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TMI Blog1988 (12) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ome practically family business from generations. They possess the requisite licences under the Gold Control Act and other licences. During the course of business they have been purchasing gold ornaments from various customers for which they have been issuing vouchers, receipts, etc. as also making requisite payments towards the gold ornaments which on many occasions used to be melted and those entries are made in various registers. In effect, it is alleged that on November 4,1988 the officers attached to the Gold Control Wing of Customs Department visited all these shops and verified the record and actually took charge of the entire record containing registers, vouchers, etc. This was on the intelligence received and the suspicions generated that these people have been indulging in clandestine activities by purchasing gold from dubious sources and creating camouflage by showing that ornaments have been purchased from various customers and those have been melted and for that purpose according to the Department some bogus vouchers have been prepared and there has been flagrant breach of the rules and the provisions of the Act in the matter of identification of these customers and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to contact those persons whose names are verified in the vouchers and registers and in some event summonses will have to be issued to them lo appear before the officers and it is thereafter that even some tentative opinion can be formed as till then it cannot be even opined that those persons are fictitious. If that be so, then in the nature of things this is a time consuming process because if the summonses are issued it may be that in some cases the persons though in existence may not be available or may not receive the summonses and therefore there will have to be repeat performance of re-issuance of summonses. There are several vouchers involving several persons and vast extent indicates an equally vast span of time that would be consumed in this exercise and unless that is complete nothing would be done even as per the Department. 7.It is then worth noting that in some case the Department itself comes out with the story that at least a few out of those persons who were tried to be contacted had appeared before the officers and made categorical statements affirming the genuineness of those transactions and thereby conceded that they did sell the ornaments to these petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he observations made in those petitions in this field are being reiterated and relied upon and can be read in this proceeding also which therefore need not be reproduced in details. 9In that behalf it is mentioned positively in the affidavits filed by all the petitioners that they are even now prepared to demonstrate the genuineness of those transactions and can even endeavor to produce all those persons who are available before the officers who would confirm the transactions and if such an opportunity is given the entire cloud of suspicion can be wiped out. That offer is very-boldly reflected in the affidavits and the bona fide of that plea can hardly be doubted at this stage and in fact those are not doubted by the Department also. 10.It is also apparent that all the relevant documents were seized on 4th of November 1988 and enough time has elapsed in between to examine and scrutinise the documents. In the nature of things the investigation can well be progressed in more effectiveness without the custody of the petitioners whereas the custody of the petitioners would be more or less a formality. It is accepted that the offences under the Gold (Control) Act by themselves norma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is deliberate so as to facilitate to achieve the object. This no doubt would require anxious consideration though at a later appropriate stage and not at the inception of the proceeding, especially because it would require adequate and full data to conclude one way or the other. However, notwithstanding that feature that aspect cannot be assumed but is yet to be established and for establishing the same several hurdles are to be crossed with a time consuming exercise and further for that purpose also the custody of the petitioners may not be necessary. As stated, it is repeatedly indicated even by the Department that only preliminary inquiries are in progress and it will have its own impact. Any way, it would not be proper to express any opinion in this field at this stage which is still at the threshold especially when no opportunity is yet afforded to the petitioners to explain that situation. Even the scheme of the Act and the Rules thereunder suggests about the requirement of affording opportunity to the petitioners at different stages and may be even at the threshold and even on first principle such necessity can be upheld. 12.Shri Patwardhan, the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seriousness of the offences and even without discarding the thinking process as adopted by the Department in order to carry the investigation to achieve the particular object for reaching the conclusion, still the thrust of circumstances is such that it would not warrant taking the petitioners in custody. It is true that bail is claimed in anticipation of arrest and the Department does not get even one day's custody. Normally in serious offences the custody at least for some period would obviously become necessary and the offences under this Act in exceptional cases also may justify the same. However, this depends on the facts and circumstances of each case and no principle can be placed in straight jacket. Practically the entire material including the relevant documents are already in possession of the Department. They are also posted with the knowledge of the petitioner's main contention qua the said documents. They have started investigating on that basis and examining the documents. Consequently therefore all the necessary data is made available and the effective investigation under the circumstances and in view of the said material can be carried and actually is being car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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