JUDGEMENT

- (1.)On 20th April, 1985 the appellants say some of their Officers found the Respondent No. 1 in possession of two gold bars and one gold stick as well as some old and broken gold ornaments. The Respondent No. 1 is a dealer in gold ornaments. The recovery was alleged to have been made upon search of the person and the bag in the possession of the Respondent No. 1 at the business premises of one Prakash Yadav. The said Officers took the Respondent No. 1 to the Customs House where a confessional statement was made by the Respondent No. 1.
(2.)In the statement the Respondent No. 1 had first set out particulars of his family and himself as well as his business. The relevant extracts of the confessional statement are:
"All the officers (affairs ?) of the shop are being locked after by myself only. Beside the shop I personally sometimes purchase and sell small amount of gold which I purchased from different broker and sell to different person on premium. Actually at present with the showroom in the present competitive market it becomes difficult to maintain the family. As an old man in the family and also, to keep up the image of the shop these type of un-official deals, I do not link with the shop. In fact my all the sons are against it. To day at about 8 A.M. in the morning one Nepali known broker came near Gariahat and handed over two gold bars with some inscription alone with a gold stick and told me the total weight as 257 gms. approximately. I know [M.C. Dey] this Nepali by face only. He is fair complexion, height about 5'-5" then built having a gold chain in neck, [aged] about 25 years, I do not know [his] name. I did not pay him any money. After selling the same as per arrangement he would come to me and leaving my profit I will have to pay him. On receipt of these gold I kept the same with me only. It was about 11 A.M. I was going inside the melting shop of Shri Prakash Yadav at 11 /A, Fern Road for adding some alloy to fetch extra profit as well as to find out the actual purity, as the purity of the gold bars was not told by that Nepali person. In fact this is the first time I am seeing such marks on the foreign gold bars. Still I have got some sort of suspicion about the purity of the gold, although, it was [marked] "9999". While I was enter (sic.) the melting shop for the purpose as said earlier (Sic), some custom officers intercepted me and search me. The Customs Officer recovered two gold bars as aforesaid, one gold stick and a quantity of broken pieces of old ornaments. The Customs Officers asked me about the papers for its legal acquisition, possession and or importation and I failed to produce the same, I did not have any papers for the same. This Nepali person as far as I know a carrier normally comes from Nepal side and he did not give any papers. The broken pieces of old ornaments are the old [broken] ornaments of my wife Smt. Alokana Devi and I was taking to the melting shop for melting and for making some new ornaments out of it for my unsuring (Sic) eldest son Shree [M.C. Dey] Ananda Marriage talk was going on not yet settled. This has got nothing to do with my shop's account as this belongs to my wife only and to be gifted for marriage. I know to deal in gold [is] an offence under Gold (Control) Act, but I am constrained to do such things as my shop is not giving much profit. ... Now I understand that I have done a mistake and beg to be excused. I have hone through the above statement and this has been correctly recorded as stated by me. These statements are absolutely true. These have been recorded by the Custom Office as per my Requesting."

(3.)The corrections in the confessional statement as well as the endorsement below the statement were in the hand-writing of the Respondent No. 1.
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