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TMI Blog1979 (8) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... nant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. Mr. J.N. Ghose, learned Advocate appearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in possession, control or custody of the accused petitioner. There is evidence on record that the petitioner was the tenant of the flat in question. Apart from that, there is no cogent evidence on the important question whether he used the bedroom in question in which almirah was found, wherefrom the primary gold was detected on search. In this respect, we can refer to the evidence given by P.W. 6 Madan Kumar Sil. He has stated in his cross-examination that he cannot say which particular bed of the room in the flat was being used by which particular inmate of the house and he cannot even say who is the owner of the particular articles seized. 6. Here we can pause for a moment, because Mr. J.N. Ghose has contended that in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position of a person being in possession of primary gold and of a person being in possession simply because he is the head of the family. The matter does not end here. The clear prosecution case is that the key of the almirah was supplied by the wife of the accused petitioner and the accused was then absent. 8. Now, we refer to the provisions of Sections 98B(1) and 99 of the Act. Section 98B(1) of the Act says :- In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be open to the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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