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TMI Blog2012 (9) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... - grounds on which the accused are acquitted are based on the evidence on record and that there is no illegality or infirmity in the order passed by the learned Magistrate - appeal is dismissed. - 1219/2003(SJ)(A) - - - Dated:- 16-6-2011 - B.V. Pinto, J. REPRESENTED BY : Shri T.M. Venkatareddy, Sr. Standing Counsel, for the Appellant. Shri S. Vishwajith Shetty, Advocate, for the Respondent. [Judgment]. This appeal is filed challenging the judgment dated 23-4-2003 passed by the I Additional Chief Judicial Magistrate, Mangalore in C.C. No. 87/1991 acquitting the respondent/accused of the offences under Section 135 of Customs Act and Section 85 of Gold Control Act. 2. The case of the complainant is that on 5-11-1988 at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shetty, Counsel appearing for the accused. 7. The Counsel for complainant submits that the evidence of PWs. 1, 2 and 4 are clear and cogent in proving that accused No. 2 Mustafa alongwith deceased A1 was in possession of contraband gold and that the complainant has further proved that the gold is of foreign origin. Hence, he submits that the accused may be convicted by allowing the appeal. 8. The learned defence Counsel on the other hand submits that there is no illegality or impropriety in the order of acquittal and submits that appeal may be dismissed. 9. The Assistant Collector of Customs, Mangalore filed a complaint before the Chief Judicial Magistrate, Mangalore on 30-4-1991. It is alleged in the said complaint that on definite i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under Section 135 of Customs Act, 1962 and Section 82 of Gold Control Act was filed against the accused. 10. After summoning the accused, the complainant from Customs Department examined one Hariprasad Amin as PW. 1. In his evidence, he has stated regarding the contents of the complaint and has stated that he is the Superintendent of Central Excise and Customs Duty since 1998 to 1991. On 5-11-1988 on receipt of the information that accused No. 2 Mustafa was having contraband articles, they have waited in front of the Hotel President and accused Nos. 1 and 2 were found in possession of 8 gold biscuits and also a cash of Rs. 35,000/- in a car bearing No. CPX 1857. Thereafter, they were brought to the office of the complainant. The total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case had met with an accident as per report of Kumble Police Station in Kasargod taluk in crime No. 149/89. The said case was registered against him. However, he has denied about the said accident and as well as he being an accused in the said case. It is also further suggested to him that he has appeared before the JMFC, Kasargod for release of the said car which suggestion has been admitted by him and admitted that one Idayathulla was driving the said car and a boy had died in the said accident. The charge sheet is marked as per EX.D.1. It is further suggested to him that a false case has been registered against the accused and the accused were not found in the possession of contraband articles. 12. PW.2 B.M. Suri is the Senior Intell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable doubt and acquitted the accused of the offences levelled against them. 14. In view of the fact that first accused has already died and that case against accused No. 1 is abated, what remains is to see whether the complainant has proved the case against accused No. 2 beyond reasonable doubt. The learned Magistrate has stated in para No. 11 of the judgment that relying on Ex.D.2 which is the statement given by PW.4 before the Adjudication officers, the averments made by PW.4 before the Adjudication Officers, are contrary to the evidence adduced from PW.4 before the Court. So far as the evidence PW.4 is concerned, he has denied that the car was involved in the accident in the jurisdiction of Kumble Police Station, Kasargod in Kerala S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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