T.U.MEHTA - (1.)This is an acquittal appeal preferred by the State Government against the respondent who was tried for having committed offence under sec. 135(b) of the Customs Act 1962 (Act 52 of 1962) and sec. 85(ii) of Gold Control Act 1968 (Act 45 of 1968). The respondentaccused was tried for the said offences by the court of J.M.F.C. at Bhavnagar in Criminal case No. 2432/70 and was convicted for the same. He was sentenced by the learned Magistrate to suffer R.I. of 6 months and to payment of fine of Rs. 100/for each of the two offences. The learned Magistrate further ordered the substantive sentences to run concurrently. Against this order of conviction and sentence the respondent preferred an appeal to the court of the Sessions Judge Bhavnagar where the said appeal was registered as Criminal Appeal No. 65/71. The learned Sessions Judge came to the conclusion that the contraband articles which consist of five bars of gold were not proved beyond reasonable doubt to have been recovered from the possession of the present respondent. He further found that sec. 123 of the Customs Act which shifts the burden of proof in cases where articles are seized by an authorised officer in the reasonable belief that they are smuggled goods does not apply to the facts of the case. Under the circumstances the learned Sessions judge has further held that it was for the prosecution to prove that the golden bars which are said to have been seized from the possession of the respondent were smuggled goods and since there was no such proof offered by the prosecution the conviction of the respondent under sec. 135(b) of the Customs Act could not have been made by the learned Magistrate. In view of the fact that the learned Sessions Judge was also of the opinion that the prosecution has failed in proving that the articles in question were found from the possession of the respondent he also set aside his conviction under sec. 85(ii) of the Gold Control Act. He has thus acquitted the respondent-accused and being aggrieved by this decision the State Government has preferred this acquittal appeal.
(2.)Before discussing the points which are involved in this appeal it would be necessary to state shortly some facts relevant to these points. The prosecution witness Mahipatsing Balubha Zala whose deposition appears at ex. 10 in the record of the case received an information on or about 13 July 1968 that the respondent-accused was dealing in smuggling of gold and that be was to arrive at Bhavnagar with this gold. He therefore is said to have kept a watch at Bhavnagar railway station as well as State Transport Bus Station. The facts of the case reveal that on 12th July 1968 the respondent-accused left Bombay in the evening by train and arrived at Ahmedabad at about 6.00 a.m. in the morning of the following day. He got down at Ahmedabad and got State Transport bus bound for Mahuva. He got down at Bhavnagar on that very day at about 11.30 a.m. It is said that one sepoy belonging to the excise department named Anandsinh suspected the respondent-accused and therefore kept his track. The accused however took a tonga along with another passenger named Naradlal Labhashanker whose deposition appears at ex.16 in the record of the case. So the tonga which was hired by the respondent-accused was occupied by accused himself and the prosecution witness Naradlal. When this tonga reached near the place which is known as Motibag the prosecution witness Mahipatsinh Zala who was at that time serving as Inspector Central Excise stopped the said tonga and inquired from the accused as well as his companion Naradlal whether they were in possession of any smuggled gold. As both of them refused to be in possession of smuggled gold he took the tonga to his office which is situated in Darbargadh. His sepoy Anandsinh occupied that tonga in the front seat near the driver. After they reached the office of Superintendent of Excise one Mr. Trivedi and two other panchas were called. Even Naradlal who was the companion of the respondent-accused in the tonga was taken as the third panch. In presence of these panchas the belongings of the accused were searched. The case of the prosecution is that the accused was in possession of a portfolio made of raxine and on opening of that portfolio in presence of the panchas a raincoat was found. Searching the pockets of this raincoat the panchas laid their hands on a packet from one of these pockets. On the opening of this packet five bars of gold weighing 10 tolas with foreign marks thereon were found. Even other articles namely a diary two chits and a postcard which are said to be belonging to the accused were found from that portfolio. Thereafter with a view to verify whether the five bars of gold were manufactured in India or abroad two Goldsmiths from the town were called. According to the information which is said to have been given by these goldsmiths those bars contained 24 carats of gold and the total weight thereof was 583.190 grams. Their value at the market price was assessed at Rs. 9 250 The goldsmiths gave an opinion that the bars were manufactured abroad. Thereafter these bars were seized by Inspector Mr. Zala and a panchnama evidencing all these facts was recorded. This panchnama is found at ex. 44 in the record of the case.
(3.)It is further found that on the same day soon after the panchnama was over the Superintendent Central Excise one Mr. Mafatshanker Prabhashanker Trivedi whose deposition appears at ex. 20 recorded a detailed statement of the accused as found at ex. 5. During the course of this statement the accused admitted the ownership of the raxine portfolio from which the contraband articles were found. But he showed his unwillingness to reveal from which source he had purchased the bars of gold which were found from his possession.
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