- (1.) The Assistant Collector, Central Excise and Customs, Ajmer, has preferred this appeal against the judgment of Munsif & Judicial Magistrate, First Class, Bhilwara, dated 17-5-1975, whereby the acquitted respondent Ladhu Lal of the offence under Section 135(b) of the Customs Act, 1962 (hereinafter referred to as "the Act").
(2.) The prosecution case in brief is that Shri A.D. Choudhary, Dy. S.P., Central Excise, Bhilwara, had received an information on 5-11-1965 that one Sobhalal goldsmith and a boy Ladhulal had gone to Bombay and that they are bringing smuggled goods (gold). After receiving this information on the same day at about 9.00 p.m., he along with the excise staff consisting of Bhanwarlal Mathur and Gurnam Singh Hindal and others, went near to the High School situated on Bhilwara-Gangapur road. At about 9.45 p.m., Sobhalal and Ladhulal were seen coming on foot from towards the city. He directed the staff to stop them infront of the Cotton Mill.
(3.) The person of Ladhulal was got searched by Bhanwarlal Inspector in the presence of motbirs' Kailashchandra and Pannalal. On search three gold biscuits with foreign markings "Johnson Matthey 999.0 London 10 Totals" each were recovered from the pocket of his pant. He prepared the seizure memo Ex. P/1 wherein the description of the gold biscuits was mentioned and the reasons for recovery were mentioned as seized under the relevant provisions of the Act, Foreign Exchange Regulation Act, 1947, and the rules of the Defence of India (Amendment) Rules 1963. The white trousers was also recovered vide memo Ex. P/2 and the signatures of the accused Ladhulal were obtained on both these memos. After obtaining necessary sanction of the Collector, Customs and Central Excise, New Delhi, a complaint was presented on 30-6-1972 in the Court of City Magistrate, Bhilwara, but the same stood transferred to the Court of Munsif and Judicial Magistrate, First Class, Bhilwara, on separation of Judiciary from the Executive. After preliminary inquiry the accused Ladhulal was summoned and thereafter prosecution evidence was recorded before framing of the charge. Then the accused was charged for the offence under Section 135(b) of the Act. The accused, however, pleaded not guilty to the charge and claimed to be tried. From the side of the prosecution statements of Shri A.D. Chaudhary, Pannalal, Kailashchandra and Bhanwarlal were recorded. Thereafter, the statement of the accused under Section 342, Cr. P.C. (Old) was recorded in which he denied the prosecution case and stated that he was returning after seeing some drama in this school and on the spot one Sobhalal was also present from whose possession, it was said, that gold biscuits were recovered. The customs office inquired from him about his father's name. On disclosing the father's name he was also detained and his search was taken. After sometime three gold biscuits were delivered by one Mahendra Kumar to the Customs Officer after having picked up them from the road. He admitted that he was wearing white pant at that time, but stated that pant Ex. 4 is not his pant and he was not wearing that pant at that time and no glod was recovered from him. In defence he examined two witnesses Shankarsingh (D.W. 1.) and Ramchandra (DW 2). After hearing the arguments, the learned Magistrate found that the gold biscuits were recovered from the possession of the accused, but he, however, held that the prosecution had failed to prove that the gold biscuits were seized in the reasonable belief that are smuggled goods and so the burden did not shift to the accused to prove that the biscuits were smuggled. He held that under the circumstances of the case Section 123 of the Act cannot be attracted and the prosecution further failed to prove that the accused know or had reason to believe that the biscuits were smuggled goods. Consequently the learned Magistrate acquitted the accused and simultaneously ordered that the gold biscuits be confiscated to the State of Rajasthan. Aggrieved against the judgment of acquittal, the complainant has preferred this appeal.;