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TMI Blog1988 (3) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Cuttack (P.W. 2) along with other officials of the Department rummaged the Madras-Howrah Mail at Cuttack Railway station on getting information that contraband Gold was being carried by the accused persons. As a result of the search 2344 grams of primary gold in six lumps were seized from the possession of Lankapali Pravakar Rao, respondent No. 1 and 4586.100 grams of primary gold in twenty lumps contained in four packets were seized from the possession of Kolia Nanaji, respondent No. 2. By the time the search was over the train had left the Cuttack Railway station and thereafter the respondents and their companions (discharged for want of evidence) were made to getdown in the next railway stoppage, that is, Jajpur-Keonjhar Road. There, in the presence of two independent witnesses including Natabarlal Gambhir Das (P.W. 4) 4586.100 grams of primary gold were seized from K. Nanaji under the seizure list (Ext. 11), 2344 grams of primary Gold were seized from the possession of accused L. Pravakar Rao under the seizure list (Ext. 6) and four railway tickets and one reservation ticket were seized from one of the companions of the accused persons namely, P. Narasimha Rao under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses were examined of whom D.W s 1 to 8 and D.W s 10 to 16 were said to be the 15 goldsmiths who along with another goldsmith P. Ananta Chari (Since dead) entrusted the Gold seized from the accused Pravakar Rao P.W. 17 was a jewellery merchant of Srikakulam who proved the account book (Ext. H) maintained by the Goldsmith P. Ananta Chari showing delivery of 506.600 grams of gold to accused L. Pravakar Rao and also the account books (Exts. J to R) of D.W s 1 to 8 and D.W 18 was a resident of Calcutta who claimed to have received a letter from accused L. Pravakar Rao in April, 1974 requesting to see him at Howrah Railway station sometime in April, 1974. 4. The trial Judge on scrutiny of the materials placed before him came to hold that the accused persons were in illegal possession of primary gold of the quantities as alleged by the prosecution in contravention of Section 8 of the Act, that they failed to satisfactorily account for the gold seized from their possession and as such they could not escape the mischief of Section 85 of the Act. On these findings he held the accused persons guilty of the charge under Section 85 (1) (ii) of the Act, convicted them thereunder and sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any unfinished or semi-finished form and includes ingots, bars, blocks, slabs, billets, shorts, pellets, rods, sheets, foils and wires. Section 8 of the Act enumerates restrictions regarding acquisition, possession and disposal of gold. Under sub-section (1) thereof, it is laid down that save as otherwise provided in the Act, no person shall - (i) own or have in his possession, custody or control, or (ii) acquire or agree to acquire the ownership, possession, custody or control of, or (iii) buy, accept or otherwise receive any primary gold. Sub-sections (2) and (3) deal with restrictions regarding acquisition, possession and disposal of ornaments, articles with which we are not concerned in the present case. Under sub-section (6) provision is made that notwithstanding anything contained in the section, the Administrator may, if he is of opinion that the special circumstances of any case or class of cases so require, authorise any person or class of persons to buy or otherwise acquire, accept or otherwise receive, or sell, deliver, transfer or otherwise dispose of, any primary gold or article. Section 37, benefit of which was claimed by the respondents, provides that a licensed dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct charged as an offence in that prosecution. As provided in the Explanation to sub-section (1) of the said section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Section 99 of the Act makes provisions regarding presumption as to the ownership of gold. It is provided therein that any person who has in his possession, custody or control any primary gold, article or ornament shall be presumed, unless contrary is proved, to be the owner thereof. Rule 13 of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968, prescribes the conditions for acquisition, sale, etc., of gold by licensed dealer or refiner. It reads as follows :- 13(1) Every licensed dealer or refiner acquiring accepting, selling, delivering, transferring or disposing of gold shall at the time of each such transaction, issue a voucher in relation to such gold and in a case where the transaction relates to sale, delivery, transfer or disposal of gold, such voucher shall accompany the gold : Provided that no such voucher shall be necessary in relation to any gold which is transferred or delivered by a licensed dealer to his artisan for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s gold and it was being taken to Calcutta. The witness narrated in detail the manner of search and the quantities of gold seized from the two accused persons. According to the witness, the gold seized from the accused persons was kept in two boxes wrapped in paper and duly labelled. M.O. 1 was the cloth bag in which six gold pieces (M.O. s 11 to VII) seized from accused Pravakar Rao were kept and similarly M.O. VIII was the cloth bag in which 20 pieces of gold (M.O. s IX to XXVII) seized from accused Nanaji were kept. The witness asserted that all the M.O. s were primary gold. He further stated that only 300 grams of such gold could be kept by a goldsmith. In cross-examination, the witness denied that the statements given by the two accused persons in their own hand were obtained under threat of arrest. He also denied the suggestion that the accused Pravakar Rao was carrying gold being entrusted by different Goldsmiths. It is significant to note that not even a suggestion was made to the witness whether the articles seized were hold or not. P.W. 2 D.N. Patnaik was present with P.W. 1 at the time of the search and the seizure of the articles from the accused persons. He has given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed jurisdiction over the State of Orissa. He further stated that he was authorised in writing by the Collector to file the complaint in the case and on getting authorisation letter he filed the complaint. In cross-examination the witness stated that both Shri Banerjee, the then Collector and he (the witness) have since retired from service. He further stated that certified goldsmith could take gold ornaments from one place to another for specialised work, but not for re-manufacturing or die-casting. P.W. 6 B.P. Nandi was a member of the Reventive Party which went out for detection on 16-4-1974 when the instant case was detected. He stated that in connection with seizure of gold, an adjudication proceeding was started. He produced a carbon copy of the order passed in that proceeding duly signed by the Collector, Central Excise and Customs. The document was marked as Ext. 13. 8. Coming to the witness examined on behalf of the defence, as noticed earlier, D.W. 1 to 8 and 10 to 16 claimed to be certified goldsmith who claimed to have entrusted different quantities of gold to accused L. Pravakar Rao for preparation of ornaments in Calcutta. Perusal of their evidence shows that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. If the purpose of the transaction was preparation of ornaments at Calcutta then it was reasonable to expect that the witnesses while sending accused Pravakar for the purpose would have given him clear instructions regarding the types of ornaments, to be prepared, its design and its weight, etc. In normal course the Customers must have handed over the gold for preparation of specific types of ornaments and in such circumstances the entire matter would not have been left to discretion of accused Pravakar. The documentary evidence in the shape of entries in the account books of the witnesses on which much reliance has been placed by the lower appellate court because they were produced from the custody of the Income-tax Authorities, does not in my view, improve the case of the defence. Admittedly these are documents of the witnesses and the entries in question were made by them. D.W. 9 the Income-tax Inspector who produced these documents clearly stated in cross-examination that he had not examined the account books and could not say if any officer of the Department had ever inspected the said books. The witness could not even say if the 16 persons concerned with the account books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ornaments at Calcutta. 10. On the evidence discussed above and the plea taken by the defence, there is no manner of doubt that the commodity seized from the possession of the accused persons was gold as defined under Section 2(j) of the Act and it was primary gold as defined under Section 2(r) of the Act. Further, the prosecution has also proved the report of the Mint Master (Ext. 8) which clearly established that the gold seized from the accused persons was of more than 9 carats of purity. Indeed, the fact gains support from the evidence of Defence Witnesses themselves. On the materials on record there can also be no doubt that the accused persons had no legal authority for possession of the gold and such possession was unauthorized. The explanation offered by the accused persons was palpably unacceptable in view of the various infirmities in the statements of the witnesses discussed earlier. The reason given by the lower appellate court that the transaction was in course of mercantile business was not material. When the statute prescribed the particular manner in which a transaction was to be carried out, in the absence of proof to show that it was so carried out, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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