CENTRAL EXCISE DEPT Vs. P SOMASUNDARAM

JUDGEMENT

(1.) The appellant has challenged the legality and correctness of the judgment of acquittal dated 21-9-1977 passed by the Chief Judicial Magistrate, Bangalore District, Bangalore, in C.C. No. 558 of 1974, acquitting the respondent who was accused therein of the offences punishable under S. 135(b) of the Customs Act, 1962, and S 85(ii) of the Gold Control Act 1968.

(2.) The prosecution case was that Sri A. E. Austin (P.W. 1) was, during the period in question, namely, October 1971, Inspector of Central Excise Head quarters at Bangalore. He got credible information on 5-10-1971 that contraband gold was being taken from Bangalore to Salem. He took three other Inspectors attached to the said office and proceeded to Attibele. They waited there in Anekal circle. They were checking buses. At about 9 p.m. bus bearing No. 4190 belonging to Parveen Service and proceeding towards Anekal reached there. He stopped the bus. He and the other 3 inspectors entered into the bus. P.W. 1 made out from the expression on the face of the respondent- accused who was sitting in one of the seats in the bus that he might be the person transporting contraband gold. He asked the respondent whether he was having contraband gold. That question made the accused nervous. Because of the nervousness, he could not give any information. He held out a bag and muttered that nothing like contraband gold was contained in the bag. P.W. 1 asked him whether he was having contraband gold on his person. That made the accused more nervous. Because of that he admitted that he was carrying contraband gold. He was giving answers in Tamil language. P.W 1 asked how many pieces he was carrying. The accused said that he was carrying 50 pieces. The Inspector took the accused to the police out post at Attibele. Inspectors secured panchas including Venkataramanappa (P.W. 4) and in their presence P.W. 1 searched the person of the accused. P.W. 1 found that the accused was having a cloth pouch round his waist. That pouch contained, when examined, 50 biscuits of gold. Out of them 34 bore the marking " Swiss Bank Corporation 999-0 and the remaining 16 bore the marking " Argorsa Chiasso Foundeur ASA Essayeyr 999.10 Tolas", P.W. 1 asked the accused whether he had any document or permit for having the said pieces and the accused answered in the negative. In view of these circumstances, P.W. 1 reasonably believe i that the said 50 pieces of gold had been smuggled into India and on such reasonable belief he seized them under the panchanama (Ex. P-l). Each one of the biscuits was pasted with a slip of paper all around. The two panchas and the accused affixed their signatures on the said paper. These biscuits are said to be M.Os. 1 to 50. Then, Superintendent of Excise was contacted and he reached the place. That person is said to be Gopalakrishna, who is not evamined. After the seizure proceedings, the accused voluntarily went along with the Excise Officers to Bangalore. He was in the custody of the Excise personnel and on 6-10-71 he appeared before B. C. Gujjar (P.W. 3), Superintendent, Central Excise Head Quarters Prevention, Bangalore. P.W. 3 got the statement of the accused recorded as per Ex. P-6. It is necessary to state at this juncture that on 16-10-71 Superintendent Gopalakrishna secured H. L. Acharya (P.W. '), a gold smith, to the office and asked him to assay the 50. pieces of gold bi.cuits (M.Os. 1 to 50). P.W. 2 tested the biscuits and was of the opinion that they were of 24 carat purity and were of foreign origin because of the markings and fineness. He issued certificate as per Ex. P-4. From M.Os. 15 and 37 he cut two small bits under his certificate Ex. P-5, as those pieces were required by the Customs authorities for sending to the Mint Master so as to secure a certificate from him. Ultimately, a complaint was lodged against the accused and 06 that basis the Chief Judicial Magistrate tried him in C.C. 558/74.

(3.) Total denial has been the defence of the accused. He has also contended that no gold biscuits had been seized from his person and that he had not voluntarily stated as per the narration in Ex. P-6 to P.W. 3. According to him, a false case had been foisted against him.