SUBHAS CHANDRA KAMALIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Rule is directed against a proceeding under Gold Control Act, 1968 pending before the learned Sub-divisional Judicial Magistrate, Contai, being Case No. 3360 of 1975 against the petitioner Under Sections 27(1) and 41(b) of the Gold Control Act, 1968 punishable Under Sec. 85(1) of the said Act and also for violation of Sec. 55 of the Gold Control Act punishable Under Sec. 87 of the said Act.

(2.) The facts of the case leading to the framing of the charges are as follows:- On 19th of Feb., 1974, there was a search of the petitioner's shop named and styled 'Messrs. Gangamoni Jewellers' and certain gold articles were seized by the Officer conducting the search. On 20.2.74 the residence, of the petitioner was searched and some gold articles were seized. On 28.2.74 the petitioner's locker at Contain Co-operative Bank Ltd. was searched and some ornaments were seized. After the seizure, the petitioner was asked to show cause and an adjudication proceeding was started against the petitioner Under Sec. 78 of the Gold Control Act. An opportunity was given to the petitioner to explain away the incriminating circumstances appearing against him. He was asked to produce documents in support of his lawful ownership, possession and custody/control of the ornaments and gold materials seized but he failed to produce the same. Thereafter, on completion of investigation the authorities under the Gold Control Act, filed a complaint be-fore the learned Sub-divisional Magistrate at Contain who after considering the materials before him viz., the evidence of witnesses and documentary evidence framed the impugned charges. Several points have been taken by the learned Advocate for the petitioner for quashing the entire proceeding. The learned Advocate for the petitioner has drawn my attention to the charges which appear to be not consistent with the statements made in the body of the charges. The contravention alleged is Under Sec. 27(1) and Under Sec. 41(b) of the Gold Control Act and yet in the body of the charges under the first head it appears as follows: "That on or about the 19th, 20th and 28th day of Feb., 1974 at Contai town Sri S.K. Singha Roy, Inspector, Central Excise, Gold Cell, Calcutta, Sri D.N. Chakraborty, Inspector, Central Excise, Gold Cell, Calcutta and Sri B.N. Mukherjee, Inspector, Central Excise, Gold Cell, Calcutta and their team searched the shop styled as "Gangamoni Jewellers" at Contai town, residence at Contai town (Kumarpore) and the locker No. 22 at the Contai Co-operative Bank Limited, Contai respectively and found primary gold and gold ornaments in total 3938.00 grams approximately of value Rs. 108072-00 p. in your control, custody and possession which exceeding the limit of stock permitted to you as a certified goldsmith and as such the limit of stock permitted Under Sections 22(1) and 41(b) of the Gold Control Act. 1968". It will be found from the seizure lists which have been made Exhibits in the case that so far as primary gold is concerned 39,800 and 11,800 was found from the petitioner's jewellery shop at Contai and 157.00 grams of primary gold in the form of bars and balls were seized from the residence of the petitioner. So the total quantity of primary gold seized is less than 300.00 grams, upto quantity to which a certified goldsmith is entitled to keep Under Sec. 42(2) of the Gold Control Act. In framing the first charge the learned Magistrate took all the gold found at different places viz., the residence, the locker and the jewellery shop of the petitioner lumping up the primary gold along with gold materials gold ornaments and broken gold ornaments together with bronze based gold ornaments and as such the charge is defective for the following reasons. First there is no limit under the Act to the petitioner as a certified goldsmith of keeping gold ornaments given to him by customer, of any quantity provided he keeps account of the same in the proper form prescribed under the Act and the Rules framed thereunder. Sec. 27(1) of the Gold Control Act refers to a dealer. It reads thus:

(3.) The learned Advocate appearing for the opposite party No. 2 representing the C.E. Calcutta and Orissa has submitted that the quantity of new gold ornaments seized being altogether (1588 grams+90.00 grams+ 160.450 grams and 1315.500 grams) the total being 3143.950 gr. would go to show that all that huge quantity of new ornaments of the said petitioner were made for sale and that can only be by a dealer with the requisite valid licence. As he did not have the necessary licence he would come within the purview of Sec. 27(1) of the Gold Control Act and so he would also be liable under Sec. 41(b) which reads as follows:-"A certified goldsmith shall not, save as otherwise provided in this Act, buy or agree to buy or sell or agree to sell any primary gold, articles or ornament". The learned Advocate appearing for the opposite party No. 2 submits that the huge quantity of new gold ornaments for which he had no documents were made from primary gold for the purpose of sale and, therefore, although the statements made in the body of the charge is defective, he cannot escape the liability for contravention of the two sections already quoted viz., Sec. 27(1) and Sec. 41(b). He does not dispute that the charges framed by the learned Magistrate are certainly very unhappy but that is no reason for quashing the entire proceeding. The learned Magistrate may be directed to frame new charges on the basis of the observations made above. I am inclined to agree with the submissions made by Mr. Sanyal, learned Advocate for opposite party No. 2 in this behalf. So far as second charge is concerned, which is for violation of Sec. 55 of the Gold Control Act, 1968 and the Rules framed thereunder making the same punishable Under Sec. 27 of the Gold Control Act, 1968, it is for not maintaining a true and complete account of possession of the primary gold ornaments. Mr. N.C. Banerjee learned Advocate for the petitioner submits that it is true that the petitioner could not produce the documents required to the kept under the Act but he gave an explain for the same that due to death of his father his account books were mislaid and, therefore, he could not produce them at the time of the seizure nor even at the time of adjudication proceeding but subsequently an account in G.S. form was submitted by him. The learned Advocate Mr. Sanyal for opposite party No. 2 has drawn my attention to the private account book kept by the petitioner. That account book does not give a true picture of the gold ornaments as well as primary gold bars and balls seized from various places by the officer under the Gold Control Act and hence he argues that the account submitted in G.S. form 13 subsequently was false and fabricated document. It will be seen however that this document whether false or fabricated or genuine was not exhibited in the case, reason for not doing so does not appear to be very cogent. The next point taken by Mr. Benerjee appearing on behalf of the petitioner is that the search and seizure were not according to law as the same was in violation of the provisions of Sections 58 and 66 of the said Act.