ASSISTANT COLLECTOR CENTRAL EXCISE Vs. NARESH KUMAR JAIN

JUDGEMENT

(1.) This is the appeal preferred by Union of India through Central Excise Department against the acquittal of the respondent-accused Nirmal Kumar Jam of the offence punishable under Section 8(1) read with Section 85 of the Gold Control Act.

(2.) Nirmal Kumar was one of the partners of the Firm M/s Kewal chand Kailashchand, dealer of gold and silver ornaments in Chowk Bazar, Satna. The officers of the Central Excise Department, under a search warrant, had made the search of the residence-cum-shop of the said Firm from about 5 p.m. to 9 p.m. on 12.5.1973.

(3.) According to the prosecution, when the search party, comprising of the senior officers of the Central Excise Department and two Panch witnesses, proceeded to make the surprise search of the shop and when the officers, before making the actual search, were in the process of giving their own personal search to the proprietors of the shop, the respondent-accused Nirmal Kumar, taking out something from his pant pocket, threw that stuff which struck itself on the wooden panel of the door of the shop and fell down on the dasa (projected platform of the shop or parapet), The stuff thrown was found to be gold biscuit of primary gold with marking of Swiss BankT weighing 45 grams and the gold mohar and two add his weighing 23 grams (68 grams in total) for which there was no licence; and as such, the same was seized by the Central Excise Officers vide seizure memo Ex. P-2. For such an unlawful possession of the primary gold and mohar, the respondent-accused was put up for trial under the complaint filed by the proper authority of the Central Excise Department. The respondent-accused abjured the guilt and denied to have thrown the stuff in question. A few witnesses were examined in defence. In the trial Court, one of the Panch witnesses viz. P.W. 3 Bhailal was found to have turned hostile; and as such, he did not corroborate the oral testimonies of other two Excise Officials. The oral testimonies of the two Excise Officials viz. P. W. 1 M. K. Harurey and P.W. 2 Pritam Chandhaldas Premani were found to be highly discrepant and mutually conflicting on material aspects of the incident regarding the throwing of the particular gold items by the respondent-accused. Their evidence, being thus not reliable to any extent the respondent-accused was acquitted. Hence, now, the present appeal by the Central Government.