1986 (5) TMI 37 - HC - Customs

Summary

Issues:
1. Validity of sanction under Section 135 of the Customs Act.
2. Compliance with Section 97 of the Gold (Control) Act for the offence under Section 85.
3. Establishment of possession of primary gold under Section 85 of the Gold (Control) Act.
4. Validity of the seizure process.

Analysis:

1. Validity of Sanction under Section 135 of the Customs Act:
The petitioner was convicted under Section 135 of the Customs Act and Section 85 of the Gold (Control) Act. The defense challenged the conviction on the grounds that the sanction order did not comply with the requirements of law. The court emphasized that the sanction must demonstrate that the authority considered the facts constituting the offense before granting approval. The court found that the sanction order in this case did not indicate the materials considered by the sanctioning authority, and the evidence presented did not establish the same. Consequently, the court concluded that there was no valid sanction for prosecuting the petitioner under Section 135 of the Customs Act, rendering the conviction unsustainable.

2. Compliance with Section 97 of the Gold (Control) Act:
Regarding the offense under Section 85 of the Gold (Control) Act, it was highlighted that no Court could take cognizance without a written complaint by a designated officer. The prosecution failed to prove the authorization for the complaint in writing as required by law. The court noted that the document purporting authorization was not legally proved, as the signature of the Collector was not authenticated. Therefore, the complaint filed by the Assistant Collector was deemed invalid, leading to the conclusion that the conviction under Section 85 of the Gold (Control) Act could not be sustained.

3. Establishment of Possession of Primary Gold:
To establish the offense under Section 85 of the Gold (Control) Act, the prosecution must prove possession of primary gold by the accused. The court observed that the prosecution did not adequately demonstrate that the items seized from the accused were indeed gold as defined by the Act. Without establishing this crucial element, the provisions of Section 85 could not be deemed applicable. Consequently, the court held that the conviction under Section 85 of the Gold (Control) Act was unsustainable.

4. Validity of the Seizure Process:
While the defense raised concerns about the seizure process, particularly the lack of independent witnesses, the court did not delve deeply into this issue due to the preceding conclusions on the invalidity of the sanctions and complaints. The court hinted at viewing the seizure with suspicion but refrained from detailed examination, as the conviction was already deemed unsustainable based on the aforementioned legal flaws.

In conclusion, the court set aside the convictions of the petitioner under both Section 135 of the Customs Act and Section 85 of the Gold (Control) Act, along with the sentences imposed, based on the identified legal deficiencies in the sanctioning and complaint processes, as well as the failure to establish the possession of primary gold as required by law.