Ratio(s) Decidendi-Accused could be released for an offence of gold smuggling.

The petitioner has been convicted of an offence under section 135(b) (ii) of the Customs Act, 1962 and sentenced to rigorous imprisonment for a period of six months. He has also been convicted for contravening Rule 126-P(2)(ii) of the Defence of India Rules (herein-after referred to as Rules) and sentenced to rigorous imprisonment for 6 months and also to a fine of Rs.200, in default to undergo rigorous imprisonment for one month. Both the substantive sentences are directed to run concurrently. The appeal filed by the petitioner was dismissed by the learned First Additional Sessions Judge, Belgaum. In this revision, the petitioner challenges the legality and correctness of the convictions and sentences passed on him.

2. The petitioner was travelling on 20th April, 1967 by Poona-Bangalore Mail. When the train arrived at Belgaum Railway Station at about 12-30 hours, P.W.1, Inspector of Central Excise, entered the compartment, and on suspicion he questioned the accused and when he touched the person of the accused, he felt some hard, substance, and thereafter on the reasonable belief that the accused possessed some contraband articles he detained the accused and brought him to the upper class waiting room of the Station and produced him before Sri Narahari, Inspector of Central Excise, Belgaum. After securing panchas, the person of the accused was searched and he found in the under-wear pocket, 2 paper bags in which were found 4 pellets of gold having foreign markings. The accused had no permit or any document for possession of the said gold. Thereafter the Superintendent of Central Excise recorded the statement of the accused as per Exhibit P-3. After completing the investigation and getting the necessary sanction and consent to prosecute the accused, a complaint was filed against the accused.

3. Sri Chandrakumar, learned Counsel appearing on behalf of the petitioner, has not challenged the conviction of the petitioner under section 135(b)(ii) of the Customs Act, but has only addressed arguments on the severity of the sentence. So far as the conviction under the Defence of India Rules is concerned, it is contended by the learned Counsel that the Gold Control Order passed under the Defence of India Rules does not apply to smuggled gold. His argument is that Gold Control Rules apply only to licit gold. It is argued that the whole Scheme of Rules shows that it is intended to control the legal business in gold and not smuggled gold. Various provisions of the rules dealing with matters of licences and declaration relate to licit gold and not of smuggled gold. It is also argued that there is no provision under the Rules for declaration of smuggled gold and in the very nature of things, smugglers cannot be expected to give declaration about the gold which they have smuggled. It is contended that so far as the smuggled gold is concerned, it would be an offence under the Customs Act and not under the Rules. It is also argued that under Rule 126-I of the Rules, there is no provision requiring a person to make a declaration if he is found to be in possession of smuggled gold. Strong reliance is placed on a decision of the Calcutta High Court in A.M. Sinha v. Prohlad Chandra1in support of the said contention.

4. The point raised by the learned Counsel is concluded by two Bench decisions of this Court. In Superintendent of Central, Excise v. Alvi1, a Bench of this Court when an identical point was urged has observed at page 21 of the judgment as follows:

“The contention of Sri Mandagi is that the provisions of the Gold Control Act do not apply to smuggled gold. He argues that under the Defence of India Rules, a person in possession of smuggled gold is not bound to make any declaration under the said Act or the Rules. He contends that the provisions of the Defence of India Rules are not in derogation of the Customs Act. His argument is, once a person is convicted under section 135 of the Customs Act, he cannot be convicted again on the s