ORAL JUDGMENT

1.The Assistant Collector of Customs, Valsad, the appellant has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 [herein after referred to as the 'Code' for short], challenging the order of acquittal dated 31/3/1992 passed by learned Sessions Judge, Valsad at Navsari, in criminal Appeal No. 13 of 1991, quashing and setting aside the order of conviction and sentence dated 16/5/1991 passed by learned Addl. Chef Judicial Magistrate, Valsad in Criminal Case No. 1 of 1987 and acquitting the accused/ present respondent of the charge of commission of offence under Section 135 of the Customs Act, 1962 and under Section 85 of the Gold Control Act, 1968. This Court (Coram: N.J. Pandya, J) granted leave and admitted the appeal vide order dated 29/7/1993.

2.Heard learned counsels for the parties. The facts in brief leading to filing of this appeal deserve to be set out as under:

2.1 The complaint came to be filed by one Shri.

Dayashankar, Assistant Collector of Customs, Valsad against original accused no.1 Anil Jayram Mangela and Shri. Jayram Ramji Mangela in the court of learned Addl. Chief Judicial Magistrate, Valsad for commission of offence by the accused punishable under section 135 of the Customs Act 1962 and sectin 85 of the Gold Control Act, 1968. It was alleged that on 24/12/1985 Superintendent of Customs (Preventive) Valsad in presence of the panchas and with the help of his staff members carried out raid in the house of the accused at village Tadgam, Taluka Umbergam, District Valsad, wherein accused no.2 was found present in the house and 24 gold biscuits bearing foreign markings where seized after drawing panchnama. On purity test it was ascertained that the same was made of primary gold and each biscuit was weighing 10 tolas. On 2/1/1986 Superintendent of Customs, Valsad Shri. Upadhya with the help of his staff members and panchas raided the house of the accused which was also situated in the same village which appeared to be unattended but locked, and therefrom currency notes worth Rs.4,80,000=00 concealed beneath the earth was seized. The panchnama was also drawn on the spot. During investigation it is alleged that the statements of both the accused were recorded under section 108 of Customs Act and accused disclosed commission of offence in the statement itself. The accused no.1 Shri. Anil Jayram Mangale, son of accused no.2 Shri. Jayram Ramji Mangele had during the course of fishing at village Tadgam sea coast found 48 biscuits of foreign markings which he had brought to his house and concealed till his father Jayram arrived from sea for where he had gone for fishing. Accused no.2 carried 24 gold biscuits and disposed of the same at Bombay with th help of his master. The sale price of which was hidden down in the ground was sezed by the authorities. On 2/1/1986 on completion of investigation a complaint was lodged in the court of Addl. Chief Judicial Magistrate, Valsad which came to be numbered as Criminal Case No. 1 of 1987. The trial court after recording evidence of the prosecution acquitted accused no.1 and convicted accused no.2 for commission of offence punishable under section 135 of the Customs Act and Section 85 of the Gold Control Act. Accused no.2 was sentenced to undergo R.I. for three years and was ordered to pay fine of Rs.30,000=00; and in default to further undergo simple imprisonment for three months for commission of offence under section 135 of Customs Act. Accused no.2 was not sentenced separately for offence under section 85 of Gold Control Act.

2.2 The accused challenged the impugned order of conviction dated 16/5/1991 passed by learned Addl. Chief Judicial Magistrate in Criminal Case No. 1 of 1987 before Sessions Court at Valsad by preferring Criminal Appeal No. 13 of 1991. The appellate court after elaborate discussions passed an order dated 31/3/1992 quashing and setting aside the order of the trial court and acquitted the accused which is impugned in the