TMI Blog1979 (7) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise, Headquarters at Bangalore. He got credible information on 5-10-1971 that contraband gold was being taken from Bangalore to Salem. He took three other Inspectors attached to the said office and proceeded to Attibele. They waited there in Anekal circle. They were checking buses. At about 9 p. m., bus bearing No. 4190 belonging to Parveen Service and proceeding towards Anekal reached there. He stopped the bus. He and the other 3 Inspectors entered into the bus. P. W. 1 made out from the expression on the face of the respondent-accused who was sitting in one of the seats in the bus that he might be the person transporting contraband gold. He asked the respondent whether he was having contraband gold. That question made the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise was contacted and he reached the place. That person is said to be Gopalkrishna, who is not examined. After the seizure proceedings, the accused voluntarily went along with the Excise Officers to Bangalore. He was in the custody of the Excise personnel and on 6-10-1971 he appeared before B. C, Gujjar (P. W. 3), Superintendent, Central Excise Headquarters Prevention, Bangalore. P. W. 3 got the statement of the accused recorded as per Ex. P. 6. It is necessary to state at this juncture that on 16-10-1971 Superintendent Gopalkrishna secured H. L, Acharya (P. W. 2), a goldsmith, to the office and asked him to assay the 50 pieces of gold biscuits (M. Os. l to 50), P. W. 2 tested the biscuits and was of the opinion that they were of 24 car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s aspect. We will proceed on the basis that the prosecution has established that M. Os. 1 to 50 are the very pieces that were seized from the pouch that was round the waist of the accused when he was in the bus belonging to Parveen Service at 9.00 p. m. on 5-10-1971 near Attibele. In the decision in Government of India v. Mohammed Issak (1979) 2 Kar LJ 19, Division Bench of this Court has held that the burden is on the prosecution to prove that what has been seized from the accused is gold and only on. satisfactory proof of that fact, a presumption under Section 123 of the Customs Act would arise, and not otherwise. Even for the purpose of establishing the offence under Section 85 (ii) of the Gold (Control), Act, 1968, the burden is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness, under this provision, should in the first instance show to the court from the evidence of such witness that the witness is specially skilled in the particular science and then only such witness is cased an Expert. Opinions of third persons are, as a general rule, inadmissible and witnesses are to state facts they themselves saw, heard and perceived in any other sense (Section 60 of the Evidence Act). Formation of opinion is left to the Judge on the basis of the facts stated or told and proved. Section 45 of the Evidence Act is an exception to this general rule. But to bring the evidence within the ambit of this exception, the pre-requisite is that the witness, giving such evidence, must be an expert, as contemplated by Section 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to show that the witness, examined as an expert, was really an expert, his opinion would be inadmissible in evidence under Section 45 of the Evidence Act. The Privy Council has, in United States Shipping Board v. The Ship St. Albans , held: The opinion of scientific men upon proven facts may be given by men of science within their own science. The witness must have made a special study of the subject or acquired a special experience therein. That is, he must be skilled and have adequate knowledge of the subject. 7. P. W. 2 has nowhere stated anything about his experience in that particular branch, or he had made a special study of the subject of assaying gold so as to make him skilled in that branch. Therefore, P. W. 2 is not an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t when there is no data on which the opinion is furnished by the so-called expert, the evidence of such a witness is neither legal nor sufficient. We respectfully agree with this view. It was for the prosecution to bring out such data in the evidence of P. W, 2. When it has failed to bring out the data on which P. W. 2 came to the conclusion and furnished opinion that each of the biscuits was of 24 carat purity and was of foreign origin because of the markings and fineness, the evidence of P. W. 2 would not be legal hence, becomes inadmissible. The prosecution has not produced any other evidence in proof of the fact that each one of the biscuits in question is gold and of particular purity and fineness. So, it has to fail. 10. It is unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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