- (1.) A passenger travelling by a train (Respondent No. 1 herein) who had adorned his waistline with a waistchain (kandora) weighing 820 grammes, which according to the prosecution, was made of pure gold and was coated with mercury so as to give an appearance of being made of silver was acquitted by the trial Court relying on the evidence of a licensed gold dealer as a defence witness, who, as per the narration in para 17 of the judgment of the trial Court, stated that : "..... Such chains are put on as 'kandora' on the waist of ladies and gents in Rajasthan. He had sold such kandoras and seen people putting on such kandoras in Rajasthan State on their waist. Such chains or kandoras can be prepared out of pure gold as well as mixed gold. In old times such candoras used to be prepared out of pure gold. In these days such type of kandoras are sold out to us by people. The witness further states that the design of muddammal chain was much in vogue in Rajasthan as because of unsoldered hooks it would fetch full value on sale. By pure gold he meant gold of more than 99.60 purity or 24 carats purity. According to him about 25 years back sharaps of Rajasthan were not allowed to sell gold of less purity than 99.60 under Mewari State Law." The learned trial Magistrate persuaded himself that the aforesaid evidence established that it was an ornament and not primary gold. The learned Magistrate acted with an impropriety in making himself a witness for the defence by observing : "..... I have seen the seized gold chain myself in Court. It cannot be called in unfinished state or form. It is an ornament....." The trial Court in these premises held that what was seized was an 'ornament' and not 'primary gold'. The trial Court accordingly acquitted the respondent-accused of the charge for an offence under sec. 85 of the Gold (Control) Act of 1968. It is a matter of great concern that the High Court confirmed this finding by overlooking a significant circumstance which stood out a mile. If the chain was bona fide worn as an ornament, it would not have been plated with silver. The desire to show off being the basic purpose of wearing an ornament, one may subject an ornament of silver to gold plating. But one would not subject an ornament of pure gold to silver plating. It was obvious that it was a deceitful device to evade the law. Be that as it may, this aspect need not be probed further in view of the fact that the appeal preferred by the State against the order of acquittal insofar as it concerns the offence under sec. 85 of the Gold (Control) Act, 1968 was not pressed. Suffice it to say that the approach made by the trial Court evinces a permissive and over-indulgent attitude towards the violators of laws enacted to prevent and punish economic offences.
(2.) The occasion for approaching this Court has been provided by the view taken by the High Court in regard to the charge for an offence under sec. 135(1) read with sec. Ill of the Customs Act. The charge against respondent No. 1 was that he was concerned with acquisition, carriage, keeping or concealing with the goods which were liable to be confiscated under sec. 111 having regard to the fact that there was a prohibition against the import into India of goods which were found in his possession namely pure gold of the specified fineness i.e. 99.60 or 24 carat. It needs to be recalled that respondent No. 1 had adorned himself with a gold chain which was coated with mercury in order to give it an. appearance that it was made of silver. The trial Court disregarded the evidence of P. W. 3, the goldsmith who certified that the chain was made of pure gold and that the presumption under sec. 123 of the Customs Act could not be raised as in the opinion of the learned Magistrate. P. W. 1 Mahida, Superintendent of Customs who had made the seizure could not have "entertained a reasonable belief that the article in question was made of smuggled gold. The trial Court also found fault in regard to the proof of report of the Mint Master that the article in question was made of pure gold of the specified fineness.
(3.) The High Court confirmed the acquittal on all the three grounds. The request made by the learned Assistant Public Prosecutor for adducing additional evidence under sec. 391 of the Code of Criminal Procedure in order to remove the alleged formal defect in the proof of the Mint Master was rejected. That is why the matter has been brought before this Court by way of the present appeal. "1. 123. Burden of proof in certain cases - (1) Where any goods to which this section applies are seized tinder this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be- (a) in a case where such seizure is made from the possession of any person-(i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also, on such other person; (b) in any other case, on the person, if any who claims to be the owner of the goods seized. (2) This section shall apply to gold, diamonds, manufacturers of gold or diamonds, watches and any other class of goods which the Central Government may by notification in the Official Gazette specify.";