STATE OF GUJARAT Vs. MANHARLAL AMBALAL SONI

JUDGEMENT

(1.) 20 bars of gold each weighing 10 tolas (200 tolas) rearing foreign mark Johnson Mathew London 999.0-10 tolas were found from the possession of respondent Manharlal Ambalal Soni. In connection with this find the respondent was prosecuted for an offence under sec. 135 of the Customs Act 1962 (hereinafter referred to as the Customs Act) as also for an offence 9 under sec. 85 of the Gold (Control) Act 1968 (hereinafter referred to as the Gold Control Act). The learned Chief Metropolitan Magistrate Ahmedabad by his judgment and order dated December 16 1974 came to the conclusion that the respondent was guilty of both the offences and convicted the respondent under sec. 135 of the Customs Act and under sec. 85 of the Gold Control Act. For the offence under the Customs Act the learned Chief Metropolitan Magistrate did not impose any substantive sentence of imprisonment but imposed a sentence of fine of Rs. 1 0 (i.d. S.I. for two months). In regard to the offence under the Gold Control Act the learned Chief Metropolitan Magistrate imposed a substantive sentence of R. I. for 15 days and a fine of Rs. 500.00 (i.d. R.I. for 15 days). The State of Gujarat felt aggrieved by reason of the fact that the sentence imposed was considered extremely inadequate. The State has therefore invoked the revisional jurisdiction of this Court by way of Criminal Revision Application No. 234 of 1975. The Assistant Collector of Customs Ahmedabad has filed a similar application invoking the revisional jurisdiction of this court which has been registered as Criminal Revision Application No. 120 of 1975. This judgment will dispose of both the aforesaid applications one preferred by the State and the other preferred by the Assistant Collector of Customs Ahmedabad.

(2.) Counsel for the respondent urged that he proposed to assail the order of conviction though the respondent had not preferred any appeal. When a notice for enhancement of sentence is issued it is open to the respondent to show that the conviction itself is not sustainable. I will therefore first deal with the submissions urged on behalf of the respondent in regard to the merits of the order of conviction.

(3.) Under sec. 135(b) of the Customs Act any person who acquires possession of or is in any way concerned in carrying removing depositing harbouring keeping concealing selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under sec. 111 is liable to be punished in a case where the offence relates to goods value whereof does not exceed one lakh of rupees with imprisonment for a term which may extend to two years or with fine or with both under clause (ii) of sec. 135(b) of the Customs Act. In the present case at the material time the value of 200 tolas of Gold did not exceed one lakh of rupees. Sec. 135(b)(ii) will therefore be attracted if it can be shown that the respondent had acquired the possession of or was in any way concerned in keeping or concealing of goods which he knew or had reason to believe were liable to confiscation under sec. 111 of the Customs Act. Now sec. 111(d) of the Customs Act provides that any goods brought from a place outside India which are imported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force shall be liable to confiscation. It will be observed that clause (d) of sec. 111 refers to any prohibition imposed by the Customs Act or any other law which may be in force at the material time. And at the material time Foreign Exchange Regulation Act 1947 was in force. Sec. 8 of that Act provides that Central Government may by notification in the official gazette order that subject to such exemptions if any as may be contained in the notification no person shall except with the general or special permission of the Reserve Bank and on payment of the fee if any prescribed in that behalf bring into India any gold. And gold has been defined by sec. 2(f) to include gold in the form of coin whether legal tender or not in the form of bullion or ingot whether refined or not and jewellery or articles made wholly or mainly of gold. A notification as contemplated by sec. 8 of the Foreign Exchange Regulation Act 1947 was issued by the Central Government on 25th August 1948. The said notification as amended upto 31st July 1958 has been published in the Exchange Control Manual (Sixth Edition) 1971 issued by the Reserve Bank of India and it is found at page 189 of Appendix B-1. The notification bears number 12(11)F 1/48 dated 25th August 1948. It prohibits bringing into India from any place outside India of any gold coin gold bullion gold sheets or gold ingot whether refined or not. It is therefore clear that there was at the material time restriction against the importation into India of gold ingot or gold bullion whether refined or not under the Foreign Exchange Regulation Act 1947 In view of this prohibition such goods will be liable to confiscation under sec. Ill(d) of the Customs Act and therefore the possession of such articles would be punishable under sec. 135 of the Customs Act.