Skip to content


Ganapathi Shrinivas Seth Vs. the State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1971CriLJ1352
AppellantGanapathi Shrinivas Seth
RespondentThe State of Mysore and anr.
Excerpt:
.....would be clearly guilty of contravening rule 126-p (2) (ii) of the rules. i am therefore of opinion that the prosecution has clearly proved that the petitioner had contravened sub-clause (ii) of rule 126-p (2). in the circumstances mentioned above, there is no question of any defect in the charge and the petitioner has been rightly convicted for the above said offence. the bench has also pointed out that if the gold control rules do not apply to smuggled gold, the very purpose of gold control will be defeated. it may be further pointed out that lordships have failed to advert to the various declarations, particularly, under sub-clause (10), which a person in possession of gold should make under chapter v of the rules dealing with declaration as to the possession of gold other than..........weighing in all 40 tolas worth rs. 6,000/-without a permit or declaration in contravention of the gold control rules and thereby the petitioner committed an offence under rule 126-p (2) (ii) of the rules. therefore, in the instant case, the prosecution has got to prove that the petitioner was in possession of gold in contravention of the rules.it is not disputed that the petitioner had not made any declaration with regard to this gold nor had he got a permit from the administrator as per the rules. under sub-clause (10) of rule 126-1 of the rules, no person who is not a dealer or a refiner, licensed under this part shall acquire, or have in his possession or under his control any quantity of gold required to be declared under this rule. it is therefore clear that being in possession of.....
Judgment:
ORDER

M. Santhosh, J.

1. The petitioner has been convicted for an offence under Rule 126-P (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 Section 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 P.W. 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. P.W. 1 detained the petitioner and informed P.W. Supdt. 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 kaki coloured belt and inside this belt there were four pellets of gold with foreign markings. These gold pellets were seized under the panchanama Exhibit P-8. Thereafter the statement of the accused as per Exhibit 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 Section 135 (b) (ii) of the Customs Act, 1962. He has challenged the correctness of the conviction of the petitioner for the offence of contravening Rule 126-P (2) (ii) of the Rules.

The contention of Sri Mandgi 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 126-P (2) (iv) of the Rules and not for contravening Rule 126-P (2) (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 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 126-P (2) (ii) of the Rules is not correct.

In support of his contention strong reliance has been placed on the decision in M. Kuppuswami Chettiar v. State : AIR1969Mad233 . 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 126-P (2) (iv) and (vi) of the Rules.

4. The learned Central Government Pleader, appearing on behalf of the Assistant Collector, Central Excise, has contended that the Madras decision relied on by the learned Counsel for the petitioner itself points out that if a person is found merely in possession of gold he contravenes Rule 126-1, Sub-clause (10) unless he makes a declaration. If no-such declaration is made by that person even though he may be a carrier of gold he would be contravening Rule 126-P (2) (ii) of the Rules.

It is also pointed out by him that in the said decision the learned Judge has not adverted to Sub-clause (11) of Rule 126-1 of the Rules which states that 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. In the instant case, it is argued that as the petitioner was found in possession of gold the presumption is that he is the owner, unless he proves to the contrary, and as-such he cannot acquire gold without a permit and he would be contravening-' Rule 126-H (2) (d) of the Rules.

It was the duty of the petitioner, when he was found in possession of gold. to have made a declaration under Sub-clause (10) of E. 126-1 of the Rules. The said sub-clause says that no person other than a dealer and a refiner, licensed under this Part, shall acquire or have in his possession or under his control any Quantity of gold required to be declared under this Rule. If no such declaration is made by the person, he would be clearly guilty of contravening Sub-clause (ii) of Rule 126-P (2) of the Rules.

It is also argued that it is open to the authorities to prosecute the petitioner either under Sub-clause (ii) or (iv) of Rule 126-P (2). He would come within both the above provisions and the sentence awarded for both the offences is the same.

It is also pointed out by the Central Government Pleader that Under Section 237, Criminal P.C. it is open to the court even though the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that Section, to convict him of the offence which he is shown to have committed, although he was not charged with it.

It is further contended that even if there is any error, omission or irregularity in the charge, as per Section 537, Criminal P.C. no finding, sentence or order passed by the Court of competent jurisdiction shall be reversed merely because of any error, omission or irregularity in the charge including any misjoinder of charges unless such error, omission or irregularity has occasioned a failure of justice.

5. The second charge framed against the petitioner under the Rules was that he was found in possession of four pellets of gold of foreign mark, weighing in all 40 tolas worth Rs. 6,000/-without a permit or declaration in contravention of the Gold Control Rules and thereby the petitioner committed an offence under Rule 126-P (2) (ii) of the Rules. Therefore, in the instant case, the prosecution has got to prove that the petitioner was in possession of gold in contravention of the Rules.

It is not disputed that the petitioner had not made any declaration with regard to this gold nor had he got a permit from the administrator as per the Rules. Under Sub-clause (10) of Rule 126-1 of the Rules, no person who is not a dealer or a refiner, licensed under this Part shall acquire, or have in his possession or under his control any quantity of gold required to be declared under this rule. It is therefore clear that being in possession of gold without making the said declaration, would be a contravention tion of the provisions of the Rules and would be punishable under Sub-clause (ii) of Rule 126-1 (2) of the Rules.

As the petitioner was in possession of gold, the presumption under Clause (11) of Rule 126-1 that he is the owner would also arise. As owner he has acquired possession of the gold without a permit in contravention of the Rules and of the Rules and is equally liable to be convicted under Sub-clause (ii) of Rule 126-P (2) of the Rules.

6. The learned Central Government Pleader is right in pointing out that in the decision in M. Kuppuswami Chettiar v. State : AIR1969Mad233 , the court has pointed out that if the requisite declaration under Sub-clause (10) of Rule 126-1 of the Rules has not been made by a person who is in possession of the gold, even though he may be a carrier, he would be contravening Sub-clause (ii) of Rule 126-P (2) of the Rules. At paragraph 9 of the said Judgment, it has been observed as follows:..It is very significant to note that in contradistinction to the language used in Rule 126-P (2) (iv), Rule 126-P (2) (ii), creates a separate offence for mere possession of any quantity of gold in contravention of Rule 126-1 (10). Rule 126-P (2) (ii) is as follows:

Whoever has in his possession or under his control any quantity of gold in contravention of any provision of this part shall be punishable....If the petitioner has been convicted under this Rule the conviction would have been perfectly justified.

The Madras decision relied on by the learned Counsel for the petitioner clearly lays down that if a person who is in possession of gold has not made any declaration as per Sub-clause (10) of Rule 126-1 of the Rules, he would be clearly guilty of contravening Rule 126-P (2) (ii) of the Rules. In the said decision the Court set aside the conviction of the accused under Rule 126-P (2) (iv) and (vi) on the ground that the petitioner has not acquired the gold but was only a carrier of gold.

The learned Central Government Pleader is also right in his submission that the Madras decision has not considered Sub-clause (11) of Rule 126-1 which lays down that even a person in possession or control of any gold, not being ornament, shall be presumed, until the contrary is proved, to be the owner thereof. In the instant case, once the petitioner was found in possession of gold or having control over the gold, not being ornament, it shall be presumed that he is the owner of this gold, unless he proved to the contrary.

Relying on the presumption, it is open to the prosecution to contend that whenever a person is found in possession of gold or having control over any gold, unless the contrary is proved that he is the owner thereof and that unless he gets a permit from the administrator he would be contravening the provisions of the Rules. It may also be pointed out that in the instant case, there is. in addition, the statement of the petitioner marked as Exhibit P-9, wherein he has admitted that he had purchased this gold at Bombay. So, the prosecution, in the instant case, has also made out that the accused had purchased or acquired the said gold without the requisite permit.

7. The contention that the petitioner should have been convicted only under Sub-clause (iv) of Rule 126-P (2) has no force. It is no doubt true that the petitioner could have also been convicted of contravening Sub-clause (iv) of Rule 126-P (2). As already pointed out, the conviction of petitioner under Sub-clause (ii) of Rule 126-P (2) is fully justified. I am therefore of opinion that the prosecution has clearly proved that the petitioner had contravened Sub-clause (ii) of Rule 126-P (2). In the circumstances mentioned above, there is no question of any defect in the charge and the petitioner has been rightly convicted for the above said offence.

8. It is next contended by Sri Mandagi that the Gold Control Rules do not apply to smuggled gold and the finding in the instant case is that the petitioner was found in possession of smuggled gold. There is no force in this contention. I have dealt with this point fully in the order made in Cri. Revn. Petn. No. 630 of 1970 (Mys) (K. Vishnu Moorthy v. State of Mysore). I have pointed out in the said order that this question is concluded by two Bench decisions of this Court, viz., Criminal Appeal No. 271 of 1965 (Mys) (Supdt. of Central Excise v. N. T. Alvi) and (1968) 1 Mys LJ 17 (Supdt. Central Excise v. U. N. Malaviya).

When the above said contention was put. forward by Sri Mandgi in Cri. Appeal No. 271 of 1965, (Mys) a Bench of this Court negatived the said contention and pointed out that the definition of gold under the Rules means gold, including its alloy, whether virgin, melted, re-melted, wrought or unwrought, in any shape or form and does not exclude smuggled gold. The Bench has also pointed out that if the Gold Control Rules do not apply to smuggled gold, the very purpose of gold control will be defeated.

In the decision in Aravindamohan Sinha v. Prohlad Chandra Samanta : AIR1970Cal437 , relied on by the learned Counsel for the petitioner, with great respect, the court had not considered the definition of gold under the rules which does not exclude smuggled gold. It may be further pointed out that Lordships have failed to advert to the various declarations, particularly, under Sub-clause (10), which a person in possession of gold should make under Chapter V of the Rules dealing with declaration as to the possession of gold other than ornament to be made under Rule 126-1. If the intention of the Legislature was to exclude smuggled gold from the Rules, it would have specifically stated so. There is therefore no force in the contention of Sri Mandgi that Gold Control Rules do not apply to smuggled gold.

9. No other contention has been raised before me in this case by Sri Mandgi. For the reasons mentioned above, there is no merit in any of the contentions put forward on behalf of the petitioner and the revision petition is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //