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TMI Blog1986 (5) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... creted amidst the pawned brass vessels and tiffin boxes in the rear room of the shop and they were also not accounted in the accounts maintained by the appellant. It is in these circumstances 2771 gms. of gold and gold ornaments recovered from the appellant s shop and 49 gms. of primary gold from the residence of the appellant were seized under mahazar as per law attested by witnesses. The details of ornaments seized with their purity have been detailed in the original order of adjudication. The appellant gave a statement before the authorities on 28.10.1980 to the effect that the gold and ornaments under seizure were kept by him only for the purpose of sale and they did not belong to his family. It is in these circumstances, after due investigation, proceedings were instituted against the appellant which ultimately resulted in the impugned order now appealed against. 3. The learned counsel for the appellant submitted that the appellant has been proceeded against on charges of contravention under Sections 27(1), 16(4), 8(1) and 6(2) of the Act and made submissions with reference to the maintainability of the charges in the light of the evidence available on record. 4. In respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count at all and in such a situation, it was contended, the charge against the appellant under Sec. 6(2) is not legally tenable. The learned counsel further urged that the account contemplated by Sec. 6(2) is referable to the one prescribed under Sec. 6(1) by the Administrator and inasmuch as no form or type of account has been prescribed by the Administrator under Sec. 6(1), the appellant should be exonerated of the charge under Sec. 6(2) of the Act. It was further urged by the learned counsel that in respect of the ornaments mentioned in Annexure A by the appellant and claimed as articles pledged before him by various persons, even if the entire quantity of ornaments did not tally with the accounts produced by the appellant, such of those ornaments which found a place in the Annexure and which could be tallied with the relevant entries in the account book should be excluded as ornaments which have been lawfully pledged with the Appellant. The learned counsel submitted that this factor should be taken into consideration in assessing the quantum of fine and also the quantum of penalty. Finally the learned counsel fervently pleaded that in any event, having regard to the purity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or accounts. This statement of the appellant dated 28.10.1980 is clearly inculpatory in nature and confessional in character. We went through the statement of the appellant and we are satisfied that the same is true and voluntary. The ratio of the decision in the case of Kanyalal Chandrakumar v. Union of India relied upon by the learned counsel for the appellant is not applicable to the facts and circumstances of this case. That was a case where the Court found that excepting bare possession of the gold jewels there was no further evidence on record to prove that the person concerned in that case was a dealer. The Court has observed: In this case, admittedly, there is no material to show that the petitioner has been dealing in gold in any of the modes referred to in the definition of dealer of apart from carrying on the pawn broker s business. As already stated, the possession of unaccounted jewels by a pawn broker may amount to an offence under the Act in view of Sec. 6(2) but that does not automatically follow that such a pawn broker who was in possession of gold jewels which he could not account, is a dealer in gold or gold jewels. In this case, straight away an inference ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ience, we have extracted Section 16(4) hereunder:- Section 16(4) : If any person who has made a declaration, whether under sub-section (1) or under sub-section (3) or under Part XII-A of the Defence of India Rules, 1962, or under the Gold (Control) Ordinance, 1968 (6 of 1968) as to gold owned, possessed, held or controlled by him, acquires (whether by succession intestate or testimanetary or otherwise), or parts with, after such declaration, the ownership, possession, custody or control of any quantity of gold, he shall, as often as he acquires or parts with the ownership, possession, custody or control of any quantity of gold, make, within thirty days from the date of such acquisition or parting with, or within such further period, as the Administrator may, on sufficient cause being shown, allow a further declaration in the prescribed form stating the quantity, description and other prescribed particulars of the gold in relation to which such ownership, possession, custody or control has been acquired or parted with by him and giving the prescribed particulars of the person from whom the ownership, possession, custody or control of such gold was acquired or in whose favour the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the officer, such gold shall be deemed to be in the possession of such person in contravention of the provisions of this Act. Section 6(2) does not refer to the return contemplated under Section 6(1) of the Act. Section 6(2) merely authorises the Administrator to have the accounts of any person who advances money on hypothetication, pledge mortgage or charge of any article or ornament checked by Gold Control Officer and to treat the amount of gold which has not been duly accounted for as excess gold. Therefore, Section 6(2) is totally independent of Section 6(1) and in the instant case, we find from the materials available on record that the ornaments under seizure have not been accounted for as per law by the appellant and we, therefore, hold that the charge under Section 6(2) against the appellant has been clearly made out. 13. In the result, we find that the impugned order appealed against is clearly sustainable in law and the charges under Sec. 27(1), 16(4), 8(1) and 6(2) of the Act against the appellant have clearly been made out and substantiated by the evidence available on record. 14. Lastly coming to the question of the quantum of fine and penalty we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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