B CHAINRAJ Vs. ASSISTANT COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) This petition coming on for hearing on Tuesday the 16th day of February 1988 and on this day upon perusing the petition, and the Order of the Lower Courts, and the record in the case, and upon hearing the arguments of Mr. K.M. Srirangam, Advocate for the petitioner, and of Mr. P. Rajamanickam Central Govt. Public Prosecutor on behalf of the Respondent, the Court made the following Order. This is a revision petition by the accused. The accused is a pawn broker. On 23.3.1980 at about 3 p.m. the then Inspector of Central Excise P.W. 1, along with another Inspector, P.W. 2, and other officers, visited the shop of the accused. The accused was present. In pursuance of a search warrant, Ex. P. 10, a search was conducted. Accounts were checked in the presence of accused and two witnesses. The accused was asked whether he had in his possession any other ornaments not covered by the accounts and intended for trade purposes. The accused admitted that he was having some gold ornaments for sale and produced a cardboard box M.O. 1 containing those ornaments. The accused did not have any licence under the Act to deal with gold ornaments, and those ornaments were not also covered under the Pawn Brokers Act. The version given them by the accused was that those ornaments were not his personal or family property and that those ornaments namely M.Os. 2 to 14 serves were acquired from various brokers for trade purposes. So, those ornaments M.Os. 2 to 14 series along with M.O. 1 containing also primary gold bits, were seized under Exhibit P. 1. A voluntary statement was recorded from the accused under Ex. P. 7. A show cause notice Ex. P. 4 was issued on 2.7. 1980 and the accused sent a reply under Ex. P. 5 with annexures. Adjudication order was passed on 17.4.1982 under Ex. P. 6 imposing a penalty of Rs. 7,000/- and confiscating M.O. 2 to M.O. 14 series, giving an option to the accused to redeem the said items on payment of Rs. 20,000/-. Thereafter, P.W. 1 filed a complaint before the Magistrate. Charges under section 8 (1)(i) read with sections 85(1)(ii), 6(2) read with sections 85(1)(viii) and 27(1) read with section 85(1)(ix) of Gold Control Act were framed. The accused pleaded not guilty to the offences. The Magistrate after perusing the evidence came to the conclusion that the third charge under section 27(1) read with section 85(1) (ix) of the Act was not proved and acquitted the accused under that charge, but found that other charges were proved. He sentenced the accused to pay a fine of Rs. 1,000/- for the first charge and Rs. 2,000/- for the second charge. On appeal, the Principal Sessions Judge, Madras Division, confirmed both the conviction and sentence by judgment dated 25th July 1984.

(2.) The learned counsel for the revision petitioner contended that the appellate court has not gone into his plea and has simply accepted the judgment of the trial Court and put forth again the same plea in respect of the second charge, namely that the ornaments belonged to his family and were not in the shop for the purpose of sale or any other transaction. But this plea is given a lie to by the statement made by the accused before the Inspectors P. Ws. 1 and 2 to the effect that the ornaments were in his shop for the purpose of sale. It is true that in his reply to the show cause notice, the accused attempted to say that these jewels belonged to Bhikamahands family, and have been left with the accused by his mother, who expired in February 1979 and that he was keeping them in his shop in the iron safe for the sole purpose of safe custody. But, that Bhikamchand was not examined by the accused for the purpose of substantiating his version. Further the list of the ornaments seized would show that they are almost all new items and they are described as follows:

(3.) The next question which arises in this case is whether the Magistrate has committed any irregularity in the procedure and if so such an irregularity has occasioned any failure of justice. In the first place, it is found that the examination of the accused and the plea of guilty are recorded in the same series of sheets. This is not proper. The record of examination of the accused has to be made in accordance with the provisions of section 281 of Cr. P.C. The plea of guilt has to be recorded under the provisions of sections 240 and 241 of the Code. The manner prescribed for record not being the same in both the cases, each should be recorded in a separate sheet. However, this irregularity did not cause any prejudice to the accused.