UNION OF INDIA Vs. SANWARMAL MODI

JUDGEMENT

(1.) This appeal by special leave under section 378(4), Code of Criminal Procedure is directed against the acquittal of the respondent who had faced a trial before a competent Magistrate on charges under section 135 (b) (ii) of the Customs Act, 1962 and section 85 of the Gold (Control) Act, 1968 on the allegations that 6n the 19th March, 1974 at about 9 a.m., his bedroom at premises No. 10, Tara Chand Dutta Street, Calcutta was searched by the officials of Calcutta Customs and a gold bar Ext. I, of foreign origin weighing 116.60 gms, a gold stick Ext. II, weighing 67.70 gms, eight pieces of sovereigns Ext. III weighing 63.55 gms and three pieces of gold Ext. IV weighing 21.30 gms. were recovered from an almirah, the key of which was produced by the respondent. As he could not explain his possession of gold of foreign origin and primary gold, it was seized under a seizure list Ext. 10 and on the same date he made a voluntary statement Ext. 7, under section 108 of the Customs Act wherein he admitted the search and seizure made by the Customs Officers as indicated above.

(2.) At the trial, the respondent took the defence that the gold bar Ext. I, was purchased by his father and same was in possession of his mother while the gold stick Ext. II and the cut pieces of gold Ext. IV were obtained by melting ornaments of his wife and the sovereigns Ext. III were obtained as part of gift during marriage.

(3.) The learned Magistrate on consideration of law and evidence adduced before him including the statement made by the respondent Ext. 7, has found that no offence was committed in respect of the sovereigns Ext. III but he was in illegal possession of the gold bar Ext. I, the gold stick Ext. II and three pieces of gold Ext. IV which were primary gold, the gold bar Ext. I being also of foreign origin. He was thus guilty of the offence punishable under section 135 (b) (ii) of the Customs Act and under section 85(1) (ii) of the Gold (Control) Act. He has however, recorded an order of acquittal holding that Sri T. K. Lahari, an Assistant Collector of Customs who had filed the petition of complaint representing the Union of India had no authority for such representation and therefore, there was no complaint in the eye of law. For such conclusion, he has relied upon the Bench Decision of this Court in Union of India v. Remo Morgani, Carlton Hotel, 1980(1) CHN 388.