9911796707
TMI Blog1979 (1) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... is that at about 5 p.m. on 8-12-1972 P.W. 1 got creditable information that contraband gold was being transported in a lorry bearing No. MYX 8249 and he intercepted the same. He was accompanied by the staff. Accused 1 was driver and accused 2 was the cleaner. P.W.1. found a cavity underneath the seat of A-1. That cavity contained a cloth jacket in which there were two packets one containing 500 pellets and another packets containing 300 pellets of primary gold of 10 tolas bearing foreign markings. They were seized under a panchanama as P.W 1 reasonably suspected that the same had been smuggled. He subsequently questioned respondents 1 and 2 and each one of them voluntarily gave statements and their statements were recorded. One Ramesh, a je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable under Section 8 read with Section 85(iii) of the Gold (Control) Act. 5.Sri. B.V. Acharya, learned Advocate appearing on behalf of the accused-respondents argued that under Section 377(3) of the Code of the Criminal Procedure, the accused are entitled for acquittal and this is a fit case for acquittal inasmuch as the prosecution has failed to establish that the packets said to have been seized from the cavity underneath the seat of A-1 were gold. He, in this connection itself, pointed out that the accused have preferred CR.R.P.No. 199/78 as against the conviction and sentence passed against them by the said Magistrate and the revision petition is pending. 6.To establish that 800 pellets seized by P.W 1 on 8-12-1972 by about 5 p.m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has to establish that the pieces that were seized were gold so as to attract the provisions of Section 123 of the Customs Act, and then the burden shifts on the accused to rebut that presumption. In CR.A. No. 313 of 1977 disposed of on 16-1-1979, a Division Bench of this Court has gone in detail into this aspect of the matter and after considering various decisions rendered by the Supreme Court and the Kerala High Court in V.P. Sayad Mohammed v. Asstt. Collector of Central Excise, Calicut [1973 (2) Criminal Law Journal, page 1551], reiterated the same. The presumption that arises under Section 123 of the Customs Act is only in regard to the articles attracted by Section 123 of the Customs Act being smuggled articles and not in regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seals on the sealed cover with the sample seals, because the seals had not been sent by P.W. 1. ln the result, the connection between pellets said to have been seized by P.W. 1 at 5 p.m. on 8-12-1972 and the two pieces said to have been sent by P.W. 1 to the Mint Bullion Department, Bombay, by means of a insured packet is not established. It is also not satisfactorily established that the very two pieces are sent to P.W. 4. That the two pieces that he assayed, were 998.7 cart purity would not advance the case of the prosecution any further in establishing that 800 pellets seized by P.W. 1 at about 5 P.M. on 8-12-1972 were gold and they were of 998.7 cart purity. Moreover, it is understandable why P.W. 1 chose to send a piece out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
