# ~ ; •' TRIVENI PRA5AD RAMKARAN VERMA v. THE STATE OF MAHARASHTRA

- **Citation:** [1977] 1 S.C.R. 519
- **Court:** Supreme Court of India
- **Decided:** 1976-09-07
- **Case number:** Criminal Appeal No. 264 of 1971
- **Bench:** P. N. Bhagwati, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/triveni-pra5ad-ramkaran-verma-v-the-state-of-maharashtra-6942
- **Pages:** 6

## Headnote

519
Gold Control Rules, 1963, w/1ether b1c/udes smuggled gold within their
ambit.
The appellant was found carrying smuggled gold with foreign markings, concealed on his person. He was convicted by the Presidency Magistrate under
Section 135(b) read with Section 135(ii) of the Customs Act, 1962, and Rule
126H (2)(d) read with Rule 126 P(2)(iv) of the Gold Control Rules, 1965.
the High Court upheld the convictions. The appellant contended that th~ gold
allegedly recovered from him was smuggled gold, and hence not covered by the
Gold Control Rules, 1963.
Dismissing the appeal the Court,
HELD : The Gold Control Rules, 1963, seek to control and regulate dealings in gold, and are applicable alike to smuggled gold as to non-smuggled
gold, and the inhibition of Rule 126 H(2) (d) that no person other than a
licensed dealer shall acquire gold except in accordancd with a permit or authorisation granted by the Administrator, is not confined in its operation to nonsmuggled gold but applies equally in relation to smuggled gold. The object and
purpose of the restrictions imposed by the Gold Control Rules, 1963, would
be
frustrated
by
excluding
from
their abmit and
coverage,
smuggled
gold.
[523 A-D; 524 B-C]
Aravinda Mohan Sinha v. Prohlad Chand Samenta AIR 1970 Cal 437 overA
B
c
D
ruled.
E

## Text

-~
;
•'
TRIVENI PRA5AD RAMKARAN VERMA
v.
THE STATE OF MAHARASHTRA
September 7, 1976
[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]
519
Gold Control Rules, 1963, w/1ether b1c/udes smuggled gold within their
ambit.
The appellant was found carrying smuggled gold with foreign markings, concealed on his person. He was convicted by the Presidency Magistrate under
Section 135(b) read with Section 135(ii) of the Customs Act, 1962, and Rule
126H (2)(d) read with Rule 126 P(2)(iv) of the Gold Control Rules, 1965.
the High Court upheld the convictions. The appellant contended that th~ gold
allegedly recovered from him was smuggled gold, and hence not covered by the
Gold Control Rules, 1963.
Dismissing the appeal the Court,
HELD : The Gold Control Rules, 1963, seek to control and regulate dealings in gold, and are applicable alike to smuggled gold as to non-smuggled
gold, and the inhibition of Rule 126 H(2) (d) that no person other than a
licensed dealer shall acquire gold except in accordancd with a permit or authorisation granted by the Administrator, is not confined in its operation to nonsmuggled gold but applies equally in relation to smuggled gold. The object and
purpose of the restrictions imposed by the Gold Control Rules, 1963, would
be
frustrated
by
excluding
from
their abmit and
coverage,
smuggled
gold.
[523 A-D; 524 B-C]
Aravinda Mohan Sinha v. Prohlad Chand Samenta AIR 1970 Cal 437 overA
B
c
D
ruled.
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 264 of
1971.
(Appeal by Special Leave from the Judgment and Order dated
19/20th August, 1971 of the Bombay High Court in Cr.A. No. 650
of 1970 with Crl. Rev. No. 886/70).
B. R. Agarwala and P. B. Agarwal, for the appellant.
H. R. Khanna and M. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.-The appellant was tried before the
Presidency
Magistrate, 25th Court, Mazgaon, Bombay for offence under clauses
(a) and (b) of section 135 read with section 135(ii) of the Customs
Act, 1962 and Rule 126H(2) (d) read with Rule 126P(2) (iv)
of
the Gold Control Rules 1963. The prosecution case against the appellant was that on 7th September, 1965 about 3.45 p.m.
Inspector
Tilwe, who was at the material time Senior Grade Inspector of Customs attached to Gold Circle, Central Excise, Bombay, received information that two persons would be coming down from a building
known as Hira Mahal, situated at Kalbadevi Road, and they will be
carrying gold in the handle of a cane basket and also in their shoes
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SUPREME COURT REPORTS
[1977) 1 S.C.R.
ln~pect<;>r Tilwe, on receipt of this information, sent for Inspector
N1cham and both of them kept guard outside Hira Mahal building
from about 8.00 p.m. Around 8.45 p.m., the appellant accompanied
by his material uncle's son Dwarkaprasad, his son Dalip aged 9 years
and his servant by the name of Mahadev, came out of Hira Mahal
building.
The appellant was carrying a basket in his hand and after
coming out of the building, the appellant and his companions got into
a Victoria and proceeded towards Victoria Terminus Station. Inspector Tilwe and Inspector Nichani followed these persons and when the
appellant and his companions got down from the Victoria and entered
the platform, Inspector Tilwe accosted them and took them to the
office of the Assistant Station Master and searched them there in the
presence of three panchas.
Two of the panchas were
selected by
Inspector Tilwe while tJ1e third volunteered to act as Pancha.
On
taking search, it was found that the shoes worn by the appdlant and
Dwarkaprasad had specially made cavities and four gold biscuits with
foreign markings were found in the shoes of each of these two persons.
The basket carried by the appellant also contained 27
gold
biscuits with foreign markings concealed in the handle which was made
of brass and which had a specially made cavity in it for concertling
gold biscuits.
While the search was going on, one Ticket Collector
called Tharandas Bhatia arrived on the scene and he also witnessed
the search.
Inspector Tilwe seized the gold biscuits which
were
recovered from. the appellant and Dwarkaprasad, in the reasonable
belief that they were smuggled and hence liable to confiscation under
section 111 of the Customs Act, 1962.
This search and seizure was
recorded in a Panchanama Ex. X, which was witnessed by the three
panchas.
Inspector Tilwe also seized from the appellant two
first
class Railway Tickets for the journey from Bombay to Kanpur, one
Reservation Card and two Platform Tickets and so also were
the
basket and the shoes seized under the same
Panchanama
Ex.X.
Inspector Tilwe then took the appellant and Dwarkaprasad to
the
Central Excise Office and recorded their statements in the presence of
Inspector Nichani under section 107 of the Customs Act, 1962. The
statement of the appellant which is marked Ex. W was written
by
Dwarkaprasad in Hindi and was signed by the appellant. The appellant admitted in his statement that he was carrying smuggled gold
concealed in the handle o fthe basket and shoes
for being handed
over to a firm called M/s Pannalal Durgaprasad at Kanpur and that
he had been doing this work for the last six months ever since his
business as a goldsmith was closed down.
Another statement of the
appellant was also subsequently recorded by Inspector Tilwe on 22nd
November, 1966 at the shop of the appellant and this statement was
written by one Maganlal, an employee of the appellant, in Gujarati
and was signed by the appellant.
Both the appellant and Dwarkaprasad were thereafter prosecuted for offences under clauses ( 1) and
(b) of section 135 read with section
135(ii) of the Customs Act,
1962, and Rule 126H(2)(d) read with Rule 126P(2).(iv) of the
Gold Control Rules, 1963. Dwarkaprasad pleaded
gmlty to
the
charge and was convicted and we are not concerned in this appeal
with the conviction and sentence recorded against him.
The appel-
'
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TRlVENI PD. RAMKARAN VERMA v. MAHARASHTRA (Bhagwati, J.) 5 2 1
lant denied the charge and hence he was tried before the learned
Presidency Magistrate.
The only evidence led on behalf of
the
prosecution against the appellant was that of 'Inspector Tilwe
and·
Tharandas Bhatia. None of the panchas was examined as a witness
to prove the search and seizure.
The learned Presidency Magistrate
observed that in view of the fact that Tharandas Bhatia had not signed
the Panchanama Ex.X nor his statement had been recorded by
the
Customs Authorities or the Railway Police, and his nanie had also
not been shown as a witness in the complaint, it would not be desirable to rely on his evidenc_e against the appellant.
But the learned
Presidency Magistrate found the evidence of Inspector Tilwe satisfactory and convincing and on the strength of this evidence, he held the
charge proved against the appellant and convicted the appellant of
the offence under clause (b) of section 135 read with section 135(ii)
of the Customs Act, 1962 and Rule 126H(2)(d) read with
Rule
126P(2) (iv) of the Gold Control Rules, 1963 and sentenced him to
suffer rigorous imprisonment for two months and to pay a fine of Rs.
500/- or in default to suffer rigorous imprisonment for two months for
each of these two offences. Since there was no evidence to show that
the appellant himself had smuggled the seized gold into India, he
was acquitted of the charge under clause (a) of section 135 read with
section 135 (ii) of the Customs Act, 1962.
The appellant preferred an appeal against his
conviction
11nd
sentence but the High Court agreed with the view taken by the learned
Presidency Magistrate and dismissed the appeal of
the
appellant.
Hence the present appeal with special leave obtained from this Court.
It is true that the conviction of the appellant rests solely on the
evidence of Inspector Tilwe.
There were three panchas who witnessed the Panchanama Ex. X regarding search and seizure of gold from
the appellant but unfortunately none of the three panchas could be
examined, as they were not traceable in spite of efforts made by, the
prosecution.
Two of the panchas undoubtedly remained present in
the course of the adjudication proceedings but that was in December
1967. The trial before the learned Presidency Magistrate commenced in April 1969 and evidence was given by Inspector Tilwe
in
December 1969 and at that time none of the three panchas could be
traced and brought for the purpose of giving evidence.
The statement of Inspector Tilwe that "all the three panchas are now
not
traceable in spite of great efforts" was not challe;nged in cross-examination and we must, therefore, proceed on the basis that none of the
three. panchas was available and if that be so, no adverse inference
can be drawn against the prosecution for not examining any of the
three panchas. Tharandas Bhatia was no doubt examined but the
learned· Presidency Magistrate preferred not to rely on his evidence
and we think, he was right in doing so.
Inspector Nichani could, of
course, have been examined as a witness, since he was present at the
time of search and seizure, but his non-examination cannot help the
appellant, since he was also an Inspector in the Customs Department
like Inspector Tilwe and once Inspector Tilwe gave evidence, it would
not have added to the weight of prosecution evidence by also examinA
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~g him. . The prosec~tion case against the appellant must, therefore,
~ the ultimate analysis ~tand or fa~ by the evidence of Inspector
11lwe.
The learned Presidency Magistrate as well as the High Court
accepted the evidence of Inspector Tilwe and we do not se1~ any reason
to interfere with the concurrent view taken by both thes1~ courts as
regards the appreciation of his evidence.
It was not the case of the
appellant that he and Dwarkaprasad along with Dalip and Mal!adev
did not proceed from Hira Mahal building to Victoria Terminus or
that they were not taken by Inspector Tilwe to the office of the Assistant StatiQn Master for purpose of search or that gold was not found
as a result of the search, but his defence was that the seized gold was
found from Dwarkaprasad and not from him and that both the basket
and the shoes belonged to Dwarkaprasad and he had nothing to do
with the same. Now, it is difficult to see why Inspector Tilwe should
have falsely implicated the appellant if, in fact, the seized gold was
found only from the person of Dwarkaprasad and the appellant was
completely innocent.
It may also be noticed that the case of the
appellant was that Mahadev was the servant of Dwarkaprasad and
it was Dwarkaprasad who was going from Bombay to Kanpur along
with his servant Mahadev and the two Railway Tickets from Bombay
to Kanpur were meant for Dwarkaprasad.
But it is diffic1Jlt
to
understand why in that event there should have been two first class
Railway Tickets.
Mahadev could not possibly be travelling by first
class along with his master. The fact that there were two first class
Railway Tickets shows that the appellant and Dwarkaprasad were
going to travel from Bombay to Kanpur.
This is also borne out from
the statement Ex. H given by the appellant to Inspector Tilwe.
The
appellant tried to wriggle out of the statement Ex. H by showing that
it was taken from him under threat and was not a voluntary statement containing the true facts.
But it is evident from the contents
of the statement Ex. H that it is a genuine documep.t.
There
are
several details in the statement Ex. H which could never have been
dictated by Inspector Tilwe. There is inherent evidence in the contents of the statement Ex. H showing that the statement is true. ' It
was admitted in the statement Ex. H, that the appellant was carrying
gold from Bombay to M/s Pannalal Durgaprasad at Kanpur and this
statement is clearly supported by the seizure of two First Class Railway
Tickets from Bombay to Kanpur.
It is true that the reservation card
seized at the time of search did not show in whose name the• reservations were made and it would have been better, if the prosecution had
summoned the railway authorities to produce the Reservation Chart
of the train for the purpose of showing in whose name the reservations
were made.
But even so, the fact that the reservation card
was
seized from the appellant shows that the appellant was travelling from
Bombay to Kanpur.
We do not see any cogent reasons for ta~ing a
different view from that taken concurrently by the learned Presidency
Magistrate and the High Court in regard to the evidence of Inspector
Tilwe and we think this evidence is sufficient to found the conviction of
the appellant.
The appellant, however, contended that even i;f it be held that
gold was found from the person of the appellant, as alleged by the
TRIVllNI PD. RAMKARAN VERMA v. MAHARASHTRA (Bhagwati, J.) 523
prosecution, it was smuggled gold and hence not covered by
the
Gold Control Rules, 1963 and, in the circumstances, no offence under
Rule 126H(2) (d) read with Rule 126P(2) (iv) could be said to have
been committed by the appellant in acquiring such gold.
The argnment of the appellant was that the Gold Control Rules, 1963 apply
only in relation to what may be called legal gold or non-smuggled
gold and smuggled gold is outside their scope and ambit and hence
acquisition of smuggled gold would not constitute an offence under
the Gold Control Rules, 1963. This is an argument of despair and
cannot be sustained even for a moment.
Rule 126H(2) (d) provides, inter alia, that no person other than a licensed dealer shall buy
or otherwise acquire or agree to buy or acquire gold, not being ornaments, except in accordance with a permit granted by the Administrator or in accordance with such authoriation as the Administrator may
make in this behalf.
The word 'gold' is defined in clause (c) of the
Explanation to Rule 126A to mean gold, including its alloy, whether
virgin, melted, remelted, wrought or unwrought, in any shape
or
form, of a purity of not less than nine carats and include any gold
coin (whether legal tender or not), any ornament and any other
article of gold".
This definition does not restrict the meaning of the
word 'gold' to legal or non-smuggled gold.
It is wide enough to include any kind of gold, whether smuggled or non-smuggled.
The
restrictions imposed by the Gold Control Rules, 1963 could not have
been intended merely to apply to legal gold.
The object and purpose
of the restrictions would be frustrated by excluding from their ambit
and coverage smuggled gold.
The Gold Control Rules, 1963 seek to
control and regulate dealings in gold and 'gold' within the meaning 0£
these rules must include not only non-smuggled gold but also smuggled
gold.
We fail to see on what principle of construction can smuggled
gold, which is 'gold' within the meaning of the definition, be excluded
from the operation of these Rules.
There is no scope for inferring
any such exclusion nor is there anything in the Rules which supports
such exclusion.
Take, for example, Rule 126 B which says that a
dealer shall not make or manufacture any article of gold other than
ornament. Can it be suggested for a moment that this Rule does not
prohibit a dealer from making. or manufacturing articles out of smuggled gold?
Then: again, look at Rule 126 C.
It provides, inter alia,.
that no dealer shall make, manufacture or prepare any ornament having gold of a purity exceeding fourteen carats. Can a dealer make an
ornament of smuggled gold having purity exceeding fourteen carats
without committing a breach of this Rule? Rule 126-1 provides that
every person shall make a declaration to the Administrator as to the
quantity, description and other prescribed particulars of gold owned
by him.
How can a person, who has smuggled gold, say that he is
not bound to make a declaration under this Rule?
The object of requiring a declaration is that the Government should know what is the
gold possessed by each person, so that dealings in gold can be controlled and regulated and this object would be thwarted if smuggled gold
were not subject to the requirement of declaration.
Then again
consider Rule 126 D which says that no person shall make advance
or grant any loan to any other person on the hypothecation, pledge,
mortgage or charge of any gold other than ornament, unless such gold,
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has been included in a declaration. If smuggled gold were outside
the scope of this rule, it would be open to ai person to advance moneys
on the security of smuggled gold without involving any violation of this
rule.
That surely could not have been the intention of the Government in making the Gold Control Rules, 1963.
We are aware that
there is a decision of the Calcutta High Court in Aravinda Mohan Sinha
v. Prohlad Chand Samenta(1) where a Divisi'On Bench has taken the
view that "declaration under Ru!~ 126 P is in respect of legal gold as
opposed to smuggled gold and no question of declaration in respect of
smuggled gold can arise under Gold Control Rules, 1963," but we do
not think this decision represents the correct law on the point.
We
are of the view that the Gold Control Rules 1963 are applicable alike
to smuggled gold as to non-smuggled gold, and the inhibition of Rule
126H(2) (d) that no person other than a licensed dealer shall acquire
gold except in accordance with a permit or authorisation granted by
the Administrator is not confined in its operation to non-smuggled gold
but applies equally in relation to smuggled gold.
The learned Presidency Magistrate and the High Court were, therefore, right in convicting the appellant under Rule 126 H(2) (d) read with Rule 126
P(2) (iv) of the Gold Control Rules, 1963.
Since the appellant is convicted of the offence under Rule 126P
(2)(iv) of the Gold Control Rules, 1963, the sentenc.: of imprisonment to be imposed on him cannot be less than .six months and the
High Court was right in enhancing the sentence to six months
imprisonment.
But so far as the sentence of fine is concerned,
we do not think that the facts and circumstances of the case justify a
heavy fine of Rs. 3,000/- for each of the two offences for which the
appellant is convicted. It appears from the statement of the appellant
Ex. H that he was a carrier of gold for M/s Pannalal Durgaprasad of
Kanpur and the purchase price of Gold was provided substantially by
this Kanpur firm and the appellant was merely to receive some commission.
The appellant was a goldsmith who had lost his
business
for the last six months and perhaps economic necessity drove him to
carry on this nefarious activity.
The sentence of imprisonm,~nt which
has been imposed on the appellant would be suf-Jicient deterrent to
him and many others who indulge in this anti-social activity which is
calculated to disrupt the economy of the country.
We feel that in
the circumstances, the ends of justice would be met if the sentence of
fine is reduced from Rs. 3,000/- to Rs. 500/- for each of the two
offences.
We accordingly confirm the conviction of the appellant as also the
sentence of imprisonment imposed on him but reduce the sentence
of fine from Rs. 3,000/- to Rs. 500/- for each of the two offences for
which the appellant is convicted with a direction that in default of
payment of fine, the appellant will ~uffer rigorous i_mp.ris~mment for a
period of two months.
The appeal 1s allowed to this hm1ted extent.
M.R.
Appeal partly allowed.
(1) A.I.R. 1970 Cal 437