TMI Blog1969 (2) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... was not able to give satisfactory answers when he was found carrying a hand bag. The accused was detained and the police constable Jivamiya was called. The hand-bag of the accused was searched and 50 bars of gold each weighing 10 Tolas, worth about ₹ 70,000/- were found from the accused's (theli) bag inside the hand-bag. The gold bars are alleged to have foreign markings N. M. ROTHSCHILD SONS 10 Tolas, 999-00 . ' Panchanama Ex. 12 was made of the seizure of the gold. The Police-station Officer Dayashanker arrested the accused under Section 54 (4), Criminal P.C. Thereafter, the Circle Police Inspector Rathod informed the Customs Authorities and handed over the accused, muddamal articles for which the receipt Ex. 14 was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,003, in default, rigorous imprisonment for four months. In appeal, the learned Sessions Judge has acquitted the accused on the ground that as the goods were seized by the Police, the presumption under Section 128 was not attracted. The prosecution having failed to prove the gold in question to be smuggled gold, the accused No. 1 also was acquitted. Against the said order the present appeal is filed. 2. On the facts in the present case there can be no dispute that the gold in question was seized by the Police authorities from the accused No. 1 on 28.9-1988 as per panchanama Ex. 12 and the receipt was passed at Ex. 14 in that connection. Mr. Mehta, the learned Assistant Government Pleader vehemently argued that the panch witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they are not smuggled gold shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold...and any other class of goods which the Central Government may by notification in the Official Gazette specify. Therefore, presumption in case of gold can arise under Section 128 (1) and (2) provided gold is seized under the Act by the Customs authorities, from the possession of the accused. In the present case gold was seized not by the Customs authorities under the Act but by the Police authorities under the provisions of Criminal Procedure Code after the accused No. 1 was arrested under Section 54(4) under the panchanama Ex, 12, Therefore, the seizure was not under the Act but de hors the Act, when it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the accused and passed into the possession of the police, and when they were with the Magistrate it was unnecessary to consider whether the Magistrate had possession or merely custody of the goods. Because the seizure under the authority of law involves a deprivation of possession and not merely custody and so when the police officer seized the goods, the accused lost possession which thereafter vested in the police. When that possession was transferred by virtue of the provisions contained in Section 180 to the Customs authorities, there was no fresh seizure under the Customs Act. This decision furnishes a complete answer to the present question that in order to attract the presumption under Section 123, the goods must be shown to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, it was held that when they were first lawfully seized by the Customs authorities, it was a case of seizure under the Act and it was on that ground that the decision in Gian Chands' case AIR 1932 SC 496 was not distinguished. That decision does not help Mr. Mehta for the simple reason that in the present case the Police Office was entitled to seize the goods under the provisions of the Criminal Procedure Code, when the accused was arrested under Section 54(4). Mr. Mehta also relied upon the decision of Mukherji J. in Deputy Supdt., Customs v. Sitaram . That is a : case where the goods which were in the custody of the Magistrate were ordered to be delivered to the Customs authorities. That decision can never help Mr. Mehta for conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, Mr. Dixit himself admitted that even after the prohibition was issued for import of gold of the type seized, on permit of Reserve Bank, Government or any private party could imprint gold with such marks. Therefore, there is no iota of evidence in the present case to prove that the gold in question was smuggled gold. The mere fact that the accused was in possession of this gold and such possession was a conscious possession because of the various circumstances mentioned by the learned Magistrate would not prove the essential ingredient of the offence that the gold in question was smuggled gold. The learned Sessions Judge was right in acquitting the accused on that ground as the charge was not brought home to the accused No. 1. , 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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