M G VENUGOPALAN Vs. EDAYIL VEETTIL GOVINDAN

JUDGEMENT

(1.) DURING the night of 4-1-1971 the Superintendent of Central Excise, Head Quarters, (Preventive) Cochin and party was on the platform of the Kozihikode Railway Station engaged in detecting offences under the Customs Act, At 11. 55 P M. when the Mangalore-Cochin Express stopped at the Railway Station the 1st respondent Edavil Veetil Govindan alighted from the Train. He was carrying with him a bag. The Superintendent and party felt some suspicion and detained him-He was taken to the Office room of the Ticket Examiner. The baa in his possession was examined. The officers found 25 biscuit shaped gold slabs with foreign markings "johnson Matihav 9990 LONDON 10 TOLAS" kept concealed in a Plastic cover underneath a soiled turkish towel and a 'kaili' inside the bag. He had a third class Express Ticket with him from Cheruvathur to Kozhikode. A mahazar was prepared and the sold was seized. He was taken to the Customs Office, and his statement was recorded on 5-1-1971. The 1st respondent was found to have committed offences punishable under Section 135 of the Customs Act, 1962 and under Section 85 (ii) and (iii) of the Gold (Control) Act, 1968. Complaints were accordingly filed both under the Customs Act and under the Gold Control Act. They were clubbed together. The complainant examined 8 witnesses. The Additional Judicial Magistrate First Class, Kozhikode who tried the case held that the complainant did not succeed in proving beyond doubt that gold bars were taken into custody from the 1st respondent and also that the article stated to have been seized was foreign gold. In the result the 1st respondent was found not guilty and acquitted. The Assistant Collector of Customs and Central Excise integrated Divisional Office, Kozhikode hag filed the present appeal,

(2.) THE point for consideration is whether gold bars have been recovered from the 1st respondent. The 1st respondent in his statement under Section 342, Civil P. C. denied the occurrence in toto. He however, admitted that he had given a statement to the Customs Officials on 5-1-1971 but would add that it was taken by compulsion. The guilt or innocence of the 1st respondent will depend to some extent upon the admissibility or otherwise of the statement and also the oral evidence adduced in the case. M. O. 1 series are the twenty five gold bars alleged to have been recovered from the 1st respondent. P. Ws. 1, 3 to 5 and 7 are the officials of the Customs Department. P, W. 1 is the Superintendent, Central Excise, Cochin who led the Excise party. He has sworn to the facts mentioned in the complaint in all material detail, that the 1st respondent was found to be in possession of a bas which was suspected to contain contraband articles, that he was taken to the Ticket Examiner's room and was found to be in possession of articles including 25 bars of gold with foreign markings and that they were taken into custody under a mahasar, Ext. P-l. The witness has also stated that at about 5 A. M. on 5-1-1971 the statement of the 1st respondent was recorded by P- W. 5 Mohandas, Inspector of Central Excise in his presence and that the same statement hag been attested by him. Ex. P-3 is the statement so attested. The gold bars were examined by P. W. 2 a dealer in sold. P. W. 2 certified them as of 24 carat purity. Ext. P-2 is the certificate. Subsequently the sold bars were examined by P. W. 3 the Chemical Examiner. Customs House, Cochin, who issued Ext. P-6 certificate to the effect that the gold was of 24 carat purity. P. W. 5 Mohandas and P. W. 7 Raghavan Nambiar were Inspectors of Central Excise at the relevant time and they were present at the Railway Station along with P. W. 1 and assisted P. W. 1 in the seizure. Both these witnesses have corroborated the testimony of P. W. 1 in all material particulars. P. W6 wag a Ticket Examiner of the Southern Railway who was present at Calcutta Railway Station on 4-1-1971. It was to his office room that the Excise officials took the 1st respondent for the purpose of search. He has attested Ext. P-l mahazar prepared at the time. . He supports the case of the complainant. P. W. 4 was the Assistant Collector of Customs and complainant in the case. The trial Court did not act upon the evidence of the officials on the ground that they were interested in the complaint The Court also held that P. W. 6 the Ticket Examiner was not an independent witness. The learned Magistrate therefore held that the evidence available was insufficient to prove the recovery-

(3.) I am unable to accept the findings of the learned Magistrate. It is no doubt true that the main evidence consists of the testimony of the officials of the Customs Department. But it cannot be denied that the above witnesses are responsible officers. Their cross-examination does not reveal that they had any motive against the 1st respondent in this case. No reason is put forward as to why they should prefer a false complaint against him. There is also no reason why the testimony of P. W. 6 the Ticket Examiner should be discarded. It is true that he has admitted that on some prior occasions also he had figured as witness in cases under the Customs Act, But being an official of the Railway there is nothing unusual if he happens to figure as witness in cases detected within the Railway Premises. The 1st respondent has a case that this witness does not in fact Drove the recovery of the gold bars from the 1st respondent. This is not correct. The witness has stated in categoric terms that he was present when the Customs Officials seized from the first respondent 25 bars of gold with markings "johnson Mathav 9990 10 Tolas", kept in a polythene baa as per Ext. P-l mahazar. The testimony of the above witnesses clearly establishes the fact of the recovery of 25 bars which according to the complainant was gold.