MOTI LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, who is a resident of Merta and is a registered gold -smith, was detained by the Police Constable, G.R.P., at the Railway Station, Jodhpur. On search in the presence of the Preventive Officer of the Central Customs and Excise, Jodhpur, gold ornaments weighing 241.00 grams were found in a box which was being carried by him. The gold ornaments were seized in the presence of the petitioner and search memo EX.1 was prepared. The statement of the petitioner was, also, recorded under Section 70 of the Gold (Control) Act, 1968 (for short, 'the Act'). In the statement recorded under Section 70 of the Act, the petitioner disclosed that he is a registered/certified gold -smith and he reached Jodhpur on 28 -11 -1972 at 12.00 noon and went to the shop of Bhanwar Lal Sunar and gave one necklace, two Punchies, one Rakhdi and one ear -ring for setting stones in them. Bhanwar Lal Sunar returned the ornaments to him after setting the stones therein. He further disclosed that though he keeps the register but he has not made any entry with regard to these ornaments in this register. He further stated that earlier he gave some gold to Ram Swaroop gold -smith for manufacturing the bangles and got these bangles on 29 -11 -1972, at 11.10 a.m. and he was going to Merta after getting these ornaments prepared. After recording the statement of the petitioner and seizure of the ornaments, the petitioner was allowed to go to Merta. The gold ornaments were seized by the Customs Officer under Section 66 of the Act for violation of the provisions of Sections 80 and 55 of the Act. On 6 -12 -1972, the petitioner moved an application before the Assistant Collector, Customs and Central Excise, Jodhpur, that at the time of seizure, the petitioner narrated the true story to the customs and excise officials and, also, stated that .the petitioner had the proper entries with respect to these ornaments in the prescribed register which is checked and certified by the Inspector, Central Excise and Customs and he never stated that he has no entry of the seized ornaments in his register, A notice was issued to the petitioner under Section 63 of the; Act and he filed a representation/reply to the not keon 25 -3 -1973, before the Assistant Collector, Central Excise and Customs, Jodhpur. The Assistant Collector toy his order dated 16 -3 -1974, after consideration of the relevant material on record, passed the order Annexure 3 ordering for the confiscation of the gold ornaments under Section. 71 of the Act. He further imposed a penalty ,of Rs, ,1000/ - under Section 74 of the Act. Dissatisfied with the order dated 15 -3 -1974,. the. petitioner preferred an appeal before the Central Excise Collectorate, Jaipur. The appeal filed by the appellant was dismissed by the Central Excise Collectorate, Jaipur, by its order dated 11 -7 -1978 (Annexure 4). Aggrieved with the order rejecting the appeal, passed by the Central Excise Collectorate, Jaipur, the petitioner preferred a revision petition before the Government of India, which was also dismissed by the Central Government vide its order dated 29 -5 -1981. The petitioner in this writ petition has, therefore, challenged the orders Annexure 3, Annexure 4 and Annexure 5 and has prayed for quashing and setting aside these orders and for restoring the gold ornaments recovered from him.

(2.) IT is contended by the learned counsel for the petitioner that the statement of the petitioner was recorded on 29 -11 -1972 by the respondent in the presence of the police personnels and, therefore, the statement dated 29 -11 -1972 cannot be read against the petitioner. His further submission is that the entries with respect to these seized ornaments exist in the Register GR .13 maintained by him and the gold ornaments, which were seized from the petitioner, belongs to; Smt. Premratanki Bai, Dr. Deo Dutt and Bhanwar Lal Diwakar as he received these ornaments from them for manufacturing afresh. Lastly it is contended by the learned counsel for the petitioner that as these ornaments do not belong to him and belong to Smt. Premratanki Bai, Dr. Deo Dutt and Bhanwar Lal Diwakar, therefore, they are not liable to be confiscated. Learned counsel for the respondents, on the other hand, has supported the orders passed by the respondents.

(3.) THE first point which requires consideration in the present case is whether the statement of the petitioner recorded on 29 -11 -1972 by the Customs Officials can be read against him and on the basis of this statement whether the gold ornaments can be seized or a penalty can be imposed upon the petitioner? Section 70 of the Act authorises the concerned officer to record .in writing the statement of a person where at the time of arrest or seizure under the Act or the detection, any contravention of the provisions of this Act or the Rules or the order was made, if such person makes his statement to the officer making such arrest, seizure or detection. Section 63 of the Act authorises the Gold Control Officer of a gazetted rank to summon any person whose attendance he considers necessary either to give evidence or to produce any document or other thing in any enquiry which such officer is making in connection of any contravention of any of the provisions of this Act. The statement made by a person under Section 70 of the Act to the Officer making the arrest or the seizure or the statement made under Section 63 of the Act before the Gold Control Officer, are not the confessions recorded by a Magistrate under Section 164 Cr. PC. as they are not subjected to the safeguards under which confessions are recorded by the Magistrate. These statements are, therefore, to be scrutinized to find -out whether the statements have been made under any threat or promise from someone in authority. The Officer under the Gold (Control) Act is not the Police Officer and, therefore, the statement made before him is not hit by Section 162 of the Code of Criminal Procedure. The statement, if it is voluntary and true and fits in the facts and circumstances of the case, can be acted upon.