TMI Blog1981 (1) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of police; got information that the appellant is engaged in the business of gold smuggling and is a black marketer and is secreting contraband gold etc. in his house. He gave a report Ext. P 8 to P.W. 2, the Sub-Inspector of Police, Narakkal, who collected witnesses, prepared search memo Ext. P 7 and sent it to court and proceeded to the house of the appellant and searched the house in the presence of witnesses and found five gold bars M.O.1 series wrapped in a paper kept in the drawer of a table in his bedroom and further search revealed a sum of Rs. 12,000 in currency notes. The gold bars have foreign markings and prima facie appeared to be smuggled gold in the shape of primary gold and the appellant had no reasonable explanation for possession of this gold. The gold and the currency notes were seized under Ext. P 5 search list. In the early hours of the morning on 31-10-1968 P.W. 2 registered a case as Crime No. 120 of 1968 under Ext. P 6 F.I.R. against the appellant for offences under the Gold Control Act and the Customs Act. The F.I.R. and the material objects were sent to the court. P.W. 2 transferred the case to the Excise Department and informed the court accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorise any officer of Customs to search or may himself search for goods which he has reason to believe, are liable to confiscation or any documents or things which in his opinion are useful for or relevant to any proceeding under this Act. The search was conducted by P.W. 2, the Sub-Inspector of Police who was the station house officer of Narakkal police station in Ernakulam District. It is not alleged by P.W. 2 that he was authorised to conduct the search as contemplated by Section 105 of the Customs Act. But under the provisions of the Code of Criminal Procedure, P.W. 2 had certainly authority to conduct the search and therefore it cannot be said that the search is illegal. On the strength of the decision reported in Assistant Collector of Customs v. Pratap Rao Sait (1972 K.L.T. 307) it is argued that since P.W. 2 was not authorised under Section 105 of the Customs Act, the search is illegal and vitiated. It is true that such a conclusion was arrived at in the above decision. However, as I pointed out, the fact that under the provisions of the Criminal Procedure Code, Police Officer has power of search was not adverted to in that decision. Even assuming that the search was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same locality. In fact the evidence is that all the witnesses belong to the same locality. P.Ws. 4, 5, 6 and 8 have deposed that the police took them to the house of the appellant. P.Ws. 4 and 6 have clearly deposed that they found gold bars on the table and the Sub-Inspector of Police and others were standing nearby. There was no suggestion to any of the prosecution witnesses that the gold bars were placed in the house by anyone else. All the witnesses admitted to have signed the mahazar Ext. P 5 which contains clear recitals supporting the evidence of P.Ws. 2 and 3. The trial court has accepted the testimony of P.Ws. 2 and 3 which is corroborated by the averments in Ext. P 5 and to some extent by the oral evidence of the independent witnesses. Having carefully gone through the oral evidence and considered the circumstances, I do not think any different conclusion is reasonably possible. The evidence clearly establishes beyond any reasonable doubt that there was a search of the house of the appellant and M.O. 1 bars were found in the table situated in the appellant's bedroom. 7. The next contention urged at the Bar by the learned counsel for the appellant is that P.W. 2 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on behalf of the appellant, namely, that the prosecution failed to prove beyond reasonable doubt. that M.O. 1 series seized from the appellant's custody is really gold. Gold has not been defined in the Customs Act or the rules framed thereunder. We have to depend, therefore, on the general meaning attached to the expression gold or the definition contained in the Gold (Control) Act, 1968. Section 2 clause (j) of the Gold Control Act defines 'gold' as meaning gold, including its alloy (whether virgin, melted or re-melted, wrought) or unwrought in any shape or form, of a purity of not less than nine carats and includes primary gold, article and ornament. 10. Section 101 of the Gold (Control) Act enables an authorised Gold Control Officer to take samples of gold from any dealer, refiner or other person and send such samples for assay or analysis to such authority as may be prescribed and require such authority to send to him report as to the result of the assay or analysis. Rule 18 of the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968 states that the authority referred to in Section 10(1) (9b) to which samples of gold may be sent for assay or analysis shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of the gold bar was sent to P.W. 11 who issued Ext. P 10 certificate. He is the Deputy Chief Chemist of the Government of India in charge of the Central Excise Laboratory, Bombay. Earlier, he was the Chemical Examiner to the Government attached to the Customs House, Cochin. He holds a 1st Class degree in M.Sc. in Chemistry and has 27 years of experience in analysis of gold metal etc. He has deposed that the metallic bars involved in the case and sent to him by the Assistant Collector of Central Excise, Ernakulam, were weighed, analysed, physically, chemically, qualitatively and quantitatively. He has given his opinion that the five bars are gold bars, identical in nature and bear similar mark, weight and colour. The bars were of more than 99.5% purity. The certificate does not contain the methods of analysis conducted by him. For that reason, it is argued before me on the strength on the decision in Asst. Collector of Customs v. Pratap Rao Sait (1972 K.L.T. 307), that his opinion cannot be accepted. In the above case, it has been observed that the normal test applied in the case of gold is the furnace test. But that test was not applied in that case, and the certificate did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld metals. They have also deposed that the metal is gold. P.W. 6 is a certified goldsmith having experience in the line. He also deposed that the bars seized by the officers are made of gold. To the same effect is the testimony of the two witnesses P.Ws. 4 and 6. Under these circumstances, the court below was right in holding that the articles seized are gold metal. 13. The next question is whether it is primary gold. Primary gold is defined in Section 2 (r) of the Gold (Control) Act as meaning gold in any unfinished or semi-finished form and includes ingots, bars, blocks, slabs, billets, shots etc. M.O. 1 series are in the form of bars and therefore they clearly come under the category of primary gold. In order to decide whether gold is primary gold or not, it is unnecessary to go into the question of its fineness. Whatever be the fineness of a bar of gold, it will be treated as a primary gold if it is in the form described in Section 2 (r) of the Gold (Control) Act. I am therefore in agreement with the view taken by the trial court that M.O. 1 series consist of primary gold since they are in the shape of bars. 14. The evidence in the case makes it clear that the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggled goods. Of course, they must actually believe in it and the belief must be reasonable. We have already seen that the search was proceeded by definite information received by a Police Officer P.W. 3 which was passed on to another Police Officer P.W. 2 who conducted the search and found five gold bars in the possession of the appellant in his house. The appellant did not have any reasonable explanation for his possession of the gold bars. The gold bars have also certain apparent foreign markings as follows : CREDIT SUISSE 999.0, 10 TOLAS, CHI ESSAYEUR, FONOEUR. Each bar weighed about 116 grams while standard gold as contemplated by the Gold (Control) Act and the relevant Rules made under it. can have a weight only of 10 grams, 50 grams or 100 grams as seen in Schedule 1 to the Gold Control (Specification of Standard Gold Bars and Conditions of Refining) Rules, 1968. The definite case of the prosecution is that the markings referred to above are foreign markings. 17. It is argued by the learned counsel for the appellant that marks are only hearsay evidence and are inadmissible in evidence. He has relied on the decisions reported in Asstt. Collector, Customs, Bargde v. M. Ib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... das v. State of Maharashtra (AIR 1975 S.C. 2085), it was observed that the appearance of the goods, the manner of packing and the inscription on them and writing on the boxes are materials on the basis of which an inference could be drawn. Reliance is also placed by the counsel on the decision in Jalil Ahmad v. State (1979 Crl. L.J. 514). There can be no doubt that the shape, appearance and constitution of contraband articles, the inscriptions on them, the inability of the person in possession to explain these matters, could form the foundation for a reasonable belief in the mind of a Seizing Officer to believe that the goods are smuggled goods. The goods in this case consist of gold in the shape of bars containing foreign inscriptions. The appellant was unable at that stage to give any reasonable explanation for these goods. He never had any case that the markings were not genuine and were intended to deceive any one. Under these circumstances, there can be no doubt that the Seizing Officer had reasonable belief that the goods are smuggled goods. The seizure was also made under the Act since P.W. 2 was authorised to effect the seizure under Section 110 of the Act in view of the no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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