The burden is on the prosecution to prove that what has been seized from the accused is gold, and only on satisfactory proof of that fact, a presumption under Section 123 of the Customs Act would arise, and not otherwise.

A.S.Nehra, J.

1. This appeal is directed against the judgment dated 20-3-1989 passed by the Chief Judicial Magistrate, Sangrur, by which the respondents have been acquitted of the charges under Section 85 of the Gold (Control) Act, 1968 and Section 135 of the Customs Act, 1962 . Briefly stated the case of the complainant-appellant is as under :-

2. The appellant filed this complaint in his official capacity as a public servant in the discharge of his official duties. Sanjeev Kumar respondent is the son of Padam Sain. Padam Sain was running the business of dealing in gold ornaments in the name and style of M/s. Padam Sain Devinder Kumar, Sunam". On 2-7-1982, the preventive staff of Central Excise Division, Patiala, apprehended Sanjeev Kumar respondent in Tarkhana Mohalla, Sunam, as per the information that he deals in gold biscuits of foreign origin. His personal search and the search of his personal hand-bag was taken in the presence of independent witnesses. As a result of that search, four gold biscuits of foreign origin, weighing 464 grams, valued at Rs. 75,632/-, with foreign marking as #28; Johnson-No-London-999-0.10 Tola#29; on the two biscuits and #28;Swiss Bank-999. O.10 Tola#29; on the other two biscuits, were recovered from the front pocket of the pant of Sanjeev Kumar. A sum of Rs. 7/- of Indian currency was also recovered from Sanjeev Kumar respondent. As a result of search of the cloth-bag being carried by Sanjeev Kumar, one metal-box was recovered. The metal-box, on opening in the presence of independent witnesses, was found to be containing gold ornaments weighing 239 grams, valued at Rs. 37,284/- and Indian currency worth Rs. 3220/- was also recovered. The purity of the above-said gold biscuits and gold ornaments was 24 carats and 22 carats respectively, as per the test report.

3. It was also alleged in the complaint that Sanjeev Kumar respondent had failed to produce any evidence for legal acquisition/possession or in any way concerned in carrying gold biscuits/ornaments/Indian currency. Therefore, he was arrested under Section 68 of the Gold (Control) Act, 1968 . Later on, he was released on bail by the Court of learned Sessions Judge, Sangrur. Sanjeev Kumar respondent has also confessed in his written statement dated 2-7- 1982, which he had tendered before the Superintendent (Prev.), Central Excise Division, Patiala, the recovery of aforesaid four gold biscuits of foreign marking, 239 grams of gold ornaments and Indian currency worth Rs. 3227/-. He had further admitted that he had brought these gold biscuits of foreign marking from Brij Lal respondent who was a Goldsmith, Sarafan Bazar, Ludhiana, at the instance of his father Padam Sain. Sanjeev Kumar respondent further admitted in his statement dated 4-7-1982 that they used to get their gold ornaments manufactured out of the gold biscuits of foreign origin from one Shri Mohinder Paul Billu, Goldsmith of Sunam, respondent.

4. It was also alleged in the complaint that Sanjeev Kumar respondent had acquired/carried and dealt with the aforesaid gold biscuits of foreign origin and the aforesaid gold ornaments were made out of the gold of foreign origin and the currency notes as its sale proceeds in contravention of Section 11 of the Customs Act, 1962 . Therefore, the aforesaid gold ornaments and the Indian currency were seized under Section 110 of the Customs Act. Sanjeev Kumar has been punished by imposing P.P. Rs. 75,000/- under the Gold (Control) Act, 1968 , and Rs. 75,000/- under the Customs Act, 1962 , P.P. Rs. 10,000/- under the Customs Act, 1962 , on Mohinder Paul, respondent No. 2, and P.P. Rs. 10,000/- under the Customs Act, 1962 , on Brij Lal respondent in departmental adjudication under Section 112 of the Customs Act, 1962 and the seized property has been confiscated under Section 111 of the Customs Act, 1962 in the said departmental adjudication. Respondents Nos. 1 to 3, by acquiring/ possessing/dealing in gold of foreign markings, gold orname