Holding

The conviction is upheld as the evidence sufficiently proves the bars were gold and the prosecution met its burden of proof.

Summary

The respondent, V.P. Sayed Mohammed, was seized with 28 gold bars at Trichur railway station and charged under s.135(b) of the Customs Act, 1962 read with s.85(ii) of the Gold (Control) Act, 1968. Evidence included the inspector’s seizure report, a ticket collector’s testimony, a goldsmith’s certification that the bars were 24‑carat gold based on touch‑stone testing, the respondent’s admission before the Customs Superintendent, and his answer under s.342 CrPC. The High Court acquitted him, holding that the goldsmith was not a qualified expert and that the respondent’s prior statement was inadmissible. The Supreme Court held that a goldsmith’s professional experience suffices to identify gold, the prior statement was admissible, and the prosecution had discharged its burden under s.123 of the Customs Act; the doubt entertained by the High Court was not a reasonable doubt. Consequently, the conviction and sentence were restored.

Issues considered

Whether the prosecution proved that the seized metallic bars were gold bars.
Whether the goldsmith's testimony, based on touch‑stone testing, is admissible and sufficient.
Whether the respondent's statement made before the Customs Superintendent is admissible under s.342 CrPC.
Whether the standard of reasonable doubt was satisfied.
Whether the burden of proof under s.123 of the Customs Act rested on the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 342
Customs Act, 1962s. 119, s. 123, s. 135(b), s. 137(1)
Foreign Exchange Regulation Act, 1947s. 23-A
Gold (Control) Act, 1968s. 85(ii), s. 97(1)

Subjects

customs smugglinggold barsburden of proofreasonable doubtevidence admissibilitygoldsmith testimonycriminal convictionappeal

Judgment

225

ATSISTANT COLLECTOR OF CENTRAL
EXCISE, CALICUT
v.

V.P. SAYED MOHAMMED

January 12, 1983
•
...... !E.S. VENKATARAMIAH AND R.B. MISRA, JJ.J

Evidence-Btnefit of doubt to accused-Doubt must be reasonable, real and G
.- substantial arising out of entire evidence •

The respondent was charged under s. 135 (b) of the Customs Act," 1962
read with s. 85 (ii) of the Gold (Control) Act, l 968. The caso against him
was supported inter alia .by the oral evidence of the Inspector who had seized
28 gold bars from him at a railway station, the ticket collector on duty at the
time of seizure and the goldsmith· who had certified the purity and weight of D
the gold bars seized. The goldsmith had depused that he could by experience
assess the purity of gold by rubbing it on a touch·stone. The documentary
evidence included a statement mad~ by the respondent before the Customs
Superintendent admitting that the gold bars had been seize~ from him and that
the same bad not been legally imported. That the respondent had made this
statement of admission bad been affirmed by the Inspector in his deposition.
In his examination under s. 342 Cr. P.C., when the r~spondent was asked what E
he had to say regarding the deposition of the Inspector. he stated:

It is true that gold was recovered from my box. It was not
mine. It was handed over to me by the person called Mamrnu
asking me to give it in his house. I had no knowledge that it
was gold."
F
The respondent was convicted and sentenced by lhe District. Magistrate.
After his appeal aS;ainst the same was rejected by the Sessions Judge the
respondent -filed a revision petition which was allowed by the fiigh Court on
the ground that the prosecution had failed to establish that the metallic bars
seized from the respondent were gold bars.

The High Court rejected the evidence of the goldsmith on the g'round G
that he did neither have the tr&,iniog nor the qualification in the art of testing
gold and that he had not conducted either the furnance test or the specific
gravity test to determ!ne the character of the metallic bars. According to it,
the goldsmith bad miserably failed in the witness box to gi've the impression
that he was a competent person to certify that what were seized from the
respondent were gold bars. The High Court was of tho view that no impor- H
tance could be given to the respondent's statement of admissiol,1 before the
Customs Suprintendent as the san:ie had ~9t b;en put to him under s. 342,
226 SUPREME COURT RE~RTS (!9C3] 2 s.c.a.

A Cr. P.C. and the person who rec9rded it had also not been examined. In so
far as the answer given by ·the respondent to the question put by the court
under s. 342, Cr. P.C. the High Court observed that even assuming that it
would have some value, the prosecution could not seek to split the same into
various parts and rely on what it considered to be advantageous to establish
its case.

B Allowing the apeeal against ac:i.uittal,

HE~D : The onus of proving]the facts essential to the establishment of
the charge against an accused lies upon the prosecution and the evidence
must be .such as to exclude every reaso11able doubt about the guilt of the accused.
If a reas,Onable doubt arises in the Dlind of the court after taking into consi-
deration the entire material before it regarding the ftcomplicity of the accused

c the benefit of such doubt should b·' given to the accused but the reasonable
doubt should be a real and substantial one and a 1well founded actual doubt
arising out of the evidence existing after consideration of all the evidence' .
. [230 C-E]

Woodroffe & Ameer Ali's La·v of Evidence, 13th ed. Vol. I, pp. 203-204,
referred to.

D In the instant case the doubt entertained by the High Court about the
nature c1f the metallic bars cannot be considered to be a reasonable doubt.
It is well known that persons who are ·goldsmiths by profession are able to find
out whether a piece of metal is gold or not b1 the colour of the streak produced
by rubbing it on a toucb-stone used hy th-em even though their assessment of
its purity may not be exact. Further. the respondent did not dispute that gold
had been recovered· from his box. :Reading bis answer to the question put
E under s. 342, Cr. P.C. as a whole, it rneans that be knew that when his steel
trunk was opened and searched there was gold in it but be bad no knowledge ,.
that the packet contained gold when it was banded over to him by Mammu.
The High Court erred in holding that the statement of the respondent that the
gold was seized from him could not be used against him on the ground that
it would result in the splitting up of tb~ statement which was on the whole
exculpatory. [230 H. 231 A-E]

In this case even without the aid or the statement made by the
respondent before the Customs Superintendent it is possible _to hold that the
metallic bars seized from the respondent were gold bars in view of the evidence
of the Inspcictor, the ticket collector and Lhe ·goldsmith and the statement of
the respondent before the Court. Further, in the circumstances in which the
gold bars had bee:n seized from the respondent, the· burden of proving that
G they were not· smuggled goods was on respondent undCr s. 123 of the
Customs Act. [231 E-G]

CRIMINAL APPELL,l.TE JURISDICTION : Criminal Appeal No. 44
of 1976.
H Appeal by Special leave from. the judgment and order dated
the 5th January, 1973 of th·e KeralajHigh Court in Criminal
Revision Petitio.n NQ, 42~ of 1972.
ASSTT. COLLECTOR v. V.P.S. MOHD. (Venkataramiah, J.) 227

G.S. Narain and Miss A. 'subhashlni for the Appellant. A
M.M, Abdul Khader and E.M.S. Anam for the Respondent.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. The Assistant Collector of Central B
Excise, Calicut has filed this appeal after obtaining the special
leave of this Court against the judgment and order dated January
5, 1973 of the High Court of Kerala in Criminal Revision Petition
No. 426 of 1972.

Briefly stated, the facts of the case are these : In the early c
· hours of August 9, 1969 the respondent alighted from the Kerala
Express at the Trichur Railway Station with a steel trunk in his
hand. C.C. Mathan, Inspector of Central Excise Specia11Customs;
.. l Preventive, Trichur (P .W. I) who was on patrol duty at the
llailway Station suspected that the respondent was carrying
contraband goods and on coming to know from the Ticket 0
Examiner that the respondent had arrived from Bombay !he asked
the respondent to hand over the steel trunk which he was carrying.
When C.C. Mathan (P.W. I) opened and searched the steel trunk,
he found in it 28 gold bars with' foreign markings. The respondent
was arrested by C,C, Mathan (P.W. I) and when questioned by
E
P. W. I, the respondent did not produce any authorisation entitling
him to keep the 28 ·gold bars in question which were valued at
Rs. 56,030/-. A mahazar (Exb, P.1) was prepared for having
seized the 28 gold bars. A sum of Rs. 1,380/- which was found in
the steel trunk was also seized. Later on, it is stated, that the 28
gold bars in question were confiscated in a proceeding under section F
ll!(ci) of the Costoms Act, 1962 read with seotion 23-A of the
Foreign Exchange. Regulation Act, 1947 before the Additional
Collector of Customs, Cochin. The steel trunk also was confiscated
under section 119 of the Customs Act, 1962. A penalty of Rs. 500/-
was imposed on the respondent under section I 12(b) of the Customs
Act, 1962. The amount of Rs. 1380/- which had been seized from G
the respondent was, however, ordered to be returned to him.
Thereafter the Assistant Collector of Customs and Central Excise,
Kozhikode after obtaining the required sanction under section
137(1) of the Customs Act and section 97(1) of the Gold (Control)
Act, J968 from the Additional Collector of Customs, Cochin and H
the Collector of Customs and Central Excise, Cochi11 respectively
' filed a complaint p~for~ th~ District Magistrate (Judicial),
228 SUPREME COURT REPORTS (1983] _2. S.C.R,

Tellicberry against the respondent for offences punishable under
section 135(b) of the Customs Act read with section 85(ii) of the ·
Gold (Control) Act, 1968. In support of the said prosectlon four
witnesses were examined by the complainant. C.C. Mathan,
P.W.l gave evidence .about tbe seizure of the 28 gold bars with
foreign marldngs from the respondent at the Trichur Railway
B Station on August 9, 1969 under the mahazar (Exh. P.l). He also
produced Exh. P.2 which coutained the statement made by the
respondent before the Special Customs Preventive Circle Superin-
tendent, Kozhikode in which he had admitted that 28 gold bars
with foreign markings had been seized from him under a mahazar
c and that the said 28 gold bars had not been legally imported to
India. C.C. Mathan (P.W. 1) stated that he was present beforo
the Special Customs Preventive Circle Sperintendent, Kozhikode
when IBxh. P.2 was recorded and that the said statement contained
the signatures of the respondent and of the Superintendent who
had recorded it. K. Subramonian (P.W. 2) who was working as a
D Ticket Collector at Trichur Railway Station stated thatthe 28 gold
bars in question were seized on. August 9, 1969 at the Trichur
Railway Station under the mahazar (Exh. P. I) which he had signed.
V.M. Velayudhan (P.W.3) • who was a resident of Trichur and
a goldsmith by profession stakd that the 28 gold bars in question
had been examined and weighed by him at the Trichur Railway
Station at the request of C.C. Mathan (J>. W. l) . He further stated
that he tested the purity of the said 28 gold bars by rubbing them
on the touch-stone and found that they were gold bars of 24
carats quality. He gave a certificate (Exh. P.3) regarding the
purity and the weight of the 28 gold bars. V.M. Velayudhan
(P. W.3) who was a certified goldsmith further stated that he could
F by experience assess the ·purity of gold by rubbing it on a touch-
stone. He, however, stated that he had no technical knowledge
about gold and he did not know the 'specific gravity' method by
which the purity of gold ·could be determined. The Assistant
Collector of Central Excise (P.W.4) was examined to prove the
sanctions given by the competent anthorities to file the case. In
G his examination under section 342 of Criminal Proredure Code i·1
answer to the following question put by the Court : 'What have
you to say about the deposition · of P. W. l that you on 9th
August, 1969 at 7 O'clock in the moring alighted from train at
Trichur Railway Station wit:h a steel trunk and that P.W.l on
H searching the box due to suspicion, found out 28 gold bars having
foreign marks?' the respondent stated 'It 'is (fue that gold was
ASSTT. ,COLLECTOR v. V.P.S. MOHD, (Yenkataramiah, J,) 229

recovered from my box. It was not mine. It was handed over A
to me by the person called Mammu asking me to give it in his
house. I had no knowledge that it was gold.' The learned
District. Magistrate found that the prosecution had established
that the respondent had committed an offence under section 135(b)
of the Customs Act and an offence under section 85 (ii) of the Gold
(Control) Act, 1968 and convicted him of those offences. The B
respondent was sentenced to pay a fine of Rs. 500 /- for the offence
under section 135(b) of the Costoms Act and in default of payment
of fine to undergo simple imprisonment for six months. No
separate sentence. was, 'however, awarded for the offence under
section 85(ii) of the Gold (Control) Act. The respondent preferred
an appeal against the judgment of the learned District Magistrate c
before the Sessions Judge, Trichur and that appeal was dismissed.
The respondent filed a revision petition before the High Court of
Kerala against the decision of the learned Sessions Judge: The
learned Judge of the High Court who heard the revision petition
allowed it and set aside the conviction of the respondent and the
0
sentence imposed on him on the ground that the prosecution had
not established that the metallic bir; which were seized from the
respondent under Exh. P.l were gold bars and, therefore, the
conviction of the appellant could not be sustained. The learned
Judge found that the evidence of V.M. Velayudhan (P.W.3) who
was examined in the case, the statement Exb. P.2 made by the
respondent before the Special Customs Preventive Circle Snperin-
E
tendent;Kozhikode and the answer given by the respondent under
section 342 of the Criminal Procedure Code taken together were
not sufficient to hold that the gold bars had been seized from the
respondent nuder Exh.P.t. He rejected the evidence of V.M.
Velayudhan (P.W.3) on the ground that he had not thet raining or F
.• the qulification in the art of testing gold and that he had not
conducted either the furnace test or the specific gravity test to deter-
mine the charactar of the metallic bars. He was of the opinion that
V.M. Velayudhan (P.W.3) had miserably failed in the witness
box to give the impression that he was a competent person to
certify that what were seized from the respondent were gold bars G
and that in the absence of any training or qualification to the
credit of V.M. Velayudhan (P.W.3), it would be unsafe to rely on
his evidence and conclude that what was seized from the respondent
was gold. So far as Exh. P.2 'was concerned the learned Judge was
of the opinion that as the said statement haq not been specifically H
put to the respondent under section 342 of the Criminal Procedure
Code and as the person who had recorded it bad not been
230 SUPRll-ME COURT REPORTS [1983] 2 s.c.R..

A examined, no importance could be given to it. In so far as the
answer given by the respondent to the question put by the Court
under section 342 of the Code _of Criminal Procedure which is set
out above is concerned, the learned Judge observed that even
assuming that it would have some value the prosecution could not
seek to split that statement into various parts and rely on what it
B considered to be advantageous to establish its case. Accordingly
the learned Judge acquitted the accused.

The principal point whkh arises for consideration in this
case is whether the· prosecution had established thatlsmuggled gold
bars had been seized from the respondentlon August 9, 1969 at the
c Trichur Railway Station under Exh. P.1. It is true that the onus
of proving the facts essential to the establishment of the charge
against an accused lies upon thu prosecution and the evidence must
be such as to exclude every reasonable doubt about the guilt of
the accused. An accused cannot be convicted of an offence on the A '
basis of conjectures or suspi1:ions. If a reasonable dou~t arises
D in the mind of the Court after taking into consideration the entire
material before it regarding the complicity of the accused the
benefit of such doubt should be given to· the accused but the
·reasonable doubt should be a real and substantial one and ·a 'well
founded actual doubt arising out of the evidence existing after
consideration of all the eviclence'. "Hence a mere whim or a
E surmise or suspicion furnishes a.n insufficient foundation upon which
to raise a reasonable doubt, and so a vague conjecture, whimsical
or vague doubt, a capricious and speculative doubt, an arbitrary,
imaginary, fanciful, uncertain chimerical, trivial, indefinite or a
mere possible doubt is not a reasonable doubt. Neither is a
· desire for mo~e evidence cf guilt, a capricious doubt or misgiving
F
suggested by an ingenious counsel or arising from a merciful
disposition or kindly feeling towards a prisoner, or from sympathy
for him or his family'' (See Woodrolfe & Ameer Ali's Law of
Evidence, 13th Edn. Vol.I pp. 203-204).

G On a reading of the evidence of C.C. Mathan (P.W.1),
V.M. Velayudhan (P. W.3) a.nd the statement of the respondent
under section 342 of the Criminal Procedure Code which is referred
to above, we are of the view that the doubt which the learned
Judge of the High Court entertained about the nature of the
H metallic bars which were seized from the respondent under Exh. I
cannot be considered to be a reasonble doubt. It is well known
that persons who are golds miths by profession a1e able to find out
Asstt. COLLECTOll. v. v.P.s. MOHD. (i'enkataramiah, J.) 131
whether a piece of metal is gold or not by the colou~ of the streak
produced by rubbing it on a touch-stone used by them even though
their assessment of its purity may not be exact. It may ·not be a
scientific way of proving that the metallic bars were gold bars. In
the instant case, however, tbe respondent did not dispute that gold
had been recovered from his box under Exh. P .l. His plea was
that it was true that gold was recovered from liis box but that it B
did not belong to him; that it had been handed over by a person
called Mammu asking him to give it in his house and that he had
no knowledge that it was gold when the packet containing it was
handed over to him. Reading the answer of the accused as a
' whole it means that he knew that when his steel trunk was opened
•
and searched, there was gold in it but he had no knowledge that c
the packet contained gold when it was handed over to him by
Mammu asking him to hand it over in his house. The answer
consists of two parts and they refer to two distinct matters. The
'"' ,r first part relates to seizure of gold from him and the latter part
relates to what had happened earlier when the packet was handed
D
over to him. The case might haye been different if he had ·said
that no gold was recovered from his box. The High Court,
therefore, erred in holding that the statement of the respondent that
the gold was seized from him could not ·be used against him on
the ground that it would result in the splitting up of the statement
which was on the whole exculpatory. Even without the aid of the
statement made by the respondent before the Special Customs
E
Preventive Circle .Superintendent Exh. P.2, it is possible to hold in
this case that the metallic bars seized from the respondent under
Exh. P.1 were gold bars in view of the evidence of P.Ws. I, 2 and 3
and the statment of the respondent before the Court. The High
Court was in ·error in coming to the conclusion that gold had
11
not been seized from the respondent by P.W.I as per Exh. P.l at
the Trichur Railway Station. These gold bars were seized by
P.W.1 in the reasonable b~lief that they were smuggled goods.
Under section 123 of the Customs Act, in such circumstances, the
burden of proving that they were not smuggled goods would be
on the respondent from whose possession they were seized. In the G
instant case, the respondent bad not discharged the burden which
lay on him. P.W.1 has stated that the said gold bars bad foreign
markings on them and Exli. P.I, the mahazar corroborated his
statement. The respondent had no authorisation to keep the said
gold with him. It is in evidence that the said gold bars were found H
packed in paper and kept in the inside folds of a blanket underneath
232 sui>lli!ME COURT REPORTS [1983] 2 s.c.a.

A •
some clothes in the trunk seized from the respondent. He bad
taken care to secrete them. He. had brought them from Bombay
which was a customs area. In the circumstances his explanation
that be had no knowledge that he was in possession of or carrying
smuggled gold bars cannot be believed, as rightly held by the
learned Sessions Judge. The prosection bas cl~arly established the
B guilt of the respondent. The judgment of the High Court is,
therefore, liable to be set aside aC1d it is accordingly set aside. The
conviction of the respondent and the sentence imposed on him by
the learned District Magistrate which were affirmed on appeal by
the learned Sessions Judge are rnstored. The appeal is accordingly
allowed.
c •

H.LC. Appeal allowed.