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TMI Blog1979 (12) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... Gold Control Act, 1968 but failing to award any sentence under Section 85(ii) of the Gold Control Act, 1968, while imposing a fine of Rs. 2000 for the offence under Section 135 (1)(b)(ii). The appeal has been filed against the omission on the part of the learned Chief Metropolitan Magistrate to award a separate sentence for the offence under Section 85(ii) of the Gold Control Act, 1968, as well. 2. Before the learned Chief Metropolitan Magistrate both the respondent, V.O.S. Ansari (accused 1) and M.K M. Mohammed Kassim, the second accused, were tried for an offence under Section 135(1)(b)(ii) of the Customs Act, 1962 and Section 85(ii) of the Gold Control Act, 1968. The case of the prosecution was this : On 31-7-1972, a party of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In their statements both the accused stated that the first accused was a servant under the second accused, that the second accused gave Rs. 2800 to the first accused for purchasing a gold bar, that he purchased M.O. 1 through a broker in Sow carpet at about 11-30 A.M. that he returned to the house of the second accused at about 3 P.M. and that the first accused was keeping the gold in his bag when the officials of the Central Excise department came and seized it from him. 4. Subsequently, show cause notices were issued to the accused under Ex. P.4 and P.5 under the Customs and Gold Control Acts. The respondent and the second accused submitted their replies under Exs. P. 6 and P. 7. The Assistant Collector of Central Excise passed the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and convict him thereunder and sentence him to pay a fine of Rs. 2000 in default to suffer rigorous imprisonment for three months. As the act for which he is found guilty under Section 135(1)(b)(ii) of the Customs Act of 1962, constitutes the offence for which he has been found guilty under Section 85(ii) of the Gold Control Act, 1968, as well, no separate sentence is called for under the latter Section 85(ii) of the Gold Control Act, 1968." As stated earlier, this appeal has been filed against the omission of the learned Chief Metropolitan Magistrate to award separate sentence under Section 85(ii) of the Gold Control Act, 1968. 7. Under Section 111(d) of the Customs Act, 1962 any goods which are imported or attempted to be imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962, involves an element of importation of gold within the Indian Customs waters contrary to any prohibition imposed by or under the provisions of that Act or any other law for the time being in force. The offence under Section 85(ii) of the Gold Control Act does not involve any element of importation of gold. The prosecution need not prove the importation of gold for making out an offence under that section, but can succeed if it establishes that the person concerned owned or was in possession or custody or control of any primary gold. Therefore it is not possible to agree with the learned Chief Metropolitan Magistrate that the act for which the respondent has been found guilty under Section 135(1)(b)(ii) of the Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) deals with only appeals against acquittals and will not apply to the facts of the present case where this appeal has been filed against the omission by the learned Chief Metropolitan Magistrate to award a separate sentence under Section 85(ii) of the Gold Control Act, 1968. Only a revision should have been file under Section 397 Crl. P.C., 1973. But it is seen that the judgment in this case was rendered by the Chief Metropolitan Magistrate on 23-8-1977. Though the appellant herein applied for grant of a certified copy of the judgment on 25-8-1977, the certified copy was made ready only on 5-9-1977 and this appeal has been filed on 27-10-1977. Therefore, this appeal has been filed within two months, the period provided for filing a crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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