-:1:- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 3466 OF 2006 APPLICATION NO. 3466 OF 2006 APPLICATION NO. 3466 OF 2006 Mr. N.G. Moone. ... Applicant. V/s. Jayantilal J. Kohari. ... Respondent. Mr. Mandar Goswami i/b. D.A. Nalavade for the Applicant. Mr. Y.M. Nakhwa, A.P.P. for the State. CORAM CORAM CORAM : K.U. CHANDIWAL,J. : K.U. CHANDIWAL,J. : K.U. CHANDIWAL,J. DATE DATE DATE : 014TH AUGUST, 2008. : 014TH AUGUST, 2008. : 014TH AUGUST, 2008. P.C. P.C. P.C. : : : . Heard learned Counsel. Perused the impugned Judgment of the learned Chief Metropolitan Magistrate dated 29.9.2005, whereby the Accused/Respondent came to be discharged invoking Section 245 (1) of Cr.P.C. 2. The accused Jayantilal was prosecuted on the basis of the complaint filed by Shri R.B. Tiwari, Assistant Collector of Customs for the offence punishable under Section 135(1)(a), 135(1)(b) r/w. Section 135(1)(i) of the Customs Act, 11/Section 5 of the Imports & Exports (Control) Act, 1947 and 11/Section 120-B of the Indian Penal Code. 3. After obtaining necessary sanction from the Collector of Customs, the complaint against the accused was instituted on 7.9.1993. The department -:2:- before the stage of framing charge examined the witnesses and tendered certain documents. PW-1 Ramesh Balkrishna Wajge, PW-2 Shivaji Ramkrishna Wagh, PW-3 Jayant Manohar Dabholkar, PW-4 Ramesh Atmaram Mehandele and PW-5 Hemant Patra were witnesses put into the cross before the charge framed against the Accused/Respondent. The accused moved an application for discharge and on analysing the evidence at that stage the learned Judge found that there was no evidence against the accused barring his statement. The evidence of PW-1 relates to proof the panchanama which is in the Xerox form during seizure of contraband gold from possession of Hemant Patra. Hemant Patra is not the accused in the said proceedings as he has faced trial in another case bearing No.407/CW/93. PW-2 Shivaji Wagh was examined to prove seizure of six gold bars from Hemant Patra on 6.8.1991. However, such evidence will not be connecting to the accused. PW-3 Jayant Dabholkar was examined to prove that on 29.3.1993 he issued summons to the accused Jayantilal Kothari and recorded statement under Section 108 of the Customs Act. It is curious in the said statement the accused has denied that he was dealing in the business of gold or business of gold with foreign marking and also denied his contact or connection with Hemant Patra or Deepak Waghela. -:3:- 4. In such situation, the evidence of Hemant Patra, PW-5 to the contents of documents (Exhibit 10), the statement recorded under Section 108 of Customs Act will not come to the rescue of complainant as the witness turned hostile to the prosecution. There was no recovery of contraband gold from the possession of accused Jayantilal, as the seizure was effected on 6.8.1991 from Hemant Patra who was with Deepak Waghela. 5. It is obvious that the department wanted to rope and connect the accused with the said seizure. However, the evidence discussed herein before, found the learned C.M.M. not to agree to the prosecution and consequently, he discharged the accused. I do not see any other reason not to agree to the findings recorded by the learned C.M.M. dated 7.8.2002. 6. Hence, leave to appeal is rejected. (K.U. (K.U. (K.U. CHANDIWAL,J.) CHANDIWAL,J.) CHANDIWAL,J.)