The prosecution must establish the seizure of articles and ownership of the property. Marking of sanction for prosecution under relevant sections is mandatory.

M. P. CHINNAPPA, J.

( 1 ) RESPONDENTS 1 to 3 were prosecuted by the appellant for the offence punishable under Section 85 (1) of the Gold (Control) Act and Section 135 of Gold Customs Act (sic) on the allegation that on 2-6-1988 on the information furnished by R-3, P. Ws. 1 and 4 accompanied by other officers went to the house where R-l was residing and questioned him regarding gold pellets. R-l showed the place from which P. Ws. 1,4 and other witnesses recovered 198 gold pellets weighing 23. 87 kgs. of foreign origin. On the basis of it, charge sheet was filed against the respondents. However, the respondents denied the charges levelled against them and claimed to be tried. To substantiate the case, the prosecution has examined P. Ws. 1 to 8. M. Os. 1 and 2 and Exs. P-l to P-6 (c) were got marked.

( 2 ) P. Ws. 1 and 4 speak about the information being furnished by R-3 and also going to the spot where R-l and 2 were residing on that particular day and also about the seizure of gold of foreign origin. P. W. 2 recorded the statement of R-l as per Ex. P-4. P. W. 3 is the Inspector of Customs. P. Ws. 5 and 6 are the panch witnesses who turned hostile when they were examined before Court they did not support the prosecution case. P. Ws. 7 and 8 are the goldsmiths who certify that the gold seized from the custody of these accused persons is of foreign origin and they have supported only to that extent. The learned I Addl. Civil Judge and C. J. M. , Bangalore, who had tried these respondents in C. C. No. 26/90 by his Judgment dated : 9-7-1993 acquitted all the respondents on the ground that charges were not proved against them. Being aggrieved by that order, this appeal is filed.

( 3 ) HEARD the learned S. P. P. for the appellant and Sr. S. S. Hiremath for Sr. Kiran S. Javali the learned Counsel for the respondents.

( 4 ) WHEN this appeal was pending. R-2 Moideen Kunhi died and therefore, the appeal as against him stands abated. Therefore, only respondents 1 and 3 are available for disposal of the appeal. The learned Sessions Judge has acquitted the respondents on the ground that the prosecution has failed to establish the seizure of the articles. As stated above, P. Ws. 5 and 6 who are independent witnesses have not supported the case of the prosecution. The learned S. P. P. has sought to make out a ground that they have supported the prosecution case partly on the ground that P. W. 5 had admitted that the Inspector had shown him one pellet of gold. P. W. 6 has stated that the inspector had showed 198 pellets of gold but the fact remains that they have also stated that their signatures were obtained in the office of the Superintendent of Customs and they were not aware of the contents of Ex. P-1, the mahazar under which the gold is said to have been seized. Therefore, the evidence of P. Ws. 5 and 6 who are the independent witnesses is not available for the prosecution. It is no doubt true that the evidence of P. Ws. 1 and 4 and other witnesses who are connected with the Customs Department can be accepted if their evidence is otherwise believable. In view of this, it is now necessary to find out as to whether the appellant has established the case against the respondent. According to the case made out by the appellant, the respondent No. 3 informed the Customs Officers regarding the gold pellets being hidden by A-l in the premises. They came all the way from Coondapur to the house where appellants 1 and 2 were residing. They never recorded any statement at that time nor did they collect any respectable panch witnesses. On the other hand, they collected P. Ws. 5 and 6 from the spot and they have not supported the prosecution case. In view of this, the learned S. P. P. submitted that they hail from the same village and therefore, they did not support the case. If that was the case, nothing prevented the Customs Officer to secure more respectable persons to be present at the time of preparing the panchanama. Therefore, it is not now

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