H D PAREKH Vs. MAHESH RAICHAND SHAH

JUDGEMENT

(1.) BY way of filing this appeal, the appellant-original complainant has challenged the judgment and order dated 19.1.1991 passed by the Additional Chief Judicial Magistrate, Valsad in Custom Case No.2 of 1987, whereby the respondent no.1 is convicted under Section 135(1)(ii) of Custom Act and sentenced to undergo sentence till the rising of the Court and pay fine of Rs.25,000/-, in default, to undergo simple imprisonment for three months.

(2.) THE brief facts leading to filing of this appeal are such that raid was carried out in presence of panchas on 11.2.1986 in the shop of the accused persons and the present respondent no.1 and other accused Rajendra Raichand were found there and 1000 dollar currency notes were found from the possession of accused Rajendra and from the drawer of the show case of the shop, five pieces of foreign gold of 64 grams weight and 155.750 silver and one piece of silver weighing 567 grams and one draft of 11 dollar and some currency notes were recovered by the Customs Officer as it was alleged that it was illegally imported from foreign. Further, on the same day about 6.30 hours in the evening, raid was also carried out in the residence of accused persons and one Sony Brand TV and other gift articles were recovered by carrying out necessary panchanama. It is alleged that the accused have committed breach of provisions of Foreign Exchange Regulation Act, 1973 and Import and Export Control Act, 1947 and thereby committed the breach of Sections 135(1)(a)(2) and 135(1)(a)(2) and 135(1)(b)(2) of Custom Act. THE complaint was lodged after obtaining necessary sanction under Section 137(1) of the Customs Act from the competent authority. Charge was framed vide Exh.20 on 25.9.1987. THE accused pleaded not guilty and claimed to be tried.

(3.) I have gone through the judgment and order passed by the trial Court. As per the evidence on record, the accused is a licensee goldsmith and five pieces of gold were recovered from the drawer of the show case of the shop and there is no foreign mark on the said pieces of gold. It is also found that the recovered gold was not piece of lagdi (biscuit). As per the evidence of Goldsmith panch Kothari, out of the five pieces of gold, on one piece, there was a design which is not normally found on the gold of India. It is rightly held by the trial Court that only on the basis of this fact, the panch witness Kothari gave opinion that this is foreign gold. No purity test was carried out by the Goldsmith. The trial Court has rightly held that the recovered gold was not sent to Mint (Government Laboratory for testing gold) for testing and the opinion given was by panch witness Kothari who was not recognized or government or any reputed bank approved goldsmith. The trial Court has rightly considered the defence of the accused that on 11.12.1986, this gold was provided by the customer for making ornaments and the entry of the said gold is made in the register which is required to be maintained under the Gold Control Act and relevant documents are also produced by the accused. It is the defence of the accused from the beginning that he got this gold from the customer and as discussed above, he also placed on record the relevant documents and there is no reason to discard this explanation submitted by the accused in statement recorded under Section 313 of Criminal Procedure code. The trial Court has also discussed the judgment cited by the complainant and rightly came to the conclusion that the facts of that case are totally different from the facts of this case.