1979 (12) TMI 76 - HC - Customs

Gold Control - Offence - Accused guilty of Contravening customs provisions and gold control provisions - Criteria for punishment - Prosecution

Summary

Issues:
1. Omission to award a separate sentence under Section 85(ii) of the Gold Control Act, 1968.
2. Conviction of the accused under Section 135(1)(b)(ii) of the Customs Act, 1962 and Section 85(ii) of the Gold Control Act, 1968.
3. Appeal filed by the Assistant Collector of Central Excise against the judgment of the Chief Metropolitan Magistrate.

Analysis:

1. The Assistant Collector of Central Excise filed a criminal appeal against the judgment of the Chief Metropolitan Magistrate for not awarding a separate sentence under Section 85(ii) of the Gold Control Act, 1968, along with a fine of Rs. 2000 imposed for the offence under Section 135(1)(b)(ii) of the Customs Act, 1962. The accused was found in possession of a gold bar without valid documentation, leading to the seizure of the gold. The prosecution established the possession of the gold by the first accused, while the second accused was acquitted. The judgment highlighted the difference in elements between the offences under the Customs Act and the Gold Control Act, emphasizing the need for a separate sentence under each Act.

2. The judgment outlined the provisions of Section 111(d) of the Customs Act, 1962, and Section 135(1)(b)(ii) which deal with the importation of goods and the punishment for being involved in dealing with goods liable for confiscation. Additionally, Section 85(1) and Section 85(ii) of the Gold Control Act were discussed, focusing on the prohibition of owning or possessing primary gold and the penalties for contravention. The court clarified that the offences under these sections have distinct elements, with the Customs Act involving importation while the Gold Control Act focuses on ownership or possession of gold.

3. The appeal raised the issue of the appropriate legal remedy, questioning whether the appeal under Section 378(2) Crl.P.C. was the correct procedure or if a revision under Section 397(1) Crl.P.C. should have been pursued. The judgment acknowledged the technicality but allowed the appeal to be treated as a criminal revision case due to the timely filing within the prescribed period. Consequently, the accused was sentenced to pay a reduced fine of Rs. 1000 under the Gold Control Act, with the option of rigorous imprisonment for three months in default, ensuring compliance with the legal provisions and previous judgments in related cases.