Kerala High Court
M/S Al Kabir Gold & Diamond Jewellery (A ... vs Bureau Of Indian Standards Represented ... on 11 September, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
Crl.M.C. No.5735/24 & Conn. Cases 1
2024:KER:69027
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
CRL.MC NO. 5735 OF 2024
AGAINST CMP NO.802/2024 IN ST NO.1411 OF 2024 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, KALAMASSERY
PETITIONERS/PETITIONERS/ACCUSED 1 AND 2:
1 M/S AL LATIF GOLD & DIAMOND JEWELLERY WHOLE SALE
(A UNIT OF AL MUQTADIR GROUPS)
33/715, FIRST FLOOR, OPPOSITE LULU MALL,
EDAPPALLY, ERNAKULAM-682024,
REPRESENTED BY ITS PROPRIETOR,
MOHAMMAD MANZOOR ABDUL SALAM,
AGED 50 YEARS, S/O ABDUL SALAM,
FLAT NO.1D, HEERA BLUE BELLS,
VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
2 MOHAMMAD MANZOOR ABDUL SALAM
AGED 50 YEARS, S/O ABDUL SALAM,
PROPRIETOR,
M/S AL LATIF GOLD & DIAMOND JEWELLERY WHOLE SALE,
RESIDING AT VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
BY ADVS.
D.KISHORE
C.A.RAJEEV
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENTS/RESPONDENT/COMPLAINANT:
BUREAU OF INDIAN STANDARDS
REPRESENTED BY ITS JOINT DIRECTOR JUNITHA T.R
SCIENTIST-D/JOINT DIRECTOR,
KOCHI BRANCH OFFICE, II ND FLOOR,
Crl.M.C. No.5735/24 & Conn. Cases 2
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CWC OFFICE COMPLEX, MAVELI ROAD,
GANDHI NAGAR, KADAVANTHARA.P.O,
KOCHI, PIN - 682020
BY ADV MANOJ RAMASWAMY
SRI.S.SREEKUMAR (SR.)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
29.08.2024, ALONG WITH Crl.MC.4834/2024, 5305/2024 & 5306/2024,
THE COURT ON 11.09.2024 PASSED THE FOLLOWING:
Crl.M.C. No.5735/24 & Conn. Cases 3
2024:KER:69027
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
CRL.MC NO. 4834 OF 2024
AGAINST CMP NO.801/2024 IN ST NO.1410 OF 2024 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, KALAMASSERY
PETITIONERS/PETITIONERS/ACCUSED 1 AND 2:
1 M/S AL KABIR GOLD & DIAMOND JEWELLERY
(A UNIT OF AL MUQTADIR GROUPS)
33/713, GROUND FLOOR, ALUVA ROAD,
OPPOSITE LULU MALL, EDAPPALLY,
ERNAKULAM-682024,
REPRESENTED BY ITS PROPRIETOR,
MOHAMMAD MANZOOR ABDUL SALAM,
AGED 50 YEARS, S/O ABDUL SALAM,
FLAT NO.1D, HEERA BLUE BELLS,
VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
2 MOHAMMAD MANZOOR ABDUL SALAM
AGED 50 YEARS
PROPRIETOR,
M/S AL KABIR GOLD & DIAMOND JEWELLERY
S/O ABDUL SALAM, FLAT NO.1D,
HEERA BLUE BELLS, VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
BY ADVS.
D.KISHORE
C.A.RAJEEV
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENT/RRESPONDENT/COMPLAINANT:
BUREAU OF INDIAN STANDARDS
Crl.M.C. No.5735/24 & Conn. Cases 4
2024:KER:69027
REPRESENTED BY ITS JOINT DIRECTOR SRI.SANDEEP S KUMAR
SCIENTIST-D/JOINT DIRECTOR,
KOCHI BRANCH OFFICE, II ND FLOOR,
CWC OFFICE COMPLEX, MAVELI ROAD,
GANDHI NAGAR, KADAVANTHARA.P.O,
KOCHI, PIN - 682020
BY ADV MANOJ RAMASWAMY
SRI.S.SREEKUMAR (SR.)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
29.08.2024, ALONG WITH Crl.MC.5735/2024 AND CONNECTED CASES,
THE COURT ON 11.09.2024 PASSED THE FOLLOWING:
Crl.M.C. No.5735/24 & Conn. Cases 5
2024:KER:69027
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
CRL.MC NO. 5305 OF 2024
AGAINST CMP NO.801/2024 IN ST NO.1410 OF 2024 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, KALAMASSERY
PETITIONER/RESPONDENT/COMPLAINANT:
BUREAU OF INDIAN STANDARD
REPRESENTED BY SRI. SANDEEP S. KUMAR,
SCIENTIST-D/ JOINT DIRECTOR,
KOCHI BRANCH OFFICE, II FLOOR,
CWC OFFICE COMPLEX, MAVELI ROAD,
GANDHI NAGAR, KADAVANTHARA P.O.,
KOCHI., PIN - 682020
BY ADVS.
MANOJ RAMASWAMY
S.SREEKUMAR (SR.)
RESPONDENTS/PETITIONERS/ACCUSED:
1 M/S AL KABIR GOLD & DIAMOND JEWELLERY
(A UNIT OF AL MUQTADIR GROUPS),
33/713, GROUND FLOOR, ALUVA ROAD,
OPPOSITE LULU MALL, EDAPPALLY,
ERNAKULAM 682024,
REPRESENTED BY ITS PROPRIETOR,
MOHAMMED MANZOOR ABDUL SALAM,
AGED 50 YEARS, S/O ABDUL SALAM,
FLAT NO. 1D, HEERA BLUE BELLS, VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
2 MOHAMMED MANZOOR ABDUL SALAM
AGED 50 YEARS, S/O. ABDUL SALAM,
PROPRIETOR, AL KABIR GOLD & DIAMOND JEWELLERY,
RESIDING AT FLAT NO. 1D, HEERA BLUE BELLS,
Crl.M.C. No.5735/24 & Conn. Cases 6
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VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
BY ADVS.
KISHORE D.
C.A.RAJEEV
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
29.08.2024, ALONG WITH Crl.MC.5735/2024 AND CONNECTED CASES,
THE COURT ON 11.09.2024 PASSED THE FOLLOWING:
Crl.M.C. No.5735/24 & Conn. Cases 7
2024:KER:69027
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946
CRL.MC NO. 5306 OF 2024
AGAINST CMP NO.802/2024 IN ST NO.1411 OF 2024 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, KALAMASSERY
PETITIONER/RESPONDENT/COMPLAINANT:
BUREAU OF INDIAN STANDARDS
REPRESENTED BY ITS JOINT DIRECTOR SMT.JUNITHA T.R.,
SCIENTIST-D/JOINT DIRECTOR,
KOCHI BRANCH OFFICE, II FLOOR,
CWC OFFICE COMPLEX, MAVELI ROAD,
GANDHI NAGAR, KADAVANTHARA P.O.,
KOCHI, PIN - 682020
BY ADV MANOJ RAMASWAMY
S.SREEKUMAR (SR.)
RESPONDENTS/PETITIONERS/ACCUSED:
1 M/S AL LATIF GOLD & DIAMOND JEWELLERY WHOLESALE
(A UNIT OF AL MUQTADIR GROUPS),
33/715, FIRST FLOOR, OPPOSITE LULU MALL,
EDAPPALLY, ERNAKULAM - 682024
REPRESENTED BY PROPRIETOR
MOHAMMED MANZOOR ABDUL SALAM
AGED 50 YEARS, S/O ABDUL SALAM,
FLAT NO. 1D, HEERA BLUE BELLS,
VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
2 MOHAMMED MANZOOR ABDUL SALAM
AGED 50 YEARS, S/O. ABDUL SALAM,
PROPRIETOR,
M/S AL LATIF GOLD & DIAMOND JEWELLERY WHOLESALE,
RESIDING AT FLAT NO. 1D, HEERA BLUE BELLS,
VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
Crl.M.C. No.5735/24 & Conn. Cases 8
2024:KER:69027
BY ADVS.
KISHORE D
C.A.RAJEEV
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
29.08.2024, ALONG WITH Crl.MC.5735/2024 AND CONNECTED CASES,
THE COURT ON 11.09.2024 PASSED THE FOLLOWING:
Crl.M.C. No.5735/24 & Conn. Cases 9
2024:KER:69027
BECHU KURIAN THOMAS, J.
------------------------------------------------------
Crl.M.C Nos.5735, 4834, 5305 & 5306 of 2024
-------------------------------------------------------
Dated this the 11th day of September, 2024
COMMON ORDER
Gold has appreciated in value always. The consistent rise
in value and easy convertibility of gold results in a surge in its
demand. Complying with the standards of purity of gold is hence
vital to prevent fraudulent activity. Gold and other precious metals
are hallmarked to ensure that the standards of purity are met. The
Bureau of Indian Standards Act, 2016 was enacted to provide for
the establishment of a national body for the assessment and
assurance of the quality of goods sold or exhibited for sale.
2. The officers of the Bureau of Indian Standards
conducted searches at the petitioners' jewellery outlets and seized
large quantities of gold ornaments, alleging various violations of
the above-referred statute. Subsequently, the department filed
two complaints, S.T. No. 1410/2024 and S.T. No.1411/2024, both
before the Judicial First Class Magistrate's Court, Kalamassery,
alleging various violations. The accused filed applications for
interim custody of the gold. These four cases revolve around the
claim for interim custody of a portion of the gold seized.
3. Crl.M.C No.4834/2024 and Crl.M.C No.5305/2024
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challenge the common order dated 23-05-2024 in CMP
No.801/2024 in S.T. No.1410/2024, while Crl.M.C No.5735/2024
and Crl.M.C No.5306/2024 challenge another common order
issued in CMP No.802 of 2024 in S.T. No.1411/2024, both pending
before the Judicial First Class Magistrate's Court, Kalamasserry.
Crl.M.C No.4834/2024 and Crl.M.C No.5735/2024 challenge
condition No. 2 in the two orders to the extent it directs furnishing
of a bank guarantee to the tune of Rs. 18 crores and Rs. 2 crores
respectively, while the challenge in the remaining two petitions are
against the orders itself. Since the issues involved in these four
cases are identical, they are disposed of by this common order. For
the purpose of easier comprehension, the accused are referred to
as the 'petitioners' while the complainant is referred to as the
'respondent' in this proceeding.
4. The impugned orders arise out of two separate applications
filed by the petitioners under section 457 of the Code of Criminal
Procedure, 1973, seeking the release of certain gold ornaments
seized from its business establishment. By the impugned order,
the learned Magistrate directed the release of gold ornaments to
the petitioners on conditions. Petitioners are aggrieved by
condition No.2 in both the impugned orders while the complainant
(Bureau of Indian Standards or 'BIS for short') is aggrieved by the
orders directing the release of the gold ornaments on interim
custody.
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5. On 13-12-2023, the officers of the respondent conducted a
search at the premises of different outlets of the petitioner and
found gold ornaments exhibited for sale without possessing a BIS
hallmark and without a BIS certificate of registration for the outlet,
thereby violating sections 15(1), (2) & (3) apart from sections
17(1),(2) & (3) of the Bureau of Indian Standards Act, 2016 (for
short 'the BIS Act'), apart from clause 2(1) & (2) of the
Hallmarking of Gold Jewellery and Gold Artefacts Order, 2020. The
entire jewellery was seized and Superdari Memos were prepared
indicating violations under three categories. The petitioner was
directed not to deal with the gold in all three categories, without
permission from the respondent.
6. After the two complaints relating two separate outlets
of the petitioners were filed on 18-04-2024 as S.T. Nos.
1410/2024 and 1411/2024 before the Judicial First Class
Magistrate's Court, Kalamassery, petitioner filed two separate
applications seeking release of the gold ornaments which fell in
one of the categories., i.e. those with valid hallmarking but were
exhibited for sale without a valid certificate of registration for the
outlet. Petitioner did not claim release of the gold ornaments which
were categorized as those without hallmarking or had fake
hallmarkings. It was pleaded in the petition that the process for
obtaining the certificate of registration for the outlet was in
progress and it was in fact obtained within two days after the
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search itself, i.e. on 16-12-2023, which itself indicated that there
was no dishonest intention on the part of the petitioner.
7. Objections were filed by the respondent stating that
the process for getting a BIS certificate of registration for the
outlet was done only after the search and seizure operations and
also that the petitioner is operating jewellery stores in other
locations after obtaining registration and therefore they are aware
of such a requirement and hence the contravention cannot be
assumed to be an oversight. The objection also mentioned that the
petitioner was unable to produce any documentary evidence
regarding the procurement, source of all markings or trade history
of the Hallmark Gold at the time of seizure and further that under
section 32(4) of the BIS Act, the court can direct the gold to be
forfeited. It was also pleaded that the seized material is a
substantial piece of evidence and its retention is necessary to
prevent any tampering.
8. The learned Magistrate, by the impugned orders held
that the property seized belonged to the petitioner and the same is
required to be released to them after imposing proper conditions.
It was also stated that the requirement of marking the properties
in evidence can be satisfied by marking the photographs after due
certification and also by furnishing security even for satisfying the
requirement of forfeiture. On the above basis, the learned
Magistrate directed the release of the gold to the petitioner on
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various conditions including execution of a bond with two solvent
sureties for the value of gold involved in the respective complaints.
It was also directed to furnish security by way of fixed deposit
receipt, DD or Bank Guarantee equivalent to the value of gold
jewellery and artefacts involved in each of the cases. In CMP
No.801/2024 in S.T. No.1410/2024 security was directed to be
furnished to the extent of Rs.18 Crores, in CMP No.802 of 2024 in
S.T. No.1411/2024 security to the extent of Rs.2 Crores, was
directed to be furnished as per condition No. 2 in both orders.
9. I have heard Sri. D.Kishore, the learned counsel for
the petitioner, and Sri S. Sreekumar, the learned Senior Counsel
instructed by Sri. Manoj Ramaswamy, the learned counsel for the
respondent.
10. Petitioner is seeking release of the gold that had BIS
hallmarking but was kept/exhibited for sale in an outlet which did
not possess BIS registration. The gold ornaments that bear the
BIS hallmarking are not fake or spurious gold but are legally valid
and can be sold. However, the exhibition and sale of precious
metals like gold can only be through outlets that had obtained the
BIS registration.
11. Of the three categories of gold seized from the
petitioner, one category related to gold jewellery which had the
hallmarking on it but the outlet did not have a registration. This is
evident from the pleading in the complaint as well as the Superdari
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Memo prepared by the respondent. The complainant specifically
alleged that there are three categories of violations relating to the
seized gold, which were delineated in the complaint as below:
(i). Distribution, sale and exhibit/store for sale of BIS
Hallmarked jewellery without the BIS certificate of
registration for the retail outlet.
(ii). Display/offer for sale, of jewellery bearing fake marks in
styles imitating BIS hallmark.
(iii). Display/offer for sale, of gold jewellery/articles at the
outlet without BIS hallmark and without BIS certificate of
registration for the outlet.
12. In the Superdari Memo in S.T. No.1410/2024, the
above three categories are mentioned, but in a different order. The
category mentioned as serial No. (i) in the complaint is specified as
category No.(3) in the Superdari Memo. In ST No. 1411/2024, the
order is the same as mentioned in the complaint. Thus it is evident
that the only violation in respect of the gold now requested to be
released are those that fall in category No.(3) in the Superdari
Memo, i.e. "Gold jewellery marked with BIS Hallmark". The three
categories as specified in the said Memo in S.T. No.1410/2024 are
extracted in brief as below:
Sl Description of Materials Quantity Identification
.N
o
1 Gold Jewellery & Artefacts bearing Approx 250.35 gms Gold Jewellery with
spurious hallmark including incomplete spurious hallmark
HUID
2. Gold Jewellery & Artefacts without BIS Approx. 572.97 gms. Sealed and packed in one
hallmark plastic box
3. Gold Jewellery & Artefacts marked with Approx 25284.51 Sealed and packed in 29
BIS hallmark gms. plastic boxes wrapped as
one with code.
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13. Section 14(2) of the BIS Act deals with the
requirement of certification for the retail outlet. Section 14(1) to
S.14(3) are relevant and they are extracted as below:
"S.14. Certification of Standard Mark of jewellers and sellers
of certain specified goods or articles.--(1) The Central
Government, after consulting the Bureau, may notify precious
metal articles or other goods or articles as it may consider
necessary, to be marked with a Hallmark or Standard Mark, as the
case may be, in a manner as specified in sub-section (2).
(2) The goods or articles notified in sub-section (1) may be sold
through retail outlets certified by the Bureau after such goods or
articles have been assessed for conformity to the relevant standard
by testing and marking centre, recognised by the Bureau and
marked with Hallmark or Standard Mark, as the case may be, as
specified by regulations.
(3) The Central Government may, after consulting the Bureau, by
an order published in the Official Gazette, make it compulsory for
the sellers of goods or article notified under sub-section (1) to be
sold only through certified sales outlets fulfilling such conditions as
may be determined by regulations."
14. Section 2(26) defines "precious metal" to mean 'gold,
silver, platinum and palladium' while section 2(27) defines
"precious metal article" to mean 'any article made entirely or in
part from precious metals or their alloys'. Thus gold jewellery falls
under the category of precious metal article as per the definition in
the BIS Act. The requirement for a retail outlet to be certified is
provided as per section 14(3) of the BIS Act. The precious metal
article is not included in section 14(3) of the BIS Act and what is
included are only goods or articles which are separately defined
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under section 2(1) and section 2(14) of the BIS Act. Thus it is
plausible, that the retail outlet selling gold ornaments is not
mandatorily required to be registered under the BIS Act.
15. However, the learned Senior Counsel had, during the
arguments invited the attention of this Court to the publication in
the Gazette of India dated 15-01-2020, notifying the "Hallmarking
of Gold Jewellery and Gold Artefacts Order 2020" (for short 'the
Order') enacted in exercise of the powers under section 16 of the
BIS Act. As per clause 2 of the said Order, the sale of precious
metal articles of gold notified to be marked with a hallmark can be
done only by registered jewellers that too, through certified sales
outlets, after fulfilling the terms and conditions of the certificate of
registration as specified in regulation 5 of the BIS (Hallmarking)
Regulations, 2018. The penal provision as per the Order is
stipulated in Clause No. 4 and it only mentions that "Any person
who contravenes the provisions of this Order shall be punishable
under the provisions of the Bureau of Indian Standrads Act 2016."
A reading of the aforementioned provisions in the Order does not
indicate with clarity, the nature of punishment that can be imposed.
Thus, the sale of precious metal articles can be only through
certified sales outlets by virtue of the prescription in the
Hallmarking of Gold Jewellery and Gold Artefacts Order 2020. Albeit
the violation of the provisions of the Order is punishable, the
question whether such contravention would attract imprisonment or
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only a fine is an issue that will have to be decided later. It is not
proper to decide those issues in these petitions especially since this
Court is only considering a claim for the release of the precious
metal articles on interim custody.
16. The fact remains that the gold ornaments sought to be
released were hallmarked but exhibited for sale in a retail outlet
that did not have registration. Though prima facie there is a
violation of the Order, admittedly, within two days of the seizure,
the retail outlet obtained registration. It was, in fact, fairly conceded
that registration of an outlet is only a formality.
17. In this context reference to the decision in
Sunderbhai Ambalal Desai v. State of Gujarat [(2002) 10 SCC
282] is apposite. It was observed in the said decision that:
"With regard to valuable articles, such as golden or silver
ornaments or articles studded with precious stones, it is
submitted that it is of no use to keep such articles in police
custody for years till the trial is over. In our view, this
submission requires to be accepted. In such cases, Magistrate
should pass appropriate orders as contemplated under S.451,
Cr.P.C. at the earliest.
12. For this purpose, if material on record indicates that
such articles belong to the complainant at whose house theft,
robbery or dacoity has taken place, then seized articles be
handed over to the complainant after: -
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such
articles would be produced if required at the time of trial;
and
(3) after taking proper security.
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13. For this purpose, the Court may follow the procedure of
recording such evidence, as it thinks necessary, as provided
under S.451, Cr.P.C. The bond and security should be taken
so as to prevent the evidence being lost, altered or
destroyed. The Court should see that photographs of such
articles are attested or countersigned by the complainant,
accused as well as by the person to whom the custody is
handed over. Still however, it would be the function of the
Court under S.451, Cr.P.C. to impose any other appropriate
condition."
18. Similarly, in the decision in Suresh Serve v. State of
Kerala [(2020) 3 KLT 395] while specifically considering the issue
relating to release of gold ornaments, a Division Bench of this Court
observed as follows:
"22. We are cognizant of the fact that it may be humanly
impossible to visualise all probable situations under which the
power vested in a Criminal Court under S.451 Cr.P.C. could
be sought to be invoked. For the same reason, we think that
there cannot be any enumeration of straight - jacket formulae
suiting all the situations. We, therefore, respectfully following
the guidelines in Sunderbhai Ambalal Desai's case frame
additional points in respect of disposal of money and jewellery
by invoking S.451 Cr.P.C. We explicitly clarify that the
additional points shown below are intended to supplement the
guidelines in Sunderbhai Ambalal Desai's case and not to
supplant them.
(i) xxx
(ii) xxx
(iii) In the case of jewellery, apart from the preparation of a
proper panchanama of the articles, taking photographs, etc.,
mandated in Sunderbhai Ambalal Desai's case, following
aspects also may be considered depending on the facts in
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each case:
(a) If, in a case, the allegation is that one or two gold
ornaments have been stolen or snatched away from the de
facto complainant, a Criminal Court invoking S.451 Cr.P.C.
after taking necessary evidence and following the directions in
Sunderbhai Ambalal Desai's case, may release the article
under S.451 Cr.P.C. with the safeguards mentioned in the
above decision and also with a direction to produce the same
in the same condition as and when directed, especially when
there is a rival claimant for the ornaments. If there is no rival
claimant and no dispute is raised by the accused regarding
the nature, shape, weight, etc. of the ornaments in question,
in appropriate cases, the Court may even return the same
without a condition to produce them in the same condition on
a later date.
(b) In a case involving theft of huge quantity of gold
ornaments from a jewellery store or from a jewellery
manufacturing unit, the Court should take extra precautions
to see whether the claimant has established, by cogent
evidence, a strong prima facie case to show his entitlement
for staking the claim. In such cases, there ought to be
records to support his claim. If there are sufficient
documentary evidence showing his unquestionable
entitlement to the articles, especially in a case where there is
no rival claimant for the jewellery, we find no reason for
imposing a condition that the entire jewellery shall be
produced in the same condition, as and when directed. If it is
established by evidence that the ornaments claimed by him
are stock in trade in the jewellery store, no earthly purpose
will be served by returning them to the claimant by imposing
such restrictions. Hence, such a condition need not be
imposed in all cases, disregarding the factual situation in each
case." (emphasis supplied).
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19. On an appreciation of the principles laid down in the
above two decisions, it is evident that gold ornaments can also be
released, even if it is the subject matter of the proceedings in a
criminal case, provided, appropriate conditions are imposed.
20. Retaining the gold in custody without permitting it to
be used makes it 'dead money' and will not augur well for the
economy of the nation especially since there is no allegation that
the gold in category 3 of the Superdari Memo in ST No. 1410/2024
or that in category 1 in the said Memo in ST No. 1411/2024 are
spurious or smuggled. Divesting a person of valuable articles like
gold on the basis of technical violations can have far-reaching
implications as far as the petitioner is concerned. A balance will
have to be struck between the need of the petitioner and the
requirement of criminal prosecution. By directing the release of the
gold in category 3 of the Superdari Memo to the petitioner, the
learned Magistrate has struck a proper balance. In view of the
above, the impugned orders directing release of the gold specified
in category 3 and category 1 of the Superdari Memo in the two
cases, as prayed for in CMP No.801 of 2024 in S.T. No.1410/2024
and in CMP No.802 of 2024 in S.T. No.1411/2024 cannot be said to
be perverse or irregular warranting any interference.
21. However, the condition directing furnishing of security
for Rs.18 Crores and Rs. 2 crores over and apart from the bond
directed to be executed for the said amount with two sureties, is
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certainly too onerous and renders those conditions unconscionable,
especially considering the nature of violation pointed out. The said
condition No.(2) in the two impugned orders is hence required to be
set aside. Notwithstanding the above, since the power of forfeiture
of gold may be available with the Court as per section 32(4) of the
BIS Act, I am of the view that the petitioner must be imposed with
an additional condition undertaking to pay the equivalent value of
the gold seized in lieu of confiscation if the court ultimately orders
confiscation.
Hence, the following directions are issued:
(i) Condition No. (2) in the order dated 23-05-2024 in
CMP No.801 of 2024 in S.T. No. 1410/2024 on the files of the
Judicial First Class Magistrate's Court, Kalamassery is set aside and
is substituted with the condition that the petitioner will file an
affidavit undertaking to pay the market value equivalent to
25284.51 Grams of gold if the trial court ultimately orders
confiscation of the third category of gold mentioned in the
Superdari Memo in the said complaint.
(ii). Condition No.2 in CMP No.802 of 2024 in S.T. No.
1411/2024 on the files of the Judicial First Class Magistrate's Court,
Kalamassery is set aside and is substituted with the condition that
the petitioner will file an affidavit undertaking to pay the market
value equivalent to 2592.06 Grams of gold if the trial court
ultimately orders confiscation of the first category of gold
2024:KER:69027
mentioned in the Superdari Memo involved in the said complaint.
Thus, Crl.M.C No. 4834/2024 and Crl.M.C No.5735/2024
are allowed while Crl.M.C No.5305/2024 and Crl.M.C No.5306/2024
stand dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
2024:KER:69027
PETITIONER'S/S' ANNEXURES
Annexure -I TRUE COPY OF THE SEIZURE MEMO NO.
KOBO/ENF/23-24 DATED 13.12.2023 ISSUED BY
THE RESPONDENT PERTAINING TO M/S. AL LATIF
GOLD AND DIAMOND JEWELRY
Annexure-I (a) TRUE COPY OF THE SUPRADARI MEMO NO.
KOBO/ENF/2023-24/SUPRADAGI DATED
13.12.2023 ISSUED BY THE RESPONDENT TO THE
1ST PETITIONER
Annexure -II TRUE COPY OF THE JUDGMENT DATED 7.3.2024
IN W.P.(C) 42668/2023 OF THIS HONOURABLE
COURT
Annexure -III TRUE COPY OF THE ORDER DATED 11.4.2024 IN
W.A. NO. 533/2024 OF THIS HONOURABLE COURT
Annexure -IV TRUE COPY OF THE COMPLAINT DATED 18.4.2024
IN ST 1411/2024 ON THE FILE OF JFMC,
KALAMASSERY
Annexure -V TRUE COPY OF THE CMP 802/2024 IN CMP
683/2024, WHICH WAS LATER RENUMBERED AS ST
1411/2024 DATED 9.5.2024 ON THE FILE OF
JFMC, KALAMASSERY
Annexure -VI TRUE COPY OF THE OBJECTION DATED 18.5.2024
FILED BY THE RESPONDENT TO ANNEXURE-V
Annexure -VII CERTIFIED COPY OF THE ORDER DATED
ON THE FILE OF JFMC, KALAMASSERY
Annexure -VIII TRUE COPY OF THE CERTIFICATE OF
REGISTRATION FOR SELLING ARTICLES WITH
HALLMARK ISSUED BY THE BUREAU OF INDIAN
STANDARDS
2024:KER:69027
PETITIONER'S/S' ANNEXURES
Annexure -I TRUE COPY OF THE SEIZURE MEMO NO.
KOBO/ENF/HM/SSK/2023-24 DATED 13.12.2023
ISSUED BY THE RESPONDENT PERTAINING TO
M/S. AL KABIR GOLD AND DIAMOND JEWELRY
Annexure -I (a) TRUE COPY OF THE SUPRADAGI MEMO NO.
KOBO/ENF/HM/SSK/2023-24/SUPRADAGI DATED
13.12.2023 ISSUED BY THE RESPONDENT TO THE
1ST PETITIONER
Annexure -II TRUE COPY OF THE JUDGMENT DATED 7.3.2024
IN W.P.(C) 42668/2023 OF THIS HONOURABLE
COURT
Annexure -III TRUE COPY OF THE ORDER DATED 11.4.2024 IN
W.A. NO. 533/2024 OF THIS HONOURABLE COURT
Annexure -IV TRUE COPY OF THE COMPLAINT DATED 18.4.2024
IN ST 1410/2024 ON THE FILE OF JFMC,
KALAMASSERY
Annexure -V TRUE COPY OF THE CMP 801/2024 IN CMP
682/2024, WHICH WAS LATER RENUMBERED AS ST
1410/2024 DATED 11.5.2024 ON THE FILE OF
JFMC, KALAMASSERY
Annexure -VI TRUE COPY OF THE OBJECTION DATED 18.5.2024
FILED BY THE RESPONDENT TO ANNEXURE-V
Annexure -VII CERTIFIED COPY OF THE ORDER DATED
ON THE FILE OF JFMC, KALAMASSERY
Annexure -VIII TRUE COPY OF THE CERTIFICATE OF
REGISTRATION FOR SELLING ARTICLES WITH
HALLMARK ISSUED BY THE BUREAU OF INDIAN
STANDARDS
2024:KER:69027
PETITIONER'S/S' ANNEXURES
Annexure A1 TRUE COPY OF THE SEIZURE MEMO DATED
13.12.20
Annexure A2 TRUE COPY OF THE SUPERDARI MEMO DATED
13.12.2023
Annexure A3 TRUE COPY OF THE ORDER DATED 22.12.2023 IN
W.P.(C) NO. 42668 OF 2023
Annexure A4 TRUE COPY OF THE JUDGMENT DATED 10.01.2024
PASSED BY THIS HON'BLE COURT IN R.P.NO.22
OF 2024
Annexure A5 TRUE COPY OF THE JUDGMENT DATED 01.02.2024
PASSED BY THIS HON'BLE COURT IN W.A.NO.
Annexure A6 TRUE COPY OF THE JUDGMENT DATED 07.03.2024
PASSED BY THIS HON'BLE COURT IN W.P.(C)
NO.42668 OF 2023
Annexure A7 TRUE COPY OF THE ORDER DATED 11.04.2024 IN
W.A.NO.533 OF 2024
Annexure A8 TRUE COPY OF THE COMPLAINT VIDE NO.
S.T.NO.1410 OF 2024 PENDING ON THE FILES
OF THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT, KALAMASSERY (WITHOUT
DOCUMENTS)
Annexure A9 TRUE COPY OF THE JUDGMENT DATED 04.06.2024
IN W.A.NO.533 OF 2024
Annexure A10 TRUE COPY OF THE C.M.P.NO.801 OF 2024
DATED 11.05.2024 FILED BY THE RESPONDENTS
BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT, KALAMASSERY
Annexure A11 TRUE COPY OF THE OBJECTION DATED 18.5.2024
SUBMITTED BY THE PETITIONER/COMPLAINANT IN
C.M.P.NO.801 OF 2024
Annexure A12 TRUE COPY OF THE ORDER DATED 23.05.2024 IN
C.M.P.NO. 801 OF 2024 IN S.T.NO. 1410 OF
2024:KER:69027
2024 PASSED BY THE HON'BLE JUDICIAL FIRST
CLASS MAGISTRATE COURT, KALAMASSERY
2024:KER:69027
PETITIONER'S/S ANNEXURES
Annexure A1 TRUE COPY OF THE SEIZURE MEMO DATED
13.12.2023
Annexure A2 TRUE COPY OF THE SUPERDARI MEMO DATED
13.12.2023
Annexure A3 TRUE COPY OF THE ORDER DATED 22.12.2023 IN
W.P.(C) NO. 42668 OF 2023
Annexure A4 TRUE COPY OF THE JUDGMENT DATED 10.01.2024
PASSED BY THIS HON'BLE COURT IN R.P.NO.22
OF 2024
Annexure A5 TRUE COPY OF THE JUDGMENT DATED 01.02.2024
PASSED BY THIS HON'BLE COURT IN W.A.NO.
Annexure A6 TRUE COPY OF THE JUDGMENT DATED 07.03.2024
PASSED BY THIS HON'BLE COURT IN W.P.(C)
NO.42668 OF 2023
Annexure A7 TRUE COPY OF THE ORDER DATED 11.04.2024 IN
W.A.NO.533 OF 2024
Annexure A8 TRUE COPY OF THE COMPLAINT VIDE NO.
S.T.NO.1411 OF 2024 PENDING ON THE FILES
OF THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT, KALAMASSERY (WITHOUT
DOCUMENTS)
Annexure A9 TRUE COPY OF THE JUDGMENT DATED 04.06.2024
IN W.A.NO.533 OF 2024
Annexure A10 TRUE COPY OF THE C.M.P.NO.802 OF 2024
DATED 09.05.2024 FILED BY THE RESPONDENTS
BEFORE THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT, KALAMASSERY
Annexure A11 TRUE COPY OF THE OBJECTION DATED 18.5.2024
SUBMITTED BY THE PETITIONER/COMPLAINANT IN
C.M.P.NO.802 OF 2024
Annexure A12 TRUE COPY OF THE ORDER DATED 23.05.2024 IN
C.M.P.NO. 802 OF 2024 IN S.T.NO.1411 OF
2024:KER:69027
2024 PASSED BY THE HON'BLE JUDICIAL FIRST
CLASS MAGISTRATE COURT, KALAMASSERY
