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Assistant Collector of Central Excise, Preventive Vs. V.O.S. Ansari - Court Judgment

LegalCrystal Citation
SubjectCriminal;Customs
CourtChennai High Court
Decided On
Case NumberCrl. Appeal No. 833 of 1977
Judge
Reported in1980CENCUS151D; 1982(10)ELT69(Mad)
Acts Customs Act, 1962 - Sections 111, 112, 123 and 135(1); Gold Control Act, 1968 - Sections 85 and 85(1); Code of Criminal Procedure (CrPC) , 1973 - Sections 313, 378(2) and 397(1)
AppellantAssistant Collector of Central Excise, Preventive
RespondentV.O.S. Ansari
Excerpt:
customs act, 1962 - section 153(i)(b)(ii) & gold control act, 1968--section 85(ii).the learned chief metropolitan magistrate should have awarded a separate sentence for the offence under the gold control act while imposing a fine for the offence under the customs act. - .....under section 135(l)(b) (in of the customs act, 1962 and an offence under section 85(ii) of the gold control act, 1968 but failing to award any sentence under section 85(ii) of the gold control act, 1968, while imposing a fine of rs. 2000 for the offence under section 135(l)(b)(ii). the appeal has been filed against the omission on the part of the learned chief metropolitan magistrate to award a separate sentence for the offence under section 85(ii) of the gold control act, 1968, as well.2. before the learned chief metropolitan magistrate both the respondent, v.o.s. ansari (accused 1) and m.k.m. mohammed kassim, the second accused, were tried for an offence under section 135(l)(b)(ii) of the customs act, 1962 and section 85(ii) of the gold control act, 1968. the case of the.....
Judgment:
ORDER

Varadarajan, J.

1. The Assistant Collector of Central Excise, Madras, has filed this criminal appeal under Section 378(2) Crl. P.C., 1973, against the judgment of the learned Chief Metropolitan Magistrate, Madras in CC. No. 22546 of 1976 rendered on 23-8-1977 finding the accused guilty of an offence under Section 135(l)(b) (in of the Customs Act, 1962 and an offence under Section 85(ii) of the Gold Control Act, 1968 but failing to award any sentence under Section 85(ii) of the Gold Control Act, 1968, while imposing a fine of Rs. 2000 for the offence under Section 135(l)(b)(ii). The appeal has been filed against the omission on the part of the learned Chief Metropolitan Magistrate to award a separate sentence for the offence under Section 85(ii) of the Gold Control Act, 1968, as well.

2. Before the learned Chief Metropolitan Magistrate both the respondent, V.O.S. Ansari (accused 1) and M.K.M. Mohammed Kassim, the second accused, were tried for an offence under Section 135(l)(b)(ii) of the Customs Act, 1962 and Section 85(ii) of the Gold Control Act, 1968. The case of the prosecution was this : On 31-7-1972, a party of Central Excise Officials including Thiru Raymond PW 2, Inspector of Central Excise, Headquarters, Preventive, Madias, searched the residence of the second accused at door No. 19 Vydianatha Mudali Street, G.T. Madras in pursuance of a search warrant Ex. P.2, obtained from the Assistant Collector of Central Excise, Madras. At that time both the accused persons and one Alagiriswami of Salem were present in the house of the second accused. No contraband was recovered from the residence of the second accused during the search. But a search of the persons of the accused revealed a gold bar with foreign markings weighing 116-650 grams of 24 carat in the pocket of the first accused respondent. The weight and purity of the gold were ascertained through a goldsmith by name Subramania Asari. According to the prosecution the first accused had no valid permit or other document to prove the licit origin and the legal acquisition of the gold by the first accused. Therefore, under a reasonable belief that the gold bar M.O. 1 had been smuggled into India, it was seized under Ex. P13, attested by P.W. 1 and D.W. 2. The value of the gold seized was Rs. 2800 at that time.

3. On the same day both the accused gave voluntary statements before P.W. 1, the Assistant Collector of Central Excise, Ex. P.l and P.2 respectively. Even Alagiriswami who has not been examined as a witness made the statement as Ex. P.3, admitting his presence in the house of the second accused at the time of the search and seizure. In their statements both the accused stated that the first accused was a servant under the second accused, that the second accused gave Rs. 2800 to the first accused for purchasing a gold bar, that he purchased M.O. 1 through a broker in Sowcarpet at about 11-30 a.m. that he returned to the house of the second accused at about 3 p.m. and that the first accused was keeping the gold in his bag when the officials of the Central Excise department came and seized it from him.

4. Subsequently, show cause notices were issued to the accused under Ex. P.4 and P.5 under the Customs and Gold Control Acts. The respondent and the second accused submitted their replies under Exs. P. 6 and P. 7. The Assistant Collector of Central Excise passed the adjudication order Ex. P. 8 confiscating the gold bar M.O. 1 and imposing a penalty of Rs. 1000 on each of the accused under Section 112(b) of the Customs Act. Subsequently, after obtaining the necessary sanction, prosecution was laid against both the respondent and the second accused.

5. When examined under Section 313 Cr. P.C, both the accused denied the search and seizure and stated that the statements Ex. P.l and P.2 relied on by the prosecution were not voluntary. They examined the Inspector of Central Excise, D.W. 1 and marked a petition Ex. D.l given by the second accused on 1-8-1972 and certain other documents. They examined D.W.2, one of the attestors of Ex. P. 13 to say that no gold was recovered from the person of the first accused in the premises of the second accused.

6. The learned Chief Metropolitan Magistrate rejected the evidence of D.W.2 and accepted the evidence of P. W.2 and found that the respondent, first accused was in possession of the imported gold M.O. 1 worth Rs, 2800, and that the prosecution has not established any of the charges against the second accused. Accordingly, he acquitted the second accused and convicted only the first accused for an offence under Section 135(l)(b)(ii) of the Customs Act and an offence under Section 85(ii) of the Gold Control Act and imposed a sentence of fine only under Section 135(l)(b)(ii) of the Customs Act observing as follows-

'In the result, I find the accused guilty under Section 135(l)(b)(ii) of the Customs Act, and convict him thereunder and sentence him to pay a fine of Rs. 2000 in default to suffer rigorous imprisonment for three months. As the act for which he is found guilty under Section 135(l)(b)(ii) of the Customs Act of 1962, constitutes the offence for which he has been found guilty under Section 85(ii) of the Gold Control Act, 1968, as well, no separate sentence is called for under the latter Section 85(ii) of the Gold Control Act, 1968.'

As stated earlier, this appeal has been filed against the omission of the learned Chief Metropolitan Magistrate to award separate sentence under Section 85 (ii) of the Gold Control Act, 1968.

7. Under Section 111(d) of the Customs Act, 1962 any goods which are imported or attempted to be imported or are brought within the Indian Customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation. Section 135(l)(b)(ii) of that Act lays down that without prejudice to any action that may be taken under this Act, if any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111(b) shall be punishable with imprisonment for a term which may extend to three years or with fine, or with both in case of an offence relating to any of the goods to which Section 123 applies and the market price whereof does not exceed one lakh of rupees. Section 85(1) of the Gold Control Act lays down that no person shall own or have in his possession, custody or control any primary gold. Section 85(ii) of that Act provides that whoever, in contravention of the provisions of this Act, or any rule or order made thereunder owns or has in his possession, custody or control any primary gold shall without prejudice to any other action that may be taken under this Act, be punishable with imprisonment for a term which may extend to 3 years or with fine or with both if the value of the gold involved is a lakh of rupees or less. The offence under Section 135(l)(b)(ii) of the Customs Act, 1962, involves an element of importation of gold within the Indian Customs waters contrary to any prohibition imposed by or under the provisions of that Act or any other law for the time being in force. The offence under Section 85(ii) of the Gold Control Act does not involve any element of importation of gold. The prosecution need not prove the importation of gold for making out an offence under that section, but can succeed if it establishes that the person concerned owned or was in possession or custody or control of any primary gold. Therefore it is not possible to agree with the learned Chief Metropolitan Magistrate that the act for which the respondent has been found guilty under Section 135(l)(b)(ii) of the Customs Act, 1962 constitutes the offence for which the respondent has been found guilty under Section 85(ii) of the Gold Control Act, 1968 and no separate sentence is called for under the latter Section 8500 of the Gold Control Act, 1968 and the learned Chief Metropolitan Magistrate should therefore have awarded a sentence for the offence under Section 85(ii) of the Gold Control Act.

8. It is represented by the learned counsel for the respondent and that fact is not disputed by the learned counsel for the appellant, that C.A. 521 of 1977 was filed by the respondent against his conviction for the offence under Section 135(l)(b)(ii) of the Customs Act and the sentence of fine of Rs. 2000 imposed by the learned Chief Metropolitan Magistrate has been reduced to a sum of Rs. 1000 by the learned VI Additional Sessions Judge, City Civil Court, Madras. Therefore, the sentence of fine of Rs. 1000 has to be and is imposed on the respondent for the offence under Section 85(ii) of the Gold Control Act and in default he shall suffer rigorous imprisonment for three months.

9. Learned counsel for the respondent submitted that the appeal has been filed under Section 378(2) Crl .P.C. which applies only to appeals against acquittals and that since the respondent has been convicted for the offence under Section 85(ii) of the Gold Control Act, in which separate sentence has not been awarded only a revision under Section 397(1) Crl.P.C. 1973, lies and the appeal is not maintainable No doubt Section 378(2) deals with only appeals against acquittals and will not apply to the facts of the present case where this appeal has been filed against the omission by the learned Chief Metropolitan Magistrate to award a separate sentence under Section 85(ii) of the Gold Control Act, 1968. Only a revision should have been filed under Section 397 Crl. P.C. 1973. But it is seen that the judgment in this case was rendered by the Chief Metropolitan Magistrate on 23-8-1977. Though the appellant herein applied for grant of a certified copy of the judgment on 25-8-1977, the certified copy was made ready only on 5-9-1977 and this appeal has been filed on 27-10-1977. Therefore, this appeal has been filed within two months, the period provided for filing a criminal revision case. Therefore, there could be no difficulty in treating this appeal as a criminal revision case and this court going into the correctness, legality or propriety of the finding, sentence or order recorded or passed by the learned Chief Metropolitan Magistrate. Accordingly, treating this appeal as criminal revision case, I allow the criminal revision case and sentence the respondent first accused to pay a fine of Rs. 1000 under Section 85(ii) of the Gold Control Act and in default to undergo rigorous imprisonment for three months. The respondent shall pay the fine afresh if he had withdrawn the difference of Rs 1000 in pursuance of the judgment of the Crl. Ap No, 521 of 1977 and not. otherwise.


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