Orissa High Court
Antapalli Venkata Ramana Murty And Anr. vs The State on 16 April, 1993
Equivalent citations: 1994CRILJ1693
ORDER D.M. Patnaik, J.
1. This is a revision against the confirming judgment of conviction under Section 85 of the Gold Control Act, 1968 wherein the petitioners on trial were convicted and sentenced to undergo R. 1. for six months.
2. Prosecution case is on 15-4-1974 some time during the night hours P. W. 1, the then Superintendent of Excise and P. W. 2 the Inspector of Excise on suspicion got into the Madras-Howrah Mail. They searched the two petitioners and recovered 1500.500 grams of gold from both the persons. At 6 a.m. when the train reached Balasote station, the gold was seized. It is alleged that the petitioners made voluntary confessional statements which were recorded by the Excise Officials.
After investigation, the petitioners faced trial and were convicted and sentenced as stated above.
Plea of the petitioners in the trial was that no gold was however recovered from their possession.
3. Mr. C. A. Rao, learned counsel for the petitioners, while submitting his argument against the order of conviction, pointed out various infirmities in the prosecution case particularly in respect of seizure. Mr. Rao took this Court to the evidence of P.Ws. 3 and 5 in particular and submitted that because of the discrepancies in the evidence, it should have been proper on the part of the trial court to record an order of acquittal.
Mr. Das, learned counsel for the State, on the other hand, supported the judgment of conviction.
4. The occurrence took place on 15-4-1974 as is found from; the evidence of the prosecution witnesses. It is worthwhile to go through the evidence of P.Ws. 1, 2 and 5 to appreciate the point raised by Mr. Rao.
5. The material part of the evidence of P. W. 1 was that on the date of occurrence he found the two petitioners inside Madras-Howrah Mail and along with-P.W. 2 he searched their person and found some quantity of gold as per seizure lists, Exts. 7 to 9. He detained the petitioners, seized the gold in presence of witnesses and weighed them. Thereafter he submitted a report to the Collector, Central Excise, Calcutta who sanctioned the prosecution.
6. The material part of the evidence in the cross-examination was that in the train between Bhadrak and Balasore, he learnt for the first time that the petitioners possessed the gold and the same was recovered from them in the running train. He further stated that till they reached Balasore railway station, they asked them to keep the gold with them and when they got down from the train at Balasore Railway Station, the seizure was made in presence of the witnesses. He was specific in his evidence that till then none of them (either P. W. 1 or P. W. 2) had taken possession of the gold.
7. P. W. 2 at the relevant time was the Central Excise Inspector.
The material part of his evidence was that he and P.W. 1 got into Down Madras-Howrah Mail at Bhadrak and went into a 2-tier compartment and searched the suit case and persons of the petitioners, but they found nothing from the suit case but found the two petitioners carrying gold wrapped in a cloth container. They were asked to get down at Balasore railway station where the gold was seized under seizure lists Exts. 7 to 9. In cross-examination in para 5 this witness stated that he could come to know that the petitioners were having gold in between Bhadrak and Balasore stations. This was at 1 a.m. after search of their persons. The said compartment was full of passengers numbering about 80. It is essential to quote his evidence:
"Thus we brought out the gold from their waists. One Mr. Murty of Calcutta was made a seizure witness. He was a co-passenger. After recovery of gold, P.W. 1 kept the same with him in the train."
8. This evidence is in direct conflict with the evidence of P.W. 1 who stated that none of them kept the gold with him till the same was seized at the station.
9. P. W. 5 was a witness to seizure., Admittedly he did not travel in the train and therefore, the question of his witnessing seizure in the train itself did not arise. But going through his evidence in para 5 of his cross-examination, I find him to have stated that the petitioners themselves brought out the gold from their waist with the cloth strip bag. The weighment was made with the assistance of the goldsmith who came with weighing scale being asked by the Excise people.
10. Thus the evidence that this witness saw the petitioners bringing out the gold from their waist is in direct contradiction to the evidence of P. Ws. 1 and 2. In other words, the evidence of P. W. 5 goes to show that the recovery from the petitioners was made in the station, but according to P. Ws. 1 and 2 it was inside the train. In view of this highly contradicting nature of evidence, the recovery of the gold from the person of the petitioners becomes doubtful.
11. The appreciation of the evidence of the courts below so far as this aspect is concerned being grossly erroneous, the same has caused a total miscarriage of justice.
It will be idle for this Court to drift into the question raised by Mr. Rao with regard to the test by the analyst as to the percentage of gold etc.
12. In the result, the orders of conviction and sentence passed by the trial court and confirmed by the appellate court are set aside land the petitioners' bail-bonds be discharged.
13. The revision is allowed.
14. It is made clear that since the petitioners have denied the possession of the gold and did not also claim, the seized gold, if not already confiscated, be confiscated to the State.