Page 141 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] UNION OF INDIA v. JASMINE JAYANTILAL THADESHWAR 819

5. Evidence before charge was recorded of P.W.-1 and P.W.-2, but they
were not cross-examined. But after framing of charges they were cross-examined.
Accused pleaded not guilty to the charges framed and claimed to be tried. The
stand of accused is of total denial.
6. After considering the evidence and the records and proceedings, the
Learned Chief Metropolitan Magistrate, Esplanade, Mumbai, by the impugned
judgment and order dated 27-3-2002 was pleased to acquit accused/respondent
No. 1.
7. To drive home their point, prosecution led evidence of 6 witnesses
and they were Eruma Kattuprambil Lazar Anthony (P.W.-1), Pravin Tukaram
Shikhare (PW.-2), Jayesh Bhimrao Shirsat (P.W.-3), Suresh Laxmandas Pherwani
(P.W.-4), Nirmala Sampatlal Solanki (P.W.-5) and Laxmidas Sunderdas Ferwani
(P.W.-6). Total of 13 documents and writings were exhibited and one certificate
was marked article (C). List of Exhibits are as under :

“1. Article “A” (Exhibit P-10):- Panchnama & Annexture
2. Exhibit P-1:- Panchnama
3. Exhibit P-2:- Panchnama
4. Article :’B’ (Exhibit P-13):- Assay Report
5. Exhibit P-3:- Assay Certificate
6. Exhibit P-4:- Letter issued by Govt. Mint.
7. Exhibit P-5:- Copy of Summons
8. Exhibit P-6:- Further statement of accused
9. Exhibit P-7:- Copy of summons
10. Exhibit P-8:- Sanction (with R & P)
11. Exhibit P-9:- Complaint (with R & P)
12. Exhibit P-10:- (Article “A”) Panchnama & Annexure
13. Exhibit P-11:- Panchnama
14. Article “C”:- Certificate issued by Goldsmith
15. Exhibit P-12:- Three bags containing gold (returned to the Dept. for safe
custody)
16. Exhibit P-13:- (Article “B”) Report dated 18-2-1991”.
8. Prosecution’s case can be split into two parts. First one is seizure of
alleged contraband gold from person of accused and the second part is house
search of accused and seizure of 28 pieces of gold in the form of strips and cor-
ners from the house of accused.
In both the parts, it is prosecution’s case that gold allegedly found in
possession of accused on his person and in his house, was prepared or made af-
ter removing foreign marking on them. According to prosecution, since the assay
reports pointed out that the pieces of gold recovered from accused contained
certain fineness, accused had smuggled or imported gold in India in contraven-
tion of the provisions of the Customs Act.
9. At the outset, I have to note that prosecution has totally failed to
prove that accused was responsible or in any way responsible for fraudulent
EXCISE LAW TIMES  15th June 2020  141