IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:-

HON’BLE JUSTICE PARTHA SARATHI SEN C.R.A. No. 325 of 1986 Sri B.K Ghosh -Versus-

Sri Gobardhan Das Lohati For the appellant: Mr.Rajdeep Mazumder,Ld. DSGI, Mr. Pritam Roy, Adv.

For the respondent no.4 : Mr. Sahjahan Hossain, Adv., Ms. Sanjida Sultana, Adv., Mr. Sanwar Mallick, Adv.

Last Heard on : 24.01.2025 Judgment on : 31.01.2025 PARTHA SARATHI SEN, J. : –

1. In this special leave to appeal as filed under Section 378(4) Cr.P.C the judgement and order of acquittal dated 13.12.1985 as passed in complaint Case no. C/5737 of 1976 (TR 932/1976) by the Learned Metropolitan Magistrate, 9th Court, Calcutta is impugned. By the said judgement and order the learned trial court found that the accused persons are not guilty under Section 135 (1)(b)(ii) of the Customs Act and under Section 85 of the Gold Control Act, 1968 read with the Section 8(1) of the said Act and thus acquitted the said accused persons under Section 248(1) CrPC. The complainant felt aggrieved and thus preferred the instant special leave to appeal.

2. It is pertinent to mention herein that during the pendency of the instant appeal the respondent nos. 1, 2 and 3 namely; Gobardhan Das Lohati, Narayan Das Lohati and Shrilal Lohati died on 24.03.2015, 27.09.2016 and 19.04.2018 respectively and thus the instant appeal stood abetted as against the said three respondents.

3. For effective adjudication of the instant appeal the facts leading to initiation of Case no. C/5737/1976 before the learned trial court is required to be dealt with in a nutshell.

4. One B.K Ghosh, the then Assistant Collector of Customs, West Bengal, Calcutta filed a complaint with the learned trial court on 11.07.1975 stating, inter alia, that in discharge of his duty as a public servant and after obtaining necessary sanction from the Collector of Customs Excise, West Bengal under Section 137(1) of the Customs Act, 1962 he had filed the said complaint against the accused persons for taking cognizance and for issuance of process against the accused persons for commission of offence under Section 135(1) (b)(ii) of the Customs Act, 1962 (hereinafter referred to as the said ‘Act of 1962’ in short) and under Section 85 of the Gold Control Act, 1969 read with Section 8 of the Gold Control Act, 1968 (hereinafter referred to as the said ‘Act of 1968’ in short).

5. It is the complaint case that on 10.07.1975 at about 10 a.m on the basis of a secret information the complainant along with other Customs officers of the concerned Divisional Preventive Unit, Calcutta went to the residence of the accused persons at 4/1/2B, Hari Prasad Dey Lane, Calcutta 700007 as well as to a room on the first floor of 36, Dacca Putty respectively being the residential premises of the accused persons and a room in occupation of one Ratan Lal Lohati, the father of the accused persons respectively on the strength of a search order dated 08.07.1975 issued by the Assistant Collector of Customs, West Bengal, Calcutta.

6. It is the further complaint case that during such search the following items were recovered from the above mentioned house of the accused person namely; one piece of gold bar with the mark ‘Swiss Bank Corporation’ weighing 10 tollas or 116.600 grams valued at Rs.6000/- from one half steel almirah from the corner of a room, a small gold lump weighing 10.800 grams , gold lump in 12 pieces weighing 65.100 grams (out of which one piece bears marks of foreign origin) and three pieces of gold strips (pat) weighing 11.800 grams valued at Rs. 5000/- which were kept in a small envelop in a locker of a steel almirah in another corner of the room. It is the further complaint case that after such recovery those gold were seized by making proper inventory and at that time the accused no.1 Gobardhan Das Lohati made a voluntary statement before the Customs officers and independent witnesses that he was the ‘karta’ of the joint family and the said gold were pur