9911796707
TMI Blog1983 (7) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... , under a search warrant had made the search of the residence-cum-shop of the said Firm from about 5 p.m. to 9 p.m. on 12-5-1973. 3. According to the prosecution when the search party, comprising of the senior officers of the Central Excise Department and two Panch witnesses, proceeded to make the surprise search of the shop and when the officers, before making the actual search, were in the process of giving their own personal search to the proprietors of the shop, the respondent-accused Nirmal Kumar, taking out something from his pant pocket, threw that stuff which struck itself on the wooden panel of the door of the shop and fell down on the dasa (projected platform of the shop on parapet). The stuff thrown was found to be a gold biscu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radictions and inconsistencies being just minor, deserving to be overlooked. 5. I have scrutinised the evidence on record. In a case of appeal against acquittal, the appellate Court is normally loath and reluctant to interfere in the trial Court's order of acquittal unless such order is based on perverse appreciation of evidence or by overlooking any material facts as may have been proved by the prosecution beyond any shadow of doubt. Thus scanning the evidence on the complainant's side with abundant caution, I am of the view that the appreciation of the evidence by the trial Court is in no way, perverse or foolish, and on the contrary, it is well reasoned,-the finding being based undue appreciation of evidence by proper application of mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Officers Hururey and Premani are not unanimous in their averments regarding the material circumstances i.e. regarding the throwing of the gold items by Nirmal Kumar after taking out the same from the pant pocket and regarding the same having been found lying upon the projected platform and then picked up by the particular Inspector of the Central Excise. P.W. 1 Hururey has confused himself, as to whether, at the relevant time of such throwing by the respondent-accused, he and other Excise Officers were already inside the shop or were standing on the outer platform or were just standing on the threshold of the door dividing the outer platform and the shop. He is found to have himself made different statements on the point which shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses, when considered in the light of mutual contradiction, the matter is not free from doubt as to whether, it was the respondent-accused who had thrown the gold pieces on the dasa. The possibility of implant cannot be completely ruled out. 9. Then again, the seizure memo Ex. P-2 which was prepared at about 9 p.m. after the whole search had been completed during 5 p.m. to 9 p.m. is not free from suspicion. Normally at about 5 p.m. when this incident of the wing, four pieces of gold had been detected and when the pieces of gold had been picked up from the dasa by the Central Excise Officers, the seizure memo of the same should have been immediately prepared and a separate memo for the rest of the proceedings regarding the shop search ..... X X X X Extracts X X X X X X X X Extracts X X X X
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