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TMI Blog1994 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... l hand-bag was taken in the presence of independent witnesses. As a result of that search, four gold biscuits of foreign origin, weighing 464 grams, valued at Rs. 75,632/-, with foreign marking as "Johnson-No-London-999-0.10 Tola" on the two biscuits and "Swiss Bank-999. O.10 Tola" on the other two biscuits, were recovered from the front pocket of the pant of Sanjeev Kumar. A sum of Rs. 7/- of Indian currency was also recovered from Sanjeev Kumar respondent. As a result of search of the cloth-bag being carried by Sanjeev Kumar, one metal-box was recovered. The metal-box, on opening in the presence of independent witnesses, was found to be containing gold ornaments weighing 239 grams, valued at Rs. 37,284/- and Indian currency worth Rs. 3220/- was also recovered. The purity of the above-said gold biscuits and gold ornaments was 24 carats and 22 carats respectively, as per the test report. 3.It was also alleged in the complaint that Sanjeev Kumar respondent had failed to produce any evidence for legal acquisition/possession or in any way concerned in carrying gold biscuits/ornaments/Indian currency. Therefore, he was arrested under Section 68 of the Gold (Control) Act, 1968. Later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, when examined under Section 313 of the Code of Criminal Procedure, termed the case of the complainant-appellant to be false and claimed to be innocent. 8.The version of Sanjeev Kumar respondent is that he had been falsely implicated in this case; that the Customs Staff had recovered gold ornaments and cash amount from his house, the details of which are given in Exhibit PB; that property, namely, gold ornaments and money belonged to his parents, for which the appellant had filed the complaint; that the gold biscuits were not recovered from him; that the Customs Officers had obtained his signatures on blank papers under pressure, coercion and threats and that he is innocent. Mohinder Pal and Brij Lal, respondents, simply pleaded their innocence. 9.In defence, the respondents examined Narain Dutt DW-1. This witness belongs to Sunam. He deposed that he knew Sanjeev Kumar respondent for the last 6½ years, that it was the month of July, that he had come to his house for taking lunch that in those days, he used to live in Tarkhana Mohalla, Sunam; that there he saw a number of persons having assembled under a neem tree and some ornaments were lying scattered there; that some gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since Mohinder Pal respondent used to prepare the gold ornaments of the smuggled gold biscuits at the instance of Sanjeev Kumar respondent, therefore, Mohinder Pal respondent is also liable to be convicted and sentenced. On the other hand, the submission made by the learned counsel for the respondents is that that there is basic flaw in the case of the complainant, for which the respondents are entitled to acquittal. In this context, the learned counsel for the respondents made reference to Section 2(j) of Gold (Control) Act, 1968, in which `Gold' has been defined as under :- "`Gold' means gold, including its alloy, (whether virgin, melted or re-melted, wrought or unwrought), in any shape or form, of a purity of not less than nine carats and includes primary gold, article and ornament." 11.Reference was also made to Section 2(r) of Gold (Control) Act, 1968, which defines "primary gold" as under :- ""Primary gold" means gold in any unfinished or semi-finished form and includes ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires." 12.It was submitted that the gold ornaments, allegedly recovered from Sanjeev Kumar respondent have not been prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to lead any evidence to prove that the purity of gold biscuits, allegedly recovered from Sanjeev Kumar, was more than nine carats, therefore, the complainant has failed to prove its case. In this context, reference was made to a judgment of the Karnataka High Court reported as Central Excise Department, Bangalore v. P. Somasundaram, 1980 Criminal Law Journal 533. Relying upon the earlier reported judgment, the Division Bench of the Karnataka High Court held that the burden is on the prosecution to prove that what has been seized from the accused is gold and only on satisfactory proof of that fact, a presumption under Section 123 of the Customs Act would arise, and not otherwise. Even for the purposes of establishing the offence under Section 85(ii) of the Gold (Control) Act, 1968, the burden is on the prosecution to establish that what was seized is in fact gold. 17.It was further contended by the learned counsel for the respondents that the alleged recovery was effected by the party led by Shivdev Singh; that no other official of the party led by Shivdev Singh has been examined, who could have proved the alleged recovery of gold biscuits and gold ornaments from Sanjeev K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we hold that the prosecution has not been able to prove if gold biscuits, allegedly recovered from Sanjeev Kumar res pondent, were gold within the meaning of Section 2(j) of the Gold (Control) Act, 1968. Therefore, it has failed to prove the charge against Sanjeev Kumar respondent. 20.So far as Brij Lal respondent is concerned, there is no direct evidence against him if he deals in gold biscuits of foreign markings. Even the statement of Brij Lal respondent, which he had allegedly made to the Customs Officers, has not been proved. No circumstance has come against Brij Lal respondent in the statements of PW-1 Ram Parkash and PW-2 Shivdev Singh. 21.So far as Mohinder Pal respondent is concerned, there is no evidence against him if Mohinder Pal used to prepare ornaments of gold biscuits. The statement of Mohinder Pal respondent was proved as Exhibit PK and Mohinder Pal respondent has specifically deposed that he had not prepared ornaments of gold at the instance of Padam Sain Saraf. Therefore, there is no evidence against Mohinder Pal respondent also. 22.On the basis of the aforesaid discussion, we reach the conclusion that the prosecution has failed to prove its case against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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