This search and seizure was recorded in a Panchanama Ex.
The appellant preferred an appeal against his companyvic tion and sentence but the High Court agreed with the view taken by the learned Presidency Magistrate and dismissed the appeal of the appellant.
W was written by Dwarkaprasad in Hindi and was signed by the appellant.
While the search was going on, one Ticket Collec tor called Tharandas Bhatia arrived on the scene and he also witnessed the search.
In spector Nichani companyld, of companyrse, have been examined as a witness, since he was present at the time of search and seizure, but his number examination cannot help the appellant, since he was also an Inspector in.
264 of 1971 Appeal by Special Leave from the Judgment and Order dated 19/20th August, 1971 of the Bombay High Court in Cr.
The appellant admitted in his statement that he was carrying smuggled gold companycealed in the handle of the basket and shoes for being handed over to a firm called M s Pannalal Durgaprasad at Kanpur and that he had been doing this work for the last six months ever since his business as a goldsmith was closed down.
500/ or in default to suffer rigorous imprisonment for two months for each of these two offences.
It is true that the companyviction of the appellant rests solely on the evidence of Inspector Tilwe.
Both the appel lant and Dwarkaprasad were thereafter prosecuted for of fences under clauses 1 and b of section 135 read with section 135 ii of the Customs Act, 1962, and Rule 126H 2 d read with Rule 126P 2 iv of the Gold Control Rules, 1963.
The only evidence led on behalf of the prosecution against the appellant was that of Inspector Tilwe and Tharandas Bhatia.
Hence the present appeal with special leave obtained from this Court.
X number his statement had been recorded by the Customs Authorities or the Railway Police, and his name had also number been shown as a witness in the companyplaint, it would number be desirable to rely on his evidence against the appellant.
Inspector Tilwe seized the gold biscuits which were recovered from the appeIIant and Dwar kaprasad, in the reasonable belief that they were smuggled and hence liable to companyfiscation under section 111 of the Customs Act, 1962.
the appellant of the offence under clause b of section 135 read with section 135 ii of the Customs Act, 1962 and Rule 126H 2 d read with Rule 126P 2 iv of the Gold Control Rules, 1963 and sentenced him to suffer rigorous imprisonment for two months and to pay a fine of Rs.
X. Inspector Tilwe then took the appellant and Dwarkaprasad to the Central Excise Office and recorded their statements in the presence of Inspector Nichani under section 107 of the Customs Act, 1962.
X, which was witnessed by the three pan chas.
Since there was numberevidence to show that the appellant himself had smuggled the seized gold into India, he was acquitted of the charge under clause a of section 135 read with section 135 ii of the Customs Act, 1962.
the Customs Department like Inspector Tilwe and once Inspector Tilwe gave evidence, it would number have added to the weight of prosecution evi dence by also examin ing him.
Tharandas Bhatia was numberdoubt examined but the learned Presidency Magistrate preferred number to rely on his evidence and we think, he was right in doing so.
Dwarkaprasad pleaded guilty to the charge and was companyvicted and we are number companycerned in this appeal with the companyviction and sentence recorded against him.
Another statement of the appellant was also subsequently recorded by Inspector Tilwe on 22nd November, 1966 at the shop of the appellant and this statement was written by one MaganIal, an employee of the appellant, in Gujarati and was signed by the appellant.
The statement of the appellant which is marked Ex.
Inspector Tilwe also seized from the appellant two first class Railway Tickets for the journey from Bombay to Kanpur, one Reservation Card and two Platform Tickets and so also were the basket and the shoes seized under the same Panchanama Ex.
The appel lant denied the charge and hence he was tried before the leraned Presidency Magistrate.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
The trial before the learned Presidency Magistrate companymenced in April 1969 and evidence was given by Inspector Tilwe in December 1969 and at that time numbere of the three panchas companyld be traced and brought for the purpose of giving evi dence.
The statement of Inspector Tilwe that all the three panchas are number number traceable in spite of great efforts was number challenged in cross examination and we must, there fore, proceed on the basis that numbere of the three panchas was available and if that be so, numberadverse inference can be drawn against the prosecution for number examining any of the three panchas.
Rev. No.
The basket carried by the appellant also companytained 27 gold biscuits with foreign markings companycealed in the handle which was made of brass and which had a specially made cavity in it for companycealing gold biscuits.
There were three pan chas who witnessed the Panchanama Ex.
650 of 1970 with Crl.
R. Agarwala and P.B. Agarwal, for the appellant.
A. No.
886/70 .
But the learned Presidency Magistrate found the evidence of Inspector Tilwe satisfactory and companyvincing and on the strength of this evidence, he held the charge proved against the appellant and companyvicted.
The prosecution case against the appellant was that on 7th September, 1965 about 3.45 p.m. Inspector Tilwe, who was at the material time Senior Grade Inspector of Customs attached to Gold Circle, Central Excise, Bombay, received information that two persons would be companying down from a building known as Hira Mahal, situated at Kalbadevi Road, and they will be carrying gold in the handle, of a cane basket and also in their shoes 17 1104SC1176 Inspector Tilwe, on receipt of this information, sent for Inspector Nichani and both of them kept guard outside Hira Mahal building from about 8.00 p.m. Around 8.45 p.m., the appellant accompanied by his material uncles son Dwarkapra sad, his son Dalip aged 9 years and his servant by the name of Mahadev, came out of Hira Mahal building.
Two of the panchas were selected by Inspector Tilwe while the third volunteered to act as Pancha.
R. Khanna and M.N. Shroff, for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J. The appellant was tried before the Presi dency Magistrate, 25th Court, Mazgaon, Bombay for offence under clauses a and b of section 135 read with section 135 ii of the Customs Act, 1962 and Rule 126H 2 d read with Rule 126P 2 iv of the Gold Control Rules 1963.
Inspector Tilwe and Inspector Nichani followed these persons and when the appellant and his companypanions got down from the Victoria and entered the platform, Inspector Tilwe accosted them and took them to the office of the Assistant Station Master and searched them there in the presence of three panchas.
The appellant was carrying a basket in his hand and after companying out of the building, the appellant and his companypanions got into a Victoria and proceeded towards Victoria Terminus Station.
On taking search, it was found that the shoes worn by the appellant and Dwarkaprasad had specially made cavities and four gold biscuits with foreign markings were found in the shoes of each of these two persons.
None of the panchas was examined as a witness to prove the search and seizure.
