Page 147 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] UNION OF INDIA v. JASMINE JAYANTILAL THADESHWAR 825

We have to keep in mind that what was seized is only strips and few
small gold corners without foreign marking. It was for prosecution to bring evi-
dence to the effect that only foreign gold can contain this level of purity. I also do
not find any inventory of samples as required under Section 106 of Customs Act,
1962. Therefore, in the absence of proper identification of samples, co-relation
with the Mint report and lack of any expert opinion about the strips or corners
found in possession of accused and recovered from him, the seized gold cannot
be held to be gold imported illegally and respondent cannot be convicted of the
charges under Section 135 of the Customs Act.
18. Coming to the second part of department’s case about effecting sei-
zure of gold from the house search, admittedly, accused was not present when
the search was effected. When the search effected, there were two persons pre-
sent, a lady by name Tejal, who was wife of the brother of accused and another
person Pramod, who was the brother of accused. Both these persons have not
been called to testify. The weight of alleged gold recovered from the premises
was around 60 gms and its value in local market was about Rs. 20,000/-. It would
be pertinent to note that accused was assisting his father and brother in jewellery
business.
Exhibit P-10 is panchnama of search taken of the house. The only panch
witness Nirmala Solanki (P.W.-5) has turned hostile. According to P.W.-5, she
was sitting on the second floor and merely signed on the panchnama and she did
not know what its contents were. The other panch witnesses has not been exam-
ined. Moreover, prosecution has not tendered on record a copy of the house
search warrant issued by Daya Shankar, Asstt. Commissioner in favour of PW.-1.
Therefore, there is no copy of search warrant produced on record to substantiate
oral claim of the witness that a house search was conducted. Daya Shankar, has
also not been examined to substantiate that he actually issued the search warrant.
19. Further, prosecution has not produced any evidence to prove that
the house premises exclusively belonged to the ownership of respondent and it
was under his exclusive control and possession. The documents relied upon by
prosecution indicate that the house was shared by the brother, father and mother
of respondent. Consequently, the evidence brought out by prosecution in respect
of house search, cannot be accepted.
20. A disconnect between gold seized and the gold assayed by P.W.-6,
also is evident. It seems certain samples that were sent to Mint were small in
quantity and could not be assayed were sent to P.W.-6 (Goldsmith). P.W.-6 says
that his report was prepared by his staff and he only signed the same. P.W.-6 also
says he does not remember the contents of panchnama reduced into writing by
the officers. In any event, that panch witness has not been examined. P.W.-6 says
the gold was brought in sealed packet by the officer and it was opened in his
presence. There is nothing to indicate that packet was the same packet which
contained the same gold that was seized from the house of respondent.
21. The Apex Court in Chandrappa & Ors. v. State of Karnataka [(2007) 4
SCC 415] in paragraph 42 has laid down the general principles regarding powers
of the Appellate Court while dealing with an appeal against an order of acquittal.
Paragraph 42 reads as under :
“42. From the above decisions, in our considered view, the following gen-
eral principles regarding powers of appellate Court while dealing with an
appeal against an order of acquittal emerge;
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