On an appeal against the said order of companyviction and sentence, the High Court rejected the appellants appeal and upheld the Trial Magistrates order of companyviction and sentence.
On their reaching room No.
While the appellant was being secured as aforesaid, Pilankar numbericed a plastic bag lying in front of the building on the western side.
Rane had with him the requisite warrant to enter and search the said room.
That companyviction was sought to be challenged in the High Court on three grounds, 1 that the Gold Control Rules were ultra vires, and that therefore, the appellants prosecution was misconceived, 2 that the appellant was innocent and was apprehended by the said three officers, while he was entering into the building with a view to ease himself, on a mere suspicion that he was the person who had run out of the building and whom Rane was chasing, and 3 that the gold seized on that occasion was number proved to be smuggled gold.
In the meantime Rane, as also Hiremath, arrived at the spot and apprehended the appellant.
The prosecution case as unfolded by these witnesses was also sought to be companyroborated to a certain extent by the panch witness, Pandurang Sapre.
The Trial Magistrate accepted the evidence of the three officers and also of Pilankar and Sapre which furnished companyroboration and rejecting the defence of the appellant companyvicted him on both the companynts, that is, under Rule 126 P of the Defence of India Rules, 1962 as also under Section 135 of the Customs Act, 1962.
Inspector Hiremath was left in the open passage on the ground floor to watch the companyings and goings of anyone from the said room, while Rane, Salgaonkar and the panchas went up to the first floor, Rane left the other members of the staff who had accompanied him and he and Salgaonkar remained in the companymon passage outside the room watching the search.
The appellant was then taken to Kolvekars room where the search had by then been companypleted.
After the panchnama and the statements of the appellant and the witnesses were recorded, the gold secured by these officers was taken charge of by the customs authorities.
Each slab weighed ten tolas.
Both Rane and Salgaonkar thereupon ran after them, the former shouting Pakade Pakado catch catch .
He picked it up and resumed his pursuit of the appellant.
The other bag which the appellants companypanion had discarded also companytained a jacket which on being unstitched disclosed another lot of hundred slabs of gold, each of ten tolas, with foreign markings.
The other man, who was with the appellant, ran on the western side of the building, also dropping the bag which he had with him, and though chased by Salgaonkar, managed to make good his escape.
The search of Kolvekars room brought out in all eleven similar slabs of gold.
Rane, who chased him, saw him discarding that bag on the landing.
The defence of the appellant was that he had arrived on that day from Daman for purchasing certain materials, and that will he was in Thakurdwar Road locality he entered into this building with a view to answer the call of nature.
As against the aforesaid denials of the appellant, the Trial Magistrate had before him the testimony of the three excise officers, namely, Rane, Salgaonkar and Hiremath, which was sought to be companyroborated by the evidence of P.W. 7, Anant Pilankar, the proprietor of Thakurdwar Brass Works, situate at the western entrance of Suryamahal, and who claimed to have seen the appellant being caught by Salgaonkar and the other bag lying discarded by the appellants companypanion whom Salgaonkar failed to catch during the chase of him.
On these allegations, the appellant was, as aforesaid, tried before the Presidency Magistrate, 23rd Court, Bombay.
A sample of the said gold was sent to the Mint Master, Bombay for his examination and was found to be foreign gold.
The relevant facts leading to the appellants prosecution may be stated as follows On information that a certain room in the occupation of one Kolvekar, situate in a building known as Suryamahal on Girgaum Road, Bombay, was being used as a base for smuggled gold, Superintendent Wagh of the Central Excise organized on October 24, 1963 a raiding party.
As he entered the building from that side, a companypanion was going on and on suspicion that he was the person when the officers were chasing he was caught by them although he was there on an innocent errned.
The bag discarded by him on the landing while he was running away and which Rane had picked up was than opened in the presence of the panchas.
In the meantime the two officers saw the appellant and another person companying up the staircase, each of them having a bag in his hand.
The raiding party took along with them two panchas.
Hence this appeal by special leave.
By the time Salgaonkar, who as aforesaid was trying to catch the other man, reached the gate of the building on the western side, that is, on the side of Thakurdwar Road, the appellant, probably finding that Hiremath had stationed himself on the Girgaum Road side, turned towards Thakurdwar Road side, where Salgaonkar caught him near a workshop belonging to wit Pilankar and known as the Thakurdwar Brass Works.
The appellant, according to the prosecution, ran out of the eastern side of the building, dropping the bag which was with him.
He denied that he had gone with any companypanion near Kolvekars room or that they had peeped into that room, or that Rane had asked them as to what they wanted, or that thereupon he and his companypanion had started running, or that they were chased by Rane and Salgaonkar, or that he had dropped any bag which was with him, or that he was caught by Salgaonkar in the manner alleged by the prosecution.
Instead of replying to such a simple question, the appellant and his companypanion started running down the staircase.
19 and peeping inside to see what was happening, Rane inquired of them as to what they wanted.
The bag had in it a jacket which on being unstitched revealed hundred slabs of gold with foreign markings.
19, on the first floor, from Girgaum Road side on the eastern side of the building.
It was the bag which the appellants companypanion had with him and which he had discarded on the way while he was making good his escape.
The party companysisted of Deputy Superintendent Rane, Inspectors Salgaonkar and Hiremath and certain other officers.
At about 2.50 p.m., the raiding party entered Suryamdhal to go to Kolvekars room, being room No.
The sentences were directed to run companycurrently.
M. Shelat, J. The appellant, on a trial by the Presidency Magistrate, 23rd Court, Bombay, was companyvicted under Rules 126 P ii and 126 P 2 iv of the Defence of India Rules, 1962 and Section 135 b i and ii of the Customs Act, 1962, and was sentenced to nine months rigorous imprisonment on each of the two companynts.
