TMI Blog2001 (9) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... pay a fine of Rs. 2,000/- in default to further undergo R.I. for six months, for the above noted offences under Sec. 85 of the Act, 1968. The sentences were ordered to run concurrently. Appeal preferred against that judgement was heard and dismissed by the 1st Additional Sessions Judge, Cuttack in Criminal Appeal No. 93 of 1990, vide the impugned judgment dated 4-5-1994. The appellate Court concurring with the findings maintained the order of conviction and sentence passed against the petitioner by the trial Court. 2.Prosecution case is that on 11-11-1984, on conducting a search by the officials of the Central Excise and Customs on the strength of a search warrant, they recovered and seized on such search primary gold, gold ornaments and gold weighing apparatus, besides gold of foreign origin weighing 3170.800 grams valued at Rs. 4,09,971.95 paise besides the containers. 3.Defence of the accused during the trial was several fold viz : (i) The premises which was searched i.e., the drawing-cum-bed room in the up stair does not belong to the petitioner but that is the property in possession of one of his sons. (ii) he was not in possession of the seized article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d till the High Court. 6.In the trial Court as well as the appellate Court, various contentions which were raised here were also raised but rejected by the Courts below. Those contentions are : (1) Petitioner was not the owner and in possession of the house searched and therefore allegations cannot be made against him for anything recovered during, that search; Alternatively, the seized articles have not been proved to be primary gold and gold of foreign origin and, therefore, petitioner cannot be convicted on the allegation of possession of such articles either under the Act, 1962 or under the Act, 1968. (2) the sanction accorded for prosecution against the petitioner was without due application of mind to the materials available on record and, therefore, it be regarded as absence of a valid sanction; (3) adverse inference should be drawn against the prosecution for not examining the independent witnesses and the discripancy in the evidence of P. Ws 1 and 2 are sufficient to discard the prosecution case. 7.As noted above, while convicting the petitioner, the trial court and also the appellate Court have rejected the aforesaid contentions. In course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 has weighed and tested the gold and gave his statement to that effect under Ext. 4 and his statement regarding weighment and purity of gold was mentioned in the 'Panchanama' as per Ext. 3." (From paragraph 17 of the original judgment at page 14) and "Hence the learned trial court has rightly not believed his statement in the court, but came to a conclusion with the aid of the evidence of P.Ws 1 and 2 and the glaring documentary evidence, Exts. 3 and 4 that he was the person present, witnessed all the seizure of gold ornaments, articles, gold biscuits, primary gold, made weighment and certified them to be gold and that those are more than 9 carat purity. Hence, the learned trial court was right in coming to a conclusion that primary gold, gold ornaments and gold biscuits were seized from the possession of the appellant". (From paragraph 17 of the Original judgment at pages 16-17) 10.Learned Counsel for the petitioner argued that the aforesaid findings are not only illogical but also based on surmises and, therefore, perversal in as much as neither in Ext. 3 nor in Ext. 4 any statement has been made regarding the seized articles to be gold or gold ornaments having 9 carats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.W. No. 1 read as hereunder : XXX"3. XXX XXX XXX XXX XXX XXX Inside the stainless steel box there was one Gold Biscuit with foreign making. On the gold biscuit, its weight was marked and "Johnson matchary London" was also marked. Below it the figure '9990' was also marked. A small piece of gold was previously cut away from the corner of the gold biscuit. Besides it some molten pieces of gold were also found inside the stainless steel box. All these items were primary gold." 14.P.W. No. 1 has not stated in his examination-in-chief as to how he opined that the said gold biscuit is of foreign origin. The complainant is also silent in that respect. In the cross-examination, P.W. No. 1 in that context stated that : "The spelling of the 'incription' (should be 'inscription') on the seized gold biscuit is 'JONSON METHERY'. I have not ascertained as to whether there is any foreign company under the title "JONSON METHERY'. I do not know whether our office is having a list of foreign companies dealing with gold biscuits. I have not sent the seized gold biscuit to our experts and to the mint to ascertain for ' their opinion that the seized gold biscuits was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of any evidence whatsoever. The evidence led by the prosecution, i.e. the oral evidence of P.Ws 1 and 2, the seizure list (Ext. 3) and statement of D.W. No. 1 and the Ext. 4 do not individually or conjointly prove that the gold biscuit was of foreign origin. Therefore, the finding recorded by the Courts below relating to the offence under Section 135(1)(b) of the Act, 1962 is devoid of merit. 17.The provision in Section 137 of the Act, 1962 provides that the Court shall not take cognizance of any offence under Secs. 132 to 135 of the said Act, except with the previous sanction of the Collector of the Customs. In Doki Sriramulu (Supra), this court has held that : "It is too well known that the sanction contemplated under the aforesaid provisions is not an empty formality and prosecution must establish that the facts constituting the offence have been considered by the authority before sanctioning prosecution. Further, a sanction which itself exhibits non-application of mind is vitiated in the eye of law". The facts and evidence noted above goes to show that there was absolutely no evidence whatsoever to prima facie believe that the gold biscuit was of foreign origin or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for that reason the Ext. 1 cannot be excluded from reading the term 'authorisation' given for filing of the complaint in accordance with the provision of sub-sec. (1) of Section 97 of the Act, 1968. In other words, the authorisation is found to be in accordance with law for maintaining the complaint against the petitioner for the allegation of the offence under Sec. 85 of the Act, 1968. 19.Another argument which was advanced by the petitioner while challenging the conviction under Sec. 85 of the Act, 1968 is that the ornaments seized belong to different persons who had pledged the same with one Satyanarayan Soraf and the petitioner has explained that in Ext. 5 It was argued that if Ext. 5 has to be read in evidence, the entire statement should be read together, and if that be done, then the petitioner cannot be found to be in possession of those gold ornaments by entering into the money lending transaction or otherwise. Indeed Ext. 5 is to be read as a whole both relating to the inculpatory and exculapatory statements made therein by the petitioner. In that respect petitioner's inculpatory statement is found to be corroborated by the other evidence on record. It is to be seen i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concurrent finding on fact by the Courts below is neither illegal nor erroneous. Therefore, there is nothing to interfere with the order of conviction under Sec. 85 of the Act, 1968. 20.To sum up the aforesaid findings and the conclusion thereof, it is held that : (i) Prosecution has proved the factum of search of the premises under occupation of the petitioner and recovery of gold ornaments and primary gold from his possession as per seizure list. Ext. 3. In that respect assessment of evidence by the trial Court vis-a-vis the defence plea of the petitioner regarding the premises not belonging to him has been done on due scrutiny and proper appreciation of evidence on record and such findings being neither illegal nor erroneous, is not interfered with by this Court in exercise of the revisional power. (ii) Petitioner being prosecuted for the offence under Sec. 135(1)(b) of the Act, the evidence on record does not prove that the gold biscuit which was seized from the possession of the petitioner was a piece of imported gold or gold of foreign origin liable to be confiscated under Section 111 of the Act, 1962. In that context, the sanction order of the Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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