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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