to smuggle them to some destination outside India and that the boat was diverted as it developed some defect on the way and the coins were kept in the house of accused No. 1 temporarily till the smugglers devised a way to carry the coins ahead. He had come to know this from statements of witnesses recorded by him. It is true that none of the accused have taken any such specific plea and they have tried to take the stand that none of them were in the house at the time of the raid and that they have nothing to do even with the custody of the bags containing coins. It is true that none of the accused have taken any such specific plea and they have tried to take the stand that none of them were in the house at the time of the raid and that they have nothing to do even with the custody of the bags containing coins. But that would not deprive them of the right to urge at the time of arguments if the evidence on record could justify such a submission that though the bags were found in their custody they had no dominion over them and it was in their custody only temporarily and the bags containing coins belonged to someone else. True it is that this state of evidence would not be sufficient by itself to hold proved beyond any reasonable doubt the guilt of a person who is alleged to have attempted to smuggle away the coins. But while considering the question of the guilt of the present accused it is certainly an admission of fact that the accused are not the owners of this hoard of coins nor were they having any dominion over it. In any event it raises a reasonable doubt about their being in possession of those coins having dominion over it and not merely the custody thereof. It is for the prosecution to prove every ingredient which would constitute the offence alleged. As we have seen in order to prove the possession one of the ingredients necessary to be proved by the prosecution is that the accused had dominion over it. Here custody cannot amount to breach of the provisions of clause (e) of Rule 132 (2 ). Under the circumstances none of the accused can be held to be guilty and the learned Magistrate was right in acquitting them. ( 20 ) IN the result the appeal fails and is dismissed. .