LALIT KUMAR Vs. ASSTT COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) These are two connected Criminal Revisions Criminal Revision No. 1756 of 1980 is by Lalit Kumar against the judgment and order dated 22-10-1980 by Sri S.N. Tandon, VIII, Additional Sessions Judge, Meerut in Criminal Appeal No. 145 of 1979 by means of which he maintained the conviction of the applicant under Section 85(1) (iii) (vi) (vii) (ix) of the Gold (Control) Act, 1968, but reduced the sentence from two years R.I. on these counts to nine months' R.I. Criminal Revision No. 213 of 1981 is against this very order of the Additional Sessions Judge but only in respect of that portion of the order by means of which the sentence of the applicant was reduced.

(2.) Briefly stated, the facts involved in the case are that on 12-10-1974 a joint raid was made by the Central Excise Department. Income-tax and Sales Tax and the police at the residence of Chandra Prakash and that Lalit Kumar applicant son of Chandra Prakash was not present, but Chandra Prakash himself was present in the house and three Bahikhatas containing entries of gold transactions (Ext, 1 to Ext. 3) were recovered from a bag in his possession which had entries for the period 3-11-1972 to 12-10-1974 and 1970 to 1974. These entries related to primary gold as well as gold ornaments converted into new ornaments and also about money transactions in lieu of gold. On 19-8-1979 the applicant Lalit Kumar gave an application before the Assistant Collector of Central Excise, Meerut and Superintendent Gold, Meerut, accepting that these Bahikhatas related to his business and his father Chandra Prakash had no concern with them. After inquiry, the Collector, Central Excise, authorised the Assistant Collector, Central Excise to file a complaint against the applicant which was filed and in this complaint the applicant was convicted as aforesaid.

(3.) Under Section 4(7) of the Gold (Control) Act, the Gold Control Officer is to exercise his powers and to discharge his functions subject to such limitations, restrictions and conditions as the Central Government may think fit to impose. Under circular letter No. 22/78, F. No. 131/29/78-GC II dated 31st July, 1978, it was said that the Government of India was considering framing guidelines for launching prosecutions for offences committed under the Gold (Control) Act and pending finalisation of such guidelines the decision for prosecution under the Gold (Control) Act may be taken by the Collectors in those cases only where foreign marked gold or gold in respect of which smuggling was indicated was involved but in other cases where prosecution under the Gold (Control) Act was considered necessary prior clearance from Gold Control Administrator should be taken in each case. This clearly shows that by means of this circular letter the Government of India imposed a restriction on the functions of the Gold Control Officers and said that except where the Gold was foreign marked or was smuggled prosecution in no case should be launched unless clearance had been obtained from the Government of India. In this particular case no clearance at all was obtained from the Government of India in respect of this prosecution and P.W. 1 H.R. Kataria, Assistant Collector, Customs and Central Excise stated that he was not even aware of this restriction imposed by the Central Government. It would, therefore, seem that this prosecution should not have been launched and cognizance of the offence should not have been taken in the absence of the clearance from the Government of India which had not been obtained. It was, however, argued on behalf of the Government of India that this circular letter from the Deputy Secretary, Government of India, was not mandatory and was only directory because in this letter it was said that clearance from Gold Control Administrator should be taken and it was not said that such clearance shall be taken before a prosecution is launched. I am unable to accept this argument, because it does not matter at all whether it was said that clearance should be taken or clearance shall be taken. A copy of the letter is on the record and it clearly shows that it was definitely laid dawn that clearance shall be taken and then such a prosecution launched and such clearance was not taken in this case.