Andhra HC (Pre-Telangana)
Asstt. Collector Of C.E. vs Baijjala Shivalinga on 29 October, 1987
Equivalent citations: 1988(19)ECR486(AP), 1988(37)ELT205(AP)
JUDGMENT Jayachandra Reddy, J.
1. This is an appeal against acquittal filed by the Assistant Collector, Central Excise (Preventive). The respondent sole-accused was tried for offences punishable under Section 135(1) of the Customs Act, under Section 85(1) of the Gold Control Act and under Section 27 read with Section 85(1)(ix)(b) of the Gold Control Act.
2. The prosecution case is as follows :-
The accused is the proprietor of a silverware shop at premises No. 15-6-622, Siddiamber Bazar, Hyderabad and resides at House No. 15-8-452, Feelkhana, Hyderabad. On information that the accused is clandestinely dealing in primary gold, foreign gold and gold ornaments without obtaining a proper licence under the Gold Control Act, in his shop premises and also possessing and concealing primary gold and gold of foreign origin in his residential house, a raid was conducted on 5-5-1982 simultaneously at his shop premises and at his residence. The raid party took two mediators. According to the prosecution at the shop premises the raid party recovered 3 primary gold pieces and Choora, 23 nose pins with stones, 10 small rings with stones and 6 Gundlu for use in black beads chain, all weighing 38.300 Grs. and worth Rs. 5,400/-. They also visited the house of the accused at Feelkhana and found 15 gold slabs with different foreign markings all weighing 1955.900 Grams. The total value of the gold seized is estimated at Rs. 3.25.000/-.
3. The prosecution case is that the accused came into possession of 15 gold slabs of foreign origin knowing or having reason to believe that the said gold slabs are liable to confiscation under Section 111 of the Customs Act and thereby committed an offence punishable under Section 135(1) of the Customs Act.
4. The prosecution examined 6 witnesses. Out of them, P. W. 3 is the person who conducted the search in the presence of P.Ws. 5 and 6 the mediators. P.W. 3 has given the details of search. P.W. 5 one of the mediators* turned hostile. It was contended before the lower Court that neither the shop nor the house was in the exclusive occupation of the accused and therefore it cannot be said that he was in exclusive possession of contraband gold. After considering the material on record, the lower Court held that the key of the almyrah was in the possession of one Smt. Lila Kumari and Others. Having regard to the fact that other inmates also were in the house, the lower Court held that the accused was not in exclusive possession.
5. The other point urged in the lower Court was that the report of the Mint Master and the assayed reports Exs. P-6, P-7, P-8, P-9 and P-12 to P-15 are not conclusive and therefore there is no cogent and reliable evidence that M.Os. 12 to 15 are of foreign origin. It was also contended that M.Os. 1 to 7 were not subjected to any assay or test. The prosecution case is that M.O.8 was tested by the Mint Master and that the report regarding M.O.8 should be read as evidence with respect to the purity of the gold and its origin for M.Os. 1 to 7. This contention cannot be accepted. Therefore, the lower Court has rightly held that M.Os. 1 to 7 are not established to be of foreign origin.
6. Coming to M.Os. 8 to 11 and 15 the seizure report is considered to be defective.
7. Shri Nagaraja Rao, the learned standing counsel for the Central Government submits that the conclusion of the lower Court on this aspect of the case is unsound. I do not want to go into a detailed discussion. Even on the first ground the accused is entitled to acquittal. This is an appeal against acquittal and unless there are strong grounds, this Court cannot interfere. The prosecution has failed to establish that the gold was in exclusive possession of the accused and that ground alone the appeal is liable to be dismissed and is accordingly dismissed.