Chain of custody and admissibility of assay evidence defeated customs conviction for alleged foreign gold seizure.

The prosecution had to prove that the seized pellets were the same articles examined by the Mint and that they were gold of foreign origin before the presumption under section 123 of the Customs Act could apply. That link was not established: the sample seals were not sent, no Mint witness proved receipt of the samples in the same condition, and the prosecution failed to show that the assayed pieces were the very pieces seized from the accused. The assay certificate was also treated as inadmissible because the maker was not examined. On these facts, the prosecution failed to prove the nature of the seized articles, so the conviction and sentence could not be sustained and acquittal followed.

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Issues: Whether the prosecution proved beyond doubt that the seized pellets were gold of foreign origin so as to sustain the conviction under the Customs Act and the Gold (Control) Act, and whether the assay certificate could be relied upon without examining the maker and without a proved chain of custody.

Analysis: The prosecution relied mainly on the seizure evidence and the assay report, but the connection between the pellets seized from the lorry and the samples examined at the Mint was not satisfactorily established. The sample seals were not sent, no witness from the Mint was examined to prove receipt of the samples in the same condition, and the prosecution did not establish that the two pieces assayed were the very pieces seized from the accused. In these circumstances, the presumption under section 123 of the Customs Act could not arise because the prosecution had first to establish the identity and nature of the seized article. The certificate issued by the assayer was also held inadmissible because the maker was not examined and the document did not satisfy the requirements applicable to previous statements or documents of a dead person.

Conclusion: The prosecution failed to prove that the seized articles were gold, and therefore the conviction and sentence could not be sustained. The appeal for enhancement failed, and the accused were entitled to acquittal.

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