HARI PRASAD CHHAPOLIA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner challenges the order of conviction for the offences under Sec. 135(b)(i) of the Customs Act, 1962 (in short 'the Act, 1962') and Section 85 (ii), (iii), (viii) and (ix) of the Gold (Control) Act, 1968 (in short 'the Act, 1968') for alleged violation of Sections 6, 8(i) and 27 of the Act, 1968. Petitioner was tried in the Court of Additional Chief Judicial Magistrate (Special Court), Cuttack on the basis of the complaint lodged by the Assistant Collector, Central Excise and Customs, Bhubaneswar, registered as 2(c) C.C. No. 214 of, 1985. The trial Court found the petitioner guilty of the aforesaid two offences the therefore sentenced him to undergo R.I. for three years and to pay a fine of Rs. 5,000/ in default to undergo R.I. for a period of one year for the offence under Section 135(b)(I) of the Act, 1962 and R.I. for two years for the offence under Sec. 85 (ii), (iii), (viii), (ix) of the Act, 1968 and to pay a fine of Rs. 2,000/ in default to further undergo R.I. for six months, for the above noted offences under Sec. 85 of the Act, 1968. The sentences were ordered to run concurrently. Appeal preferred against that judgement was heard and dismissed by the 1st Additional Sessions Judge, Cuttack in Criminal Appeal No. 93 of 1990, vide the impugned judgment dated 4 5 1994. The appellate Court concurring with the findings maintained the order of conviction and sentence passed against the petitioner by the trial Court.

(2.) PROSECUTION case is that on 11 11 1984, on conducting a search by the officials of the Central Excise and Customs on the strength of a search warrant, they recovered and seized on such search primary gold, gold ornaments and gold weighing apparatus, besides gold of foreign origin weighing 3170.800 grams valued at Rs. 4,09,971.95 paise besides the containers.

(3.) IN course of trial, prosecution examined two witnesses , viz, Mihir Kumar Nayak, Inspector in Central Excise and Customs and a Member of the Raid Party and P.W. 2 Ganga pani Behera, Superintendent, Central Excise (Preventive), Bhubaneswar. He was also a member of the search party. Prosecution relied on the documents i.e., the authorisation and sanction order, Ext. 1. Prosecution Report. Ext. 2, Carbon copy of seizure list, Ext. 3, statement of witness Basudev Varma, Ext. 4, and statement of accused Ext. 5, and certificate regarding the quality of gold etc. The defence examined two witnesses, namely, D.W. 1 Vasudev Verma and D.W. No. 2. Sankirtan Moharana. Petitioner also relied on the documents vide Exts A to D out of which Ext. A is the notice and Exts. B a copy of final decree, Ext. C the R.O.R. and Ext. D registered sale deed.