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TMI Blog1976 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... ey will be carrying gold in the handle, of a cane basket and also in their shoes 17--1104SC1176 Inspector Tilwe, on receipt of this information, sent for Inspector Nichani and both of them kept guard outside Hira Mahal building from about 8.00 p.m. Around 8.45 p.m., the appellant accompanied by his material uncle's son Dwarkapra- sad, his son Dalip aged 9 years and his servant by the name of Mahadev, came out of Hira Mahal building. The appellant was carrying a basket in his hand and after coming out of the building, the appellant and his companions got into a Victoria and proceeded towards Victoria Terminus Station. Inspector Tilwe and Inspector Nichani followed these persons and when the appellant and his companions got down from the Victoria and entered the platform, Inspector Tilwe accosted them and took them to the office of the Assistant Station Master and searched them there in the presence of three panchas. Two of the panchas were selected by Inspector Tilwe while the third volunteered to act as Pancha. On taking search, it was found that the shoes worn by the appellant and Dwarkaprasad had specially made cavities and four gold biscuits with foreign markings were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution against the appellant was that of Inspector Tilwe and Tharandas Bhatia. None of the panchas was examined as a witness to prove the search and seizure. The learned Presidency Magistrate observed that in view of the fact that Tharandas Bhatia had not signed the Panchanama Ex.X nor his statement had been recorded by the Customs Authorities or the Railway Police, and his name had also not been shown as a witness in the complaint, it would not be desirable to rely on his evidence against the appellant. But the learned Presidency Magistrate found the evidence of Inspector Tilwe satisfactory and convincing and on the strength of this evidence, he held the charge proved against the appellant and convicted. the appellant of the offence under clause (b) of section 135 read with section 135(ii) of the Customs Act, 1962 and Rule 126H(2)(d) read with Rule 126P(2) (iv) of the Gold Control Rules, 1963 and sentenced him to suffer rigorous imprisonment for two months and to pay a fine of ₹ 500/- or in default to suffer rigorous imprisonment for two months for each of these two offences. Since there was no evidence to show that the appellant himself had smuggled the seized gold i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not the case of the appellant that he and Dwarkaprasad along with Dalip and Mahadev did not proceed from Hira Mahal building to Victoria Terminus or that they were not taken by Inspec- tor Tilwe to the office of the Assistant Station Master for purpose of search or that gold was not found as a result of the search, but his defence was that the seized gold was found from Dwarkaprasad and not from him and that both the basket and the shoes belonged to Dwarkaprasad and he had nothing to do with the same. Now, it is difficult to see why Inspector Tilwe should have falsely implicated the appellant if, in fact, the seized gold was found only from the person of Dwarkaprasad and the appellant was completely innocent. It may also be noticed that the case of the appellant was that Mahadev was the servant of Dwarkaprasad and it was Dwarkaprasad who was going from Bombay to Kanpur along with his servant Mahadev and the two Railway Tickets from Bombay to Kanpur were meant for Dwarkaprasad. But it is difficult to understand why in that event there should have been two first class Railway Tickets. Mahadev could not possibly be travelling by first class along with his master. The fact that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained even for a moment. Rule 126H(2)(d) provides, inter alia, that no person other than a licensed dealer shall buy or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may make in this behalf. The word 'gold' is defined in clause (c) of the Explanation to Rule 126A to mean gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form, of a purity of not less than nine carats and include any gold coin (whether legal tender or not), any ornament and any other article of gold . This definition does not restrict the meaning of the word 'gold' to legal or non-smuggled gold. It is wide enough to include any kind of gold, whether smuggled or non-smuggled. The restrictions imposed by the Gold Control Rules, 1963 could not have been intended merely to apply to legal gold. The object and purpose of the restrictions. would be frustrated by exclud- ing from their ambit and coverage smuggled gold. The Gold Control Rules, 1963 seek to control and regulate dealings in gold and 'gold&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not think this decision represents the correct law on the point. We are of the view that the Gold Control Rules 1963 are applicable alike to smuggled gold as to non-smuggled gold, and the inhibition of Rule 126H(2) (d) that no person other than a licensed dealer shall acquire gold except in accordance with a permit or authorisation granted by the Administrator is not con- fined in its operation to non-smuggled gold but applies equally in relation to smuggled gold. The learned Presiden- cy Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2)(d) read with Rule 126 P(2) (iv) of the Gold Control Rules, 1963. Since the appellant is convicted of the offence under Rule 126P (2) (iv) of the Gold Control Rules, 1963, the sentence of imprisonment to be imposed on him cannot be less than .six months and the High Court was right in enhancing the sentence to six months imprisonment. But so far as the sentence of fine is concerned, we do not think that the facts and circumstances of the case justify a heavy fine of ₹ 3,000/- for each of the two offences for which the appellant is convicted. It appears from the statement of the appellant E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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