LALIT KUMAR Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) This is a reference under Section 82-B of the Gold (Control) Act, 1968 (hereinafter referred to as 'the Act') made by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi that has referred the following questions for the decision of this Court: (1) Whether in the facts and circumstances of the case the Tribunal erred in arriving at different findings contrary to the findings of the Allahabad High Court in Criminal Revision No. 1756/80? (2) Whether the Tribunal erred in imposing the penalty under Section 74 of the Gold (Control) Act, 1968 in the absence of any gold being seized and on the basis of the accounts only?

(2.) We have heard Sri V.K. Goel, learned Counsel for the applicant at whose instance this reference has been made and Sri Surya Prakash, learned Standing Counsel for the respondent.

(3.) The facts of the case are that on 12.10.1974 the Central Excise Department, Income Tax Department and the local police jointly raided the residential premises of Shri Chandra Prakash and his son Lalit Kumar the present applicant. The two are father and son respectively. At the time of the search only Shri Chandra Prakash was present and three bahi khatas containing entries of gold transactions were recovered from a bag in the possession of Shri Chandra Prakash and accounts book containing entries for the period 3.11.72 to 12.10.74. Shri Chandra Prakash stated at the time of the raid that the books of account pertain to his son. Neither the applicant nor Chandra Prakash had any licence to deal in gold and, therefore, they were prosecuted for offence under Section 85(1) (iii), (iv), (vii) and (ix) of the Act. Simultaneously a show cause notice was issued as to why penalty should not be imposed under Sections 74 and 75-A of the Act. In the criminal proceedings the applicant was convicted by the Trial Court and sentenced to undergo rigorous imprisonment for two years. The Additional Sessions Judge to whom the appeal was preferred affirmed the conviction and reduced the sentence to a period of nine months. Then the present applicant filed a revision petition in this Court which was allowed and the applicant was acquitted only on the ground that the entries in the bahi khatas had not been proved and that it was not proved that the applicant was dealing in gold of a purity of nine carats or more and that no presumption under Section 67 of the Act could be raised against the applicant as the documents were not seized from him. A Special Leave Petition to the Supreme Court was dismissed.