9911796707
TMI Blog1987 (4) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty under Section 112 of the Customs Act, 1962, how the imposition of penalty under Rule 126L-16 of Defence of India Rules, 1962 (Part XII-A Gold Control) for abetment in the same offence legally sustainable? 2. The facts leading to the application in hand are as follows (as found by this Tribunal in its Order No. A.599 to 601/86-NRB, dated 13-11-1986.) 3. Factual backdrops: It is the case of the Department that as a result of the search of luggage of the appellants on 24-1-1968 while they were waiting on Platform No.5 of Bareilly Junction, one silver bar weighing 5.500 Kgs, one wrist watch (Henry Sandoz) 17 jewels, and one slip of paper with some accounts written on it were recovered from the luggage of the appellant Shri Madhav Saran. Likewise 45 slabs of foreign marked gold weighing 450 tolas of foreign markings and two basnis made of cotton cloth were recovered from the luggage of the appellant Shri Gopal Saran. The same were seized on a reasonable belief under the provisions of Section 11 of the Customs Act, 1962 and Rule 126-H(2)(d) of the Defence of India Rules, 1962 Part XII-A (Gold Control). After the usual investigation Show Cause Notice was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gopal Saran was exonerated by the Central Board of Excise and Customs in appeal on a finding that the charge of abetting the offence of smuggling cannot be sustained in the absence of clear evidence for abetting the offence of smuggling. On this premises Shri Agarwal, learned Councel for the appellant Shri Gopal Saran submitted that no charge under the Defence of India Rules, 1962 read with Section 74 of the Gold Control Act, 1968 can be sustained. In our considered opinion this argument has also no force. The Central Board of Excise and Customs, in the appeal filed by the appellant Shri Gopal Saran, no doubt has exonerated him on the finding that in the absence of clear evidence for abetting the offence of smuggling, the charge of abetment cannot be sustained, but from paragraph 7 of the same Order we also observe that the Central Board of Excise and Customs has specifically recorded a finding that both the appellants were involved in the dealing in contraband gold. It deserves to be highlighted here that the provisions of the Customs Act, 1962 and the provisions of the erstwhile Defence of India Rules, 1962 and the Gold Control Act, 1968 are quite different. Section 112 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupees, whichever is more. On this premises he submitted that when a person is charged for abetment separately under the Customs Act and stands absolved of the charge of abetment, he cannot be charged for abetment under the Defence of India Rules, 1962 and therefore the question of law arises. We are afraid that this contention has no force. Besides the reasonings which we had given in our Order No. A.599 to 601/86-NRB, dated 13-11-1986 as already extracted above we find that there is no legal impediment in punishing the person concerned under the provisions of the Defence of India Rules, 1962 read with Section 74 of the Gold (Control) Act, 1968 even though he might have been exonerated of the charge of abetment and the offence of smuggling of contraband gold into India under Section 112 of the Customs Act. Before we proceed further it would be useful to state that as seen above we have recorded a finding in para 8 of our Order under reference that contraband gold was recovered from the conscious possession and control of the appellants that is to say, Shri Madhav Saran and Gopal Saran (who is applicant before us) his further question of abetment does not survive. 6. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962 any goods which are imported or attempted to be imported or are brought within the Indian Customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being inforce shall be liable to confiscation. Section 135(l)(b)(ii) of that Act lays down that without prejudice to any action that may be taken under this Act, if any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111(b) shall be punishable with imprisonment for a term which may extend to three years or with fine, or with both in case of an offence relating to any of the goods to which Section 123 applies and the market price whereof does not exceed one lakh of rupees. Section 8(1) of the Gold Control Act lays down that no person shall own or have in his possession, custody or control any primary gold. Section 85(ii) of that Act provides that whoever, in contravention of this provisions of the Act or any Ruleor order ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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