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TMI Blog2006 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... he base 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 cuticura shaving sticks was found. Each carton of cuticura shaving sticks contained four gold slabs, i.e., 12 gold slabs, weighing 3730.800 gms were found. In the cavity, a cotton cloth bundle containing 13 gold rods in the shape of "kadas", weighing 1326.800 gms was also found. These articles were seized and panchanama was drawn. 3. On 28th March, 1974 Ramratan Srivallabh Chandak was asked to make a statement but he expressed his inability for not being well. Later on his statement was recorded on 3rd April, 1974 and 2nd May, 1974. On the basis of the seizure of the primary gold, allegedly in contravention of the Gold (Control) Act, the notice was issued to Ramratan Srivallabh Chandak to show cause as to why the seized primary gold be hot confiscated under Section 71 of the Gold (Control) Act for contravention of Sections 8(i) and 16 of the said Act. Ramratan Srivallabh Chandak was also prosecuted under Sections 8(i) and Section 16 read with Section 85(ii) of the Gold (Control) Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, held that the gold slabs, gold rods and gold foils were primary gold. Gold foils were held to be in conscious possession of Ramratan Srivallabh Chandak ("the accused"). However, as regards 12 gold slabs and 13 gold rods, the Chief Judicial Magistrate held that the accused cannot be held to be in conscious possession thereof. The Chief Judicial Magistrate, thus, with regard to the possession of gold foils held that an offence under Section 85(ii) of the Gold (Control) Act has been established and sentenced him to pay a fine of Rs. 1,000 and in default to suffer R.I. for a period of one month. 11. Reverting back to the appeal before the Tribunal, inter alia, in the backdrop of the judgment and the findings of the criminal court, it was contended before the Tribunal that 12 gold slabs and 13 gold rods could not be held to be in conscious possession of Ramratan Srivallabh Chandak. 12. As a matter of fact, in the cross-objections filed by the department before the Tribunal, though we are amazed by such course, the department also submitted before the Tribunal that in the light of the decision given by the Chief Judicial Magistrate on 12th/17th October, 1979 and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further held by the authorised officer that when the gold in respect of which any provision of the 1968 Act had been contravened, such gold, ipso facto, attracted confiscation." 17. Then the Supreme Court noticed its earlier judgment in the case of M. Paul Anthony v. Bharat Gold Mines Ltd. - (1999) 3 SCC 679 and observed that it would be unjust, unfair and oppressive to allow the decision of the authorised officer in confiscation proceedings to stand against acquittal by the competent criminal court. Clarifying that the said observation should not be taken to mean that there is no difference between departmental proceedings under Section 71(1) and the prosecution for illegal possession under Section 85(1), in paragraph 21 of the report, the Supreme Court observed thus : "21. xxx xxx xxx A combined reading of Sections 8(1), 71(1) and 85 of the 1968 Act made it clear that the legislature intended to provide for two separate proceedings before two different forums and there is no conflict of jurisdictions between the authorised officer acting under Section 71(1) to direct confiscation on being satisfied that an offence has been committed and the magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge of the gold being kept there. At any rate, the explanation furnished by the accused, does appear acceptable. An inference in his favour could be drawn. As held by the Supreme Court in AIR 1971 SC page 66 in Khadu Morton v. State of Bihar, that if two reasonable conclusions can be reached on the basis of the evidence on record, then the view favouring the accused ought to be preferred, in this case, the conclusion which could be reasonably reached is favour of the accused has to be preferred. It must, therefore, be held that the accused had no knowledge that the primary gold was concealed in that cavity. Consequently therefore, it could not be said that the accused was in conscious possession of the same. To this extent, therefore, the prosecution has not succeeded in establishing that the accused was in conscious possession of Gold slabs and gold rods." 20. The legal position is no more res integra that "possession of gold" in contravention of 1968 Act means "conscious possession". The conscious possession of gold in contravention of 1968 Act is an offence for prosecuting under Section 85(1) and also for confiscation under Section 71(1). 21. Before the Tribunal, specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter needs to be remanded to the Tribunal for fresh consideration in accordance with law and the observations made hereinbefore. 24. Before we close, we may deal with the objection raised by the Counsel for the revenue that alternative remedy of making a reference application under Section 82B(3) of the Gold (Control) Act, 1968 was available to the petitioners but they did not avail of the statutory remedy. According to the Counsel for the revenue, the writ petition has been filed by the petitioners to circumvent the limitation provided under sub-section (3) of Section 82B. 25. It does appear that the petitioners availed of the remedy right upto making the reference application under sub-section (1) of Section 82B. The said reference application came to be dismissed by the Tribunal on 24th June, 1987. However, instead of filing a reference application before this Court under Section 82B(3), the petitioners filed writ petition setting up a ground that a similar writ petition No. 2928/1987 has been admitted by the court and the rule granted. This is what the petitioners have to say in paragraph 25 of the writ petition : "25. The petitioners have approached this Hon'ble Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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