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TMI Blog2011 (7) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... colour stroller bag and one black colour ladies hand bag. Having completed the other formalities, at the custom courier counter, when she walked through the green channel, was intercepted on suspicion by the custom officer at the exit gate of the arrival hall. 3. At this stage, two independent panch witnesses were called, in the presence of witnesses, customs officer asked the respondent, whether her baggage or person contained any contraband goods, like gold or electronic, to which she replied in the negative. 4. The customs authority served a notice under Section 102 of the Customs Act, 1962 (hereinafter referred as to the 'said Act'). The baggage of the respondent was examined and 10 pieces of gold biscuits of 10 Tolas, each from inside her black colour ladies purse were recovered. The recovered gold biscuits bearing foreign markings, collectively weighing 1166.4 Grams of 999 purity, valued collectively at Rs.5,01,552/-. 5. Personal search of the respondent was conducted, but nothing incriminating was recovered. The respondent could not produce any other documentary or otherwise in support of legal import of the recovered gold and the same was seized unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal before the Court of Additional Sessions Judge, New Delhi and the said appeal was decided vide order dated 04.06.2010, whereby the respondent was acquitted. 14. The custom department, being aggrieved by the aforesaid order dated 04.06.2010 passed by the learned Additional Sessions Judge, has assailed by filing the instant revision petition. 15. Learned counsel for the petitioner submits that learned Additional Sessions Judge has gone wrong while not appreciating the deposition of PW1 Mrs.Suchi Goyal, ACO, PW2 Shri S. K. Mohanty, Superintendent, who recorded the statement of the respondent under Section 108 of the aid Act and PW3 SHri Ramesh Chander Aggarwal, gold smith and the valuer. 16. On perusal of the impugned judgment dated 04.06.2010, it is seen that learned Additional Sessions Judge has come to the conclusion, on the basis of that statement of the accused recorded under Section 108 of the said Act is admissible in evidence, against the accused unless it is proved that it was forcibly extracted from the accused. No doubt, as per the provision, the statement under Section 108 of the said Act cannot be doubted as it is admissible, however, at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, in the circumstances, learned Additional Sessions Judge observed that the statement of the respondent under Section 108 of the said Act was not recorded voluntarily, and has come to the conclusion that the prosecution has failed to prove the statement of the respondent under Section 108 of the said Act, cannot be used against the accused to corroborate the case of the prosecution. 22. As is observed by learned Additional Sessions Judge, prosecution has failed to prove on record that the baggage and person of the respondent was searched on 15.03.2001 as there is interpolation of the dates on the said notice at two places i.e below the signature of PW-1 Smt.Suchi Goyal and below the signature of the accused. The date appears to have been mentioned originally as '16.03.2001' at both the places and thereafter it was interpolated as '15.03.2001'. No explanation has been given by the prosecution for the aforesaid interpolation. This leads to the inference that no notice under Section 102 of the said Act was served upon the respondent/accused, before baggage and person was searched. Rather the inference can also be drawn to the effect that no such search was conducted as cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e colour. The witness has not explained as to when she had left the proceedings and when she had again joined the proceedings. Neither she could give the description of bag nor it has been mentioned in panchnama. 27. It was further noticed that PW1 in her entire testimony even did not disclose the name of the panch witness and from where they were called and who had called them. She categorically testified that she has not told as to whether the name of the officer, who had called the panch witness, nor they were cited in the list of witnesses, as she had not called the witnesses. 28. Regarding the sanction, PW1 Smt.Surchi Goyal, testified in her cross examination, that she had not obtained the sanction for prosecution in this matter and she had simply put to the file. Thus, the prosecution has even failed to file on record that the sanction Ex.PW1/N granted by the Commissioner of Custom was applied by PW-1 or any other officers and that the same was granted by the Commissioner of Custom after applying its mind on the facts of the present case. As per the testimony of PW-1 it appears that, as was observed by learned Additional Sessions Judge, had simply put to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law is well settled that mere marking cannot be taken as a proof of the gold for origin of the gold as markings and labels. In such a situation, the statement of the accused under Section 108 of the said Act has no consequences. 33. As per prosecution, the value of the gold as on 15.03.2001 was not taken into consideration, while giving the value of the alleged recovered goods. Learned Additional Sessions Judge found no evidence on record to show that as to what was the market rate of gold or international rate of gold as on 15.03.2001 or even on 16.03.2001 so as to say that the recovered gold was correctly valued. As per the testimony of PW3 Sh.Ramesh Chand Aggarwal, he did depose correctly the value of the gold as mentioned in the certificate Ex.PW1/F. As per his examination in chief, the value of the gold was Rs.5,01,500/- whereas as per the certificate Ex.PW1/F, the value of the gold is mentioned as Rs.5,01,552/-. 34. The visits at the airport of the PW3 Sh.Ramesh Chand Aggarwal has also not been proved. There is no documentary evidence on record about the arrival of the PW3 Sh.Ramesh Chand Aggarwal at IGI Airport. PW3 Sh.Ramesh Chand Aggarwal has admitted in hi ..... 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