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TMI Blog1986 (5) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal by the learned Additional Sessions Judge, Ganjam, and hence the present revision. 2. Before the learned Magistrate, petitioner was charged under Section 135 of the Customs Act, Section 23(1) of the Foreign Exchange Regulation Act and Section 85 of the Gold (Control) Act, whereas his co-accused, Doki Janardan Swamy was charged under Sections 87 and 88 of the Gold (Control) Act. The learned Magistrate, however, acquitted accused Janardan or both the charges levelled against him and acquitted the petitioner of the charge under Section 23(1) of the Foreign Exchange Regulation Act. 3. According to the prosecution case, accused Janardan Swamy (since acquitted) is a licensed gold dealer. His premises were searched on 19.4.1975 by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the petitioner from inside the bag in his hand and, therefore, petitioner has committed the offence under Section 85 of the Gold (Control) Act as well as under Section 135 of the Customs Act. On the question of the validity of the sanction order, the Courts below have also come to the conclusion that the sanction accorded as per Ext. 5 is valid and consequently both the Courts below have convicted the petitioner. 6. Mr. Mohanty, the learned counsel for the petitioner, raises several contentions challenging the conviction of the petitioner. According to him, no Court can take cognisance of an offence under Section 135 of the Customs Act except with the previous sanction of the Collector of Customs and it is for the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognisance of the offence in question. He further submits that "gold" has been defined in Section 3(j) of the Gold (Control) Act and "primary gold" has been defined in Section 3(r) of the said Act, but there is total absence of prosecution evidence from which it can be said that what was alleged to have been seized from the accused is actually the "gold" as defined in Section 3(j) of the Gold (Control) Act. Mr. Mohanty, the learned counsel for the petitioner, also contends that there has been no seizure in accordance with law since not a single independent witness was asked to be a seizure witness though according to the prosecution there were large number of people available at the spot at the time the alleged seizure was made. In that view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of sanctioning the prosecution. Of course, even if the sanction order itself does not indicate the materials which were examined by the sanctioning authority, it is open to the prosecution to lead evidence aliunde to establish the facts which constituted the offence and the materials which were considered by the sanctioning authority. But here, unfortunately, the sanctioning authority, namely the Collector, has not been examined. P.W. 1, who is the Superintendent of Central Excise, has purported to have proved the sanction under Ext. 6 and according to his evidence, the Assistant Collector, Central Excise, obtained the sanction from the Collector. Even the said Assistant Collector has not been examined to indicate as to what were the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 135 of the Customs Act and accordingly Section 137 of the said Act prohibited taking cognisance of the offence. Consequently, the conviction of the petitioner under Section 135 of the Customs Act cannot be sustained. 8. Coming to the question of "complaint in writing" for the offence under Section 85 of the Gold (Control) Act, I find that Section 97 of the Gold (Control) Act provides that no Court shall take cognisance of any offence against this Act except on a complaint in writing made by a Gold Control Officer, not below the rank of a Collector of Central Excise or of Customs having jurisdiction over the area in which the offence is committed or any person authorised by him in writing in this behalf. Here admittedly, the Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been seized from the petitioner, whether gold, brass or any alloy, that must be established by the prosecution. But a perusal of all the materials on record clearly established that the prosecution has not taken any steps in that regard. To attract the offence under Section 85 of the Gold (Control) Act, it must be established as to the possession of any primary gold by the accused in contravention of the provisions of the Act or the Rules made thereunder. Necessarily, therefore, it must first be established that what was recovered from the possession of the accused is gold as defined in Section 3(j) and then the primary gold, as defined in Section 3(r) of the Gold (Control) Act. If this is not established, then the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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