1979 (1) TMI 115 - HC - Customs

Summary

Issues:
1. Appeal for enhancement of sentence under Section 377(2) of the Code of Criminal Procedure.
2. Prosecution case involving seizure of contraband gold.
3. Examination of witnesses in proof of the case.
4. Contention on the adequacy of the sentence imposed.
5. Argument for acquittal under Section 377(3) of the Code of Criminal Procedure.
6. Reliance on evidence of witnesses and statements made by the accused.
7. Procedure followed for seizing and assaying the gold pellets.
8. Burden of proof on the prosecution under Section 123 of the Customs Act.
9. Lack of evidence linking seized gold pellets to the samples sent for assay.
10. Failure to establish that the seized items were gold.
11. Admissibility of certificates issued by a deceased assayer.
12. Final decision on the appeal for enhancement of sentence and acquittal of the accused.

Detailed Analysis:
1. The appeal was filed under Section 377(2) of the Code of Criminal Procedure seeking enhancement of the sentence imposed on the accused for the gravity of the offence committed.
2. The prosecution's case involved the seizure of contraband gold from a lorry, with detailed procedures followed for interception, seizure, and subsequent assay of the gold pellets.
3. The prosecution presented five witnesses to support its case and establish the facts surrounding the seizure of the gold.
4. The contention was raised regarding the adequacy of the sentence imposed on the accused, considering the value of the seized gold and the seriousness of the offence.
5. The defense argued for acquittal under Section 377(3) of the Code of Criminal Procedure, pointing out the pending revision petition challenging the conviction and sentence.
6. The prosecution relied on the evidence of witnesses and statements made by the accused to establish the nature of the seized items as gold.
7. Detailed procedures were followed by the investigating officer for seizing and assaying the gold pellets, including sending samples for independent verification.
8. The burden of proof was discussed concerning the prosecution's obligation to establish the seized items as gold under Section 123 of the Customs Act.
9. Lack of evidence linking the seized gold pellets to the samples sent for assay raised doubts about the prosecution's case.
10. The failure to conclusively establish that the seized items were indeed gold undermined the prosecution's case against the accused.
11. The admissibility of certificates issued by a deceased assayer was questioned, highlighting the limitations under the Indian Evidence Act.
12. The final decision resulted in the appeal for sentence enhancement being dismissed, and the accused were acquitted based on the prosecution's failure to prove the seized items were gold.