TMI Blog1974 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... with R 126 P (2) (ii) of the Defence of India (Gold Control) Rules sentenced to pay a fine of Rs. 2,000/- under charge No. 1. Under Charges 2 and 3 he was further sentenced to undergo simple imprisonment for six months and to pay a find of Rs. 1,000/- under each charge, the substantive sentence of imprisonment to run concurrently. 2.The prosecution case is this : P.W. 2 Kothandabalan, the Preventive Officer attached to Madras Customs House while he was on duty at about 10 a.m. on 5th August, 1967 on suspicion intercepted a car bearing No. MPG 8131 at the junction of N.S.C. Bose road and Mint Street along with P.W.1. Balasubramaniam who was also an officer attached to the Madras Customs House. The appellant and Accused-2 were travelling i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gold Control Rules to possess an alloy consisting of gold and silver, that he melted silver and silver vessels, zari gold and Gold ornaments belonging to his family in a refinery prior to the enforcement of Gold Control Rules and made it into 27 bars, zari that the material evidence of 27 bars were destroyed without keeping one bar or a bit in the original form, that the gold contents in the bars were not above 9 carats purity and, therefore, no offence under the Gold Control Rules was committed, that the bills pertaining to purchase of silver recovered from him did not pertain to the siver in dispute, that the letters seized on the search do not reveal any shady transactions, that his brother-in-law Nanakchand Jain (accused 2) had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of only 8.8 carat purity. 10."Gold" is defined in Section 2 (j) of the Gold (Control) Act, 1968 as follows :- "Gold" means gold, including its alloy (whether virgin, melted or re-melted, wrought or unwrought) in any shape or form, of a purity of not less than nine carats and includes primary gold, article and ornaments". It is, therefore, clear that the possession of gold of less than 9 carats purity is not an offence under the Gold Control Act. 11.In this case, the prosecution has let in evidence to show that what was contained in the alloy was 9.54 carats. There is a slight margin by 0.54 carats which would bring it within the meaning of `gold'. According to the appellant, the slight margin might be due to an error in refinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possibility of an error as admitted by P.W. 8 the officers of the Customs should have kept at least one silver bar out of 27 bars for the purpose of giving an opportunity to the appellant to have it tested through court by an expert. The natural justice requires, when a man challenges that he should be given an opportunity to demonstrate his stand by due process. This opportunity has been denied by the officers to the appellant. Especially when the margin is very little, it would be very difficult to say that P.W. 8 would not have committed any error, though he would concede that the error will be of a lesser margin. In my opinion, the failure to give an opportunity to the appellant to demonstrate his case that what was contained in the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents. 14.The learned Chief Presidency Magistrate has made certain comments in respect of some documents seized and also the explanations given by the appellant. It is quite unnecessary to deal with them as I am of the view that the prosecution has failed to establish beyond reasonable doubt that the gold contained in the alloy was more than 9 carats of purity. There is possibility of an error in the test and that possibility cannot be eliminated. The convictions and sentences imposed on the appellant under charges 2 and 3 as mentioned above, are set aside. 15.In respect of the offence under Section 135 (b) (ii) of the Customs Act, (charge No. 1) the learned Chief Presidency Magistrate found that the appellant was in possession of gold o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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