- (1.)The petitioner has been convicted for an offence under Rule 126P(2), (ii) of the Defence of India Rules, 1962, which will hereinafter be referred to as the Rules, and sentenced to undergo imprisonment for six months and to pay a fine of Rs.500. He has further been convicted for an offence under S.135(b)(ii) of the Customs Act, 1962, and sentenced to pay a fine of Rs.500 in default to undergo simple imprisonment for 90 days. The appeal filed by the petitioner against the said conviction and sentence was dismissed by the learned Principal Sessions Judge, Belgaum. In this revision, the petitioner challenges the legality and correctness of the said conviction and sentence passed on him.
(2.)The prosecution case is that on 27-5-1965 PW.1 Kami, the Inspector of Excise, Belgaum, noticed the accused sitting in a compartment of Poona-Bangalore Mail train at about 11-30 hours. As he suspected that the accused was carrying some contraband goods, he questioned the accused and thereafter he touched the body of the accused and on the right side of the leg he found something hard below the knee joint underneath the pant of the petitioner. PW.1 detained the petitioner and informed PW.2 the Superintendent of Central Excise. When the petitioner was searched in the presence of the panchayatdars, it was noticed that he was having a bandage tied up below his right knee; inside this bandage there was a khaki coloured belt and inside this belt there were four pellets of gold with foreign markings. These gold pellets were seized under the panchanama Ex.P-8. Thereafter the statement of the accused as per Ex. P-9 was recorded. After getting the necessary sanction and consent to prosecute the petitioner, a complaint was filed against him.
(3.)Sri Mandagi, the learned Counsel appearing on behalf of the petitioner has not challenged the conviction of the petitioner under S.135(b) (ii) of the Customs Act, 1962. He has challenged the correctness of the conviction of the petitioner for the offence of contravening R.126P(2) (ii) of the Rules. The contention of Sri Mandagi is that acquisition of gold is different from mere possession of gold. It is argued that a person can be in possession of the gold without acquiring the same and that possession does not necessarily mean acquisition. It is contended that the accused is charged for possession of gold without a permit and permit is required only for acquisition of gold and not for possession. The argument is that the petitioner if at all could have been convicted for contravening Rule 126P(2) (iv) of the Rules and not for contravening Rule 126P(ii) of the Rules. Mere possession of gold is not an offence under the Rules and that a permit is required only if a person buys or acquires gold. For a declaration to be made under sub-clause(5) of the Rule 126-1, thirty days time is given. In the instant case the period of thirty days has not elapsed. It is therefore argued that the conviction of the petitioner for contravening Rule 126P(2) (ii) of the Rules is not correct. In support of his contention, strong reliance has been placed on the decision in M.Kuppaswami Chettiar v. State, AIR 1969 Mad 233. In the said decision it has been pointed out that the word 'acquire' means, to gain or get as one's own or to become the owner of the property. In that case, as the accused was only a carrier of gold, the Court set aside his conviction for contravention of Rule 126P (2) (iv) and (vi) of the Rules.