Full Judgment Text
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PETITIONER:
C.D. GEORGE
Vs.
RESPONDENT:
ASSISTANT COMMISSIONER OF CENTRAL EXCISE, TRICHUR
DATE OF JUDGMENT02/03/1990
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1990 AIR 847 1990 SCR (1) 793
1990 SCC (2) 345 JT 1990 (1) 409
1990 SCALE (1)424
ACT:
Gold (Control) Act, 1968: Sections 27(7)(b), 55(3) and
85(1)(a)Licensed Dealer--Licensed premises consisting of
four-storeyed Building--Showroom on the ground floor--Gold
ornaments kept on third floor--Whether amounts to carrying
on business in unlicensed premises.
Practice and Procedure: Trial Court’ s finding--Possi-
bility of two views of the evidence on record--Appellate
Court should not disturb even if it were possible to reach a
different conclusion.
HEADNOTE:
The appellant, a licensed dealer, was charged under
Section 55(3) of the Gold (Control) Act, 1968 for failure to
maintain the necessary accounts and under section 27(7)(b)
for carrying on business in the unlicensed premises on the
ground that while the show room of the licensed premises was
on the ground floor and appellant had kept the gold orna-
ments in the third floor of the building.
The Trim Court acquitted the appellant and the Appellate
Court confirmed the finding under section 55(3) but convict-
ed him under section 27(7)(b) holding that the third floor
does not form part of the licensed premises.
In this appeal it was contended on behalf of the appel-
lant that (i) the High Court misocnstrued the provisions of
section 27(7)(b); (ii) two views being possible of the
evidence on the record the interference with the order of
acquittal by the Appellate Court was uncalled for.
Setting aside the conviction and allowing the appeal, this
Court,
HELD: 1. In the instant case the entire building hears
only one municipal number and the licence was given for
conducting the business in that building. There is no other
evidence in support of the prosecution case that the third
floor of the building does not form part of the licensed
premises. [796C; 797C]
794
2. If the finding reached by the trial judge cannot be
said to be unreasonable, the Appellate Court should not
disturb it even if it were possible to reach a different
conclusion on the basis of the material on the record. The
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Appellate Court therefore should be slow in disturbing the
finding of fact of the Trial Court, and if two views are
reasonably possible of the evidence on the record, it is not
expected to interfere simply because it feels that it would
have taken a different view ff the case had been tried by
it. [797E-F]
Bhagwati and Ors. v. State of Uttar Pradesh, [1976] 3
SCC 235, followed.
3. The view taken by the trial court is quite reasonable
and there were no grounds for the High Court to interfere
with the findings of the trial court acquitting the accused.
[797G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 453
of 1989.
From the Judgment and Order dated 8.1.1988 of the Kerala
High Court in Crl. A. No. 382 of 1986.
G. Ramaswamy, Ashok K. Sen, G. Viswanatha Iyer and R.
Satish for the Appellant.
V.C. Mahajan, A. Subba Rao, P. Parmeshwaran and Mrs.
Sushma Suri for the Respondent.
The Judgment of the Court was delivered by
REDDY, J. The Gold (Control) Act ws enacted in the year
1968 with the object of control of the production, supply,
use and possession of and business in gold ornaments and
articles of gold in the interest of economic and financial
interests of the community. Section 27 of the Act lays down
that no person shall commence, or carry on, business as a
dealer unless he holds a valid licence issued under the
provisions of the Act and the said licence should be in the
prescribed form. Section 27(7)(b) lays down that a licensed
dealer shall not carry on the business as such dealer in any
premises other than the premises specified in his licence.
Section 4(h) defines ’dealer’ as one who carries on the
business of making, preparing, polishing, buying, selling,
supplying, processing or converting gold, whether for cash
or for deferred payment or for commission, remuneration or
other consideration.
795
The appellant before us was one such licensed dealer
having a shop in a building, which is four-storeyed, bearing
Municipal No. 25/ A/1479 on the Municipal Road, Trichur
(Kerala). The showroom where the actual day-to-day business
is conducted is in the ground floor. On 23.9.81 Superintend-
ent of Central Excise, examined as P.W. 1, raided the shop
of the appellant and conducted a search. Books of accounts
maintained by the appellant were verified and it was found
that there was a stock of 1372 pieces of gold ornaments. The
search party found 169 pieces of new gold ornaments in the
third floor of the building weighing 667.850 grams kept in a
card-board box. They were seized. On further investigation
conducted by the officer it was also revealed that the
appellant’s brother, his business associate, had purchased
some items of jewellery from another dealer and had also
kept the same in the said licensed premises. A complaint was
preferred against the appellant alleging that he has unac-
counted jewellery and that he was carrying on the business
in the third floor which is not a licensed premises.
The trial court flamed charges under Section 27(7)(b)
read with Section 85(1)(a) and Section 55(3) of The Gold
(Control) Act and necessary evidence was adduced. Failure to
maintain the necessary accounts as a dealer is punishable
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under Section 55(3) and carrying on business in a premises
other than the premises specified in the licence is punisha-
ble under Section 27(7)(b). The appellant inter alia took
the plea that he is carrying on the business of gold only in
the ground floor and the items therein have been accounted
for including the items that were found in the third floor.
He also took the plea that he sold these items to a customer
and separated them and kept them in the third floor for the
purpose of delivering the same to the purchaser and that the
third floor also formed part of the licensed premises.
The trial court on an appreciation of the evidence,
acquitted the accused holding that the prosecution has
failed to prove that the accused had unaccounted jewellery
and that he was carrying on business in an unlicensed prem-
ises. An appeal against acquittal was filed in the High
Court of Kerala and the learned Judge confirmed the finding
of the trial court in respect of charge under Section 55(b).
He, however, held that the third floor does not form part of
the licensed premises. Therefore an offence punishable under
Section 27(7)(b) is proved and accordingly convicted and
sentenced the appellant to three months’ simple imprisonment
and to pay a fine of Rs.5,000 in default to suffer a further
period of two months. Questioning the same, the present
appeal by way of special leave has been filed.
796
The learned counsel for the appellant submits that the
High Court has misconstrued the provisions of Section
27(7)(b) and at any rate in the instant case the High Court
erred in interfering in an appeal against acquittal. It is
also submitted that even if the prosecution case is to be
accepted in this context what at the most can be said is
that two views are possible and in such an event the inter-
ference in an order of acquittal is uncalled for.
It is not in dispute that the appellant obtained a
licence for carrying on the business. In the licence that
was granted in the year 1975 and which was also renewed in
the subsequent years upto 1977, the address of the premises
is mentioed as No. 25/A/1479. The Inspector in his cross-
examination admitted that the entire building bears only one
municipal number and the licence was given for conducting
the business in that building. The prosecution has not led
any other evidence to show that the third floor does not
form part of the licensed premises. That apart admittedly on
each storey there is only a small room and the entire build-
ing is bearing only one municipal number and that is the
premises beating that number which is mentioned in the
licence. The question is whether the mere fact that the
showroom is in the ground floor does necessarily lead to an
inference that the gold ornaments which are accounted for
cannot be stored in any other room in that building? Section
27 reads as under:
"27(1) Save as otherwise provided in this Act, no person
shall commence, or carry on, business as a dealer unless he
holds a valid licence issued in this behalf by the Adminis-
trator.
(2) A licence issued under this section--
(a) shall be in such form as may be prescribed.
(b) shall be valid for such period as may be specified
therein.
(c) may be renewed, from time to time, and
(d) shall be subject to such conditions and restrictions as
may be prescribed.
797
(7)(a) The Administrator shall specify, in each licence
granted to a dealer, the premises in which such dealer shall
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carry on business and no other person shall carry on busi-
ness as a dealer in the said premises.
(b) A licensed dealer shah not carry on business as such
dealer in any premises other than the premises specified in
his licence.
The above principal question has to be examined in the
light of this provision and see whether the appellant was
carrying on business in any premises other than the premises
specified in the licence. As already mentioned, the entire
building is given one municipal number and there is no other
evidence in support of the prosecution case that the third
floor of the building does not form part of the licensed
premises. In any event under the facts and circumstances of
the case one can at the most go the extent of saying that
two views are possible. In Bhagwati and Others v. The State
of Uttar Pradesh, [1976] 3 SCC 235 it is held:
"Thus if the finding reached by the trial Judge can not be
said to be unreasonable, the appellate Court should not
disturb it even if it were possible to reach a different
conclusion on the basis of the material on the record.This
has been held to be so because the trial Judge has the
advantage of seeing and hearing the witnesses and the ini-
tial presumption of innocence in favour of the accused is
not weakened by his acquittal. The appellate Court therefore
should be slow’ in disturbing the finding of fact of the
trial Court, and if two views are reasonably possible of the
evidence on the record, it is not expected to interfere
simply because it feels that it would have taken a different
view if the case had been tried by it."
We are convinced that the view taken by the trial court is
quite reasonable. Therefore, viewed from any angle, we are
firmly of the view that there were no grounds for the High
Court to interfere with the findings of the trial court
acquitting the accused.
The counsel for the State, however, pointed out that the
High Court has observed at one place in the judgment that
the counsel for the accused has not raised any contention
that the room in the third floor also formed part of the
licensed premises. Except making this
798
bare observation, the High Court has not considered the plea
taken by the accused and the finding of the trial court in
this regard. In the same paragraph, the learned Judge has,
however, mentioned that the accused raised a contention in
the trial court that the room in the third floor also formed
part of the licensed premises and this plea found favour
with the trial court. That apart the case of the accused has
throughout been that room in the third floor formed part of
the licensed premises. Therefore this observation of the
appellate court that the counsel did not contend that the
third floor formed part of the licensed premises does not
appear to be correct. At any rate, there is no such admis-
sion by the accused and nor can it be said that there was
such a concession by the counsel for the accused. For all
the aforesaid reasons, the conviction and sentence awarded
by the High Court are set aside. Accordingly the appeal is
allowed.
T.N.A. Appeal al-
lowed.
799