Padam Chand Jain vs Collector Of Customs
1992 Latest Caselaw 387 Del

JUDGMENT

Usha Mehra, J.

(1) The petitioner has been prosecuted for offences punishable under Section 135(b) of the Customs Act, 1962 and under Section 85 of the Gold Control Act, 1968, Simultaneously, the said respondent started adjudication proceedings against the petitioner on the same set of facts on issuance of show cause notice under the Customs Act 1962 and the Gold Control Act, 1968 thereby asking the petitioner to explain as to why the seized gold and gold ornaments vide Panchnama dated 18th January, 1983 should not be confiscated and why penalty be not imposed on the petitioner. It is against this action of the respondents that the petitioner has filed the present petition for quashing the prosecution regarding the seized gold weighing 143.500 gms. only.

(2) In nutshell the case of the Department is that on 18th January. 1983, the officers of gold (Preventive) Cell, New Delhi searched the shop premises of the petitioner. From the search conducted by the officers, the gold ornaments and primary gold weighing 2460.500 gms. were recovered for which the petitioners could not explain. Therefore, the primary gold and the gold ornaments were acquired and taken possession of. Therefore, these gold ornaments and the primary gold were seized. They were got tested and were found to be of purity. The possession, custody or control of the primary gold is a contravention of Section 8 of the Gold (Control) Act, 1968. The gold articles were presumed to have been made out of the smuggled gold and rest of the pieces of gold were acquired in Contravention of the Provisions of Gold (Control) Act, 1968 and the same were also confiscated. From this the petitioner was prosecuted and the complaint filed in the Court.

(3) The petitioner look up the plea that he was not present when his shop was searched. That the ownership of the primary gold and the gold ornaments have been thrust upon him. Even the Panchnama does not indicate that the recovery was effected from the petitioner nor does it mention that the iron safe from which the alleged recovery of seized property had been effected belonged to the petitioner. No expert official was called to weigh and test the purity of the gold alleged to have been recovered. During the adjudication proceedings the petitioner replied to the show cause notice. However, without considering the reply filed by the petitioner, the adjudication proceedings were concluded. Sufficient opportunity was not granted to the petitioner. He was not allowed to cross examine the officers of the Gold (Preventive) Cell. Aggrieved by the order passed by the respondent on the conclusion of the adjudication proceedings, that petitioner filed appeals. The appellate authority after considering the contention of the parties passed the order directing the respondent to drop the proceedings and also set aside the penalty. The appellate Tribunal upheld the contentions of the petitioners raised in the appeals and ordered that the respondent should release the gold and the gold ornaments weighing 2193.00 gms. Further ordered that the petitioner shall redeem the gold weighing 341.500 gms. on payment of Rs.5,000.00 with further condition imposed on the petitioner that the gold will be converted into ornaments immediately on receipt of the same. Against the order of the appellate Tribunal no appeal was preferred by the respondents.

(4) The respondent/Department filed a petition under Section 482 which has been listed as Crl.M(M) 2389/91. In that respondent got an ex parte order to the effect that the primary gold and the gold ornaments could be released to the petitioner on his furnishing a 'Supurdginama' to the satisfaction of the trial court.

(5) Both these petitions filed by the petitioner as well as by respondent have been taken up together. I have heard Ms. Urmil Khanna. counsel for the petitioner and Mr. Salish Aggarwal, counsel for the respondent, and have perused the record. Admittedly, against the two appeals filed by the petitioner, the appellate Tribunal set aside the penalty as well as the action of the respondent/ Department and further gave the direction that the gold and the gold ornaments weighing 2139.300 gms. be released to the petitioner. Against the order of the Tribunal dated 23rd April, 1990, no appeal has been preferred by the Department. Therefore, that order has become final between the parties. I am in agreement with the contention of the counsel for the petitioner that the respondent cannot circumvent the order of the Tribunal by asking the petitioner to furnish indemnity bond or to take the gold on 'Superdari' on furnishing a 'Supurdginama'. Since the Tribunal has categorically upheld the contention of the petitioner, I see no reason why the primary gold and the gold ornaments be not released in compliance with the conditions stipulated by the petitioner. The contention of Mr. Salish Aggarwal that since the prosecution is going on and the gold and the gold ornaments will be required as evidence has no merit because the appellate Tribunal, a competent authority has already decided that the primary gold and the gold ornaments belong to the petitioner and had been wrongly confiscated. There is no reason why these should not be returned even if the prosecution is still pending. Similarly the ornaments which were pawned are also required to be released to the petitioner. The Tribunal has exonerated the petitioner with regard to the possession of 177.700 gms. foreign marking gold. Similarly, the new gold ornaments and gold ornaments which were pawned with the petitioner weighing 1797.800 gms and 341.500 gms were ordered to be released by the Tribunal, as it was found that the petitioner had not contravened any provisions of the Gold (Control) Act and the Customs Act. It is only with regard to 143.500 gms. primary gold in the form of rannie for which Appellate Tribunal imposed penally. This can be released on payment of redemption amount to the tune of Rs.l0,000.00 and penalty of Rs.5,000.00 . The only objection of Mr.Satish Aggarwal for released of this gold is that the prosecution is pending, and therefore, the Tribunal's order can not be complied with. I find no force in this submission. As already observed above the decision of the appellate authority has already become final between the parties. There is no reason why it should be modified. Respondent was fully aware about the pendency of the proceedings in the Court but this fact was never asserted before Tribunal nor Tribunal's order assailed. Hence that order having become final there is no reason why it should not be ordered to be implemented. I accordingly order that except the primary gold in the form of rannie weighing 143.500 gms. the rest of the gold should be released to the petitioner as per the order of the Tribunal. It is only with regard to the primary gold in the form of rannie weighing 143.300 gms. which can be released to the petitioner on paying the redemption amount and depositing the penally and the conditions imposed by the Tribunal. It will be only fair if this gold is given to the petitioner on 'superdari' on such condition a.s the trial court may deem fit.

(6) With these observations, this petition as well as the petition bearing No.Cri. M(M) 2389/91 stands disposed of.