The burden of proof on the accused in cases of seized goods under the Customs Act and the Gold (Control) Act is contingent upon the prosecution's establishment of the nature of the seized goods.

( 1 ) IN this appeal, the correctness and legality of the judgment of acquittal passed by the Addl. Chief Metropolitan Magistrate, Bangalore City in C. C. No. 1633 of 1975 acquitting the respondent of the offences punishable, under. S. 135 (b) (ii) of the Customs Act, 1962 and S. 8 (i) read with S. 85 (viii) of the Gold (Control) Act, 1968, is challenged.

( 2 ) THE prosecution case was that P. W. 1 Sri B. J. Rai, who was working as Superintendent, Central Excise Gold Cell, Bangalore, in the year 1970, happened to go to Kalasipalyam Bus-stand in Bangalore on 2-9-1970. He then saw that his Inspector, who is not examined, had detained the, respondent. He collected two panchas, namely, P. Ws-3 and 4 and took the search of the person of the respondent after observing the necessary for malities. He found a tubular cloth belt tied around the waist of the respondent. It was untied and then it was seen that it contained 17 gold biscuits having the foreign markings 'swiss Bank Corporation. P. W.-1 enter tained resonable belief that the said 17 pieces were smuggled goods and hence he seized them under panchanama Ex. P-1. Slips bearing the signatures of the two panchas and the respondent were affixed to each one of the pieces. P. W. 1 took the respondent to his office. Respondent voluntarily stated in Tamil language before P. W.-1 and P. W.-l recorded the same in English as per Ex. P-2. He read over the same to the respondent and the lespcndent admitted that it had been correctly recorded- P. W.-5 S. R. Parthasarathy was present at that time and the respondent affixed his signature below Ex. P-2. P. W.-5 attested Ex. P-2. On 9-9-1970, P. W.-1 secured P. W.-2 H. L. Acharya, a gold-smith and jeweller The gold-smith assayed the 17 pieces said to be gold and gave his certificate Ex. P-5. He found the said gold pieces to be gold of 24 carat purity. There after P. W.-l lodged a complaint against the accused.

( 3 ) THE defence of the, respondent is that he was not found in possession of the said 17 pieces said to be gold, but the same had been found in the possession of one Sangappa and P. W.-l had foisted those pieces on him. He has denied having voluntarily stated before P. W. 1 as per Ex. P-2.

( 4 ) IN support of its ease that 17 biscuits said to be of gold were seized from the person of the respondent on 2-9-1970 in Kalasipalyam busr stand, the prosecution has examined P. Ws-l, 3 and 4. P. W.-4 has not supported thq prosecution and has stated that he had not seen the respondent on that day. P. Ws-1 and 3 have supported the prosecution. P-W-3 is an independent witness. The learned Additional Chief Metropolitan Magistrate has not acted on the evidence of P. W-3. He ha characterised P. W-3 as a stock witness of the Excise Department.

( 5 ) EVEN if the evidencq of P. Ws-1 and 3 in regard to what transpired in Kalasipalyam bus-stand on 2-9-1970 at about 11 a. m is accepted, all that has been satisfactorily established by the prosecution would be that 17 pellets or biscuits appearing to be that of gold were seized from the respondent and the respondent had kept them concealed in a manner which aroused reasonable suspicion of P. W.-1 and his Inspector that there was something fishv about the possession of the same by the respondent. The prosecution has still to establish that the said pieces were really gold so as to attract the provisions in S. 123 of the Customs Act, 1962 and of the Gold (Control) Act, 1968.

( 6 ) THE prosecution has relied on the evidence of P. W-2 only, in proof of the fact that the 17 pieces seized by P. W.-1 from the person of the respondent were gold within the meaning of the Gold (Control) Act, 1966 and attract the provisions in S. 123 of the Customs Act. P. W.-2 has sworn that on 9-9-1970, he was asked to go to the office of P. W.-l and there he was asked to test M. Os-1 to 17 and he tested them by touch stone method. He found that they were gold biscuits of 24 carat purity. He has nowhere stated that M. Os-1 t