IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision Petition No.84 of 2000 Date of Decision: 5.10.2009 Darshan Kumar. ....... Petitioner through Shri Puran Singh Hundal, Senior Advocate with Shri Premjit Singh Hundal, Advocate.. Versus Union of India. ....... Respondent through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This revision petition is directed against judgment dated 21.1.2000 of the Additional Sessions Judge, Hoshiarpur (hereinafter described as `the appellate Court') vide which the appeal of the petitioner filed against the judgment and order of sentence dated 8.10.1998 passed by the Chief Judicial Magistrate, Hoshiarpur (referred to hereinafter as `the trial Court') was dismissed, but the substantive sentence awarded to him was reduced from 3-1/2 years to 3 years. Succinctly stated the facts of the case are that on 4.3.1989, the Enforcement Staff of the complainant department (Directorate of Crl.Revision Petition No.84 of 2000 -2- .... Enforcement, Jalandhar) received a secret information and acting thereon, conducted a raid upon the residential premises of the petitioner situated in Mohalla Sheikhan, Hoshiarpur. Along with the raiding party, two independent witnesses were joined. During search, 18950 U.S.Dollars, a sum of Rs.1900/- of Indian currency and nine gold biscuits of foreign origin weighing 1048.5 grams valued at Rs.3,35,520/- were recovered. An inventory was prepared accordingly. The petitioner was served with a show cause notice by the Collector, Central Excise, Chandigarh and thereafter, the present proceedings were launched against him for having contravened the provisions of the Customs Act,1962 (for short, `the 1962 Act'); the Gold (Control) Act,1968 (for brevity, `the 1968 Act'); the Import (Control) Order No. 17/55 (as amended) issued under Section 3 (1) of Imports & Exports (Control) Act,1947 and the notification dated 25.8.1948 issued under Section 8(1) of the Foreign Exchange (Regulation) Act,1947 which by virtue of sub-section (2) of Section 81 of the Foreign Exchange (Regulation) Act,1973 still continues to remain in force. The trial Court charge sheeted the petitioner for the offences punishable under Section 135 of the 1962 Act and Section 85 of the 1968 Act to which he pleaded not guilty. In order to establish its case, the prosecution examined four witnesses. The petitioner, in his statement recorded under Section 313 of the Code of Criminal Procedure,1973, claimed innocence and alleged false implication. In his defence, he produced DW1-Piare Lal, S.S.O., Telegram Crl.Revision Petition No.84 of 2000 -3- .... Office, Hoshiarpur. After appraisal of the entire evidence on record, the trial Court convicted and sentenced the petitioner under Section 135 of the 1962 Act to undergo rigorous imprisonment for 3 years and 6 months and to pay a fine of Rs.5000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment of 6 months. Feeling aggrieved, the petitioner preferred an appeal which was dismissed by the appellate Court, but the substantive sentence was reduced from 3 years and 6 months to 3 years. As seen above, the petitioner was found innocent of having committed any offence under Section 85 of the 1968 Act, while the case against him was found proved for the offence under Section 135 of the 1962 Act. Assailing the conviction and sentence awarded to the petitioner, learned counsel for the petitioner contended with reference to the material on record that the impugned judgment cannot be sustained for the simple reason that there was no evidence from which it could be inferred that the material seized was gold so as to have attracted the provisions of Section 135 of the 1962 Act. He further contended that the petitioner has not been found guilty of having committed an offence under Section 85 of the 1968 Act and in any eventuality, even if it is presumed that the material recovered was objectionable material as per the stipulation of Sections 101(2)(a) and 111(d) of the 1962 Act, even then, it was incumbent upon the prosecution to have established that the material seized was gold and till the time this Crl.Revision Petition No.84 of 2000 -4- .... was done beyond any shadow of doubt, the petitioner could not have been burdened with the conviction and sentence. He also referred to the provisions of Section 123 of the 1962 Act to say that even if the burden of proof of innocence had to be discharged by the petitioner, yet, it was imperative for the prosecution to have established that the material allegedly recovered was gold. No one has put in appearance on behalf of the respondent despite the fact that the case was shown in the warning list and even when it was taken up for hearing on previous dates. After hearing the learned counsel for the petitioner and perusing the impugned judgment, I am of the considered opinion that there is merit in the contentions raised by the learned counsel for the petitioner. The petitioner has been accused of having in his possession gold biscuits which had foreign origin. Therefore, it was incumbent upon the prosecution to prove that the material seized from the petitioner was really gold. The only evidence which has come on record is the testimony of PW3-Yudhvir Singh, the then Inspector, Preventive, Central Excise, Hoshiarpur, who has deposed that the material seized from the petitioner was tested by two gold-smiths,namely, Kashmiri Lal and Om Parkash, who certified that the same was gold. He further deposed that the gold smiths were certified from the government. Interestingly, neither any report of these goldsmiths was proved on record nor were they examined during the course of evidence. In this view of the matter, the mere passing reference in the testimony of PW3 to the certification by the goldsmiths regarding the Crl.Revision Petition No.84 of 2000 -5- .... material seized from the petitioner being gold cannot be relied upon. In Asstt. Collector, Central Excise & Customs Div. Versus Sanjeev Kumar, 1994(3) R.C.R. (Criminal) 208, a Division Bench of this Court has observed that a person cannot be convicted under the provisions of Section 135 of the 1962 Act if the purity of the gold was not tested from any government laboratory and it it was not subjected to any scientific test. Even if the goldsmiths, who had purportedly given a report regarding the material being gold had been examined, then also it would have been a moot question as to whether they were the expert witnesses in the true sense of the term. The prosecution, while dealing with such like matters, is expected to act in a more professional and concise manner, rather than leaving the case to the ambiguity and vagaries of the statements of the witnesses, who, by no stretch of imagination, can be touted as expert for the purpose of evaluating their evidence as expert before the Courts of law. There being no material on record from which it can be inferred that the material seized from the petitioner was gold, I am of the considered view that the prosecution has miserably failed to prove its case against the petitioner. Consequently, the instant revision petition is accepted, the impugned judgment is set aside and the petitioner is acquitted of the charge levelled against him. October 05,2009 ( Mahesh Grover ) “SCM” Judge