- (1.) This appeal by way of special leave arises out of the following facts: PW. 2 - K.D. Sridaran, a Preventive Officer of the Customs Department was on duty at the Dabolim Airport, Goa on the 13th May, 1987 when the Respondent accused arrived at the Airport by a domestic flight from Bombay. As the accused was moving in a suspicious manner he was intercepted by PW.2 and was subjected to a personal search in the presence of PW.4 S. Royan and another person. The personal search lead to the recovery of four gold biscuits of 10 tolas each wrapped with an adhesive tape under each of the soles of the feet. The gold which appeared to be a foreign origin was weighed and it was found to be 850 grams and valued at Rs. 2,78,730/-. As the accused was unable to produce any document to prove its legal import, it was seized under a panchnama on the 13th May, 1987 (Ex. P.W.2/A)
(2.) A complaint was subsequently filed against the accused in a Magistrate's Court and he was brought to trial for an offence punishable under Section 135 of the Customs Act, 1962 read with Section 5 of the Import and Export (Control) Act 1947 (as amended).
(3.) The Trial Court on a consideration of the evidence sentenced him to undergo imprisonment for three years and to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for thirty days. An appeal filed by the accused was dismissed. A revision petition filed by the accused before the High Court of Bombay, (Goa bench) was however allowed and the accused was acquitted. The High Court vide its judgment dated 17th July, 2002 observed that the provisions of Section 101 of the Customs Act had not been complied with in as much that the accused had not been given a choice to be searched before a Magistrate or a Gazetted Officer as required by the aforesaid Section and that there was no evidence to show that the contraband allegedly seized from him was in fact gold or not, in the face of no evidence to that effect as the goldsmith who had examined the gold, had not been produced in evidence and no certificate had been taken from him and even his identity was unknown. The revision was accordingly allowed leading to the acquittal of the accused. The present appeal has been filed by the Collector of Customs, Goa.;