Judgment: The two appellants are accused 1 and 2 in C.C.No.5919 of 1971 on the file of the Chief Presidency Magistrate, Madras. They have been convicted for an offence under section 135 (b) (ii) of the Customs Act, 1962 and also under rule 126 P (2) (iv) read with Rule 126-H (2) (b) of the Defence of India (Gold Control) Rules. In respect of the first of the charges, the 1st accused has been sentenced to pay a fine of Rs.750 and the 2nd accused has been sentenced to pay a fine of Rs. 500. Regarding the other charge, the 1st accused has been sentenced to undergo rigorous imprisonment for 9 months and to pay a fine of Rs. 250 and the 2nd accused has been sentenced to undergo rigorous imprisonment for 7 months and to pay a fine of Rs. 250. 2. The facts of the case are quite simple and do not admit of any doubt. The two appellants were found alighting from a particular train at Basin Bridge Junction at about 5 p.m. on 18th December, 1967. P.W.1 was the Preventive Officer, Customs Department, who noticed these two persons alighting from the train. Out of suspicion and perhaps on information P.W.1 accosted accused 1 and 2 and questioned them. The 1st accused was found wearing two cloth belts around his waist. The 2nd accused was found wearing another cloth belt around his waist. When questioned by P.W.1 both of them said that the cloth belts contained wrist watches. P.W.1 searched the person of the two accused. The two cloth belts worn by the 1st accused, which were marked as M Os. 1 and 2 were taken out and P.W.1 found that M.O.1 contained 13 gold bars (M. O.3 series) and M.O.2 contained 14 gold biscuits (M.O.4 series). The 1st accused had also a bunch of keys (M.O.5 series) on his person. The gold bars and biscuits bore foreign marks. The belt which the 2nd accused was wearing was M.O. 6. When that was removed and searched, P.W.1 found 13 gold bars with foreign marks (M.O. 7 series). The two accused were apprehended and later they were examined by two other Preventive Officers of the Customs Department, P.Ws. 2 and 3 respectively, on 19th December, 1967. The 1st accused gave a statement Exh. P-10 and the further statement Exh. P-12 to P.W.2. The two accused were apprehended and later they were examined by two other Preventive Officers of the Customs Department, P.Ws. 2 and 3 respectively, on 19th December, 1967. The 1st accused gave a statement Exh. P-10 and the further statement Exh. P-12 to P.W.2. The two statements are in Hindi and the English translations of these two statements are respectively Exh. P.11 and P-13. On the same day the 2nd accused gave a statement Exh. P-14 and the further statement Exh. P.16 to P.W.3. These statements are also in Hindi and the English translations of these statements are marked as Exh.P-15 and P-17 respectively. In these statements both the accused have made a clean breast of the affair and have unequivocally admitted that they were knowingly carrying the smuggled gold. 3. Later there were adjudication proceedings in respect of the gold seized and in those proceedings accused 1 and 2. gave statements denying the seizure itself. The two accused along with two others who were arrayed as accused 3 and 4 before the trial Magistrate, were put up for trial and three charges were framed. The first two charges are charges for which the learned Magistrate has entered conviction and sentenced the two appellants before me as aforesaid. The third charge was under rule 126. P. (2) (ii) read with, rule 126-1 (10) of the Defence of India (Gold Control) Rules, 1962. Out of the four accused, the 4th accused, was not charged at all by the learned Magistrate. He had been discharged. The 3rd accused was acquitted after trial. Only the two appellants before me, accused 1 and 2, were convicted of the first two charges. In respect of the third charge under rule 126-P. (ii) read with rule 126-1 (10) of the Defence of India (Gold Control) Rules, the learned Magistrate has entered a finding that the said charge has not been made out. 4. There can be no dispute regarding the facts in the case that P.W.1 apprehended the two appellants before me on the evening of 18th December, 1967, that the two appellants were found in possession of smuggled gold and. that the same had been seized under Mahazarnama. We have the evidence of P.W.1 which it certainly worthy of credit as well as the statements of the two appellants themselves. As already noted, the two appellants in their respective statements to P. Ws. that the same had been seized under Mahazarnama. We have the evidence of P.W.1 which it certainly worthy of credit as well as the statements of the two appellants themselves. As already noted, the two appellants in their respective statements to P. Ws. 2 and 3 have unequivocally admitted that they were knowingly carrying smuggled gold. It is no doubt true that when P.W.1 questioned the two appellants on that evening they chose to say that the pouches contained watches. That was also the stand taken by the two appellants during trial. Their case when they were questioned under section 342, Criminal Procedure Code, was that somebody gave the cloth pouches to them to be carried with the representation, which they believed, that the cloth pouches contained only watches. This case of the two appellants cannot be believed at all. There are enough circumstances to go to show that the two appellants carried the smuggled gold knowingly. There can therefore be no doubt that the appellants are guilty of the offence under section 135 (b) (ii) of the Customs Act and they have been properly convicted of the said offence. 5. The further question is whether the conviction of the appellants for offence under rule 126-P (2) (iv) read with rule 126-H (2) (d) of the Defence of India (Gold Control) Rules is sustainable. At one stage the learned Counsel for the appellants contended that the Defence of India (Gold Control) Rules having been repealed by the Ordinance which came into force later, the appellants cannot be convicted for alleged contravention of any of the provisions of the said Defence of India (Gold Control) Rules. This contention is certainly not tenable. R. 117 (g) makes it clear that even though the Defence of India (Gold Control) Rules have been repealed, contravention, if any, of the provisions of those rules shall be punishable. T.S. Baliah v. T.S. Rangachari1 is a complete answer to the contention raised by the learned Counsel. 6. The further contention of the learned Counsel is that the appellants being mere carriers of gold, though it could be said that they were in possession of the said gold, it cannot be held that they are guilty under rule125-P. (2) (iv) of the Defence of India (Gold Control) Rules. Rule 126-1. of the said Rules provides penalty with regard to certain contraventions. Rule 126-1. of the said Rules provides penalty with regard to certain contraventions. Rule 126-P. (2) (iv) says: “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”. This has to be read with rule 126-H (2) (d) which says: “Save as otherwise provided in this part, no person other than a dealer licensed under this Part shall buy or otherwise acquire or agree to buy or otherwise acquire gold, not being ornament except (i) by succession, intestate testamentary, or (ii) in accordance with a permit granted by the Board or in accordance with such other authorisation as the Board may by general or special order make in this behalf: Provided that a refiner may buy or accept gold from a dealer licensed under this part”. 7. The contention of the learned Counsel is that all that the prosecution has proved is that the two appellants were in possession of the gold bars and biscuits and there is nothing to show in the evidence that they had either bought or otherwise acquired the said gold as contemplated in the above said rules. I am of the view that the contention of the learned Counsel in this regard is correct and should be accepted. It is not the case of the prosecution that the two appellants had actually bought the gold as contemplated in the rules quoted above. At any rate there is no evidence to show that the appellants were buyers of the gold. It is true that under rule 126-I (ii) any person in possession or control of any gold, not being ornament, shall be presumed, until the contrary is proved, to be the owner thereof. But in the present case it must be held that such a presumption stands rebutted. From the beginning it has been the case of the appellants that they were mere carriers of the gold. The circumstances under which they were apprehended and the gold seized from their persons also indicate that they were mere carriers. Even in the statements made by the two appellants to P.Ws. From the beginning it has been the case of the appellants that they were mere carriers of the gold. The circumstances under which they were apprehended and the gold seized from their persons also indicate that they were mere carriers. Even in the statements made by the two appellants to P.Ws. 2 and 3 respectively, (which are relied on by the prosecution as true) they have very clearly stated that they were only carriers though they have unequivocally admitted that they carried the gold knowingly. 8. Under such circumstances, it is also not possible to hold that the two appellants were guilty of having acquired the gold. Mere possession would not prove that the appellants were guilty of having acquired gold. It should be noted that under rule 126-P (2) (iv) the words used are “buys, or otherwise acquires”. The rule of ejusdem generis has to be applied and the words “or otherwise acquires” are governed by the earlier word “buys”. Therefore, it is clear that mere possession is not enough to show that the appellants had acquired the gold as contemplated in rule 126-P (2) (iv). It is significant to note that even under the very provisions of the rules distinction between possession and acquisition is made. For example, under rule 126-1 (10) it is stated that no person shall “acquire or have in his possession” etc. That shows that a distinction has been drawn between acquisition and mere possession. The very punishing provisions make this position clear. If mere possession is equal to acquisition, there need not be two penal provisions, one under rule 126-P (2) (ii), and the other under rule 126-P (2) (iv). While the former punishes possession the latter seeks to punish buying or otherwise acquiring gold in contravention of the provisions. Thus, it is clear that mere possession is not enough to show that the appellants had “otherwise acquired” the gold. In Kuppuswami Chettiar, In re1 Krishnaswami Reddy, J. has taken a similar view on this point and respectfully agree with the same. The conviction of the appellants for the offence under rule 126-P (2) (iv) read with rule 126-H (2) (d) has to be set side. 9. In Kuppuswami Chettiar, In re1 Krishnaswami Reddy, J. has taken a similar view on this point and respectfully agree with the same. The conviction of the appellants for the offence under rule 126-P (2) (iv) read with rule 126-H (2) (d) has to be set side. 9. However, the learned Public Prosecutor contends that on the facts found by the learned Magistrate the conviction of the appellants can be altered by this Court from one under rule 126-P (2) (iv), into one under rule 126-P (2) (ii) for it has been established by the prosecution that the appellants were in possession of gold in contravention of the provisions of the Rules. It is true that on the facts established the appellants would be guilty of the offence punishable under rule 126-P (2) (ii). But fortunately for the appellants they have been acquitted of that charge by the learned Magistrate. Even though it is not specifically stated in the judgment of the learned Magistrate that the appellants stand acquitted of the charge under rule 126-P (2) (ii), there is a clear finding in the said judgment that that offence namely, the one under Rule 126-P (2) (ii) with rule 126-1 (10,) has not been made out. That is clear enough to show that the learned Magistrate has acquitted the two appellants of this charge. When the State has not filed an appeal against acquittal, the question whether the conviction of the appellants can be altered from one under rule 126-P (2) (iv) to one under rule 126 P-(2) (ii) does not arise. 10. Regarding the charge under section 135 (b) (ii) of the Customs Act, notice for enhancement of sentence was given to the appellants who are present in Court. The learned Public Prosecutor presses that under the circumstances of the case only a sentence of imprisonment regarding the said charge would meet the ends of justice. He contends that the charge under rule 126-P (2) (iv) has failed due to technical reasons, and therefore, the sentence for the offence under section 135 (b) (ii) of the Customs Act should be enhanced and the appellants should be sent to jail. However, on a consideration of the circumstances of the case, I think it is not necessary to send the two appellants to jail. The 1st accused no doubt carried much larger quantity of gold than the 2nd accused. However, on a consideration of the circumstances of the case, I think it is not necessary to send the two appellants to jail. The 1st accused no doubt carried much larger quantity of gold than the 2nd accused. But he is an young man. He is said to be aged less than 25 years on this day. As already noted, the two accused are mere carriers. The entire gold has been confiscated in the adjudication proceedings. Taking all these facts into consideration, I think, it is not necessary to send either of the two accused to jail. However, the sentence of fine imposed by the learned Magistrate is too light. A fine of Rs. 2,000 on each of the two accused would be a proper and adequate sentence in this case: 11. Accordingly, the appeal is partly allowed and the two appellants are acquitted of the charge under rule 126-P (2) (iv) read with rule 126 H (2) (d) and the conviction and sentence regarding the said charge are set aside. The fine amount, if paid by the two accused regarding this charge would be refunded. In other respects the appeal is dismissed. The conviction of the two accused for the offence under section 135 (b) (ii) of the Customs Act is confirmed and the sentence is enhanced to a fine of Rs. 2,000 on each of the two accused, in default to suffer rigorous imprisonment for six months each. Time for payment two months.