TMI Blog1960 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... tions and the affidavits filed in support thereof, the common order of the High Court dated 30-4-1959 and made herein and the records relating to the order of the respondent bearing reference No. D.A. Dis. No. VIII/10/259/57 Cus. (Adj) dated 12-12-1958 so far as the petitioner in each of these petitions is concerned and comprised in the return of the Respondent in these petitions to the writ made by the High Court and upon hearing the arguments of Messrs. S.K.L. Ratan and J. Satyanarayana, Advocates for the petitioner in all the petitions and of the Government Pleader on behalf of the Respondent in all the petitions the Court made the following Order Vanechand, the petitioner in W.P. 409 of 1959. and his two sons, Bijraj, petitioner in W.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Bijraj, Rs. 10,000/- on Vanechand and Rs. 10,000/- on Sampathraj. He also imposed penalties of varying amounts on the four bullion merchants of Bangalore, to the details of which it is unnecessary to refer at this stage. 6. Thus two sets of punishments were imposed upon the petitioners: (i) the gold was confiscated on the footing, that the entire quantity seized from the house and the shop of the petitioners was smuggled gold and (ii) each of the petitioners was fined under Section 167(8) of the Sea Customs Act. The requirements of Section 167(8) to justify the imposition of the penalty of confiscation are proof that the gold in question is smuggled gold, whoever might have been the person who factually smuggled the gold. For the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggled gold, would not be evidence of participation in the act of smuggling itself, which is what is constituted an office under the first column of Section 167(8). To put it in other words, even if the act of purchase constituted the petitioner an accessory after the fact, that would not suffice to hold that the petitioner was 'concerned in the offence' specified in the first column of Section 167(8). Even if a person purchases gold with the full knowledge that that gold has been smuggled into the country that by itself will not constitute him a person concerned in the antecedent and completed act of smuggling. It was only on proof that the petitioner was concerned in one or the other of the offences set out in the first column of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners, the imposition of the personal penalty on each of the petitioners will have to be set aside. 11. There is one other feature which deserves notice. Penalties were imposed on each of the three partners of the firm. In the course of the enquiry before the Collector, Vanechand and Sampathraj virtually disowned any knowledge of the transactions in bullion, which according to them were being looked after solely by Bijraj. Whether that plea was true or not was not even considered by the Collector of Central Excise. Obviously the penalty prescribed by Section 167(8) can be inflicted only upon the person concerned in the offence that is the offence of smuggling, and to justify a penalty on each of the petitioners there must have been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng confiscation of anything more than the 70 tolas of gold, which at one stage Bijraj admitted to be smuggled goods. 13.The real question to which I have to address myself at this stage is, whether there was material on which the Collector could come to the conclusion, that the entire quantity of the gold seized 71 7/32 tolas, was smuggled gold. Virtually it was admitted by Bijraj at one stage that 70 tolas ot these were smuggled gold. There was certainly material on which the Collector could not, despite that Bijraj claimed later. Thus there was certainly material for holding that a portion of the gold seized was smuggled goods. Then there was evidence that the petitioners' firm dealt with the Bangalore firms, and there was material on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge of the petitioners-firm, or whoever was in charge of it, how much of the gold that was in stock on 9-11-1957 had been purchased from any given dealer. If the gold purchased from various dealers had been melted to form blocks, it was certainly open to the petitioners to have offered that explanation and to have proved it by acceptable evidence. In other words, it was certainly open to the petitioners to show on what basis they came to be in possession of a block weighing 80 tolas when that was seized on 9-11-1957. In the absence of any definite explanation even from the petitioners, it was certainly open to the Collector to draw a conclusion, that whatever might be the stock position disclosed in the regular accounts, the entire gold sei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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