JUDGMENT :

RAJENDRA M. SAREEN, J.

1. This Appeal is filed by the appellant-State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 21.01.2004 passed by the Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 399 of 1988 acquitting the respondent Nos. 1 and 2-original accused from the offence punishable under section 135 of Customs Act and under section 120B of Indian Penal Code.

2. The case of the prosecution is that an information was received by the customs officers on 11th April 1986 that one Amratlal Chandmal Jain of Ahmedabad was actively dealing in foreign mark gold on large scale and one Kishanla Meghraj Soni of Ahmedabad was his associate who used to smuggle in foreign mark gold through the Coast of Saurashtra. On 28.4.1986 the police officers of Ahmedabad intercepted one Daud Jusab Manek of Salaya who was carrying with him 136 pieces of foreign mark gold and while he was proceeding towards Uttam Niwas Guest House at Ahmedabad. The police officers apprehended opponent no. 1 herein in this connection at Kalupur Police Station and informed the custom officers about the recovery of foreign marked gold as well as apprehension of those two persons. Since both the aforesaid persons could not produce any documentary evidence as regards legal import of such gold nor could produce any purchase vouchers showing the legal acquisition of the same, the said gold worth Re. 32,64,000 at that point of time was seized under panchnama dated 28.4.1986 drawn in presence of two panchas and the aforesaid two accused persons. Since the accused persons did not possess license to deal with primary gold under the Gold (Control) Act, 1968 the customs officers confiscated the gold under the provisions of the said Act.

2.1. That upon further interrogation of two accused they informed the investigating agency that the said gold was to be delivered to one Rameshbhai @ Kishanlal Meghraj Soni at Manek Chowk, Ahmedabad. It was also revealed during interrogation that the gold was brought to India in a vessel Rasul Madat MNV 575 owned by accused Adam Suleman Gandhar. The said gold was given to Adam Suleman Gandhar at Dubai by Noormohmed Abdul Kara and accused Amratlal Chandmal Jain and he was told by Noormohmed Abdulla Kara to deliver the said gold to his son Nazir Noormohmed Kara, accused no. 4-Opponent no. 1 herein. It is also revealed that said Adam Suleman Gandhar upon reaching Salaya met Nazir Noormohmed Kara and informed him that his father Noormohmed Abdulla Kara had given him gold to deliver it to Nazir Noormohmed Kara. Thereupon Noormohmed Kara told Adam Sulemen Gandhar to deliver the said gold to Daud Jusab Manek, accused no. 6. At that time, accused no. 7, opponent no. 2 herein, had accompanied Adam Suleman Gandhar. Thereafter, they handed over the gold to Daud Jusabh Manek who brought it to Ahmedabad but was apprehended by the police while he was proceeding towards Uttam Guest House. Therefore since the offence was completed, the complainant filed a complaint for the offences punishable under Section 135 of the Customs Act read with Section 120B of the Indian Penal Code in the competent court.

2.2. The trial court issued the summons by taking cognizance and recorded the plea of the accused. The accused did not plead guilty and denied their statements recorded under Section 108 of the Customs Act. The trial Court after holding the trial and after hearing the submissions of both the sides had come to the conclusion that the accused person are not guilty of the offence under Section 135 of the Customs Act and therefore acquitted the accused of the said offence by his judgment and order dated 21.1.2004.

3. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal, present appeal has been filed by the appellant-State.

4. Learned advocate Mr. Nikunt Raval for the appellant-original complainant has vehemently argued that the Magistrate has committed a gra