M.Murtaza Husain, J. - (1.) This revision is directed against the appellate order dated 9-1-1978 passed by the 1st Addl. Sessions Judge, Baharaich whereby he upheld revisionist's conviction under Section 135(b) of the Customs Act, 1962 and Section 85 of Gold (Control) Act, 1968 ordered by the C.J.M., Baharaich. The learned Chief Judicial Magistrate had awarded one year's Rule I, to the revisionist on each count. While maintaining his conviction for those offences, the learned 1st Addl. Sessions Judge reduced the revisionist's sentence of one year's Rule I. on each count to six months' R. I.
(2.) The case under revision arose on the basis of a complaint dated 3-9-73 filed by the respondent against the revisionist in the Court of C.J.M. Baharaich alleging that at 1 p.m. on 16-10-70 in Hanuman Gali in the Bazar of Bahraich the respondent was found to be in possession of a piece of foreign gold, bearing No. 9990 and weighing 114.700 gms., which was primary gold and which could not be legally kept by the respondent in his possession. It was also mentioned in the complaint that departmental proceedings under Sections 111 and 112 of the Customs Act, and Section 74 of the Gold (Control) Act, 1968 were taken against the revisionist by the prescribed authority and the recovered gold was confiscated in favour of the Government and a penalty of Rs. 250 was awarded to him under Section 112 of the Customs Act and also under Section 74 of the Gold (Control) Act. The learned Chief Judicial Magistrate framed charges under Section 85 of Gold (Control) Act and Section 135(b) of the Customs Act against the revisionist. He pleaded not guilty to the charges. The learned C.J.M. believed the prosecution evidence and convicted and sentenced the revisionist as aforesaid. His appeal was dismissed by the learned Sessions Judge though modification in his two sentences was ordered as already indicated above.
(3.) The concurrent finding of fact given by the two courts below is that at the alleged time and place the revisionist was found in unauthorised possession of foreign and primary gold weighing 114.700 gms. This finding is based upon the testimony of S. B. Saxena, Central Excise Inspector P. W. 1 and Ram Dularey P. W. 2. The Courts below have believed those witnesses and there is no good ground for this Court, while sitting in revision, to disagree with the appreciation of evidence done by those courts. I, therefore, uphold the said finding of fact. On the basis of that finding the revisionist has been rightly convicted under Section 135(b) of Customs Act as he had acquired possession of foreign gold presumably through smuggling, and also under Section 85 of the Gold (Control) Act as he was in unauthorised possession of primary gold. The conviction of the revisionist for those two offences is thus well merited.;