PADAM CHAND JAIN Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The petitioner has been prosecuted for offences punishable under Section 135(b) of the Customs Act, 1962 and under Section 85 of the Gold Control Act, 1968, Simultaneously, the said respondent started adjudication proceedings against the petitioner on the same set of facts on issuance of show cause notice under the Customs Act 1962 and the Gold Control Act, 1968 thereby asking the petitioner to explain as to why the seized gold and gold ornaments vide Panchnama dated 18th January, 1983 should not be confiscated and why penalty be not imposed on the petitioner. It is against this action of the respondents that the petitioner has filed the present petition for quashing the prosecution regarding the seized gold weighing 143.500 gms. only.

(2.) In nutshell the case of the Department is that on 18th January. 1983, the officers of gold (Preventive) Cell, New Delhi searched the shop premises of the petitioner. From the search conducted by the officers, the gold ornaments and primary gold weighing 2460.500 gms. were recovered for which the petitioners could not explain. Therefore, the primary gold and the gold ornaments were acquired and taken possession of. Therefore, these gold ornaments and the primary gold were seized. They were got tested and were found to be of purity. The possession, custody or control of the primary gold is a contravention of Section 8 of the Gold (Control) Act, 1968. The gold articles were presumed to have been made out of the smuggled gold and rest of the pieces of gold were acquired in Contravention of the Provisions of Gold (Control) Act, 1968 and the same were also confiscated. From this the petitioner was prosecuted and the complaint filed in the Court.

(3.) The petitioner look up the plea that he was not present when his shop was searched. That the ownership of the primary gold and the gold ornaments have been thrust upon him. Even the Panchnama does not indicate that the recovery was effected from the petitioner nor does it mention that the iron safe from which the alleged recovery of seized property had been effected belonged to the petitioner. No expert official was called to weigh and test the purity of the gold alleged to have been recovered. During the adjudication proceedings the petitioner replied to the show cause notice. However, without considering the reply filed by the petitioner, the adjudication proceedings were concluded. Sufficient opportunity was not granted to the petitioner. He was not allowed to cross examine the officers of the Gold (Preventive) Cell. Aggrieved by the order passed by the respondent on the conclusion of the adjudicalion proceedings, that petitioner filed appeals. The appellate authority after considering the contention of the parties passed the order directing the respondent to drop the proceedings and also set aside the penalty. The appellate Tribunal upheld the contentions of the petitiners raised in the appeals and ordered that the respondent should release the gold and the gold ornaments weighing 2193.00 gms. Further ordered that the petitioner shall redeem the gold weighing 341.500 gms. on payment of Rs.5,000.00 with further condition imposed on the petitioner that the gold will be converted into ornaments immediately on receipt of the same. Against the order of the appellate Tribunal no appeal was preferred by the respondents.