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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.

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 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:

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:

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.