Criminal Appeal No. 131 of 1978. Case: Union of India Vs Phoolchand. High Court of Madhya Pradesh (India)
| Case Number | Criminal Appeal No. 131 of 1978 |
| Judges | G. L. Oza, J. |
| Issue | Gold (Control) Act, 1968 - Sections 85(1)(ii), 2(r); Code of Criminal Procedure - Section 377(2) |
| Citation | 1985 (19) ELT 49 (MP) |
| Judgement Date | December 07, 1979 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
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This appeal has been preferred by the appellant under Section 377(2) of the Code of Criminal Procedure for enhancement of sentence passed against the respondent who was convicted for an offence under Section 86(1)(ii) of the Gold (Control) Act, 1968 and sentenced to pay a fine of Rs. 500/-, in default rigorous imprisonment for three months by the Additional Chief Judicial Magistrate, Indore.
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The prosecution case was that on 2nd October, 1969 at about 9.30 p. m. Central Excise Inspector Shri Tripathi (P.M. 1) apprehended the respondent on suspicion and took him to the waiting room and on search found that he was wearing two circular gold rods (KADAS) one in each of his arms between the elbow joint and the shoulder covered by white paper pieces under his shirt. These gold Kadas were got tested and weighed and it was found that each of them were of 116.300 grams of weight and of 24 carats purity. These KADAS described as circular rods were therefore, seized by the Excise Inspector treating them to be primary gold and panchnama was prepared. Statement of respondent was also recorded in the departmental proceedings. The gold was confiscated by the Assistant Collector, Central Excise and the respondent was prosecuted before the lower Court under Section 85(1)(ii) of the Gold (Control) Act, 1968 on the allegation that he was in possession of primary gold. The learned Magistrate convicted the respondent but sentenced him to a sentence of fine only. No sentence of imprisonment was awarded. Against this judgment the appellant has preferred this appeal and it was contended on behalf of the appellant that sentence of imprisonment was necessary. According to the learned counsel according to the law applicable on the date of offence the sentence of less than six months could only be awarded after giving special reasons for doing so although he frankly conceded that after the amendment as the law now stands lesser sentence could be awarded even without assigning special reasons but lie contended that in view of the fact that this is an economical offence a deterrent sentence should have been awarded. Learned counsel placed reliance on a decision reported in Balkrishan Chhaganlal Soni v. State of West Bengal (AIR 1974 S.C. 120).
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Learned counsel appearing for the respondent contended that in fact the conviction itself is not justified as the evidence is not sufficient to establish that the respondent was in possession of primary gold...
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