ASST COLLECTOR OF CENTRAL EXCISE Vs. ACHAL SINGH

JUDGEMENT

(1.) THE petitioner, who was the complainant in C. C. No. 266 of 1973 on the file of the Sub-Divisional Magistrate, Erode, has filed this revision petition for enhancement of the sentence imposed on the respondent-accused by the Lower Court.

(2.) THE respondent-accused was tried by the learned Magistrate for offences punishable under Section 135 (b) (ii) read with Sections 111 and 112 of the Customs Act and Section 85 (iii) and (iv) read with Sections 8 (i), 27 (i), 71 and 74 of the Gold (Control) Act. According to the prosecution, the petitioner, the Assistant Collector, Central Excise, Erode, filed a complaint against the respondent with the allegation that on 17-7-1972, at 11 a. m. in door No. 270, Nethaji Road, Erode, in the shop of one Shri Mangilal Nemichand, he was found to be in possession of five gold bars with foreign marking "credit SUISSE 999 010 tolas CEIES AYEUR PORDEUR" without a valid permit. The said gold bars bearing foreign marking were seized from the possession of the respondent under a mahazer attested by Independent witnesses. The Inspector of Central Excise, Erode, was examined as P. W. 1. He speaks about the seizure of the gold bars which were of the purity of 24 carats. The accused had no permit or document for valid possession of the same. Ex. P-1 is the mahazar prepared for the seizure, copy of which was also served on the respondent-accused. Ex. P-2 Is the statement given by the respondent-accused. admitting the possession of the seized gold bars. The accused was arrested and sent for remand. Further, P. W. 1 speaks about the issue of Exs. P-3 and P-4, the show cause notices by the Deputy Collector and the reply Ex. P-1 given by the respondent-accused. Exs. P-6 and P-7 are adjudication proceeding, as per which : M. Os. 1 to 11 were confiscated and in addition to that, a penalty of Rs. 1,200/ was imposed on the accused for the offences under the two Acts, Exs. P-8 and P-9 are the sanction orders authorising the prosecution of the accused. The accused voluntarily pleaded guilty under, both the charges. The learned Magistrate, acting on the evidence of P. W. 1, and on the voluntary plea of guilt of the accused, convicted him of both the offences and sentenced him to suffer imprisonment till the rising of the court and to pay a fine of Rs. 150/- on each count, in default to suffer rigorous imprisonment for six weeks. In respect of M. Os. 1 to 11, he has passed an order confiscating the Roods to the State. As mentioned supra, this revision petition has been filed for enhancement of the sentence and for modification of the order of confiscation, as contemplated under Section 126 (2) of the Customs Act which save that the officer ordering confiscation shall take and hold possession of the confiscated goods since the goods confiscated under the Customs Act vest in the Central Government as per Section 126 (1) of the Customs Act,

(3.) THE learned Prosecutor for the Central Government urges that the gold seized In this case is of the purity of 24 carats weighing 582,200 grams, the value of which is estimated at Rs. 13,680/- and that Section 135 (b) (ii) of the Customs Act provides for punishment with imprisonment for a term of 2 years or with fine or with both, and that Section 85 of the Gold (Control) Act (before the amendment under Act 36 of 1973) provided as follows: