Kerala High Court
Bureau Of Indian Standard vs M/S Al Kabir Gold & Diamond Jewellery 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
2024:KER:69027
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
2024:KER:69027
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 Crl.M.C. No.5735/24 & Conn. Cases 10 2024:KER:69027 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.
Crl.M.C. No.5735/24 & Conn. Cases 11
2024:KER:69027
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 Crl.M.C. No.5735/24 & Conn. Cases 12 2024:KER:69027 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 Crl.M.C. No.5735/24 & Conn. Cases 13 2024:KER:69027 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 Crl.M.C. No.5735/24 & Conn. Cases 14 2024:KER:69027 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.Crl.M.C. No.5735/24 & Conn. Cases 15
2024:KER:69027
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 Crl.M.C. No.5735/24 & Conn. Cases 16 2024:KER:69027 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 Crl.M.C. No.5735/24 & Conn. Cases 17 2024:KER:69027 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.
Crl.M.C. No.5735/24 & Conn. Cases 18
2024:KER:69027
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 Crl.M.C. No.5735/24 & Conn. Cases 19 2024:KER:69027 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).
Crl.M.C. No.5735/24 & Conn. Cases 20
2024:KER:69027
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 Crl.M.C. No.5735/24 & Conn. Cases 21 2024:KER:69027 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 Crl.M.C. No.5735/24 & Conn. Cases 22 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 Crl.M.C. No.5735/24 & Conn. Cases 23 2024:KER:69027 APPENDIX OF CRL.MC 5735/2024 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 23.5.2024 IN CMP 802/2024 IN ST 1411/2024 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 Crl.M.C. No.5735/24 & Conn. Cases 24 2024:KER:69027 APPENDIX OF CRL.MC 4834/2024 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 23.5.2024 IN CMP 801/2024 IN ST 1410/2024 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 Crl.M.C. No.5735/24 & Conn. Cases 25 2024:KER:69027 APPENDIX OF CRL.MC 5305/2024 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.
87/2024Annexure 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 Crl.M.C. No.5735/24 & Conn. Cases 26 2024:KER:69027 2024 PASSED BY THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY Crl.M.C. No.5735/24 & Conn. Cases 27 2024:KER:69027 APPENDIX OF CRL.MC 5306/2024 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.
87/2024Annexure 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 Crl.M.C. No.5735/24 & Conn. Cases 28 2024:KER:69027 2024 PASSED BY THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALAMASSERY