1987 (3) TMI 111 - SC - Customs

Coating pure gold to resemble silver amounts to deception, justifies treating item as smuggled under Section 391 Cr.P.C.

SC held that coating a pure gold waistchain to resemble silver furnished reasonable grounds to treat it as smuggled and justified invoking Section 391 ... Charge for an offence under Section 135(1) read with Section 111 of the Customs Act - passenger travelling by train, (respondent No. 1) adorned his waistline with a waistchain (kandora) weighing 820 grams - made of pure gold and coated with mercury so as to give an appearance of being made of silver. Held that:- The conduct of respondent No. 1 in coating the article of pure gold to make it appear as if it was of silver was itself a conduct which could have provided the basis for entertaining a reasonable belief it being a relevant piece of evidence that the article was a smuggled one. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the Code of Criminal Procedure. We are of the opinion that the application should have been granted in the facts and circumstances of the case with the end in view to do full and true justice. The application made by the learned Assistant Public Prosecutor is therefore granted. The High Court will issue appropriate directions for the recording of the evidence to prove the report of the Mint Master under Section 391 Cr. P.C. when the matter goes back to the High Court and is listed for directions. Issues:1. Acquittal under the Gold (Control) Act of 1968 based on evidence of ornament vs. primary gold.2. Acquittal under the Customs Act for possession of gold chain coated with mercury to appear as silver.3. Disregard of evidence by the trial court and High Court leading to acquittal.4. Rejection of additional evidence request under Section 391 of the Code of Criminal Procedure by the High Court.Issue 1: Acquittal under the Gold (Control) Act:The respondent, accused of an offence under Section 85 of the Gold (Control) Act of 1968, was acquitted by the trial court based on the argument that the seized gold chain was an ornament and not primary gold. The trial court relied on the evidence of a licensed gold dealer who stated that such waistchains were used as ornaments in Rajasthan, and the design of the chain indicated it was an ornament. However, the High Court failed to consider the deceitful nature of coating a gold chain with silver, which is not typical for genuine ornaments. The Supreme Court criticized the trial court's lenient approach towards economic offenders but did not delve further as the State did not press the appeal against this charge.Issue 2: Acquittal under the Customs Act:The respondent faced a charge under Section 135(1) read with Section 111 of the Customs Act for possessing a gold chain coated with mercury to appear as silver, violating the prohibition on importing gold of specified fineness. The trial court dismissed the evidence of a goldsmith certifying the chain as pure gold and rejected the presumption under Section 123(2) of the Customs Act. The High Court upheld the acquittal, ignoring crucial circumstances like the coating of the chain and the goldsmith's opinion. The Supreme Court emphasized that the Customs officer's reasonable belief in seizing the article as smuggled gold should not be second-guessed by the court, and the High Court's decision was deemed unreasonable and unsustainable.Issue 3: Disregard of evidence and acquittal confirmation:The High Court confirmed the acquittal based on three grounds, including the rejection of additional evidence to prove the gold's purity. The Supreme Court criticized the High Court for overlooking the interests of justice by refusing to consider the additional evidence, emphasizing that justice should not only benefit the accused but also serve the community by holding economic offenders accountable. The Court granted the request for additional evidence under Section 391 of the CrPC and set aside the acquittal, remitting the case back to the High Court for further proceedings.Issue 4: Rejection of additional evidence request:The High Court's refusal to allow additional evidence under Section 391 of the CrPC was deemed unjustified by the Supreme Court. The Court emphasized the importance of promoting justice for the community and holding economic offenders accountable. The High Court's decision to reject the request was criticized for failing to consider the interests of justice and the community, leading to the Supreme Court granting the application for additional evidence and setting aside the acquittal, directing the High Court to proceed further in accordance with the law.