MALCHAND SARAOGI Vs. ASST. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) P .W. 1, Assistant Collector of Customs and Central Excise, Gauhati filed a complaint against the revision petitioner alleging offences punishable under section 135 of the Customs Act, 1962 and section 85 of the Gold (Control) Act, 1968. The complainant adduced oral and documentary evidence. The Chief Judicial Magistrate however found that no case had been made against the revision petitioner which, if unrebutted, would warrant his conviction and accordingly discharged him under section 245 of the Code of Criminal Procedure. In a revision filed by the complainant, the learned Additional Sessions Judge set aside the order of discharge and directed the Chief Judicial Magistrate to dispose of the matter afresh in accordance with law. This order is now challenged.

(2.) P .W. 2, Inspector of Police, Bureau of Investigation, Economic offences, Gauhati in the course of searched the factory and residential premises of the revision petitioner on 18.12.1982 in his absence that there was a steel almirah in the bed room of the revision petitioner. His wife was present but did not have the key of the almirah. P.W. 2 engaged a key -maker to open the almirah. There were two match boxes in the almirah one match box contained a gold biscuit weighing 10 tollas with the marks "CREDIT 9990, SUISSEE, 10 Tolas CHI -ESS ANYEURFONDEUR"; the other match box contained two pieces of gold bars, one weighing 6 tollas 2 annas 2 raties and the other weighing 4 tolas 10 annas. The gold biscuit was of 24 Carat purity whereas the two gold bars were of 23.5 Carat Purity. The almirah and the match boxes and the gold biscuit and the gold bars were seized as per Ext. 5, seizure list. The almirah was returned on bond. In due course the papers and seized articles were made over to the Customs and Central Excise Department. P.W. 4, Superintendent of Customs and Central Excise, as per Ext. 8, Inventory, seized the articles on 5.3.1993. P.W. 4 got the gold tested by competent goldsmiths who gave Ext. 9 report indicating the weight, value and purity of the gold biscuit and bars. P.W. 4 recorded the Statement of revision petitioner. Ext. 11 is the Statement of revision petitioner and Ext. 12 is the further Statement and questions. P.W. 3 is the goldsmith who had been taken initially to weigh the gold. There were adjudication proceedings which ended in confiscation. It appears in appeal the appellate authority to some extent varied the order of confiscation. On the above materials, the two courts below came to conflicting findings.

(3.) THE only contentions urged by learned counsel for the revision petitioner are - (a) that there -is no legal evidence to show that the seized gold is primary gold or smuggled gold, and (b) the revision petitioner in the Statement before P.W. 4 and in adjudication proceedings gave an explanation which is acceptable.