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TMI Blog2006 (9) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... ny incriminating material. The drawer was completely pulled out and it was found that there was a cavity in between the base of the drawer and the base of the almirah. In the cavity, Kalyan magazines were found lying and upon removal of these magazines one dabba containing three cartons of Caticura shaving sticks were found. Each carton of Cuticura shaving stick contained four gold slabs i.e. total 12 gold slabs weighing 3730.800 g. were found These gold blocks contain marking National Bank of India, Mocatta Goldsmit Bullion Brokers, London . In the cavity a cotton cloth bundle containing 13 gold rods in the shape of Kadas weighing 1326.800 g. were also found. These articles were seized and panchanama was drawn. 2. On 28-3-1974 Shri Ramratan Shrivallabh Chandak was asked to make a statement but he expressed inability for not being well. Later on his statement was recorded on 3-4-1974 and 2-5-1974. On the basis of seizure of primary gold in contravention of provisions of Gold (Control) Act , a notice was issued to Shri Ramratan Shrivallabh Chandak to show cause as to why the seized primary gold should not be confiscated under Sec. 71 of the Gold (Control) Act for contravention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be held to be in conscious possession of Shri Chandak but in respect of gold foils it sustained the charge that Shri Chandak was in conscious possession of the same. For this, the CJM sentenced Shri Chandak to pay a fine of Rs. One thousand and in default to suffer rigorous imprisonment for a period of one month. 7. Against the order of the Tribunal dated 28-2-1986, the appellant filed a Writ Petition in the Hon ble Bombay High Court and the Hon ble High Court has remanded the matter back to the Tribunal for fresh consideration in accordance with law in view of the fresh ground of non-consideration of findings of the Criminal Court by the Tribunal. The Hon ble High Court referred to the decision of the Apex Court in the case of Gopaldas Udhavdas Ahuja Anr. v. Union of India Ors., (2004) 7 SCC 33, wherein the Supreme Court, inter alia, considered the effect of order of acquittal in the prosecution under Sec. 85(i)(ii) read with Sec. 8(1) on the order of confiscation passed under Sec. 71(1) read with Sec. 8(1) by the Authorised Officer in respect of the primary gold. It also referred to the Supreme Court s earlier judgment in the case of M. Paul Anthony v. Bharat Gold Mines L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orised Officer to proceed arbitrarily in making an order for confiscation. 18. In the light of the aforesaid legal position, no doubt is left that the finding of the criminal court may have some effect on the order of confiscation though it is not always that acquittal in the criminal case ipso facto results in setting aside the order of confiscation passed by the competent authority under the Act. What is needed to be seen is are the basic facts common? Is the recovery of incriminating articles same? Have same witnesses been examined in both proceedings? Is there same charge of possession in both proceedings? Is the evidence same? If the answer to all these questions is in affirmative and in the absence of any material distinguishing feature, it would be legally improper to allow the confiscation order to stand against the finding of the Criminal Court. 9. In view of the above it was submitted that in the present case also there is commonness of basic facts, recovery of incriminating articles, witnesses examined, charge of possession and the evidence produced before the two authorities. He then referred to the findings of the CJM dealing with the specific concerns expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said newspaper because it was so old that when opened by the officer it was found to be reduced into rags being extremely brittle. It was a newspaper of the year 1940 and, therefore, it could be reasonably taken for granted that this newspaper must have been used somewhere in the year 1940 or a year or so, thereafter, since no one keeps the newspapers for years together and therefore the gold slabs appeared to have been kept there in that place wrapped in such a manner somewhere in 1940 or a year thereafter. The pad lock of the drawer was out of order and it could never have been locked. The shaving kit of the accused used to be kept there and his barber used to go to the house for shaving purpose. The CJM observed that he does not think that the accused would have taken such a great risk and accordingly concluded that the appellant had no knowledge that the primary gold was kept there in that cavity. 10. Referring to the learned DR s contention that in this case the information was specific and if the informer had the knowledge the appellant must have the knowledge, it was submitted that the investigating officer was examined by the magistrate, who clearly stated that the inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the witnesses, seizing officer who gave contradictory statements. The seizure was made by Income-tax authorities and handed over to Customs department and there was no coherence in witness, panchas, raiding officers and records were not available. It was in that context that order of confiscation of gold by the adjudicating authority was set aside as being based upon irrelevant and non-existing facts. He further submitted that in the present case the gold was recovered on a specific information and was found in a wooden almirah which was kept in the bed room of the appellant on the second floor and bed room was in the exclusive use of the appellant who was using it for the last 28 years. The cupboard was affixed with monogram of RSC, abbreviation of appellants name and on the date of the search the almirah was opened with a key provided by appellant. The gold was found in the last drawer which was pulled out easily as stated in the panchanama. There was no difficulty as there was no rust and no lock smith was required to open it. It is most surprising that though the search proceedings continued for three days, the appellant never uttered that they had no knowledge and that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponderance of probability the appellant has to be considered to be in conscious possession of the gold. 16. We have considered the submissions. We find that the basic question to be decided is whether the appellant was in conscious possession of the gold or not. Possession of gold in the context of Gold (Control) Act, 1968 means conscious possession only and nothing else does not require any findings as it has been settled by the Hon ble High Court vide Para 20 of its order. Now whether the gold was in conscious possession or not has to be determined by looking into the entire facts which has been adequately discussed in the CJM s acquittal order. The appellant has taken a plea that he was not in the knowledge of the gold found in the basement cavity of the almirah kept in his room on the ground that the said gold was kept by his mother who never informed him about the same as she suddenly died out of illness. The learned DR has disputed this fact on the ground that it is unnatural to believe that the appellant would not be in the know of the gold lying in his almirah which was in his exclusive use for the last 28 years and the key for which was provided by him only and the almir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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