Judgement

THAKKAR, J. :- A passenger travelling by a train, (respondent No. 1 herein) who had adorned his waistline with a waistchain (kandora) weighing 820 grammes, which according to the prosecution, was made of pure gold and was coated with mercury so as to give an appearance of being made of silver was acquitted by the trial court relying on the evidence of a licensed gold dealer as a defence witness, who, as per the narration in para 17 of the judgment of the trial court, stated that :-

"........such chains are put on as kandora on the waist of ladies and gents in Rajasthan. He had sold such kandoras and seen people putting on such kandoras in Rajasthan State on their waist. Such chains or kandoras can be prepared out of pure gold as well as mixed gold. In old times such kandoras used to be prepared out of pure gold. In these days such type of kandoras are sold out to us by people. The witness further states that the design of muddamal chain was much in vogue in Rajasthan as because of unsoldered hooks it would fetch full value on sale. By pure gold he meant gold of more than 99.60 purity or 24 carats purity. According to him about 25 years back sharaps of Rajasthan were not allowed to sell gold of less purity than 99.60 under Mewari State Law ......"

The learned Trial Magistrate persuaded himself that the aforesaid evidence established that it was an ornament and not primary gold. The learned Magistrate acted with an impropriety in making himself a witness for the defence by observing :-

"........I have seen the seized gold chain myself in court. It cannot be called in unfinished state or form. It is an ornament ........."

The trial court in these premises held that what was seized was an ornament and not primary gold. The trial court accordingly acquitted the respondent-accused of the charge for an offence under Section 85 of the Gold (Control) Act of 1968. It is a matter of great concern that the High Court confirmed this finding by overlooking a significant circumstance which stood out a mile. If the chain was bona fide worn as an ornament, it would not have been plated with silver. The desire to show off being the basic purpose of wearing an ornament, one may subject an ornament of silver to gold plating. But one would not subject an ornament of pure gold to silver plating. It was obvious that it was a deceitful device to evade the law. Be that as it may, this aspect need not be probed further in view of the fact that the appeal preferred by the State against the order of acquittal in so far as it concerns the offence under Section 85 of the Gold (Control) Act, 1968 was not pressed. Suffice it to say that the approach made by the trial court evinces a permissive and over-indulgent attitude towards the violators of laws enacted to prevent and punish economic offences.

2. The occasion for approaching this Court has been provided by the view taken by the High Court in regard to the charge for an offence under Section 135(1) read with Section 111 of the Customs Act. The charge against respondent No. 1 was that he was concerned with acquisition, carriage, keeping or concealing with the goods which were liable to be confiscated under Section 111 having regard to the fact that there was a prohibition against the import into India of goods which were found in his possession namely pure gold of the specified fineness i.e. 99.60 or 24 carat. It needs to be recalled that Respondent No. 1 had adorned himself with a gold chain which was coated with mercury in order to give it an appearance that it was made of silver. The trial court disregarded the evidence of P.W. 3, the goldsmith who certified that the chain was made of pure gold and that the presumption under Section 123*1 of the Customs Act could not be raised as in the opinion of the learned Magistrate, P.W. 1 Mahida, Superintendent of Customs who had made the seizure could not have "entertained a reasonable belief" that the article in question was made of smuggled gold. The tria