Asstt. Collector v. Padamchand — 1979 DIGILAW 1134 (ALL)

JUDGMENT H.N. Kapoor 1. THIS appeal is directed against the order and judgment dated 7-5-1974 of the Addl. Sub-Divisional Magistrate, Etmadpur, district Agra in a case no. 351 of 1973 acquitting the respondent Padamchand, who was a licenced gold dealer of the firm Padamchand Om Prakash. He was charged of an offence under Section 87 of the Gold Control Act read with Section 126 (p) of the Defence of India Rules. 2. THE prosecution case is that the Central Excise Officer made a spot checking on 23-7-1964. At the spot, he was headed by Sheo Narain Sinha, Inspector (PW 1). As a result of checking, it was found that 194 pieces of gold ornaments including two (Reni) of primary gold weighing 809.450 grams of purity exceeding 14 cts. were present to be in excess of the book balance and not accounted for in any record. Further a shortage of 12 rings weighing 27.650 grams were also detected. THE Inspector prepared the seizure report in duplicate. A copy of the same was given to the respondent who had signed that report in token of Having received the same. THE search was made in the presence of Kandhai Lal (PW 2) and Govind Prasad (PW 3) as public witnesses. A list of 194 articles weighing 809.450 grams was prepared. Its value was shown to be Rs. 8,395/-. THE seized articles were sealed in different bundles. Statement of the accused was also recorded by the Inspector, Central Excise at that very time. This statement is Ext. Ka-3. He admitted in his statement that the search was taken of his firm and that 194 articles weighing 809.450 grams of over 14 els. purity were found in respect of which there was no entry in any register. It was also admitted that the accused had not given any declaration in respect of the same. They were detailed) in the recovery memo. That memo bore his signature and the signatures of the two public witnesses. It was further stated that these articles included four churis, and one Arti of a retired Guard who had left them with the accused. They also included a pair of Kara with chain belonging to Madan Mohan Sharma. Confiscation proceedings were started by the department in respect of those articles which were seized. THE Superintendent, Central Excise also filed a complaint on 2-7-1970 before the City Magistrate. They also included a pair of Kara with chain belonging to Madan Mohan Sharma. Confiscation proceedings were started by the department in respect of those articles which were seized. THE Superintendent, Central Excise also filed a complaint on 2-7-1970 before the City Magistrate. THE accused was duly tried. The defence of the accused was that all the articles weighing 809.450 grams which were found at his shop were not meant for sale. He stated that his son had been married about 15 days before and the ladies of the family had gone with his daughter-in-law to Mathura Brindaban. The house was in a dilapidated condition and as such was not safe, for keeping ornaments. The ornaments were, therefore, kept at the shop. With regard to the shortage of 12 rings, he stated that these rings had been sent out for polish. 3. AT this stage it may not be out of place to state, that in the departmental proceedings the Collector, Excise, by his order dated 8-4-1975 accepted the claim of the accused in respect of gold ornaments weighing 136.40 grams that they belonged to Madan Mohan Sharma and Hari Shanker. Such pleas were advanced even at the time of seizure. The Collector did not accept the explanation offered by the accused in respect of the remaining ornaments as belonging to his daughter- in-law as he was of the opinion that such explanation was offered by way of an afterthought. He, therefore, ordered the gold ornaments weighing 673.050 grams to be confiscated with the Central Government. They were allowed to be returned on payment of redemption fee of Rs, 7,000/- and a penalty of Rs. 1,000/-. In appeal, the Gold Control Administrator by his order dated 14-8-1967 reduced the redemption fee from Rs. 7,000/- to Rs. 4,200/- and also reduced the amount of penalty from Rs. 1,000/- to Rs. 200/-. In all other respects, the order of the Collector was maintained. 4. IN support of its case, the prosecution examined Sheo Shanker (PW 1), Kandhai Lal (PW 2) and Govind Prasad (PW 3) all of whom were witnesses of search and seizure. IN defence, Mahabir Prasad (DW 1) and Bhagwan (DW 2) were examined. Both these witnesses stated that the marriage of the son of the accused had taken place a few days before the search. IN defence, Mahabir Prasad (DW 1) and Bhagwan (DW 2) were examined. Both these witnesses stated that the marriage of the son of the accused had taken place a few days before the search. Both of them were passing in front of the shop of the accused at the time of the search. They stopped there. The accused had given an explanation before the officers of the Excise department who had conducted the search that the ornaments belonged to his daughter-in-law and were kept there as the house was not safe. These witnesses also stated that two pieces of gold (Reni) had been given by the father-in-law of his son in that very condition as the locket could not be prepared before the marriage. They were meant for preparing locket and this was the explanation given by the accused. In fact, Kandhai Lal (PW 2) and Govind Pd. (PW 3) have also supported the case of the accused that he had given an explanation before the Inspector conducting the search that these ornaments belonged to his daughter-in law and were kept there for the purpose of safety as ladies had gone out. Both these witnesses as well as the two defence witnesses stated that these ornaments which were in excess were not kept in the show-case but were kept in the iron safe. These two witnesses Kandhai Lal and Govind Pd. were not declared hostile. Sheo Shankar Sinha (PW 1), however, stated that no such explanation was given to him at the time of the search. But he admitted that these ornaments were found in a box kept in the iron safe and were not in the show-case. 5. THE learned Sessions Judge on the basis of this evidence arrived at the conclusion that the ornaments which were found in excess were actually the ornaments belonging to the daughter- in-law of the accused and as such no o)ffence was committed in respect of Jhem as they were not acquired by the accused in his capacity as such licensed dealer. He, therefore, acquitted the accused. He also placed reliance on a Supreme Court decision in the case or Raja Ram Jaiswal v. State of Bihar, 1964 (1)CrLJp. 705 = AIR 1964 SC p. 828 and held that the confession made before the Central Excise Inspector was cot admissible under Section 25 of the Indian Evidence Act. He, therefore, acquitted the accused. He also placed reliance on a Supreme Court decision in the case or Raja Ram Jaiswal v. State of Bihar, 1964 (1)CrLJp. 705 = AIR 1964 SC p. 828 and held that the confession made before the Central Excise Inspector was cot admissible under Section 25 of the Indian Evidence Act. It appears that a subsequent authority of Hon. the Supreme Court in the case of Baduku Joti Savant v. State of Mysore, AIR 1966 SC 1746 was not brought to his notice. In this case, the earlier decision has been distinguished as being an authority under the Special Provisions of Bihar and Orissa Excise Act. In this latter decision, it was clearly held that the confession made before the Superintendent, Customs and Excise was not hit by Section 25 of the Indian Evidence Act. Such an officer may be given powers of a police officer for the purpose of investigation but he cannot be deemed to be a police officer for the purpose of Section 25 of the Indian Evidence Act. 6. LEARNED counsel for the respondent, however, argued that even if this confession is taken into consideration, there is nothing incriminating. The accused had only admitted recovery of 194 articles in respect of which he had not made any entry and had not submitted any return in respect of the same. He had made a special mention about some articles as belonging to the guard and Madan Mohan Sharma. It was argued that it would not mean that in this confessional statement he had made any statement inconsistent with the plea that these articles belonged to his daughter-in-law. Even during the trial the accused did not deny recovery of these articles from his shop. No doubt, it was expected that he would have made a mention about these ornaments belonging to his daughter-in-law also while making this confessional statement. But Kardhai Lal (PW 2) and Govind Pd. (PW 3) have clearly stated that he did make such a statement at the lime of the search. These witnesses were not declared hostile. A similar statement has been made by Mahabir Pd. (DW 1) and Bhagwan (DW 2). It is also clear from the order dated 8-4- 1965 passed by the Collector that he had taken such a plea before the adjudicating officer as well. These witnesses were not declared hostile. A similar statement has been made by Mahabir Pd. (DW 1) and Bhagwan (DW 2). It is also clear from the order dated 8-4- 1965 passed by the Collector that he had taken such a plea before the adjudicating officer as well. LEARNED counsel for the respondent has argued that this Court will not be justified in reversing such a finding of fact arrived at by the lower court while hearing an appeal against an order of acquittal. No doubt when two views are possible, it is not safe to upset the finding in an appeal against the order of acquittal simply because another Judge might have arrived at a different conclusion on the basis of the same evidence. There is also a search memo (Paper No. 22-A/12) showing that the house of the accused was also searched on the same day, that is, on 23-7-1964 but nothing was recovered from the house searched. This circumstance also corroborated the defence plea that the ornaments actually belonged to his daughter-in-law and were kept in the shop-premises for the purpose of safe-custody. LEARNED counsel for the Department has, however, argued that it was not permissible for the licensed dealer to keep any article in the licensed premises without proper entry in the relevant registers. On the other hand, learned counsel for the respondent has argued that under Section 55 of Gold Control Act accounts are to be maintained in respect of such articles only which are "owned, possessed, held, controlled, bought or otherwise acquired or accepted or otherwise received or sold, delivered, transferred or otherwise disposed of, by him in his capacity as such licensed dealer or refiner or certified gold-smithy as the case may be." According to him it is implied that no accounts are to be maintained in respect of the gold articles which had not been acquired or were not to be disposed of in his capacity as licensed dealer. He has also placed reliance on Section 99 in which there is a presumption, that "any person who is in possession, custody or control of any primary gold, article or ornaments shall be presumed, unless the contrary is proved to be the owner thereof." According to him, this section itself contemplates that it is possible to prove to the contrary that a licensed dealer is not the owner. I have seen the relevant forms G. S. 11, G S. 12 and G. S. 13 which are required to be maintained by a licensed dealer. Unfortunately, there is no provision for making entry in these forms about the gold ornaments which might be there not for the purpose of sale of for being disposed of as a licensed dealer. The articles which were kept in the premises were not to be disposed of as a licensed dealer and, therefore, were not required to be entered in the register or in any of these forms. The question to be decided is whether there is absolute bar in keeping such articles in the licensed premises when such articles are not required to be disposed of as a licensed dealer. LEARNED counsel for the department has not been able to place any definite provision on this point. He has, no doubt, rightly argued that if the licensed dealer has a right to keep at his shop ornaments other than those which are meant to be disposed of as licensed dealar in such premises there could be no proper control and he could take such plea in every case that the articles belonged to his family members or even to his close friends. It may be proper to frame rules on this point so as to prohibit any gold article being kept in the licensed premises which article is not meant to be disposed of as licensed dealer or which has not been acquired in such a capacity. Under the circumstances of the present case, even if it is held that no gold articles which were meant for the use of the family members of the accused could have been kept in the licensed premises, all that can be said is that the accused had committed an offence of a very technical nature. There is a clear finding of the lower court fully supported by the evidence on record that the gold articles weighing 673.050 grams did belong to the daughter-in-law of the accused. It appears that the accused has already been amply penalised by the department by the confiscation order in respect of these ornaments. I, therefore, do not consider it proper in the interest of justice to set aside the order of acquittal, holding that the accused has committed an offence of technical nature. In the result the appeal is dismissed. It appears that the accused has already been amply penalised by the department by the confiscation order in respect of these ornaments. I, therefore, do not consider it proper in the interest of justice to set aside the order of acquittal, holding that the accused has committed an offence of technical nature. In the result the appeal is dismissed. The stay order dated 27-7- 1973 is vacated. Appeal dismissed.