Ratanlal Bhagwandas Agrawal vs S.D. Mehta

One Sunilkumar Agrawal holds a licence for dealing in gold u/s 26 of the Gold Control Act and the rules made thereunder. On 12th June 1985 his father Ratanlal who helps his son in business was carrying a brief case containing 6621 gms. of gold to the mint where he intended to deposit the same and obtain standard gold bars in exchange as per usual procedure. En route he was allegedly attacked by seven persons who robbed him of the bag. A complaint was lodged with the police and as a result of investigation 6158 gms. of gold were recovered between 15/20th June 1986 from the receiver of stolen property and other accused persons who are being arraigned before the Sessions Judge, Bombay in session case No. 247 of 1986.

As could be anticipated the Gold Control authorities were quick to pick up the scent of the seizure of such a large quantity of gold and were concerned about any infraction of the Gold Control Act. A series of proceedings followed consequent upon a minuet of applications to the sessions court and it would be apposite to take note of the same at this stage.

On 1st August 1985, Ratanlal Agarwal filed an application before the Addition Chief Metropolitan Magistrate, 23rd Court praying that the gold ornaments which have been seized should be released to him on terms to be imposed by the Court. Ratanlal urged in his application that his son is a gold dealer and gold ornaments seized by the police "are stock-in-trade of the shop and without the stock-in-trade he cannot do his business." On 15th October 1985 the Additional Chief Metropolitan Magistrate, 37th Court, ordered that the gold be returned to the applicant on his undertaking that he would not change its quality or nature and upon furnishing a bond in the sum of Rs. 10,00,000/- with one surety in the like amounts. By then the accused had been committed to sessions and the Principal Judge by his ordered dated the 24th April 1986 ordered that the gold may be returned to the applicant Ratanlal "in the presence of the Gold Control Authority "upon executing personal bond and a surety bond. This ordered was challenged by Ratanlal who prayed that the gold may be returned to him on his furnishing a personal bond and Kolse-Patil, J. by his order on 12th May 1986 after hearing counsel for both sides ordered that the muddemal property be returned to Ratanlal after his executing a personal bond of Rs. 15,00,000/-. After receipt of this order counsel for Ratanlal prayed before the Sessions Judge that the property be handed over in the presence of the Sessions Registrar and Judge Bhojwani on 2nd June 1986 fixed 12.00 noon on 5th June 1986 as the time when the property should be handed over by the Sessions Registrar in the Court in the presence of Gold Control Authorities. Certain clarifications were sought from the High Court and Puranik, J. by his order dated 14th of July 1986 noted that the respondent Ratanlal has "categorically stated that he has no objection if the petitioners (i.e. Gold Control Authorities'' officers) are present at the time of return of the property". In view of this submission Puranik, J. discharged the rule as no further clarification was necessary. On 17th June 1986 Ratanlal received the property in the office of the Registrar of Sessions Court. As Ratanlal was walking with the property outside the Court premises the Gold Control Officers seized the property. As would be expected, a Contempt Petition being Criminal Miscellaneous Application No. 1054 of 1986 was filed in this Court. The Division Bench of P. B. Sawant and H. H. Kantharia, JJ. by their order dated 21st July 1986 observed that the petition "is dishonest attempt on the part of the Petitioner to take possession of the gold ornaments contrary to the orders of the Court". The Division Bench after going through the order dated 15th October 1985 found that the order was hedged in such a manner so as to afford the opportunity to the Gold Control Authority to adopt such measures under the Gold Control Act as were open to them and dismissed the petition. On 8th August 1986 the petitioner Ratanlal applied to the Sessions Court praying that the personal bond in the sum of Rs. 15,00,000/- execute by him may be cancelled and the applicant may be discharged from the liabilities and that the Gold Control Authorities may be directed to deposit the gold ornaments in the Court. The Principal Judge of the Sessions Court rejected the application against which the present writ petition has been filed.

During the hearing of this petition another development has taken place in the case. As adumbrated earlier the Gold Control Officers after learning about the alleged robbery and recovery of 6158 gms. gold from the accused persons and the receiver of the stolen property galvanised themselves in to action and were making attempts to seize the property. As the gold was handed over to the petitioner on 17th July 1986 in the presence of the Gold Control Officers, they followed the petitioner when he left the court premises and seized the property. The gold is contained in a brief case having numbered combination lock and it appears that the combination code is not known to the Gold Control Officers. On 28th November 1986 the Gold Control Officers have made a panchanama by which they have seized the property in exercise of powers conferred on them by Section 66 of the Gold Control Act, 1968. Even now the combination lock has not been opened nor have the officers tried to forcibly break open the brief case.

It appears to me that once the property was produced in the Court it was custodia legis and the Court was empowered to pass orders u/s 51 of the Criminal Procedure Code either upon an application or suo motu to ensure that the property is in proper custody. It was urged by Mr. Gyani, learned Advocate for the petitioner-appellant that once the property is custodia legis the custodian is the Court itself and hence the question of fresh seizure by Gold Control Officers does not arise. To my mind such a submission of an embargo on further seizures of a once seized property would fly in the face of investigation of various offences under various criminal statutes. For example if the house of a public servant is searched on the suspicion that he has acquired assets disproportionate to his known source of income, the search party may during the search come across various articles. The party may find Indian currency notes, furniture, priceless objects of art, gold ornaments, fixed deposit receipts in the name of officer, his relations or benamidars, unusually large quantity of imported scotch, certain quantity of drugs like hashish etc. gold coins like the South African Rand, Swiss Accounts indicating deposits in Foreign Exchange made in Foreign Banks etc. It is obvious that apart from offence under the Prevention of Corruption Act, the officer can be charged for committing offences under various other acts like the Narcotics Act, Gold Control Act, Foreign Exchange Regulation Act, Excise Act, the Antiquities & Art Treasures Act, 1972 etc. The cases will have to be tried in different courts. Even though the entire property may be seized and produced before a single court, it would be necessary for the proper prosecution of cases under the various Acts that the police are enabled to seize the property in a formal manner and produce the same as and when necessary before the various courts albeit with the permission of the first court where the property was produced. Likewise here. Even though the property becomes the subject matter of a robbery and hence in custodia legis with reference to the sections Court, the Gold Control Officers cannot be denied their performance of duty under the Gold Control Act. However with a view to working equilibrium between the investigation and prosecution of offences by the two agencies, I order that the property i.e. brief case allegedly containing the gold ornaments should be produced before the Registrar, Sessions Court, Bombay at 4.00 p.m. on 10th December 1986 who shall accept the same as property in sessions case No. 247 of 1986. The petitioner Ratanlal Agrawal is permitted to be present before the Registrar when the property will be handed over by the officers of the Gold Control Office.

Liberty granted to Gold Control Authorities to make application before the Sessions Court in the matter of temporary testing, weighing etc. and other operations as would be necessary under the Gold Control Act and the Rules made thereunder. Mr. Gyani on behalf of the petitioner says that the petitioner would open the combination lock in the presence of the Registrar and the Registrar may permit the officers of the Gold Control department as well as the petitioner-Ratanlal to make inventory of the articles found therein. Mr. Gyani says that like the officers of the Gold Control department to whom liberty has been given the petitioner-Ratanlal may also be given liberty to apply but is not able to say for that. Consequently no liberty as such is granted to the petitioner-Ratanlal because I feel that none is required. Any application made by Ratanlal to be dealt with by the Sessions Court in accordance with law as that court is custodia legis as respect that property.

Rule made absolute in above the terms.

Shri. Patwardhan, Advocate requests the Court for extension of time. Both the Counsel agree that the brief case may be handed over to the Registrar, Sessions Court, Bombay of 11th December 1986 at 4.00 p.m. instead of 10th December 1986 at 4.00 p.m. as ordered earlier.