2024 (12) TMI 686

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....le under Section 135 (1) (b) read with Section 135 (1) (I) of the Customs Act, 1962 and Sections 85 (1)(ii) and 85 (1)(a) read with Section 8 (1) of Gold Control Act, 1968. 4. By virtue of the impugned judgement dated 14.10.1998, the learned Trial Court passed order of acquittal of Respondent No. 1. For convenience accused shall be referred to as Respondent No. 1. 5. Before I advert to the merits and submissions advanced by the learned Advocate for Appellant and learned APP, it would be appropriate to briefly refer to the relevant facts which are as under:- 5.1. On 04.02.1988 pursuant to information received by the office of Appellant, the residential flat premises where Respondent No. 1 was residing was searched. Information received by DRI was that one Mr. Afzal Weldon of Weldon Construction having his residence at 3rd floor, Terrace building, Lady Jamshetji Road, Mahim, Mumbai - 400 016 was indulging in smuggling of gold in India and storing gold at several places. Information that was received was that residence of Respondent No. 1 at Room No.3, First Floor, Arab Mazil Building, Sonawala Lane, Mahim, Mumbai - 400 016 was one such place where the gold was kept by ....

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....The impugned judgment is appended at page 53 of the Appeal. I have perused the same. 6. Ms. Thakkar, learned Advocate for the Appellant-Union Of India (DRI) would submit that the impugned judgment exonerating Respondent No. 1 is challenged on several grounds. At the outset, she would submit that the contraband gold was admittedly recovered from the residence of Respondent No. 1 in her own presence and presence of the panchas. She would submit that four sample gold bars retrieved from the contraband seized were sent to the Government of India Mint for assay. She would submit that the assay report certified that the said gold bars were found to be of 999.0, 999.1, 999.1, 999.3 fineness. 6.1. She would submit that the seized gold was primary gold and import of gold without permission of the Reserve Bank of India was prohibited under Section 13 (1) of the Foreign Exchange Regulation Act, 1973 read with Notification issued under the Customs Act and prohibition imposed under Section 111 of the Customs Act. She would submit that import of gold without permission was also prohibited under the Imports (Control) Order 17/55, issued under Section 3 of the Imports and Exports (Control) A....

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....ould submit that her statement recorded below Exhibit P-9 has been duly corroborated by the evidence on record and she was liable for conviction for having possession of unauthorized contraband gold bars weighing 1000 tolas i.e. 11,660 grams and had complete knowledge about possessing the same. She would submit that testimony of PW-1 and PW-2, the Officers of DRI has adequately proved the above search and seizure of contraband gold from her custody despite which the learned Trial Court has not found favour with the prosecution case and concluded that conscious possession of the contraband gold in her possession is not proved. 6.5. She would submit that findings returned by the Trial Court that conviction based merely on the confessional statement of the accused which has been subsequently retracted by her has not been proved as an incorrect finding. Hence, she would submit that impugned judgment of the Trial Court exonerating and acquitting the accused is required to be interfered with by this Court in its revisional jurisdiction. 7. PER CONTRA, Ms. Tidke learned APP appearing for Respondent No. 2 - State has adopted the submissions made by Ms. Thakkar and after drawing my at....

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....to whether Respondent No. 1 was the sole occupant of the raided premises, rather it has come on record that the subject premises belonged to Mr. Afzal Weldon (brother of accused). The learned Trial Court has held that prosecution has not provided any cogent evidence to prove that accused was occupying the subject premises solely. There are no statements of any of the neighbors or building residents recorded to prove this fact. That apart there were several other women/police woman present at the time of the raid, but statements of none of those present who participated in the entire operation were recorded. 11. In the above background when Respondent No. 1 had retracted her confessional statement, it was incumbent upon the prosecution to prove its case beyond all reasonable doubts against the Respondent No. 1. The defence had argued that the confessional statement was recorded under threat given to accused to harm her minor son. That apart, the confessional statement was recorded in English language whereas the accused had knowledge of Urdu language only. The statement is seen to be signed by accused in Urdu. PW-2 has drafted the handwritten statement in English language and cla....