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TMI Blog1988 (3) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... he disposal of these appeals are: On 13-2-1979 the Gold Control Officers of Pune Customs Collectorate visited the licensed premises of M/s. Anand Jewellers, Manchar. They scrutinised the statutory registers and found that both the registers were written up to 12-2-1979. They also scrutinised the purchase and sale vouchers. No purchases were noticed on 13-2-1979 but there was sale of 14.800 gms. under voucher No. 356, dated 13-2-1979. Thereafter the appellants verified the physical stock. The physical stock of gold ornaments tallied with the stock shown in the G.S. 11. But then the physical stock of new ornaments was found to be 2,753.500 gms. as against the stock of 1,038.650 gms. shown in G.S. 12 register. The manager of the shop Mr. Kumarpal who was present in his statement recorded on the same day, among other things, stated that his younger brother Dinesh is the Proprietor of the shop. He had gone to Bombay for a private work. He also admitted the excess in the physical stock and he could not give any satisfactory account. The Accountant who has been present could not satisfactorily explain as to the excess. The gold ornaments which did not find place in G.S. 12 were seized u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dinesh Kumar and the other appellant Gajanan Shankar Daine who claimed the patli pair filed an appeal before the Gold Control Administrator. 5. During the hearing of these appeals, Shri Solanki firstly submitted that gold ornaments weighing 45.350 gms. which were claimed by the appellant Gajanan Shankar Daine was not liable to confiscation under Section 71 even if there had been any contravention of the Gold Control Act since there was no finding that Gajanan Shankar Daine had reason to believe that Dinesh Kumar had committed any offence in respect of the said gold. Further there was no finding that Gajanan had connived in the contravention of the provisions of the Gold (Control) Act by Shri Dineshkumar. Secondly, Shri Solanki submitted that satisfactory account had been given as to the excess in the physical stock. He submitted that during the investigation the statements of the dealers from whom the appellant Dinesh Kumar purchased the gold ornaments were recorded. They had corroborated the version of the appellant Dineshkumar their account books and vouchers were examined they tallied with the weight and description of the gold seized from the premises of the appellant. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal appeal filed by the State against the acquittal order by the Additional Sessions Judge was not admitted by the High Court. He, therefore, urged that the criminal court judgment should be respected. 6. Shri Senthivel appearing for the Collector however supported the order. He contended that the Collector had rightly characterised the defence as fiction. He urged there is total improbability in the defence version. Elaborating his submission, Shri Senthivel submitted that the proprietor was supposed to have left Manchar for Bombay. But then instead of going to Bombay he was stated to have gone to Pune and made certain purchases at about 10 a. m. on 13-2-1979. The defence further was that the proprietor was stated to have sent the gold so purchased to the licensed premises through his nephew who was studying in pune. But then it was stated that the proprietor forgot to send the vouchers. The student who was stated to have carried the gold ornaments, does not inform any person and goes away at 12.30 p.m. Further, he also transacts business in the licensed premises but then, even though the accountant was present he does not come to know of the transactions. The purchase voucher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seizure of the excess gold ornaments there were no entries in the G.S. 12 Register and there were no vouchers covering the said excess gold. Out of the excess gold ornaments seized by the Gold Control Officers the appellant in Appeal 267/87 claimed a pair of patli weighing 45.350 gms. as belonging to him. As regards the remaining quantity the defence was that the appellant Dinesh Kumar had on 13-2-1979, on his way to Bombay, purchased new gold ornaments weighing 153 gms. from M/s. Kantilal Bros., Pune, gold ornaments weighing 329 gms. from M/s. Gumanmal Sons, Pune, gold ornaments weighing 311.500 gms. were purchased from M/s. Ratachand Dalichand, Pune, further he received gold ornaments weighing 775.500 gms. from Natwarial Shamaldas Chokshi, Ahmedabad at Pune. The further defence was the appellant Dinesh Kumar s nephew Girish who carried the gold ornaments to Manchar from the licensed premises did not find his father in the shop and therefore waited in the shop for an hour and a half. During the short stay he received gold ornaments weighing 165.850 gms. from goldsmith Shri M.G. Behlekar who had prepared it out of the gold given by the appellant Dinesh earlier. Before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be believed the defence of the appellant Dinesh Kumar that he had sent the gold purchased by him at Pune and sent them to the licensed premises through his nephew Girish cannot be believed. Similarly the explanation that Shri Girish during his short visit of one and half hours received gold ornaments weighing 165.850 gms. from M.G. Mahalekar a goldsmith and Patli pair weighing 45 350 gms. from the appellant in appeal No. 267/87 also cannot be believed. If Girish had come to the shop and had brought the gold and had carried on two transactions in gold the Diwanji who was present in the shop right through from 8.15 a.m. till the officers of the Gold Control finished writing of panchnama would have certainly come to know of Shri Girish s visit. That apart if Girish had brought gold the Diwanji would have made necessary entries in the register since according to Diwanji s statement only one transaction had taken place on that morning. Diwanji also would have come to know about the receipt of gold ornaments from goldsmith and from the appellant in appeal No. 267 of 87 by Girish. 12. The statement of the father of the appellant Dinesh Kumar was recorded on 14-2-1979. He did not state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich he had ordered earlier. Significantly the appellant Dinesh Kumar would have it that he did not even weigh the ornaments given by the person who represented M/s. Natwarial Shamaldas of Ahmedabad. 16. It is also improbable that the student staying in Pune would indulge in gold transactions particularly in the absence of his father the Manager of the shop. The defence put forward by the appellant Dinesh Kumar to our mind appears highly improbable and unbelievable. In any case, three persons namely the Diwanji of the shop, the Manager of the shop and the grandfather of Shri Girish who would have, in the normal course, known the visit of Girish and his bringing gold from Pune to Manchar did not state in their statements that Girish had brought gold from Pune. One of them was the father of the appellant Dinesh Kumar, the other was his brother and the third was his Diwanji. They have no particular reason not to tell the Gold Control Officer as to the visit of Dinesh or his bringing gold ornaments if really he had visited and brought gold ornaments. We are inclined to hold that the entire defence was got up for the purposes of this case. 16A. It is true that the appellant did prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the proceeding before the adjudicating authority are independent of each other. Therefore, the acquittal passed by the Trial Magistrate and confirmation of that order in appeal would not be sufficient for recording contrary and inconsistent findings by the adjudicating authorities. It may be pointed out here that the acquittal of the accused was by the Sessions Judge after the adjudication. Therefore even the principle of issue estoppel is not applicable. Suffice if we refer to the following observation of the Bombay High Court for not accepting the acquittal of the appellant Dinesh Kumar. The relevant observation reads : By its very nature, the two proceedings are independent of each other. In a given case, evidence which may be available for the purposes of proceedings under Section 112 may not be available or even if it is available, it may be admissible in regular Court of law in which the admissibility and relevance of the evidence is determined with reference to the provisions of the Evidence Act. In a Criminal prosecution the accused need not open his mouth nor make any statement while in the proceedings for adjudication or confiscation before the Customs Department, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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