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2000 DIGILAW 456 (CAL)

Dindayal Soni v. Subodh Chandra Dutta

2000-09-05

Joytosh Banerjee

body2000
JUDGMENT Joytosh Banerjee, J. This is a proceeding for revision under sections 401 read with 482 of Cr.P.C. filed by the accused/petitioner alleging, inter alia, that he is a certified goldsmith having a valid licence issued by the Gold Control Authorities and such petitioner has been maintaining a statutory register known as GS-13, entries were duly made in respect of 15 pieces of assorted sizes of melted gold. According to the Gold Control Acts and Rules a certified goldsmith can have in his possession primary gold after written complaint filed on 7th January, 1988 by the Assistant Collector of Customs Preventive (legal) against the petitioner under section 135(I)(b)(i) of the Customs Act, 1962 and under section 85(a) of the Gold Control Act, 1968, the learned Chief Metropolitan Magistrate, Calcutta, took cognizance and issued process against the accused and specific allegation levelled against the petitioner, is that on 19.12.86 acting on an information a batch of Officers of the Customs House duly searched the shop premises of the petitioner at 12, Sir Hariram Goyenka Street, Calcutta 700 007 and recovered 3 pieces of gold in the form of folded rod and 15 pieces of gold of assorted size and shape. The markings 9999' were embossed on 2 pieces of gold out of 3 in the form of folded rod. The accused/petitioner could not produce any documentary evidence in support of legal acquisition/possession/importation of the 18 pieces of gold so recovered and so the customs officers seized the entire gold on the reasonable belief that the same had been smuggled into India and are liable to be confiscated under the provision of the Customs Act read with the provision of the Foreign Exchange Regulation Act and also under the Gold Control Act. It is the further allegation that on chemical test, the 3 pieces of gold in the form of folded rod were found to contain 99.9 per cent of gold by weight and out of the remaining 15 pieces of gold, 4 pieces were found to contain 99.7 per cent of gold by weight, 7 pieces were found to be gold alloy containing 95.0 per cent of gold by weight and 4 pieces were found to be gold alloy containing 88.4 percent of gold by weight. It is the further allegation that from the aforesaid facts and circumstances two pieces of gold in the form of gold rod out of 3 pieces were seen embossed with marking 9999' and containing 99.8 per cent of gold by weight as per chemical test report were of foreign origin and had been smuggled into India and acquired by the accused illegally and as such all the 3 pieces of gold in the form of folded rod were liable to be confiscated under the provisions of the Customs Act read with the provision of the Foreign Exchange Act, 1973. It was also alleged that remaining 15 pieces of gold were also of smuggled origin/manufactured from smuggled gold and had been illegally acquired for clandestine disposal and as such are liable to confiscation under the aforesaid Acts. It is the further allegation 3 pieces of gold in the form of folded rod and 15 pieces of gold of assorted size and shape were of primary gOld , which the accused acquired /possessed in contravention of the provision of Gold Control Act and as such are liable to be confiscated under such Act. 2. On the basis of the aforesaid allegations, learned Metropolitan Magistrate, 6th Court, Calcutta in C. Case No. 28/1988 framed charge under section 135(I)(b)(i) of the Customs Act and also under section 85 of the Gold Control Act against the accused/petitioner. Now, the petitioner has come up before this court against the framing of the aforesaid charge contending that in the facts and circumstances of the case and in view of the evidence so far recorded, before the consideration of the charge, the proceeding before the learned Magistrate should be quashed. 3. I have heard the contentions of learned Advocate for the revisionist petitioner as well as the State. The main contention raised by the learned Advocate for the revisionist petitioner regarding the framing of charge under Customs Act, 1962 is that the Commissioner of Customs hereinbefore referred to as the Collector (of Customs did not apply his mind at the time of according sanction for the purpose of launching prosecution against the accused/petitioner. The main contention raised by the learned Advocate for the revisionist petitioner regarding the framing of charge under Customs Act, 1962 is that the Commissioner of Customs hereinbefore referred to as the Collector (of Customs did not apply his mind at the time of according sanction for the purpose of launching prosecution against the accused/petitioner. In this respect my attention has been drawn to section 137 of the Customs Act, the relevant portion of which reads as follows:- "No court shall take cognizance of any offence under sections 132, 133 , 134 or 135, except with the previous sanction of the Commissioner of Customs.......". So it is the contention of the learned Advocate that if the sanction accorded is not proper then the cognizance taken by the court on the basis of such sanction would be bad in law. Learned Advocate for the State on the other hand has contended that sanction has been accorded properly as envisaged in the law. On carefully going through the sanction order for prosecuting passed by the Collector of Customs and which has been marked exhibit 13 in the trial I find that the sanction has been accorded for prosecuting the petitioner for the offences connected with the seizure of 3 pieces of gold in the form of folded rod and 15 pieces of gold of assorted size and shape from the possession of the accused/petitioner, considering the fact that the assay report disclosed that except, the 4 pieces of assorted gold all others had 95 per cent and above fineness of gold and necessarily of foreign origin. Therefore, the sanction order at once goes to indicate that as per the sanctioning authority because the gold seized from the possession of the accused had 95 per cent and above fineness of gold, this would at once indicate that such gold was of foreign origin. But in course of his argument the learned Advocate for the State could not show me any provision in the Customs Act or any provision containing in any rule being framed under the Customs Act which would indicate that if any piece of gold has 95 per cent and above fineness, such gold will be considered as the gold of foreign origin till the contrary is proved. Admittedly in this case there is no marking anywhere in the gold pieces recovered to indicate that those pieces of gold were of foreign origin. According to the prosecution case only 2 out of 3 pieces of gold in the form of folded rod had marking 9999' but that marking cannot lead us to a conclusion on the face of the record that those pieces of gold were of foreign origin. In this way, I find that the authority concerned has failed to indicate in the sanction order how such authority satisfied himself about the origin of the gold thus seized from the possession of the accused. Specially when there is no law whereby it can be said that any gold which has got 95 per cent and above fineness should be presumed to be of foreign origin. In a case reported in 1989(1) CHN 173 (Pranati Textiles and Ors. vs. State of W.B.), a Division Bench of this court held that where a sanction to prosecute was made a condition precedent to any prosecution, as in this case under section 137 of the Customs Act, 1962, such a sanction put in peril the liberty of the person sought to be prosecuted and this could not be an automatic formality and the provisions relating thereto were to be observed with complete strictness. So considering the matter in the light of aforesaid decision it can be said that the sanction to prosecute here was not properly dealt with and therefore it is bad in law. Here I should further add that section 135 (I)(b)(i) of the Customs Act relates to offence for carrying, keeping etc. of any smuggled goods worth Rs.1 lakh. But there is nothing to show that the pieces of gold recovered from the possession of the accused/petitioner were smuggled from out side India. Therefore, no charge under the aforesaid provision can be raised against the accused/petitioner for possessing the said gold pieces. 4. Now, charge under section 85 of the Gold Control Act, 1968 has been framed against the accused/petitioner on the ground that he had in his possession and custody 3 pieces of gold in the form of folded rod and 15 pieces of gold of assorted size and shape and those gold pieces were in primary form. 4. Now, charge under section 85 of the Gold Control Act, 1968 has been framed against the accused/petitioner on the ground that he had in his possession and custody 3 pieces of gold in the form of folded rod and 15 pieces of gold of assorted size and shape and those gold pieces were in primary form. So as the matter stands now, the revisionist/petitioner was charged under the aforesaid provision of the Gold Control Act on the ground that some 18 pieces of gold in primary form were seized from his possession and the accused/ petitioner could not produce any licit document. At the very outset, it should be pointed that section 85 of the Gold Control Act, 1968 provides punishment for illegal possession etc. of gold, in contravention of the provision of the Act. Now, the charge as framed by the learned court below seems to me defective in view of the simple fact that such charge fails to disclose the specific provision of the Act, which has been contravened by the Act alleged to have been committed by the accused/petitioner, viz., possessing in all 18 pieces of gold. The learned Advocate for the accused/petitioner has drawn my attention to section 42 of the Gold Control Act, 1968 which prescribes the limit on primary gold upto 300 gros. In the instant case, P.W. 8 who is the complainant has stated in his evidence that the accused/petitioner had a licence as a goldsmith since 1982. It is the contention of the learned Advocate for the accused/petitioner that under the law, the accused has got the authority to possess primary gold upto 300 gms and there is no indication in the charge framed that the primary gold thus found in possession of the accused was more than such weight. Even if it is found that the accused had more than 300 gros of primary gold, according to the learned Advocate such accused could be prosecuted for the excess gold found in his possession and not for the entire primary gold. But I do not find any force behind the entire argument thus advanced by the learned Advocate for the revisionist/petitioner. As per the evidence, the accused has got a licence issued under section 27 of the Gold Control Act, 1968 for being a dealer of the gold. But I do not find any force behind the entire argument thus advanced by the learned Advocate for the revisionist/petitioner. As per the evidence, the accused has got a licence issued under section 27 of the Gold Control Act, 1968 for being a dealer of the gold. So as the matter stands, the accused was a licensing dealer of gold, but not a certified goldsmith under section 39 of the same Act. If the accused is not a certified goldsmith, it follows that the accused cannot retain any primary gold as per the provisions of section 42 of the Gold Control Act. Still then I am of the opinion that the charge thus framed should be quashed for the following reasons :- Firstly, the court below framed the charge under the aforesaid Act without disclosing specifically the contravention of the particular provision of the Act for which the charge was raised. In the meantime admittedly the Gold Control Act, 1968 is no more in existence. Further admitted position here is that the gold seized from the possession of the accused was returned to the accused by the authority concerned after conclusion of a proceeding initiated in the administrative level regarding confiscation of the gold. Secondly, here the prosecution was launched by filing a petition of compliant in the early part of January, 1988 and for the last 12 years, the matter has been kept pending in the meantime the Act under which the prosecution has been launched has been repealed. 5. Considering the entire facts and circumstances I hold that the revision must be allowed. Accordingly, the revision is allowed and the charge and the proceeding in case No. C/28/1988 be quashed. Let the L.C.R. be returned to the court below with the copy of this order. Revisional application allowed.