1987 (3) TMI 130

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....rroneous and have caused flagrant miscarriage of justice. 2.It is brought out in the prosecution evidence that on the night of October 30, 1971 at about 9.45 p.m. the respondent was found loitering in suspicious circumstances on the platform at the Railway Station, Surat. He was apprehended by PW 1 Srikant Sharma, A.C.B. Police Inspector and on a search of his person was found carrying 20 gold bars each weighing 10 tolas bearing foreign markings Johnson Matthey - 999.0 London and Sheffield Smelting Co. Ltd. - 999.0 Sheffield - London which he had kept in a bundi having two pockets beneath his shirt. The contraband gold was seized. On the next morning he transmitted message to the Customs authorities and PW 2 Ramesh Chandra Shukla, Custom....

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....he conclusion that the respondent was not guilty of the offences with which he was charged. Both the learned Magistrate as well as the High Court have recorded an order of acquittal on the erroneous ground that the presumption under Section 123(1) of the Customs Act does not arise because the respondent was not apprehended by the Customs Officer but by the police and also because he was not carrying the contraband gold bars with foreign markings in a clandestine manner as they were being carried in the inner pockets of his bundi. To say the least, it is a travesty of justice that the learned Single Judge should have upheld the acquittal and held the offence under Section 135 of the Customs Act as not made out. The judgment proceeds on a com....

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....is true that he accepted during cross-examination that he had no specialised training in gold testing and also that he formed his opinion by the mere weight. But the fact remains that he has been a goldsmith and having been in this line of business for 20 years, he could judge by reason of the foreign marking 999.0, which was a guarantee of purity, that the contraband was pure gold. We fail to appreciate that the respondent at no time denied that the contraband in question was pure gold but only came forward with the peal that he had been entrusted with the gold bars by an unknown person called Nathubhai, who could not be traced, but of casual acquaintance for being carried, which story was totally unbelievable. The learned Single Judge has....