Venkataramiah, J. - (1.) The Assistant Collector of Central Excise, Calicut has filed this appeal after obtaining the special leave of this Court against the judgment and order dated January 5, 1973 of the High Court of Kerala in Criminal Revn. Petn. No. 426 of 1972.
(2.) Briefly stated, the facts of the case are these:In the early hours of Aug. 9, 1969 the respondent alighted from the Kerala Express at the Trichur Railway Station with a steel trunk in his hand. C. C. Mathan, Inspector of Central Excise Special Customs, Preventive, Trichur (P. W. 1) who was on patrol duty at the Railway Station suspected that the respondent was carrying contraband goods and on coming to know from the Ticket Examiner that the respondent had arrived from Bombay he asked the respondent to hand over the steel trunk which he was carrying. When C. C. Mathan (P. W. 1) opened and searched the steel trunk, he found in it 28 gold bars with foreign markings. The respondent was arrested by C. C. Mathan (P. W. 1) and when questioned by P. W. 1, the respondent did not produce any authorisation entitling him to keep the 28 gold bars in question which were valued at Rs. 56,000/-. A mahazar (Ext. P-1) was prepared for having seized the 28 gold bars. A sum of Rs. 1,380/- which was found in the steel trunk was also seized. Later on it is stated that the 28 gold bars in question were confiscated in a proceeding under S. 111 (d) of the Customs Act, 1962 read with S. 23-A of the Foreign Exchange Regulation Act, 1947 before the Additional, Collector of Customs, Cochin. The steel trunk also was confiscated under Section 119 of the Custom Act, 1962. A penalty of Rs. 500/- was imposed on the respondent under Section 112 (b) of the Customs Act, 1962. The amount of Rupees 1,380/- which had been seized from the respondent was, however, ordered to be returned to him. Thereafter the Assistant Collector of Customs and Central Excise, Kozhikode after obtaining the required sanction under Section 137 (1) of the Customs Act and Section 97 (1) of the Gold (Control) Art, 1968 from the Additional Collector of Customs, Cochin and the Collector of Customs and Central Excise, Cochin respectively filed a complaint before the District Magistrate (Judicial), Tellicherry against the respondent for offences punishable under Section 135 (b) of the Customs Act read with Section 85 (ii) of the Gold (Control) Act, 1968. In support of the said prosecution four witnesses were examined by the complainant. C. C. Mathan, P. W. I gave evidence about the seizure of the 28 gold bars with foreign markings from the respondent at the Trichur Railway Station on August 9, 1969 under the mahazar (Exh. P-1). He also produced Exh. P-2 which contained the statement made by the respondent before the Special Customs Preventive Circle Superintendent Kozhikode in which he had admitted that 28 gold bars with foreign markings had been seized from him under a mahazar and that the said 28 gold bars had not been legally imported to India. C. C. Mathan (P.W. 1) stated that he was present before the Special Customs Preventive Circle Superintendent, Kozhikode when Exh. P-2 was recorded and that the said statement contained the signatures of the respondent and of the Superintendent who had recorded it. K. Subramonian (P. W. 2) who was working as a Ticket Collector at Trichur Railway Station stated that the 28 gold bars in question were seized on August 9, 1969 at the Trichur Railway Station under the mahazar (Exhibit P-1) which he had signed. V. M. Velayudhan (P. W. 3) who was a resident of Trichur and a goldsmith by profession stated that the 28 gold bars in question had been examined and weighed by him at the Trichur Railway Station at the request of C. C. Mathan (P. W. 1). He further stated that he tested the purity of the said 28 gold bars by rubbing them on the touchstone and found that they were gold bars of 24 carats quality. He gave a certificate (Exh. P-3) regarding the purity and the weight of the 28 gold bars. V. M. Velayudhan (P. W. 3) who was a certified goldsmith further stated that he could by experience assess the purity of gold by rubbing it on a touchstone. He, however, stated that he had no technical knowledge about gold and be did not know the 'specific gravity' method by which the purity of gold could be determined. The Assistant Collector of Central Excise (P. W. 4) was examined to prove the sanctions given by the competent authorities to file the case. In his examination under Section 342 of the Criminal P. C. in answer to the following question put by the Court:'What have you to say about the deposition of P. W. 1 that you on 9th August, 1969 at 7 O'clock in the morning alighted from train at Trichur Railway Station with a steel trunk and that page No. W. I on searching the box due to suspicion, found out 28 gold bars having foreign marks the respondent stated:'It is true that gold was recovered from my box. It was not mine. It was handed over to me by the person called Mammu asking me to give it in his house. I had no knowledge that it was gold'. The learned District Magistrate found that the prosecution had established that the respondent had committed an offence under Section 135 (b) of the Customs Act and an offence under Section 85 (ii) of the Gold (Control) Act, 1968 and convicted him of those offences. The respondent was sentenced to pay a fine of Rs. 500/- for the offence under Section 135 (b) of The Customs Act and in default of payment of fine to undergo simple imprisonment for six months. No separate sentence was, however, awarded for the offence under Section 85 (ii) of the Gold (Control) Act. The respondent preferred an appeal against the judgment of the learned District Magistrate before the Sessions Judge, Trichur and that appeal was dismissed. The respondent filed a revision petition before the High Court of Kerala against the decision of the learned Sessions Judge. The learned Judge of the High Court who heard the revision petition allowed it and set aside the conviction of the respondent and the sentence imposed on him on the ground that the prosecution had not established that the metallic bars which were seized from the respondent under Exh. P-1 were gold bars and, therefore, the conviction of the appellant could not be sustained. The learned Judge found that the evidence of V. M. Velayudhan (P. W. 3) who was examined in the case, the statement Exh. P-2 made by the respondent before the Special Customs Preventive Circle Superintendent, Kozhikode and the answer given by the respondent under Section 342 of the Criminal Procedure Code taken together were not sufficient to hold that the gold bars had been seized from the respondent under Exh. P-1. He rejected the evidence of V. M. Velayudhan (P. W. 3) on the ground that he had not the training or the qualification in the art of testing gold and that he had not conducted either the furnace test or the specific gravity test to determine the character of the metallic bars. He was of the opinion that V. M. Velayudhan (P. W. 3) had miserably failed in the witness box to give the impression that he was a competent person to certify that what were seized from the respondent were gold bars and that in the absence of any training or qualification to the credit of V. M. Velayudhan (P. W. 3), it would be unsafe to rely on his evidence and conclude that what seized from the respondent was gold. So far as Exh. P-2 was concerned the learned Judge was of the opinion that as the said statement had not been specifically put to the respondent under Section. 342 of the Criminal Procedure Code and as the person who had recorded it had not been examined, no importance could be given to it. In so far as the answer given by the respondent to the question put by the Court under S. 342 of the Code of Criminal Procedure which is set out above is concerned, the learned Judge observed that even assuming that it would have some value the prosecution could not seek to split that statement into various parts and rely on what it considered to be advantageous to establish its case. Accordingly the learned Judge acquitted the accused.
(3.) The principal point which arises for consideration in this case is whether the prosecution had established that sumggled gold bars had been seized from the respondent on August 9, 1969 at the Trichur Railway Station under Exh. P-1. It is true that the onus of proving the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused. An accused cannot be convicted of an offence on the basis of conjectures or suspicions. If a reasonable doubt arises in the mind of the Court after taking into consideration the entire material before it regarding the complicity of the accused the benefit of such doubt should he given to the accused but the reasonable doubt should be a real and substantial one and a 'well founded actual doubt arising out of the evidence existing after consideration of all the evidence'. "Hence a mere whim or a surmise or suspicion furnishes an insufficient foundation upon which to raise a reasonable doubt, and so a vague conjecture, whimsical or vague doubt, a capricious and speculative doubt, an arbitrary, imaginary, fanciful, uncertain chimerical, trivial, indefinite or a mere possible doubt is not a reasonable doubt. Neither is a desire for more evidence of guilt, a capricious doubt or misgiving suggested by an ingenious counsel or arising from a merciful disposition or kindly feeling towards a prisoner, or from sympathy for him or his family". (See Woodroffe and Ameer Ali's Law of Evidence 13th Edn., Vol I, pp. 203-204).;