ASST COLLECTOR OF CENTRAL EXCISE Vs. GEORGE

JUDGEMENT

(1.) The Assistant Collector of Central Excise, Trichur is the appellant. He challenges the acquittal of the accused in C C. 43 of 1985 on the file of the Additional Chief Judicial Magistrate, Economic Offences, Ernakulam. The accused was tried on two counts, viz., for the violation of S.27(7)(b) and 53 of the Gold (Control) Act, 1968; these offences are made punishable under S.85(1) of the Act.

(2.) The accused is a geld dealer having his place of business at Trichur in the name and style "Chemmannur Jewellers." PW 1, the Superintendent of Preventive Unit, Trichur searched the premises of the place of business of the accused on 23-9-1981 between 10 45 a.m. and 7 p.m.. The accounts maintained in the shop were verified and the entire stock of gold was also physically verified. As per the account, the accused should have a stock of 1372 pieces of gold ornaments having a total weight of 11075 400 grams, but on physical verification of the accounts the total weight was 11061.50 grams and the shortage was to the extent of 13.900 grams by weight. On the very same day PW. 1 and his subordinates made search on the 3rd floor of the very same building, where the accused's shop is housed, and found in a card board box 169 pieces of gold ornaments consisting of 31 bangles, 15 rings, 59 lockets, talies, cross etc. The total weight of these 169 pieces was 667.850 grams and on the prevailing market rate it was worth about Rs. 1,10,000/-. PW. 1, who was convinced that the gold found in the shop was liable to be confiscated, prepared Ext. P8 mahazar. On the very same day PW.1 also conducted a search in a sister concern of the accused, namely, "Nedumpadam Rubbers". But no gold was recovered from that shop. One Alagiriswamy, an accountant of the Lekshmi Jewellers, Coimbatore was seen in the office of the Nedumpadam Rubbers and on questioning him he admitted that he was in possession of Rs. 2 lakhs paid by the accused towards the price of gold ornaments purchased from Lakshmi Jewellers, Coimbatore and that he had been waiting there to collect the balance amount of Rs. 64,000/-. The amount of Rs. 2 lakhs was also seized from Alagiriswamy. PW. 1 questioned (be accused, his employees and the other witnesses. The accused had licence only to conduct the jewellery shop in the ground floor of the building, and according to the prosecution he had conducted business in the 3rd floor of the building for which he bad no licence and therefore committed the offence under S.27(7) (b) and the accused had gold in excess of the account maintained by him and therefore he also committed an offence under S.55 of the Act.

(3.) On the side of the prosecution 9 witnesses were examined and Exts. P1 to P22 were marked. The appellant when questioned under S.313 Cr.P.C. maintained that the excess geld found in the shop was the gold purchased by the brother of the accused who is also a partner in the business, from Coimbatore on 23-9-1981 and the same was brought to the shop in the early morning and there was no occasion to bring the same into account and there was no wilful negligence on the part of the accused to show false accounts, and as regards the recovery of the gold ornaments from the 3rd floor of the building, the accused contended that these gold ornaments were sorted out separately since one customer wanted to purchase these articles and to avoid mixing up of the same with the ether articles kept in the shop, the same were taken to the upstair room and kept there separately and this did not in any way violate the provisions of S.27(7) (b) of the Gold (Control) Act, since no business was conducted in that room.