1994 (3) TMI 112 - HC - Customs

Summary

Issues Involved:
1. Legality of the recovery of gold biscuits and ornaments.
2. Admissibility and credibility of the statements made by the accused.
3. Proof of the purity of the gold as per the Gold (Control) Act, 1968.
4. Evidence against co-accused Brij Lal and Mohinder Pal.
5. Discrepancies in the prosecution's evidence and witness testimonies.

Issue-wise Detailed Analysis:

1. Legality of the Recovery of Gold Biscuits and Ornaments:
The case involved the recovery of four gold biscuits of foreign origin and gold ornaments from the respondent Sanjeev Kumar. The preventive staff of Central Excise Division, Patiala, conducted the search based on information that Sanjeev Kumar dealt in gold biscuits of foreign origin. The search, conducted in the presence of independent witnesses, led to the recovery of gold biscuits and ornaments, which were subsequently seized under Section 110 of the Customs Act, 1962. However, the respondents claimed that the recovery was falsely implicated, and the gold belonged to Sanjeev Kumar's parents.

2. Admissibility and Credibility of the Statements Made by the Accused:
The prosecution relied on the statements made by Sanjeev Kumar on 2-7-1982 and 4-7-1982, where he confessed to the recovery of gold biscuits and ornaments. These statements were deemed admissible in evidence. However, the defense argued that the statements were obtained under coercion and threats. Additionally, discrepancies in the testimonies of prosecution witnesses regarding the recording of these statements cast doubt on their credibility.

3. Proof of the Purity of the Gold as per the Gold (Control) Act, 1968:
A critical issue was whether the gold recovered met the definition of "gold" under Section 2(j) of the Gold (Control) Act, 1968, which requires a purity of not less than nine carats. The complainant failed to produce any expert witness to verify the purity of the gold biscuits. The prosecution's witness, Kulwant Singh, admitted he had not tested the purity, and another witness, Raghbir Parsad, who allegedly tested the purity, was not examined. This lack of evidence led the court to conclude that the prosecution could not prove the gold's purity as required by law.

4. Evidence Against Co-accused Brij Lal and Mohinder Pal:
There was no direct evidence against Brij Lal to prove that he dealt in gold biscuits of foreign origin. His alleged statement to the Customs Officers was not proven, and no incriminating circumstances were found in the testimonies of prosecution witnesses. Similarly, there was no evidence against Mohinder Pal to show that he prepared ornaments from gold biscuits. His statement, Exhibit PK, denied any involvement in preparing gold ornaments at the instance of Padam Sain Saraf.

5. Discrepancies in the Prosecution's Evidence and Witness Testimonies:
The court noted several discrepancies in the prosecution's evidence. Witnesses gave conflicting accounts of when and where Sanjeev Kumar's statements were recorded. PW-1 Ram Parkash and PW-2 Shivdev Singh provided inconsistent testimonies about the presence and actions of officials during the recovery. Such discrepancies weakened the prosecution's case and contributed to the acquittal of the respondents.

Conclusion:
The court concluded that the prosecution failed to prove its case against the respondents. The lack of evidence regarding the purity of the gold, the absence of direct evidence against co-accused Brij Lal and Mohinder Pal, and the discrepancies in witness testimonies led to the dismissal of the appeal. The respondents were acquitted of the charges under Section 85 of the Gold (Control) Act, 1968, and Section 135 of the Customs Act, 1962.