TMI Blog1979 (12) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent on suspicion and took him to the waiting room and on search found that he was wearing two circular gold rods (KADAS) one in each of his arms between the elbow joint and the shoulder covered by white paper pieces under his shirt. These gold Kadas were got tested and weighed and it was found that each of them were of 116.300 grams of weight and of 24 carats purity. These KADAS described as circular rods were therefore, seized by the Excise Inspector treating them to be primary gold and panchnama was prepared. Statement of respondent was also recorded in the departmental proceedings. The gold was confiscated by the Assistant Collector, Central Excise and the respondent was prosecuted before the lower Court under Section 85(1)(ii) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that in an appeal under Section 577(3) the respondent is entitled to contend that the conviction itself is not justified. In the alternative learned counsel contended that in view of the amended law and in view of the fact that Departmental action for confiscation of gold had already been taken, the sentence awarded by the learned trial Court is just and it does not call for an interference. 4. Prosecution has examined P.W. 1 Shri Tripathi an Inspector of the Central Excise who seized these articles. This witness has attempted to suggest that the articles seized were primary gold because they were of 24 carats purity. However, learned counsel appearing for the appellant frankly conceded that this could not be the basis to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kishanlal. He in paragraph 7 of his deposition has stated that such gold bangles are used as ornaments by villagers who are possessed of sufficient means. This statement by P.W. 3 Kishanlal was not at all challenged by the prosecution and admittedly he is the witness examined by the prosecution and supposed to be an expert of these things as he claims to be an approved gold tester of Government of India and this fact also has not been challenged. There is no other evidence in the case to show that what was recovered from the respondent was not ornament but primary gold. Learned counsel appearing for the appellant very much insisted on the use of phrase finished and unfinished. But he had to admit that there is no criteria fixed for finish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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