9911796707
TMI Blog1988 (8) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... of petitioner No. 1 to pay fine of Rs. 3,000 in default to undergo R. I. for one month, modified in appeal so far as petitioner No. 1 is concerned only to a fine of Rs. 3,000 but not to the in default sentence and confirming the sentence so far as the petitioner No. 2 is concerned, have preferred this revision to quash the conviction. 2. The facts leading to the prosecution case are that the petitioner No. 1 is admittedly a jewellery shop purportedly owned by Dolagovinda Naik representing the shop as also the members of his family, but in respect of the shop only he is the licensed dealer. The shop was raided by the Central Excise staff on 14.2.1978 and amongst other things, primary gold weighing 721.800 grams as also 12 old gold coins w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold in question was found in the premises as is also stated to by both the accused in their statements in Exts. 4 and 5, their possession was prima facie illegal and hence they became liable under Section 85 of the Act. 4. To appreciate both the contentions raised, it is beneficial to extract the provisions of Section 33 and relevant portion of Section 85 of the Act :- 33. Gold which is not a part of the stock-in-trade, not to be kept in the business premises of a dealer. - No licensed dealer shall keep in the premises where he carries on business as such dealer any primary gold, article or ornament which is not a part of his stock-in-trade or held by him in his capacity as a dealer and every primary gold, ornament or article found i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the second part of the section. 5. Keeping unauthorised gold in the premises would ordinarily imply such conduct as a conscious act on the part of the person keeping the article and hence would ordinarily require the conscious possession to be established. But so far as the provisions of the Act are concerned, absence of such mental state of consciousness has to be established by the person charged with the offence, as is stipulated under the provisions of Section 98-B of the Act. The accused is to prove beyond reasonable doubt that he had not the requisite mental state which in this case would mean that he did not have conscious possession of the excess primary gold or the gold coins in his stock-in-trade. The very wordings of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner No. 1 was not present in the locality. None of the witnesses examined on behalf of the prosecution also states of such fact. Since absence of the licensed dealer is an admitted fact and the management of the business had been left to his brother, petitioner No. 2, it can be said that the presumption of mental state of the petitioner No. 1 under Section 98-B of the Act would not be available to be drawn against him and the only possible conclusion which can be arrived at is that the gold which was discovered could not have been consciously kept by him in the premises and thus it must be held that the onus upon him of establishing his innocent state of mind has been discharged beyond reasonable doubt. Once such conclusion is reached, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 98B of the Act are not available to be drawn, the next question to be considered as to whether the prosecution has been able to establish the possession, custody or control of primary gold by either of the two petitioners as contemplated under Section 85(1)(ii) of the Act. The defence put forth by the petitioners is that the primary gold and the gold coins seized did not belong to the stock-in-trade of the shop but to the mother (D.W. 11) of the two petitioners. Some gold ornaments of the mother of the petitioners had been given to D.W. 9 a goldsmith, for melting for preparation of ornaments for the impending marriage of their sister and the gold coins had also been taken out of a gold necklace for the self-same purpose. The primary g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith to whom gold had been entrusted for melting. D.W. 11 is the mother of both the petitioners. It is the statement of D.W. 1, that at the time of seizure D.W. 4 had stated that D.W. 11 had given the gold without the knowledge of the petitioner No. 2 and that he had kept the same in the shop premises without his knowledge. As a matter of fact, D.W. 1 is also a seizure witness, but has not been examined by the prosecution. D.W. 4 has also completely corroborated him. D.W. 9 has not only corroborated D.W. 1 but has further spoken of having maintained a register of gold entrusted to him and also of having entered the particulars of the ornaments entrusted to him for melting in the register. So also the version of D.W. 11 is in no way different ..... X X X X Extracts X X X X X X X X Extracts X X X X
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