SHAH GUMANMAL Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment dated August 18, 1973 of the Andhra Pradesh High Court. The facts of the case have been detailed in the judgment of the High Court and it is not necessary to repeat them all over again. The appellant was tried by the Magistrate for offences under S. 135 (b) (ii) of the Customs Act, 1962 and S. 85 (ii) read with S. 8 (i) of the Gold Control Act, 1968 and sentenced to rigorous imprisonment for nine months under each count. Both the sentences were directed to run concurrently. Sentences of fine were also imposed. The Sessions Judge, on appeal, set aside the conviction and sentence under the Gold Control Act and acquitted the appellant of that charge for the reason that the requisite sanction for his prosecution was not accorded, but maintained the conviction and sentence of the appellant under S. 135 (b) (ii) of the Customs Act. Thereafter, the appellant went up in revision to the High Court which confirmed the conviction and sentence upheld by the Sessions Judge. Then the appellant moved this Court and this appeal is by special leave.

(2.) The allegations made against the appellant may be briefly stated. On 16-4-1971 P. W. 4, Superintendent of Central Excise issued a warrant (Ext. P-3) authorising P.W. 3 and another Inspector to proceed to the house of the appellant at 6.30 a.m. P.W. 3 called P.W. 1 and one Nihalchand as mediators and informed them that the accused had concealed gold biscuits of foreign origin in his house and hence it was decided to search his house. When the search was conducted, the accused was directed to produce the gold biscuits of foreign origin in his possession. The accused denied that he possessed any but the Excise Officials searched the house and found in a secret chamber of an iron safe, which was opened by the accused with the keys in his possession, a bundle containing 28 gold biscuits and half biscuit marked as M.Os. 1-29. All these biscuits bore foreign markings. In another secret chamber were found gold earrings in plastic boxes and a bundle of currency notes. The accused was then questioned in the presence of the witnesses and he stated that he had been receiving gold biscuits from some unknown person from Bombay and that the other articles belonged to him and his mother. On being questioned further, the accused admitted that he had no general or special permit from the Reserve Bank of India or the Gold Control Administrator to import or keep foreign gold. The statement of the accused was recorded and is marked Ext. P4. Before launching a prosecution, the Collector of Central Excise issued a notice calling upon the appellant to show cause why M.Os 1 to 51 be not confiscated and penality levied. The accused gave his explanation, Ext. P7. Thereafter, the Collector passed orders of adjudication confiscating the articles and imposed a penalty of Rs.5,000. On appeal, the confiscation of jewellery and cash was set aside. Subsequently, P.W. 5, the Assistant Collector of Customs filed a complaint for the prosecution of the appellant under the Customs Act. We have already mentioned that the prosecution and conviction under the Gold Control Act was set aside for lack of proper sanction. It is also admitted by the prosecution in the instant case that as no seizure was made in accordance with the provisions of the Customs act, the presumption under S. 123 thereof was not available to the prosecution.

(3.) S. 135 (1) (b), under which the appellant has been convicted, runs thus:-