# TARA CHAND v. SUPERINTENDENT OF CENTRAL EXCISE, BOMBAY

- **Citation:** [1971] 2 S.C.R. 908
- **Court:** Supreme Court of India
- **Decided:** 1970-12-03
- **Case number:** Criminal Appeal No. 76 of 1968
- **Bench:** S. M .. Sikri, V. Bhargava, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tara-chand-v-superintendent-of-central-excise-bombay-5151
- **Pages:** 9

## Headnote

Dtftne< of India Rules 1962 rr. 126J and 126X-Notificatnons under-
.if .enable Collector or Assistant Collector to delegate authority to institute
prostcution for offence urtder r. 126-P(2)-Seni:ence-Jf minimum sentence
to be gaverned by provisions of Rules or b.v Act 18 of 1965 when Act in
Fore~.
The Appellant was searched on alighting from a plane at the H.A.L.
Aerodrome, Bangalore, on November 16, 1963 and a quantity of Gold
was found on and seized from him.
After obtaining sanction from the
Collector under section 137(1) of the Customs Act anp under Rule 126-Q
of Defence of India Rules, 1962, the Superintendent of Central Excise
filed a complaint against the Appellant. The Trial Court did not find any
evidence establishing that the Gold had been smuggled and the Appellant
was therefore acquitted of the offence under section 135 of the Customs
Act.
As regards the case against the Appellant under Rule 126-P(2), the
Trial Court held that according to the Notification issued by the Govern·
ment of India on November 5, 1963 in modification of the Notification
dated January 10, 1963 issued under Rule 126-J read with Rule 126-X,
either the Assistant Collector of Centra!•Excise or the Collector of Central
Excise could ,institute the ·prosecution; these officers were not authorised
to delegate powers to institute prosecution. The Court, therefore, acquitted
the Appellant on the view that the complaint was not filed by an Officer
competontly authorised.
The High Court in appeal disagreed with this
view holding that the CoJlector was lawfully empowered to authorise the
Superintendent of Central Excise to prosecute the a;ipellant. The Court
convicted the appellant and sentenced him to rigorous imprisonment fct
six months.
Dismissing an appeal to this Court,
HELD : The plain reading of the relevant entries in the Notification
of January 10, !963 as amended by the ·Notification of November 5,
1963 dearly shows that it authorises the Collecter to exercile the power
and function in relation to -the institution of prosecution for any offence
punishal>le under Part XII-A of the Rules referred ·lo in r. 126Q. Keeping in view the multifarious activities of the higher officers of the Central
Excise Department it seems clear that ·after the responsible officen of this
Department not inferior in rank )o the Assistant Collector had applied
their m1, d and come to a decisron as to the desirability of starting the
prosecution in a given case, further steps in the matter of actual prosecution including the drafting and presentation of the. complaint could be
lawfully carried out by others. To hOld otherwise would not only mean unduly straining .the unambiguous statutolry language but would also tend to
thwart, instead of effectuating, their real purpose. [915 C-FJ
The're was no force in the contention that the charge levelled against
the appellant was vague or in any way different from the one for which
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TARA CHAND \'. SUPDT. CENTRAL EXCISE (Dua. ],)
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he was convicted.
In fact the appellant had admitted all the relevant
·facts alleged by the prosecution.
The facts alleged and proved clearly
brought the appellant's case within the mischief of rule 126H(2) (d) and
126-P(2).
Although under the new Gold (Control) "Act 18 of 1965.
which had repealed Part XII-A of the Rules, there is no minimum sentence of imprisonment prescribed, the present case must be governed by
the law in force at the time and therefore the minimum sentence of 6
:nonths under rule 126-P(2) (ii) must apply. [916 D, G]

## Text

908
TARA CHAND
v.
SUPERINTENDENT OF CENTRAL EXCISE, BOMBAY.
December 3, 1970
(S. M .. SIKRI, V. BHARGAVA AND I. D. DUA, JJ.]
Dtftne< of India Rules 1962 rr. 126J and 126X-Notificatnons under-
.if .enable Collector or Assistant Collector to delegate authority to institute
prostcution for offence urtder r. 126-P(2)-Seni:ence-Jf minimum sentence
to be gaverned by provisions of Rules or b.v Act 18 of 1965 when Act in
Fore~.
The Appellant was searched on alighting from a plane at the H.A.L.
Aerodrome, Bangalore, on November 16, 1963 and a quantity of Gold
was found on and seized from him.
After obtaining sanction from the
Collector under section 137(1) of the Customs Act anp under Rule 126-Q
of Defence of India Rules, 1962, the Superintendent of Central Excise
filed a complaint against the Appellant. The Trial Court did not find any
evidence establishing that the Gold had been smuggled and the Appellant
was therefore acquitted of the offence under section 135 of the Customs
Act.
As regards the case against the Appellant under Rule 126-P(2), the
Trial Court held that according to the Notification issued by the Govern·
ment of India on November 5, 1963 in modification of the Notification
dated January 10, 1963 issued under Rule 126-J read with Rule 126-X,
either the Assistant Collector of Centra!•Excise or the Collector of Central
Excise could ,institute the ·prosecution; these officers were not authorised
to delegate powers to institute prosecution. The Court, therefore, acquitted
the Appellant on the view that the complaint was not filed by an Officer
competontly authorised.
The High Court in appeal disagreed with this
view holding that the CoJlector was lawfully empowered to authorise the
Superintendent of Central Excise to prosecute the a;ipellant. The Court
convicted the appellant and sentenced him to rigorous imprisonment fct
six months.
Dismissing an appeal to this Court,
HELD : The plain reading of the relevant entries in the Notification
of January 10, !963 as amended by the ·Notification of November 5,
1963 dearly shows that it authorises the Collecter to exercile the power
and function in relation to -the institution of prosecution for any offence
punishal>le under Part XII-A of the Rules referred ·lo in r. 126Q. Keeping in view the multifarious activities of the higher officers of the Central
Excise Department it seems clear that ·after the responsible officen of this
Department not inferior in rank )o the Assistant Collector had applied
their m1, d and come to a decisron as to the desirability of starting the
prosecution in a given case, further steps in the matter of actual prosecution including the drafting and presentation of the. complaint could be
lawfully carried out by others. To hOld otherwise would not only mean unduly straining .the unambiguous statutolry language but would also tend to
thwart, instead of effectuating, their real purpose. [915 C-FJ
The're was no force in the contention that the charge levelled against
the appellant was vague or in any way different from the one for which
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TARA CHAND \'. SUPDT. CENTRAL EXCISE (Dua. ],)
909
he was convicted.
In fact the appellant had admitted all the relevant
·facts alleged by the prosecution.
The facts alleged and proved clearly
brought the appellant's case within the mischief of rule 126H(2) (d) and
126-P(2).
Although under the new Gold (Control) "Act 18 of 1965.
which had repealed Part XII-A of the Rules, there is no minimum sentence of imprisonment prescribed, the present case must be governed by
the law in force at the time and therefore the minimum sentence of 6
:nonths under rule 126-P(2) (ii) must apply. [916 D, G]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
76 of 1968. ·
Appeal by special leave from the judgment and order dated
February 8, 19618 of the Mysore High Court in Criminal Appeal
No. 215 of 1966.
V. M. Tarkunde, R. Jethamala11i, N .. H. Hi11gora11i and K.
Hi11gorani, for the appellant.
S. P. Nayar, for the respondent.
The Juogment of the Court was delivered by
Dua, J.
This appeal by special . leav~ is directed against
the judgment and order of the Mysore High Court· on appeal
setting aside in part the order of the appellant's acquittal by
a Second Class Magistrate and convicting him under r. 126P (2)
of the Defence of India Rules as amended in 1963-hereafter
called the Rules-and sentencing him to rigorous imprisonment
for six months.
The order of the trial court acquitting him of
the offence under s. 135 of the Customs Act was upheld.
The appella,nlt alighted from a service plane at H.A.L. Aerodrome, Bangalore on November 16, 1963 at about 12.45 in the
aftembon. E. R. Fariman, Inspector, C.I.D. had prior incriminating information about the arrival of a person whose. description seemed to tally with that of the appellant.
The Inspector
and has staff who were on the look out waited for the appellant
to take his baggage from the baggage counter.
As soon as the
appellant took delivery of a plastic bag and a hold-all the Inspector
asked the appellant to accompany him to the Security Room.
On being questioned the appellant gave his
name as Tara
Chand though he admitted that he had travelled under the name·
of J. D. Shaw. In the Security Room in the 'Presence of Panchwatdars the platic bag and the holdcall were opened and examined.
From a pi!l~w taken. out of the hold-all w~re found two tape
bags contammg 16 pieces of gold with foreign markings. These
tape bags had been put into the pillow which was then stitched.
The appellant was then produced by ti» Inspector before
his D. S. P. along with the articles seized from him.
After
obtaining sanction from the Collector under s.- 137 (I) of the
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SUPREME COURT REPORTS
[1971] 2 s.c.R.
Customs Act and under r: 1260 of the Rules
Sliri Rasool,
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Superintendent of Central Excise (P.W. 3) filed the complai.nt.
The learned Magistrate trying the appellant· found. the gold
pieces to be of foreign origin. He, however, did not find any
evidence establishing them to be smuggled with· the result that
the appellant was acquitted of th.e offence u.nder s. 135 of the
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Customs Act.
The learned Magistrate did not draw any pre·
sumption against the. appellant because the seizure of the gold
pieces was not by the Customs authorities but by the police who
thereafter handed over the gold pieces to' the office of the Collector of Sentral Excise. and Customs.
While _considering the case against the
appellant under c
r. 126P(2) of the Rules, the learned Magistrate observed that
according to the relevant notification issued by the Government
of India on November 5, 1963 in fuooification of the earlier one
issued under r. 126J read with r. 126X of th.e Ru)i:s, it is either
the Assistant Collector af Central ·Excise or the Collector of
Central Excise who can institute prosecution, These officers are
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not authorised to delegate the power to institute prosecution.
According to the learned Magistrate the Collector of Excise had,
therefore, no power to ddegate the right to insfiwte prosecutions
with which he alone had been clothed. Exhibit P/5 was in the
circumstances consid!!red· to be ineffective.
On this reasoning
the complaint having not been filed by the officer c<impetently
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authorised the appellant was acquitted.
On appeal by the Superintendent of Central Excise and
Customs (the complainant in the case) the High Court disagreed
with the view taken by the learned Magistrate: It may be point·
-eel out that the appeal by . the complainant was confined . only
to the acquittal under r. 126P(2) of the Rules and the appellant's
acquittal under s. 135 of the Customs Act :was not questioned,
it being conceded
.that there was no evidence on the record
to bring the appellant's case under s. 135 of the Customs Act.
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The High Court relying on Ex. PI 5 and the two notifications issued by the Government of India came to the conclusion G
that the Collector was lawfully empowered to
authorise the
Superintendent of Central Excise to prosecute the appellant.
That Court also arrived at the conclusion that the appellant, who
was not a dealer or refiner, having a licence, was found in
possession of gold, of which no declaration had been made under
the law and, therefore, he was guilty of an offence punishable
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under r. 126P(2) of the Rules.
The appeal was accordingly
allowed and the appellant convicted and sentenced to rigorous
imprisonment for six 11).0nths.
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TARA CHAND v. SUPDT. CENTRAL EXCISE (Dua, J.)
911
In this Coun Shri Tarkunde assailed the legality of the view
taken by the High Coun. According to him the trial court had
rightly held the prosecution not to have been instituted by a duly
authorised person. Let us see if the scheme of the relevant statutory provisions supports the learned counsel.
Part XII-A of the Rules deals with Gold Control and it contains rules 126A to 126Z: This pan was inserted in the Defence
of India Rules in January 1963. Rule 1260 provides:
"(I) No prosecution for any offence punishable under
this Pan shall be. instituted against any person
except by, or with the consent of, the Administrator or any person authorised by the Adminstrator in this behalf.
(2) 'Nothing in rule 154 shall apply to any contravention of any provision of this Part or any
order made thereunder."
The word "Administrator" was substituted for the word "Board"
in September 1963. We are informed that no Administrator as
defined in r. l 26A (a) was appointed by the Central Government
under wwer conferred on it by r. 126J ( 1). Under r. 126X
the e1i!ntral Government is empowered to perform all or any of
the functions of the Administrator and also by notification to
·exercise ail o~ any of the powers conferred on the Administrator
by Pan XII-A if considered necessary or expedient in the public
<interest to do so.
The Administrator who is to take suitable
measures : (a) to discourage the use and consumption of gold,
(b) to bring about conditions tending to reduce the demand for
gold and, ( c) to advise the Central Government on all matters
relating to gold, is enjoined by r. 126!(3) to discharge his functions subject to the general control and directions of the Central
.Government. Sub-rules 4 and 5 of r. 126J provide :
" ( 4) The Administrator may by general or special
order authorise such person as he thinks fit to
exercise all or any of the powers exercisable by
him under this Pan and- different persons may
be authorised to exercise different powers :
Provided that no officer below the rank of Collector
of Customs or Central Excise or Collector of a
district shall be authorised to hear appeals
under sub-rule (3) of rule 126-M.
( 5) Subject to any general or special direction given
or condition attached by the Administrator any
912
SUPREME COURT REPORTS
[1971] 2 S.C.R.
person authorised by the Administrator to exercise any powers may exercise these powers in
the same mariner and with the same effect as
if if they had been confered on that person
directly by ·this Part and not by way of authorisation."
We may bear in mind the effect of sub-nile (5) on the scheme.
~ule 126H(2) (d) dealing with restrictions on possession and
sale of gold by persons other than licensed holders lays down :
"(2) Save as otherwise provided in this Part,-
( d) no person other than a dealer licensed under this
Part shall buy or otherwise acquire or agree to
buy or otherwise acquire, gold, not being ornament, except,
(i) by succession, intestate or testamentary,
or
(ii) in accordance with a permit granted by
the Administrator o'r in accordance with
such authorisation as the
Administrator
may, by general or special' order ir.ake in
this behalf :
Provided· that a refiner may buy or accept gold
from a dealer licensed under this Pai:t;"
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Turning now to the two notifications on the
construction of
which the fate of this case depends, we find that on January 10,
1963 the Central Government issued a notification in exercise
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of the. powers confered on it by r. 126X read with r. 1261( 4)
authorising. certain officers of the Central Excise Department to
exercise any or all of the powers of the Gold Board in relation
to certain matters specified therein. At sl. no. 10 of the Table
·contained in the notificatioru officers not inferior in rank to the
Assistant Collector were authorised to exercise powers and functions in relation to the matter of "according of sanctions for the
prosecution of offences" with reference to r. 1260. We have
reproduced the exact words of the entry in col ( 4)
of the
Table.
This notification was amended in certain respects on
November S, 1963. At sl. no. 10 of the amended Table officers
not inferior in rank to the Assistant Collector of Central Excise
Department were authorised to exercise the powers and functions
in relation to the matter of "institution of prosecution for
any
offence punishable under Part XII-A of the Defence of India
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TARA CHAND v. SUPDT. CENTRAL EXCISE (Dua,/.)
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Rules" with reference to r. 1260. Here again we have reproduced the exact words used.
According to Shri Tarkunde these notifications did not em·
power the Assistant Collector to authorise the Super..ntendent of
Central Excise and Customs to institute the present proceedings.
The Assistant Collector, said the counsel, was· authorised.·· only
himself to institute them and he could not lawfully accord con·
sent for the institution of prosecution as he purported to do under
Ex. PI 5. We are unable to accept this submission. The . actual
wording of the rel11vant entries in all the columns of serial no. 10
in the Table of the later notification may here be reproduced.
"l 0. Assis tart\ Collector of the Central Excise Department.
1260
Institution of prosecution for any offence punishable under Part XIIA of the Defence of India Rules,
1962".
This has to be read .along with the opening part of the earlier
notification dated January 10, 1963 which remains the principal
notification and was amended only in certain particulars · on
November 5, 1963. According to the opening part of the
1principal notification- the officers not inferior in rank to the officer
specified in col. 2 of its Table were
authorised io · exercise
any or all of the powers of the Gold Board in relation to the
matters specified in the . corresponding entries in cols. 3 and 4.
In .place of "Gold Board" we have to read the word "Admiilistra·
tor" and since no Administrator was ever appointed, the powers
and functions entrusted to him were at the relevant time being
exercised by the Central Government.
We· may point out that
it was app4rently by oversight that the word ' 'Administrator"
was not substituted for the expression "Gold Board" in the notification though in
September 1963 such substitution had been
effected by appropriate amendment in the relevant rules.. This
was not controverted at the Bar and indeed no point was sought
to be made on this ground. It would thus be seen that in determining the scope and extent of the powers of the officers authorised in the Table of the Notification to exercise the powers and
functions of the Administrator,· actually exercised . by the Central
Government (there being no Adminstrator appointed under the
rules), we have to see the nature of the power and function
mentioned in col. 4 and examine it by reference to
the
rule
mentioned in col. 3 in the light of the expression "in relation to
the matters specified" in the notification which, in our ·opinion,
to some extent. widens the scope of the powers and functions delegated by the notification.
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SUPREME COURT REPORTS
fl971]2 S.C.R.
Under r. 126Q as read in the light of the. entries at serial
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no. 10 of the notification prosecution for an offence punishable
under Part XII-A can, in our opinion, be instituted by or with
•the consent of an officer not inferior in rank to the Assistant •
Collector of the Central Excise Department. In Ex. P/5 dated
September 4, 1964 Shri V. Parthasarathy, Collector of Central
Excise accorded his. sanction to the prosecution of the appellant
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as required under :r. 126Q of the,Defence of India Rules:
He
did so in exrcise of. the powers conferred on him by the two
notifications mentioned above. ·The offence for which the consent
was given was described in this document as under :
"WHEREAS Shri Tarachand s/,o Deviraj (Devichand) Room No. 4, Mistry Bungalow, Duncan Road,
Bombay-4 was found to have acquired gold not being
ornament except by succession, intestate or testamentary
or in accordance with the permit granted either by the
Administrator or by the Deputy Secretary in tire office
of the Gold Control Administrator, Bombay, duly
authorised in this behalf by the Government of India
vide their notification No. · F. 1/8/63-GC dated
20-10-1963, 16 pieces of gold of 10 tolas each bearing
markings as to. its origin and purity contrary to the provisio.ns of rule 126H(d) of the Defence of India Amendment Rules.
WHEREAS any person having in his possession or
in his control any quantity of gold or buy or otherwise
acquires or accepts gold in coruravention of any provisions of Part XII-A of the Defence of India Rules
renders himself liable for
punishment · under Rule
126P(2).
And on careful study of the material placed before
me and satisfying myself tj:lat the said Shri Taiachand
is liable to action under.rule 126P(2) of the Defence
of India Amendment Rules, 1963 for reasons men-
.tioned above, I. V. Parthasarathy, Collector of Central
Excise, Mysore Collectorate, Bangalore, in exercise of
the powers conferred on me by the Government of
India in their Notification F. No. 2511/63-GCR dated
5-11-63 issued under Rule 126J read with Rule 126-X
of the Defence of India Amendment Rules do hereby
accord consent for the institution of prosecution of the
said Shri Tarachand as required under Rule 126:0 of
the Defence of India Amen(iment Rules, 1963."
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TARA CHAND v. SUPDT. CENTRAL EXCISE (Dua, J.)
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This authority, in our opinion, quite clearly falls within the
notification read as a whole and the High Court was right in so
construing it.
The submission that these notifications must be construed
strictly because by these instruments the authority to prosecute
is delegated and so construed the~ should be held to confer power
only to prosecute but not to accord consent to the appellant's
prosecution by some other person or authority has not impressed
us. The attempt by the appellant's· learned. co11nsel in this con·
nection to equate .these notification with powers of attorney does
not carry ·the matter any further.
The plain reading of the relevant entries in die notifications leaves no doubt in our mind as
to its meaning, scope· and effect. It quite clearly authorises the
Collector to exercise power and function in relation to the matter
of institution of prosecution for any offence punishable under
Part XII-A of the Rules referred to in r. 1260 .. Keeping in view
the multifarious activities of the higher officers of the Central
Excise Department it seems to us that after the responsible officers of this Department not inferior in rank to the Assistant
Collector had applied their mind and come to a decision as to
the desirability of starting the prosecution in a given case further
steps in the 'matter of actual prosecution including the drafting
and presentation of the complaint can be lawfully carried out by
others. That this is l.he real object and purpose of the notifications is clearly brought out on plain reading of their language.
To hold otherwise, as desired by Shri Tarkunde, would not only
mean unduly straining the unambiguous statutory language but
would also tend to thwart, instead of offectuating, their real purpose. We are thus in agreement with the view talc.en by the High
Court.
The couruel next submitted tliat the charge levelled against
the appellant was different from the one for which he has been
convicted.
In any event the charge framed, according to the
counsel, was vague and it has caused him prejudice in his defenee.
Here again, we are unable to agree.
In the complaint all the
relevant facts were stated quite clearly and it was emphasised that
the appellant had been found in possession of 16 pieces of gold
with foreign markings ingeniously concealed inside long tabular
pouches, in tum hidden inside a pillow case.
He was stated tci
be guilty inter alia of offences punishable under r.
126P(2).
The second charge framed by tlte court was as follows :
"That you on or about the 16th November, 1963 at
a~out 12.45 hours at H.A.L. Aerodrome, Bangalore,
ahght~d from the plane No. 105 which arrived from
Bomay and when you and your articles were searched,
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916
SUPREME COURT REPORT~
[1971] 2 s.c.R.
you were found in possession of 16 pieces of gold each
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bearing markings as to its foreign origin and ·purity
weighing 10 tolas each, having illegaily imported into
India in contravention of prohibition imposed by the
Ministry of Finance Notification No. 1211 Fl/48 dated
25th August, 1948, and without permit issued by the
Gold Control Authorities as required under Rule 126HB
UI) under the Defence of India Amendment Rules,
1963· and thereby committed an offence under Rule
126P(2) r/w 1261(10) of the Defence of India
Amendment Rules, 1963 relating to Gold Control and
within my cognizance."
The appellant never complained that this charge wa& vague or
outside the complaint. Indeed in his statement in court the
appellant bas admitted all the relevant facts alleged by the prosecution. The facts alleged and proved cleariy bring the appellant's case within the mischief of rr. 126H(2) (d) and 126P(2).
Rule 126H(2) (d) has already been reproduced earlier. Under
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r. 126P(2) (ii) whoever has in. his possession or under his control
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any quantity of go)d in contravention of any provision of Part
XII-A is punishable with imprisonment for a ·term of not Jess
than six months and not more than two years and also with fine.
All the relevant salient facts alleged by the prosecution having
been admitted by the appellant there can hardly be any question of prejudice having been caused to him by the wide language
of the complaint and the charge, assuming the language to be
wde. This argument is accordingly repeiled.
Lasily the counsel contended that the sentence imposed was
two severe.
The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice. We have already
noticed that under r. 126P(2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant
the law bas since lieen amended and under the Gold (Control
Act 18 of 1965 which bas repealed Part XII of the Rules there
is no minimum sentence of imprisonment prescribed.
In our
Qpinion this case must be governed by the law as in fo"ce
prior to the enforcement of the Gold (Control) Act, 1965. Our
attention has not been drawn ·to any provision of law nor to
any principle or precedent which would attract the provisions of
the Gold (Control) Act of 1965 to this case in regard to the
question of sentence.
This appeal accordingly fails and is dismissed.
R.K.P.S.
Appeal dismissed.
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