1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.308 OF 1997 Chandra Mohan Solanki Applicant versus The Assistant Collector of Customs & anr. Respondents Mr.G.G.Lalla i/by Lalla & Lalla for applicant. Mr.H.V.Mehta, advocate for respondent no.1. Mr.Y.S.Shinde, APP for the State. CORAM : A.S.OKA, J. DATE : 18th June 2009 JUDGEMENT :- 1. By this criminal revision application the applicant has challenged an order of conviction of the applicant for the offence punishable under section 135(1)(b) read with section 135(1)(i) of the Customs Act, 1962 (hereinafter referred to as "the said Act"). The applicant has been also convicted for the offence punishable under section 85(1)(ii) read with section 85(1)(a) of Gold Control Act as well as under section 85(1)(ii) read with section 85(1)(a) of Gold Control Act. An appeal preferred by the applicant before the Sessions Court 2 has been dismissed. Various submissions have been made by the learned counsel for the applicant. With a view to appreciate the said submissions it will be necessary to refer to the facts of the case in brief. 2. According to the prosecution, an information was received by the Directorate of Revenue Intelligence of Mumbai Zonal Unit ("DRI" for short) on 28th July 1987. Accordingly a watch was kept at a junction of Bandra and the applicant-accused was intercepted while he was plying a scooter. Nothing incriminating was found during the course of search of the scooter. However, on personal search of the applicant, a heavy packet wrapped in printed magazine paper was recovered from the watch pocket of his trouser. On being questioned, the applicant informed that the said heavy packet contained 15 foreign marked gold biscuits. The applicant was taken to the office of the DRI situated at Ballard Pier, Mumbai. The heavy packet was opened in presence of Panch witnesses in the office DRI.. It was found that the packet contained 15 gold biscuits valued at Rs. 5,02,406/-. The gold biscuits were seized and sealed. Even the scooter was seized. Thereafter the residential premises of the applicant was searched. The statement of the applicant under section 108 of the said Act was recorded. A sample of the gold biscuit was forwarded to the Mint and report of the Deputy General Manager 3 for the assay purpose was obtained. The report of the Deputy General Manager showed that the sample was a biscuit of gold of 10 Tolas having mark "Johnson Mathew, London 999.00% gold". After getting the authorisation, a complaint was filed by the Assistant Collector of Customs. Charge was framed against the applicant. 3. The first submission of the learned counsel for the applicant is that the seizure panchanama has not been proved as Panch witnesses have not been examined. He submitted that though the applicant was intercepted at Bandra, the seizure was neither made nor the seizure panchanama was recorded at the said place and the applicant was taken to the office of DRI at Ballard Pier, Mumbai which is far away from Bandra junction where the seizure was allegedly recorded. He submitted that the seizure becomes doubtful. He submitted that the packet containing gold biscuits was allegedly in the pocket of trouser of the applicant but the trouser was not seized. He pointed out that only one biscuit out of fifteen was sent to the Mint which was found to be of pure gold and therefore, conviction in respect of fifteen biscuits was not justified. He submitted that in the statement under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code of 1973") of the applicant the circumstance regarding obtaining report of Mint was not put to the accused and he was not even given an opportunity to explain the said 4 circumstance. He submitted that in fact no question was put to the accused in the said statement on the evidence of PW-4 who proved the assay report at Exhibit-A-10 in evidence and therefore, the entire trial has been vitiated. 4. The learned counsel appearing for the respondents submitted that the panchanama has been duly proved by PW-1 and, therefore, the Courts below have rightly found that the seizure of gold biscuits has been proved. He submitted that there was every justification for convicting the applicant for the offence relating to all fifteen biscuits as one of the biscuit which was taken as a sample was found to be of pure gold by the expert. He submitted that no prejudice has been shown to have been caused to the applicant as a result of the alleged lacuna in the statement under section 313 of the said Code of 1973. 5. I have carefully considered the submissions. For attracting the offence alleged against the applicant it was necessary for the prosecution to prove that the applicant was concerned in keeping, carrying or concealing or in any other manner dealing with fifteen gold biscuits which were liable to be confiscated under the said Act. It was also necessary to prove that the applicant was found to be in possession or custody or control of fifteen gold biscuits and that the applicant had acquired, accepted or otherwise received the gold in 5 contravention of the Gold Control Act. Thus, it was absolutely necessary for the prosecution to show that the applicant was found in possession of fifteen gold biscuits. According to the prosecution case, all fifteen biscuits were seized and one specimen thereof was sent to the Mint for obtaining assay report. PW-4 produced assay report in respect of the sample of biscuit which was forwarded to the Mint. A copy of the forwarding letter and the Mint Report were produced and proved in his evidence. As far as PW-1 Mohamad Daud (Superintendent of Central Excise) is concerned, he has not deposed about the sample being sent to the Mint and the report of the Mint. PW-2 Krishna Kumar has also not deposed about the same. PW-3, the panch witness turned hostile and the report of Mint has been proved in the evidence of PW-4. 6. I have perused the statement of the applicant recorded under section 313 of the said Code of 1973. In the said statement the version of PW-1 has been put to the applicant. The version of PW-2 regarding recording of the statement of the applicant under section 108 of the applicant has also been put to him. It must be stated here that the said statement under section 108 of the said Act was retracted by the applicant. Very vital circumstance of sending sample of the alleged gold biscuit to the Mint and obtaining report of the Mint was not at all put to the applicant in the statement under section 313 6 of the said Code of 1973. As stated earlier, when it was required to be proved that the metal biscuits found with the applicant were of gold, one of the biscuits has been proved by the prosecution to be of gold on the basis of assay report. The case of the prosecution that the metal biscuits allegedly found in the custody of the applicant were of pure gold and a report of the sample was obtained from the Mint showing that the biscuit was of pure gold, has not at all been put to the applicant in his statement under section 313 of the said Code. Therefore, the applicant had no opportunity to explain this important material brought on record against him by the prosecution. The most crucial aspect of the prosecution evidence was not put to the applicant resulting in depriving of an opportunity to explain. The circumstance which is not put to the applicant is not at all insignificant but it is the most significant part of the material brought on record by the prosecution. It is, thus, obvious that the prejudice has been caused to the applicant due to the said default on the part of the learned Trial Judge. 7. The learned counsel for the respondent submitted that there is inculpatory statement under section 108 of the applicant recorded under section 108 of the said Act. However, the said statement has been admittedly retracted and, therefore, at the highest, the same could have been used as corroborative piece of evidence. 7 8. Another contention raised is that the case may be sent back to the Trial Court to enable the Trial Court to ask further questions under section 313 of the said Code. It must be stated that the incident is of the year 1987. The complaint is of the year 1995. The order of conviction was passed in the year 1997. For the incident which has taken place nearly 22 years back, now it will be unjust for the applicant if an order of remand is passed. 9. As prejudice has been caused to the applicant on account of non compliance with the requirements of section 313 of the said Code of 1973, the impugned order of conviction will have to be quashed and set aside. Accordingly, I pass following order :- ORDER (a) The conviction and sentence of the applicant under the impugned orders is quashed and set aside; (b) The fine amount, if paid by the applicant, to be refunded to him; (c) The criminal revision application is allowed accordingly (A.S.OKA, J.)