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TMI Blog1960 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... rit 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. 408 of 1959 and Sampathraj, petitioner in W.P. 410 of 1959, were partners of the firm trading in bullion at Vellore under the style of Vanechand and Sons. On 9-11-1957 the residence and the shop of the petitioners at Vellore were searched and a total quantity of 171-7/32 tolas of gold was seized. Of these 50 tolas consisting of five bars of ten tolas, each, were seized from the house, and the rest of the gold was seized from the shop. In the gold seized from the shop there were two bars of ten tolas each. The five bars and two bars of ten tolas each referred to above admittedly bore foreign marks, and Bijraj admitted at that stage that those 70 tolas constituted smuggled gold. 3.In the course of a preliminary enquiry Bijraj and Govindaraj, clerk of the firm, admitted transactions with four bullion merchants at Bangalore. Their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven according to the department this is a case where the unlawful import of gold had been completed. To be in possession of the gold, or to sell the gold, or to buy the gold once the process of importation assuming the importation is unlawful is completed and independently of the series of act connected with such importation will not fall within the terms of Item 8 of the schedule". The learned Judge quoted what I had stated in W.P. 691 of 1957: "The knowledge that what he has purchasing was smuggled 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out earlier, there was no evidence to support any possible finding, that any of the petitioners was concerned in the act of smuggling. All that was held established was that the firm purchased the gold with the knowledge that it was smuggled gold. 12. The next question is, whether the order of the Collector directing the confiscation of the gold is also liable to be set aside. In the statement first recorded from Bijraj there was an admission, that the seven bars of ten tolas each which bore foreign marks, were smuggled gold. The endeavour of the learned Counsel for the petitioners was to show that the remaining 101 tolas of gold was liable to confiscation. Learned Counsel contended that the Collector apparently accepted the case of the petitioners, that they maintained two sets of accounts one what was called the regular set of accounts, showing the transaction with the Madras dealers which had nothing to do with smuggled gold, and the other a separate set of accounts, showing the transactions with the Bangalore dealers, which in the opinion of the Collector related only to smuggled gold. Learned Counsel further pointed out that the stock balance as disclosed in the regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent also. It was certainly within the knowledge 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 seized was smuggled gold. I should like to guard myself against recording it as my conclusion, on the evidence on record, whether it was wholly smuggled gold or partly smuggled gold. All I am saying is there was material on which the Collector would come to the conclusion, especially in the absence of any acceptable from the petitioners, that the entire gold seized on 9-11-1957 was smuggled gold, though t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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