H.N.Kapoor - (1.) THIS appeal is directed against the order and judgment dated 7-5-1974 of the Addl. Sub-Divisional Magistrate, Etmadpur, district Agra in a case no. 351 of 1973 acquitting the respondent Padamchand, who was a licenced gold dealer of the firm Padamchand Om Prakash. He was charged of an offence under Section 87 of the Gold Control Act read with Section 126 (p) of the Defence of India Rules.
(2.) THE prosecution case is that the Central Excise Officer made a spot checking on 23-7-1964. At the spot, he was headed by Sheo Narain Sinha, Inspector (PW 1). As a result of checking, it was found that 194 pieces of gold ornaments including two (Reni) of primary gold weighing 809.450 grams of purity exceeding 14 cts. were present to be in excess of the book balance and not accounted for in any record. Further a shortage of 12 rings weighing 27.650 grams were also detected. THE Inspector prepared the seizure report in duplicate. A copy of the same was given to the respondent who had signed that report in token of Having received the same. THE search was made in the presence of Kandhai Lal (PW 2) and Govind Prasad (PW 3) as public witnesses. A list of 194 articles weighing 809.450 grams was prepared. Its value was shown to be Rs. 8,395/-. THE seized articles were sealed in different bundles. Statement of the accused was also recorded by the Inspector, Central Excise at that very time. This statement is Ext. Ka-3. He admitted in his statement that the search was taken of his firm and that 194 articles weighing 809.450 grams of over 14 els. purity were found in respect of which there was no entry in any register. It was also admitted that the accused had not given any declaration in respect of the same. THEy were detailed) in the recovery memo. That memo bore his signature and the signatures of the two public witnesses. It was further stated that these articles included four churis, and one Arti of a retired Guard who had left them with the accused. THEy also included a pair of Kara with chain belonging to Madan Mohan Sharma. Confiscation proceedings were started by the department in respect of those articles which were seized. THE Superintendent, Central Excise also filed a complaint on 2-7-1970 before the City Magistrate. THE accused was duly tried. The defence of the accused was that all the articles weighing 809.450 grams which were found at his shop were not meant for sale. He stated that his son had been married about 15 days before and the ladies of the family had gone with his daughter-in-law to Mathura Brindaban. The house was in a dilapidated condition and as such was not safe, for keeping ornaments. The ornaments were, therefore, kept at the shop. With regard to the shortage of 12 rings, he stated that these rings had been sent out for polish. At this stage it may not be out of place to state, that in the departmental proceedings the Collector, Excise, by his order dated 8-4-1975 accepted the claim of the accused in respect of gold ornaments weighing 136.40 grams that they belonged to Madan Mohan Sharma and Hari Shanker. Such pleas were advanced even at the time of seizure. The Collector did not accept the explanation offered by the accused in respect of the remaining ornaments as belonging to his daughter- in-law as he was of the opinion that such explanation was offered by way of an afterthought. He, therefore, ordered the gold ornaments weighing 673.050 grams to be confiscated with the Central Government. They were allowed to be returned on payment of redemption fee of Rs, 7,000/- and a penalty of Rs. 1,000/-. In appeal, the Gold Control Administrator by his order dated 14-8-1967 reduced the redemption fee from Rs. 7,000/- to Rs. 4,200/- and also reduced the amount of penalty from Rs. 1,000/- to Rs. 200/-. In all other respects, the order of the Collector was maintained.
(3.) IN support of its case, the prosecution examined Sheo Shanker (PW 1), Kandhai Lal (PW 2) and Govind Prasad (PW 3) all of whom were witnesses of search and seizure. IN defence, Mahabir Prasad (DW 1) and Bhagwan (DW 2) were examined. Both these witnesses stated that the marriage of the son of the accused had taken place a few days before the search. Both of them were passing in front of the shop of the accused at the time of the search. They stopped there. The accused had given an explanation before the officers of the Excise department who had conducted the search that the ornaments belonged to his daughter-in-law and were kept there as the house was not safe. These witnesses also stated that two pieces of gold (Reni) had been given by the father-in-law of his son in that very condition as the locket could not be prepared before the marriage. They were meant for preparing locket and this was the explanation given by the accused. In fact, Kandhai Lal (PW 2) and Govind Pd. (PW 3) have also supported the case of the accused that he had given an explanation before the Inspector conducting the search that these ornaments belonged to his daughter-in law and were kept there for the purpose of safety as ladies had gone out. Both these witnesses as well as the two defence witnesses stated that these ornaments which were in excess were not kept in the show-case but were kept in the iron safe. These two witnesses Kandhai Lal and Govind Pd. were not declared hostile. Sheo Shankar Sinha (PW 1), however, stated that no such explanation was given to him at the time of the search. But he admitted that these ornaments were found in a box kept in the iron safe and were not in the show-case.;