( 1 ) PETITIONER has assailed the judgment and order of the learned additional Sessions Judge, Rajkot, pertaining to the disposal of the muddamal gold ingot, dated 10-9-1982, passed in Criminal Appeal No. 31 of 1981 confirming the judgment and order of the learned Judicial Magistrate, First class, at Rajkot, dated 31-7-1981, below application Exh. 76 in Criminal Case no. 366 of 1978, by invoking the aids of provisions of Sec. 397 read with sec. 401 of the Criminal Procedure Code ("code" for short ).

( 2 ) A resume of the sailent facts leading to the birth of the present revision may, shortly, be stated at this juncture.

( 3 ) PRESENT petitioner is a goldsmith from whose custody the muddamal - 3 ingots of gold and one ingot of silver, small 40 diamonds and 120 white pearls were seized by the police in the course of the investigation, which culminated into a criminal trial, being Criminal Case No. 366 of 1978.

( 4 ) ON 14-12-1977, between 2 p. m. and 8 p. m. , at Rajkot. a theft was committed in the residential premises of respondent No. 2 herein, who is the original complainant in the aforesaid trial, in respect of gold ornaments valued at Rs. 24,580. 00 Five accused persons were tried in the trial Court for the offences punishable under Secs. 454, 457 and 380 of the Indian Penal Code and out of the five accused persons, original accused Nos. 1 and 2 were charged for the offences punishable under Secs. 454, 457 and 380 of the Indian penal Code and accused Nos. 3 to 5 were charged for the offences under sec. 414 of the Indian Penal Code.

( 5 ) UPON assessment and the appreciation of the evidence of the prosecution, the learned Judicial Magistrate, First Class, at Rajkot, was pleased to acquit all the accused persons and also held that the order relating to the disposal of the muddamal shall be passed after making due inquiry under Sec. 452 of the Code. The inquiry was as such held. The present petitioner was examined, at Exh. 77, in the trial Court. The complainant was also heard. After examining the facts and circumstances and the evidence in the said inquiry under Sec. 452 of the Code, the trial Court was pleased to order that muddamal articles should be returned to the complainant-respondent No. 2 herein.

( 6 ) BEING aggrieved by the said order pertaining to the disposal of the muddamal articles under Sec. 452 of the Code passed by the learned trial magistrate, the petitioner herein, who was a prosecution witness and goldsmith from whose custody the muddamal articles were seized, challenged the said order by filing Criminal Appeal No. 31 of 1981 under the provisions of Sec. 454 of the Code in the Sessions Court, at Rajkot. The appeal came to be dismissed on 10-9-1982 confirming the order of the learned trial Magistrate with regard to the disposal of muddamal articles. Therefore, this revision is preferred by the prosecution witness and goldsmith from whose custody the muddamal articles were seized.

( 7 ) LEARNED Counsel for the petitioner has, forcefully, contended that the impugned orders passed by the Courts below in respect of muddamal articles are not only perverse but are illegal. On examination of the facts and circumstances emerging from the record of the present case, this submission appears to be sustainable. No doubt, the jurisdictional sweep of this Court in a revision like one on hand is very much circumscribed. Ordinarily, the revisional Court will not interfere with the concurrent finding of facts recorded by the Courts below. Having given anxious thoughts to the facts and circumstances emerging from the evidence, it is crystal clear that the impugned order relating to the disposal of the muddamal articles is not only unjustified but is based on evidence which is not legal evidence. The trial Court placed reliance on the documentary evidence produced, at Exhs. 32, 78 and 39. Relying on the aforesaid documentary evidence, the Courts below made an inference that the muddamal gold ingots which were r