A sanction to prosecute under section 137 of the Customs Act, 1962, must be observed with complete strictness and must be based on evidence that the goods in question are smuggled goods.

Joytosh Banerjee, J.

This is a proceeding for revision under sections 401 read with 482 of Cr.P.C. filed by the accused/petitioner alleging, inter alia, that he is a certified goldsmith having a valid licence issued by the Gold Control Authorities and such petitioner has been maintaining a statutory register known as GS-13, entries were duly made in respect of 15 pieces of assorted sizes of melted gold. According to the Gold Control Acts and Rules a certified goldsmith can have in his possession primary gold after written complaint filed on 7th January, 1988 by the Assistant Collector of Customs Preventive (legal) against the petitioner under section 135(I)(b)(i) of the Customs Act, 1962 and under section 85(a) of the Gold Control Act, 1968, the learned Chief Metropolitan Magistrate, Calcutta, took cognizance and issued process against the accused and specific allegation levelled against the petitioner, is that on 19.12.86 acting on an information a batch of Officers of the Customs House duly searched the shop premises of the petitioner at 12, Sir Hariram Goyenka Street, Calcutta 700 007 and recovered 3 pieces of gold in the form of folded rod and 15 pieces of gold of assorted size and shape. The markings 9999' were embossed on 2 pieces of gold out of 3 in the form of folded rod. The accused/petitioner could not produce any documentary evidence in support of legal acquisition/possession/importation of the 18 pieces of gold so recovered and so the customs officers seized the entire gold on the reasonable belief that the same had been smuggled into India and are liable to be confiscated under the provision of the Customs Act read with the provision of the Foreign Exchange Regulation Act and also under the Gold Control Act. It is the further allegation that on chemical test, the 3 pieces of gold in the form of folded rod were found to contain 99.9 per cent of gold by weight and out of the remaining 15 pieces of gold, 4 pieces were found to contain 99.7 per cent of gold by weight, 7 pieces were found to be gold alloy containing 95.0 per cent of gold by weight and 4 pieces were found to be gold alloy containing 88.4 percent of gold by weight. It is the further allegation that from the aforesaid facts and circumstances two pieces of gold in the form of gold rod out of 3 pieces were seen embossed with marking 9999' and containing 99.8 per cent of gold by weight as per chemical test report were of foreign origin and had been smuggled into India and acquired by the accused illegally and as such all the 3 pieces of gold in the form of folded rod were liable to be confiscated under the provisions of the Customs Act read with the provision of the Foreign Exchange Act, 1973. It was also alleged that remaining 15 pieces of gold were also of smuggled origin/manufactured from smuggled gold and had been illegally acquired for clandestine disposal and as such are liable to confiscation under the aforesaid Acts. It is the further allegation 3 pieces of gold in the form of folded rod and 15 pieces of gold of assorted size and shape were of primary gOld , which the accused acquired /possessed in contravention of the provision of Gold Control Act and as such are liable to be confiscated under such Act.

2. On the basis of the aforesaid allegations, learned Metropolitan Magistrate, 6th Court, Calcutta in C. Case No. 28/1988 framed charge under section 135(I)(b)(i) of the Customs Act and also under section 85 of the Gold Control Act against the accused/petitioner. Now, the petitioner has come up before this court against the framing of the aforesaid charge contending that in the facts and circumstances of the case and in view of the evidence so far recorded, before the consideration of the charge, the proceeding before the learned Magistrate should be quashed.

3. I have heard the contentions of learned Advocate for the revisionist petitioner as well as the State. The main contention raised by the learned Advocate for the revisionist petitioner