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TMI Blog1983 (1) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the High Court is, therefore, liable to be set aside and it is accordingly set aside. The conviction of the respondent and the sentence imposed on him by the learned District Magistrate which were affirmed on appeal by the learned sessions judge are restored. - 44 OF 1976 - - - Dated:- 12-1-1983 - E.S. VENKATARAMIAH AND R.B. MISRA, JJ. G.S. Narain and Miss Subhashini for the Appellant. M.M. Abdul Khader and E.M.S. Anam for the Respondent. JUDGMENT Venkataramiah, J. The Assistant Collector of Central Excise, Calicut, has filed this appeal after obtaining the special leave of this court against the judgment and order dated January 5, 1973, of the High Court of Kerala in Criminal Revision Petition No. 426 of 1972. Briefly stated, the facts of the case are these : In the early hours of August 9, 1969, the respondent alighted from the Kerala Express at the Trichur Railway Station with a steel trunk in his hand. C. C. Mathan, Inspector of Central Excise, Special Customs, Preventive, Trichur (P.W. 1), who was on patrol duty at the Railway Station, suspected that the respondent was carrying contraband goods and on coming to know from the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, Superintendent, Kozhikode, when Ex. P-2 was recorded and that the said statement contained the signatures of the respondent and of the Superintendent who had recorded it. K. Subramonian (P.W. 2), who was working as a ticket collector at Trichur Railway Station, stated that the 28 gold bars in question were seized on August 9, 1969, at the Trichur Railway Station under the mahazar (Ex. P-l) which he had signed. V. M. Velayudhan (P.W. 3), who was a resident of Trichur and a goldsmith by profession, stated that the 28 gold bars in question had been examined and weighed by him at the Trichur Railway Station at the request of C. C. Mathan (P.W. 1). He further stated that he tested the purity of the said 28 gold bars by rubbing them on the touch-stone and found that they were gold bars of 24 carats quality. He gave a certificate (Ex. P-3) regarding the purity and the weight of the 28 gold bars. V. M. Velayudhan (P.W. 3), who was a certified goldsmith, further stated that he could by experience assess the purity of gold by rubbing it on a touch-stone. He, however, stated that he had no technical knowledge about gold and he did not know the "specific gravity" method by which the purity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-l. He rejected the evidence of V. M. Velayudhan (P.W. 3) on the ground that he had not the training or the qualification in the art of testing gold and that he had not conducted either the furnace test or the specific gravity test to determine the character of the metallic bars. He was of the opinion that V. M. Velayudhan (P.W. 3) had miserably failed in the witness box to give the impression that he was a competent person to certify that what were seized from the respondent were gold bars and that in the absence of any training or qualification to the credit of V.M. Velayudhan (P.W. 3), it would be unsafe to rely on his evidence and conclude that what was seized from the respondent was gold. So far as Ex. P-2 was concerned, the learned judge was of the opinion that as the said statement had not been specifically put to the respondent under section 342 of the Cr. PC and as the person who had recorded it had not been examined, no importance could be given to it. In so far as the answer given by the respondent to the question put by the court under section 342 of the Cr. PC, which is set out above, is concerned, the learned judge observed that even assuming that it would have some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch-stone used by them, even though their assessment of its purity may not be exact. It may not be a scientific way of proving that the metallic bars were gold bars. In the instant case, however, the respondent did not dispute that gold had been recovered from his box under Ex. P-1. His plea was that it was true that gold was recovered from his box but that it did not belong to him; that it had been handed over by a person called Mammu asking him to give it in his house and that he had no knowledge that it was gold when the packet containing it was handed over to him. Reading the answer of the accused as a whole it mean that he knew that when his steel trunk was opened and searched, there was gold in it but he had no knowledge that the packet contained gold when it was handed over to him by Mammu asking him to hand it over in his house. The answer consists of two parts and they refer to two distinct matters. The first part relates to seizure of gold from him and the latter part relate to what had happened earlier when the packet was handed over to him. The case might have been different if he had said that no gold was recovered from his box. The High Court, therefore, erred in hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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