ASSISTANT COLLECTOR OF CENTRAL EXCISE Vs. MAMMU

JUDGEMENT

(1.) THE appeal is filed by the accused in C.C. No. 404 of 1975 on the file of the Additional Judicial First Class Magistrate, Ernakulam. He has been convicted under Section 135(1)(b)(ii) of the Customs Act, 1962 and Section 85(ii) and (ix) of the Gold (Control) Act, 1968 and sentenced to pay a fine of Rs. 500and in default to undergo simple imprisonment for three months under the former offence. No separate sentence was awarded for the latter offence. The revision is filed by the complainant, Assistant Collector of Central Excise, Ernakulam, challenging the sentence imposed under the Customs Act and the non -imposition of the sentence under the Gold (Control) Act.

(2.) THE prosecution case can be summarised as follows: -On the night of 30th October, 1968, P.W. 3, the Sub -Inspector attached to the X -Branch Vigilance Section of Police, got information that the appellant is engaged in the business of gold smuggling and is a black -marketeer and is secreting contraband gold, etc., in his house. He gave a report exhibit P8 to P.W. 2, the Sub -Inspector of Police, Narakal, who collected witnesses, prepared search memo exhibit P7 and sent it to Court and proceeded to the house of the appellant and searched the house in the presence of witnesses and found five gold bars, M. O. 1 series, wrapped in a paper kept in the drawer of a table in his bedroom and further search revealed a sum of Rs. 12,000 in currency notes. The gold bars have foreign markings and prima facie appeared to be smuggled gold in the shape of primary gold and the appellant had no reasonable explanation for possession of this gold. The gold and the currency notes were seized under exhibit P5 search list. In the early hours of the morning on 31st October, 1968 P.W. 2 registered a case as Crime No, 120 of 1968 under exhibit P6 F.I.R. against the appellant for offences under the Gold (Control) Act and the Customs Act. The F.I.R. and the material objects were sent to the Court. P.W. 2 transferred the case to the Excise Department and informed the Court accordingly. On a request by the concerned officer of the Excise Department, the articles seized were handed over to him for further investigation. The gold was caused to be analysed by a competent Chemical Examiner. Adjudication proceedings were held which resulted in exhibit P3 order under which the gold was confiscated absolutely under Section 111(d) of the Customs Act, 1962, a penalty of Rs. 10,000 was imposed on the accused under Section 112(b) of the Customs Act, and a penalty of Rs. 5,000 was imposed under Section 74 of the Gold (Control) Act by the Collector of Customs and Central Excise, Cochin. The currency notes were returned to the appellant as he established that the currency notes represented the cash balance of his textile business. The Additional Collector of Customs, Cochin, gave exhibit P1 sanction under the Customs Act for prosecution. The Collector of Customs granted exhibit P2 sanction for prosecution under the Gold (Control) Act. Accordingly the Assistant Collector of Customs and Central Excise, Ernakulam Division, laid the complaint against the appellant before the trial Magistrate.

(3.) THE prosecution case in brief is that on the night of 30th October, 1968, the appellant was found to have secreted five gold bars (primary gold of foreign origin) in the drawer of his table in the bedroom of his house and thereby committed the alleged offences, since import of gold is prohibited and its possession is not supported by any lawful authority. The five gold bars were seized as a result of the search conducted by P.W. 2, the Sub -Inspector of Police, Narakal. The search and seizure have been challenged on two broad grounds, namely, that the Sub -Inspector of Police is not a 'proper officer' entitled to search under Section 105 of the Customs Act and therefore the search is illegal and the evidence of search is unacceptable.