MANI KANT SOHAL ASSISTANT COLLECTOR OF CUSTOMS MARINE AND PREVENTIVE WING ALIBAG Vs. PANNALAL KESHARCHAND BANTHIA

JUDGEMENT

(1.) THIS is a Criminal Revision Application filed by the Assistant Collector of Customs, Marine and Preventive Wing, Alibag Division, in respect of an order dated 6-5-1988 passed by the Judicial Magistrate, First Class, Panvel, in Regular Case No. 357 of 1985. Respondent Nos. 1 and 3 to the Criminal Revision Application were the original accused Nos. 1 to 3 before the trial Court. The applicant herein had filed a complaint before the learned Judicial Magistrate charging the accused with having committed offences punishable under different sub-clauses of section 85 of the Gold (Control) Act, 1968 and the rules framed thereunder.

(2.) THE brief facts giving rise to this prosecution are as follows:- Accused No. 1 is a partnership firm, and accused Nos. 2 and 3 are the partners thereof. On 2-2-1982 pursuant to a secret information, the Superintendent of Customs (Preventive), Gold (Control), Bombay, along with the assisting officers raided and searched the licensed shop premises of accused No. 1, holder of Gold Dealers Licence No. 3/g/71, situated at 776, M. G. Road, Panvel, District Raigad, in the presence of Panchas and Accused Nos. 2 and 3. The applicant scrutinized the Statutory Registers as also the gold ornaments lying in stock-in-trade. It is the case of the prosecution that on verification with the relevant entries in the Registers, which the accused are bound to maintain, excess and uncounted stock of primary gold weighing 146. 000 Gms, and new gold ornaments weighing 1,800. 650 Gms, of 23 carates purity was found. It is the prosecution case that since the accused could not satisfactorily account for this quantity of gold valued at Rs. 3,13,940/-, the same was seized by the officers under a panchanama dated 2-2-1982. The statement of accused No. 2 was recorded under section 63 of the Gold (Control) Act, 1968, wherein he has stated that he was present throughout the search and the panchanama, and that he agreed with the facts recorded in the panchanama. Certain other statements were also recorded by the officers, pursuant to which the accused were prosecuted before the trial Court. At this stage, it is relevant to mention that, in the adjudication proceedings, primary gold weighing 146. 000 Gms. and new gold ornaments weighing 1,800. 650 Gms. were confiscated under section 71 of the Gold (Control) Act, 1968; and on certain personal penalties, an option to redeem the confiscated gold and gold ornaments was also given to the accused. The adjudication order was passed on 29-6-1984. The accused appeared to have thereafter filed an appeal against the order in question, which is at present pending.

(3.) AT the trial, the prosecution examined two witnesses, both of them being the officers who had taken part in the raid that was carried out on 2-2-1982. The learned Judicial Magistrate thereafter proceeded to evaluate the evidence of these two witnesses and came to the conclusion that no prima facie case was made out against the accused to frame charges as prayed for by the prosecution and that the accused are entitled for a discharge. The learned Judicial Magistrate has also ordered that the gold ornaments seized by the prosecution be returned to the accused. It is against this order that the present Criminal Revision Application has been filed.