A. D. DESAI, J. B. MEHTA, J.

( 1 ) THE plaintiff Assistant Collector Customs Baroda and the State of Gujarat have filed this appeal against the acquittal of the original accused No. 1 for the offence under sec. 135 (b) (ii) of the Custom Act 1962 The case of the prosecution was that on September 28 1961 at about 3-15 A. M. accused No. 1 Mukbul Husain alighted at Baroda from the Janta Express train coming from Bombay. While he was passing through the third class passengers Exit gate police constable Navalsing stopped him at the gate as the accused was not able to give satisfactory answers when he was found carrying a hand-bag. The accused wa detained and the police constable Jivamiya was called. The hand-bag a the accused was searched and 50 bars of gold each weighing 10 Tolas worth about Rs. 70 0 were found from the accuseds (theli) bag inside the hand-bag. The gold bars are alleged to have foreign markings N. M Rothschild and Sons 10 Tolas 999 Panchanama Ex. 12 was mad of the seizure of the gold. The Police Station Officer Dayashanker arrested the accused under sec. 54 (4) Cr. P. Code Thereafter the Circle Police Inspector Rathod informed the Customs Authorities an handed over the accused muddamal articles for which the receipt Ex. 1 was issued and the panchanama paper to the Deputy Superintendent of Central Excise Mr. Dixit. Mr. Dixit made a fresh panchanama Ex 16 of the seizure of these goods. After a sanction was obtained the Assistant Collector Customs filed a complaint against the present accused and two other persons one Mohmad Safi who was alleged to have purchased the gold with money sent through the accused No. 1 by one Ismali Haji accused No. 3 to whom ultimately this gold was to be delivered. All the accused were put up for trial for the charge under sec. 135 of the Customs Act 1962 hereinafter referred to as the Act for possessing acquiring and dealing with the prohibited gold of foreign marks which was liable to be confiscated under sec 111 of the Act The plea of the accused was of complete denial. Accused No 1 stated that Safi met him in Bombay and handed over to him the bag to be delivered to his brother Gulam at Baroda. He did not know the contents and put the same in his handbag. The learned Magistrate acquitted the other two accused. The learned Magistrate held that so far as accused No. 1 was concerned in view of the seizure of the goods by the Customs Officers presumption under sec. 123 was attracted and the burden was on the accused to show that the gold was not smuggled gold. The learned Magistrate therefore convicted the accused No 1 for the offence under sec. 135 (b) (ii) of the Act and sentenced him to suffer R I. for three months and a fine of Rs. 1000. 00 in default rigorous imprisonment for four months. In appeal the learned Sessions Judge has acquitted the accused on the ground that as the goods were seized by the Police the presumption under sec. 123 was not attracted. The prosecution having failed to prove the gold in question to be smuggled gold the accused No. 1 also was acquitted Against the said order the present appeal is filed.

( 2 ) ON the facts in the present case there can be no dispute that the gold in question was seized by the Police authorities from the accused No. 1 on 28-9-1963 as per panchanama Ex. 12 and the receipt was passed at Ex. 14 in that connection. Mr. Mehta the learned Assistant Government Pleader vehemently argued that the panch witness has deposed that at the time of the panchanama Ex. 16 made by the Customs authorities the goods were seized from the accused No. 1. There is no substance in this contention. The panch witness Navinchandra Thakkar can hardly be believed in this connection. The Police Inspector Mt. Rathod had in terms deposed that when Mt. Dixit the Customs Officer came to him he made over the muddamal articles papers and accused to him as per the Yadi Ex. 15 which in terms recites this fact. Mr. Dixit in terms deposes that on September 28 1963 the muddama

Click Here to Read the rest of this document