SUPERINTENDENT OF C EX MANGALORE Vs. K ABUBAKER

JUDGEMENT

(1.) In this appeal filed under section 377(2) of the Code of Criminal Procedure, the appellant has prayed that the sentence passed by the II Add. Chief Judicial Magistrate, Mangalore in C.C. No. 204/76 against the respondents who were accused 1 and 2 in C.C. No. 204/76 be enhanced as the same is inadequate taking into consideration the gravity of the offence committed by them.

(2.) The prosecution case held proved by the learned Magistrate is that at about 5 p.m. on 8-12-1972 P.W. 1 got creditable information that contraband gold was being transported in a lorry bearing No. MYX 8249 and he intercepted the same. He was accompanied by the staff. Accused 1 was driver and accused 2 was the cleaner. P.W. 1 found a cavity underneath the seat of A-1. That cavity contained a cloth jacket in which there were two packets one containing 500 pellets and another packets containing 300 pellets of primary gold of 10 tolas bearing foreign markings. They were seized under a panchanama as P.W. 1 reasonably suspected that the same had been smuggled. He subsequently questioned respondents 1 and 2 and each one of them voluntarily gave statements and their statements were recorded. One Ramesh, a jeweller, was summoned and was asked to assay the said pellets. He being the competent assayer assayed the same. It is not known as to by applying what method he did the same. He opined that it was gold of foreign origin and certified as per Ex. P-4. On 9-12-1972 P.W. 1 got a piece from the biscuit out of the batch of 500 and another piece from one biscuit out of the batch of 300 cut away, put in a packet and sealed in the presence of the said Ramesh. He then sent the packet by insured post to Mint Bullion Department in Bombay for assay. Ultimately the Mint Master issued a certificate admittedly basing on the report of P.W. 4 Harischandra, an assayer working in the said Department, opinion that the said pieces were of 998.7 ct. purity. Investigation was completed by P.W. 1 and a charge sheet was filed.

(3.) The prosecution examined 5 witnesses in proof of its case.