JUDGMENT : S. Acharya, J. - This is an appeal by the Deputy Collector of Central Excise & Customs against the judgment of acquittal passed by Sri A.K. Patra, Sessions Judge, Berhampur in Criminal Appeal No. 72 of 1968 acquitting the accused P. Shyam Babu Patro (Respondent herein) who had been convicted by the trial Court for an offence u/s 135(b) of the Customs Act. 1962 and sentenced thereunder to R.I. for six months and further convicted under Rule 126.P (2) (ii) of the Defence of India Rules, 1962 and sentenced thereunder to R.I. for one year. Both the aforesaid sentences passed by the trial Court were to run concurrently as ordered by the trial Court. It also confirmed the confiscation of the gold seized in this case. 2. The prosecution case, in short, is that the Central Excise staff at Berhampur who had been authorised to act under the Customs Act as well as under the Defence of India Rules, on receipt of some secret information, took care and caution to watch the movements of the accused and his associates. On 30-11-1964 the Central Excise staff in (sic) followed the accused and his companion (since acquitted) in the Chatrapur. Berhampur Janata bus which arrived at the Berhampur bus stand at 7 a.m. As soon as the accused and his companion got down from the bus at the Berhampur bus stand, p.w. 3, the then Inspector of Central Excise, and p.w. 4, the then Sub-Inspector of Central Excise at Berhampur, who were following the accused and his companion in that bus, gave secret signals to the other Central Excise people waiting at the has stand to get round the accused. There upon p.ws. 3 and 4 and those others of the Central Excise Department at the bus stand asked the accused and his companion to produce the contraband gold which was suspected to be in their possession. The Central Excise people also wanted to make a search of the, persons of the accused and his companion but since the accused and his companion wanted to be searched in the presence of a gazetted officer they were taken to the office of the Superintendent of Central Excise (p.w. 5). The Central Excise people also wanted to make a search of the, persons of the accused and his companion but since the accused and his companion wanted to be searched in the presence of a gazetted officer they were taken to the office of the Superintendent of Central Excise (p.w. 5). The driver (p.w. 8) and the fitter (p.w. 1) of the bus and one Gureya who was along with the accused and his companion, were asked to go to the office of p.w. 5. In the office of p.w. 5 the persons of the accused, his companion and that of Gureya were searched after observing the necessary formalities in the presence of p.ws. 1, 5 and 8 and some others of that department. No contraband article was recovered from Gureya and the companion of the accused but from the person of the accused a narrow cloth bag containing 28 pieces of primary gold of foreign origin bearing foreign markings and each weighing ten tolas was recovered. The said bag containing the aforesaid 28 pieces of gold was found tied around the waist of the accused. Besides the gold pieces, a cash of Rs. 500/- was also seized from the pocket of the full pant which the accused was wearing. A regular seizure list was prepared and statements in writing were taken from the accused and his companion in the presence of eye witnesses. The details of the said 28 pieces of gold recovered from the possession of the accused are as follows: (i) Sixteen pieces of gold had on them the inscription "Johnson Matthey 999.0 London, each to tolas" ; (ii) Ten pieces bore the inscription "N.M. Rothschild and Son - AMR - 10 tolas 999.0" ; and the rest (iii) Two pieces had the inscription "Comptoir Lyon' Alemand Louyot & Co. Paris Affenesure Foundeurs - 999.0" Fine", each ten tolas. 3. The accused pleaded not guilty to the charges u/s 135(b) of the Customs, Act, 1962 and under Rules 126-P(2)(ii) and 126-P (2)(iv) of the Defence of India (Amendment) Rules (Gold Control), 1963 framed against him. In his statement before the trial Court he and his companion both admitted that they came by the Janata bus from Chatrapur to Berhampur on 30-11-1964 and that they were challenged at the bus stand and Were searched by the Excise people at the office of the Superintendent of Central Excise, Berhampur. In his statement before the trial Court he and his companion both admitted that they came by the Janata bus from Chatrapur to Berhampur on 30-11-1964 and that they were challenged at the bus stand and Were searched by the Excise people at the office of the Superintendent of Central Excise, Berhampur. The accused also admitted the fact that a sum of Rs. 500/- was recovered from his pocket and seized and that he gave a statement in writing before, the Superintendent of Central Excise, Berhampur. Having admitted all that he denied the recovery of the above-mentioned gold tablets from his possession. 4. The trial Court on an elaborate discussion and consideration of the evidence on record and the relevant law on the subject arrived at a very firm finding that on the evidence on record it was established beyond all reasonable doubt that it was this accused who was in possession of the above-mentioned contraband gold seized in this case and that he did not have any licence for the same. On that finding it held the accused guilty for offences u/s 135(b) of the Customs Act, 1962 and under Rule 126-P (2)(ii) of the Defence of India Rules, 1962 and sentenced him thereunder to imprisonment as stated above. 5. Mr. Das, the learned Government Advocate appearing for the Appellant, has taken me through the entire evidence on record to support his comment that the appreciation of the evidence by the Sessions Judge is perverse, perfunctory, haphazard, slipshod and erroneous. On going through the entire evidence and the impugned judgment I am convinced that the Government Advocate's comments against the impugned judgment are fully, justified. The appellate Judge in acquitting the accused has not at all bestowed any consideration to the findings and conclusions of the trial Court and has hot even referred to the important pieces of evidence and the salient features of the case presented by the prosecution. He has allowed the appeal and acquitted the accused of offences of the above nature by merely referring to certain pieces of evidence here and there in a most perfunctory and slipshod manner in one paragraph. A perusal of the impugned judgment leaves one with a clear impression that the appellate Judge has not acted judicially in acquitting the accused in this case. 6. Mr. A perusal of the impugned judgment leaves one with a clear impression that the appellate Judge has not acted judicially in acquitting the accused in this case. 6. Mr. Das has further commented that the only paragraph in the impugned judgment wherein there is some discussion of the evidence on record, apart from being perfunctory and slipshod, bristles with many errors of record. The appellate Judge finds that p.ws. 1 to 5 and 8 are the only witnesses of seizure of the aforesaid gold tablets in this case, The witnesses who have spoken about the seizure of the gold tablets actually are p.ws. 1 to 5 and 7. p.w. 1 is a fitter in the O. R. T. Company at Berhampur. Apart from this witness, the other witnesses, namely p.ws. 2 to 5 and 7 are all officers of the central Excise Department. The learned appellate Judge's appreciation of the evidence of p.w. 1 is most perfunctory and he lost sight of certain very important and significant features of his evidence: According to p.ws. 2 to 5 and 7, the 28 gold tablets (M.O. II), seized in this case, were in the narrow cloth bag M.O. I, which was tied to the waist of the accused and that bag was recovered from the possession of the accused on a personal search of the accused in the office of p.w. 5. P.w. 1 however did not state so, but he stated that long cloth bag containing some gold was found lying near the foot of this accused in the office of p.w. 5, and neither the accused nor his companion or Gureya owned that bag. On his statement to the above effect he was declared hostile by the prosecution, and in his cross-examination by the prosecution he stated that the Superintendent of Central Excise (p.w. 5) was present when the accused was searched in the office of p.w. 5. He further stated that Ext. 1, the seizure list of the gold recovered in that occasion, was prepared in his presence and that he signed it at every page. He has proved his signatures Exts. 1/1 to 1/4 on Ext. 1. He has further stated that m his presence the accused also sign the said seizure list. He further stated that Ext. 1, the seizure list of the gold recovered in that occasion, was prepared in his presence and that he signed it at every page. He has proved his signatures Exts. 1/1 to 1/4 on Ext. 1. He has further stated that m his presence the accused also sign the said seizure list. At one place in his deposition he has categorically admitted that whatever took place in the office of p.w. 5 has been written on the seizure list. But having stated so he resiled from that statement in the next breath and said that he could not say from whom the gold was recovered and that the statement in the seizure list that the gold was recovered from the waist of the accused is false. He has further admitted that the accused himself wrote out a statement in Oriya and he (p.w. 1) signed the said statement as at Exts. 4 to 4/3 series. He has further admitted that when the accused admitted that the contents of the statement written out by him were true then only he (p.w. 1) signed the same. It has further been elicited from p.w. 1 that the Superintendent of Central Excise (p.w. 5) interrogated the accused and recorded his statements as per Ext. 6, and that he and the accused signed Ext. 6 after its contents were read over to them. In the statement submitted by the accused and in Ext. 6 there is clear admission, that the gold tablets in question were recovered from the possession of this accused on the date of occurrence. p.w. 1 also admitted to have submitted the statement Ext. 8 and he has further admitted that the contents of Ext. 8 were written by himself. But again in order to wriggle out of the obvious effect of his above statement he said that he wrote that statement on the dictation of one Sankar Babu and he did not understand all that he wrote in Ext. 8. It is extremely difficult to accept his statement to this effect. In Ext. 8 were written by himself. But again in order to wriggle out of the obvious effect of his above statement he said that he wrote that statement on the dictation of one Sankar Babu and he did not understand all that he wrote in Ext. 8. It is extremely difficult to accept his statement to this effect. In Ext. 8 it has been categorically stated that the officers of the Central Excise Department searched the person of the accused and recovered 28 gold tablets kept in a cloth bag tied to his waist and that the gold pieces recovered from his possession had foreign markings on the same and on weighment each of those tablets was found to be of 10 tolas. The recovery of Rs. 500/- in currency notes has also been stated in that document. He has further admitted that M.O. I, is the long and narrow cloth bag which contained the 28 gold tablet and M.O. II series were the 28 gold tablets. The seizure list Ext. 1, the inventory Ext.2, in connection with the said 28 gold tablets and the test report Ext. %, of the gold tablets submitted by p.w. 6 have all been signed by p.w. 1. p.ws. 2 to 5 and 7 have very consistently and convincingly stated that the person of the accused was searched in the Superintendent's (p. w. 5) office in the presence of p.w. 5 and others and a narrow long cloth bag (M.O. I) containing 28 gold tablets was found tied around his waist, concealed under the pant which he was wearing, and the said bag with its contents (the gold tablets) was recovered from his possession and the bag and the contents were seized in the presence of p.w. 5 and many others. The consistent and convincing evidence of p.ws. 2 to 5 and 7 to the above effect has not been successfully assailed by the defence in any manner and a reading of their evidence inspires confidence. Their evidence moreover gets corroboration from the evidence of p.w. 1 who in effect has admitted that 28 gold tablets were seized by the Customs Officers in the office of p.w. 5 at a time when they made a personal search of the accused. Their evidence moreover gets corroboration from the evidence of p.w. 1 who in effect has admitted that 28 gold tablets were seized by the Customs Officers in the office of p.w. 5 at a time when they made a personal search of the accused. A reading of the evidence of p.w. 1 in the light of the contents of the documents mentioned above clearly shows that p.w. 1 in Court made a deliberate attempt to save the accused by resorting to falsehood. P.w. 5, an officer of the rank of the Superintendent of Central Excise, has pledged his oath to state that on the date of occurrence and. in his presence the person of the accused was searched by p.w. 2 with the aid of other members of the staff of his department. On search a long narrow cloth bag (M.O. I) was found tied around his waist underneath the pant which he was wearing. When that bag was untied from his waist it was found that it contained 28 gold tablets (M.O. II series). Two local experts of the near about market were called to test and weigh the gold tablets recovered from the possession of the accused and they after testing arid weighing the said 28 pieces of gold submitted their test report Ext. 3. He has also testified to the fact that the seizure list Ext. 1 of the said gold tablets was signed, besides other persons, by the accused himself. He has further stated that the accused himself submitted a statement written and signed by him stating therein that he was in possession of the aforesaid gold tablets. He has also stated that he recorded the interrogatory statement of the accused, and after the same was recorded as per Ext. 6, it was explained to the accused and after he admitted that the contents thereof were correct, he (the accused) put his signature on that document. The defence has not been able to assail his evidence to the above effect. The evidence of p.ws. 2, 3, 4 and 7 is more or less, to the same effect. 6, it was explained to the accused and after he admitted that the contents thereof were correct, he (the accused) put his signature on that document. The defence has not been able to assail his evidence to the above effect. The evidence of p.ws. 2, 3, 4 and 7 is more or less, to the same effect. The evidence of the above-mentioned witnesses gets ample corroboration from the categorical admission made by this accused in the statement Ext, 4/8 submitted by him before p.w. 5 to the effect that the gold tablets were kept in a long narrow cloth bag tied around his own waist underneath his pant and were recovered from his possession in the office of p.w. 5 and seized in this case by the Central Excise staff. p.w. 5 and other officers of the said department have stated that the accused himself voluntarily wrote out his above-mentioned statement. The accused in his statement in the trial Court admitted that he submitted the said written statement admitting the possession of the gold tablets. p.w. 1 was also stated that he signed the said statement of the accused only after the accused acknowledged that the contents of the said document were true. It is well settled that the said statement of the accused is not hit by Section 25 of the Evidence Act. See Romesh Chandra Mehta Vs. State of West Bengal Illias Vs. Collector of Customs, Madras and Criminal Revision No. 390 of 1972 of this. Court disposed of on 23-11-1973. Thus, on the oral and documentary evidence discussed above I have absolutely no hesitation to hold that the prosecution in this case has very satisfactorily established that the accused, Respondent herein, had in his possession 28 gold tablets of the purity and weight stated above and those 28 gold tablets were recovered from his possession in the office of p.w. 5, in the presence of p.w. 5 and other witnesses and were seized as per Ext. 1. 7. The next question for consideration in this case is whether the gold tablets seized in this case were of foreign origin and were smuggled gold. 1. 7. The next question for consideration in this case is whether the gold tablets seized in this case were of foreign origin and were smuggled gold. Section 123 of the Customs Act, 1962 runs as follows: Burden of proof in certain cases: (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify. On the evidence of p.w. 6 and the test report Ext. 3 submitted by him there is absolutely no doubt that the 28 tablets seized in this case were gold tablets. The defence has nowhere challenged the fact that the 28 tablets seized under Ext. I, were not gold. Thus the provision of Clause (2) of Section 123 quoted above is complied with. 8. There is no dispute about the fact that the seizure of the gold was made under the provisions of the Act. As stated above it is established beyond reasonable doubt that the said gold tablets were in the possession of the accused and were seized from his possession. The only other relevant question for consideration is whether the said gold was seized with the reasonable belief that it was smuggled gold. That fact has to be judged and ascertained from the facts and circumstances in which the gold was seized. In the Present case as many as 28 gold tablets, each weighing 10 tolas, were kept tied, in a long and narrow cloth bag around the waist of the accused. When the Central Excise people wanted to search his person at the bus stand he stated that he would like to be searched in the presence of a gazetted officer of the department. When he was searched in the presence and at the office of p.w. 5, the gold tablets were found tied to his waist as stated above. Admittedly he had no licence or permit for the gold in his possession. It is not his case that he was carrying the said gold under the orders or direction of any gold licensee. When he was searched in the presence and at the office of p.w. 5, the gold tablets were found tied to his waist as stated above. Admittedly he had no licence or permit for the gold in his possession. It is not his case that he was carrying the said gold under the orders or direction of any gold licensee. He did not have any bill or voucher, or any document whatsoever indicating that he was carrying the gold as an agent, servant or carrier or on any other bona fide and/or legal basis. It is not a case of a few trinkets of gold purchased for any bona fide domestic purpose. The accused in his statement Ext. 4/1 very soon after the recovery of the gold from his possession admitted that the said gold was recovered from his possession. He however, stated that he was burying the said gold as desired by Satya Babu (the other accused since acquitted). The accused in his statement in the trial Court admitted that he submitted the aforesaid statement admitting the possession of the gold. P.w. 6 a gold merchant whose services, were utilised for the purpose of testing the seized gold, has in his report Ext. 3 stated that each of the 28 tablets had on it the seals of foreign companies. It is not the case of the accused that the gold seized from his possession was indigenous gold. The foreign markings on the said gold in the absence of anything positive to the contrary believes such a conclusion. p.w. 5, the Superintendent of Central Excise, has testified to the fact that the seized gold tablets were primary gold with foreign markings. Ext. 12, the order of confiscation in connection with the said 28 pieces of gold, passed by the Collector of Central Excise, Calcutta-Orissa, shows that the seized gold tablets were found by him to be of foreign origin, and as nobody not even the accused owned the said gold tablets, the same were confiscated by him in accordance with law. The explanation submitted by the accused before the aforesaid Collector was that he had no connection with the seized gold tablets, that they were not recovered from his possession, and that they were in a bag kept in the bus in which he traveled on the day when the said gold tablets were seized. The explanation submitted by the accused before the aforesaid Collector was that he had no connection with the seized gold tablets, that they were not recovered from his possession, and that they were in a bag kept in the bus in which he traveled on the day when the said gold tablets were seized. The Collector disbelieved the above mentioned explanation of the accused in view of his statement Ext. 4/8 and his interrogatory statement Ext. 6 recorded by p.w. 5 A mentioned above. The vacillating explanations given by the accused at different stages regarding the aforesaid gold tablets are by themselves incriminating features which go against the innocence of the accused. The number of gold tablets with foreign markings on them and the manner in which they were carried by and recovered from the possession of the accused and the failure of the accused to give any convincing explanation for the possession of the gold tablets and the vacillating explanations given by him in different stages are sufficient by themselves to arouse a reasonable belief in any person that the gold recovered from the possession of the accused was of contraband quality and was illicitly obtained. The facts and circumstances discussed above are sufficient to show that the 28 pieces of gold were seized in this case on the reasonable belief that they were smuggled gold. 9. Mr. Patnaik, the learned Counsel for the accused, contended that the prosecution witnesses of the Central Excise Department who searched the person of the accused and seized the gold recovered from the possession of the accused have not specifically stated that they seized the said gold tablets on the reasonable belief that they were smuggled gold as contemplated u/s 123(1) of the Customs Act. p.w. 5, in whose office and in whose presence the person of the accused was searched and from his possession the gold tablets were recovered, has stated that the said gold tablets were primary gold with foreign markings. Each of the tablets had on it foreign markings which prima facie is evidence of smuggled source. In the majority decision in Balkrishna Chhaganlal Soni Vs. State of West Bengal their Lordships have proceeded on the basis that the foreign markings on the bosom of the gold bars are themselves evidence of smuggled source. Each of the tablets had on it foreign markings which prima facie is evidence of smuggled source. In the majority decision in Balkrishna Chhaganlal Soni Vs. State of West Bengal their Lordships have proceeded on the basis that the foreign markings on the bosom of the gold bars are themselves evidence of smuggled source. The facts and circumstances discussed and detailed in the preceding paragraph to not merely deepen the suspicion that 'the gold seized in this case was smuggled gold, but they clinch 'the conclusion that it was so. The premises and the circumstances in which the gold was recovered and the admission made by the accused at that time evidenced by his own written statement Ext. 4/8 taken into consideration along with the foreign markings on the gold tablets lead one to the only possible conclusion that, the Central Excise staff seized the same, not only on the reasonable belief but on being convinced that it was smuggled gold. So the existence of reasonable belief, as required u/s 123(1) of the Customs Act having been amply established on the evidence and materials on record, there is no need to probe as to whether there is any specific statement to that effect by any of the prosecution witnesses. 10. At one stage of the hearing of this case it was urged on behalf of the accused that his statement Ext. 4/8 was not admissible in evidence as the said confessional statement was written out by him in the presence of a Havildar and so was hit by the provisions of Section 25 of the Evidence Act. The factual basis on which the above contention is made is not established by the evidence on record. p.w. 5 has categorically stated that the Havildar who came with the accused to his office did not came inside the office. There is nothing in the evidence of p.ws. 2 to 5 and 7 to show that the accused wrote (sic) his statement Ext. 4/8, in the presence of the Havildar. Rather, a reading of their evidence indicates that the Havildar was not present when the accused wrote-out the said statement. Even in the evidence of p.ws. 1 and 8, the two hostile witnesses, there is nothing categorical on which it can be said that the statement was written in the presence of the Havildar. Rather, a reading of their evidence indicates that the Havildar was not present when the accused wrote-out the said statement. Even in the evidence of p.ws. 1 and 8, the two hostile witnesses, there is nothing categorical on which it can be said that the statement was written in the presence of the Havildar. P.w. 1 dies not state anything about the presence of the Havildar at the relevant time. p.w. 8, the other hostile witness, is the only person who in cross-examination by the accused stated that he saw the Havildar in the Excise office throughout. He does not state that the Havildar was present inside the office and at or near about the place where the accused wrote out his aforesaid statement Ext: 4/8. Moreover, p.w. 8 has denied to have witnessed anything relevant in this case and so his aforesaid evidence regarding the presence of the Havildar is extremely doubtful. 11. On the above discussions and considerations I am satisfied that the prosecution has been able to prove beyond reasonable doubt that on the date of occurrence the accused had in his possession the 28 pieces of gold of foreign origin that he admittedly did not have any licence for the possession of the said gold and that he did not have any bona fide explanation to show his lawful possession of the same. It is also established in this case that the said gold was seized in the reasonable belief that the same was smuggled gold and the accused did not in any way discharge the burden on him that the said gold was not of such smuggled source. Accordingly, the accused (Respondent herein) is guilty of an offence u/s 135(b) of the Customs Act, 1962 and also under Rule 126-P(2)(ii) of the Defence of India, Rules, 1962. So, the order of acquittal passed by the appellate Court is liable to be set aside. Accordantly the accused is convicted u/s 135(b) of the Customs Act, 1962 and he is sentenced; thereunder to undergo R.I. for six months. He is also convicted u/s 126-P(2)(ii) of the Defence of India Rules 1962 and sentenced thereunder to undergo R.I. for one year. Both the above-mentioned sentences are to run concurrently. 12. Accordantly the accused is convicted u/s 135(b) of the Customs Act, 1962 and he is sentenced; thereunder to undergo R.I. for six months. He is also convicted u/s 126-P(2)(ii) of the Defence of India Rules 1962 and sentenced thereunder to undergo R.I. for one year. Both the above-mentioned sentences are to run concurrently. 12. The gold seized in this case was already been confiscated by the Collector of Central Excise Calcutta Orissa, under Rule 126-M of the Defence of India (Amendment) Rule, 1963 and Section 111 of the Customs, Act, 1962 as is seen from Ext. 12. It is not necessary to pass any further order to that effect. 13. The appeal accordingly is allowed. The Respondent be directed to surrender to his Bail bond to undergo the above mentioned sentence of imprisonment imposed on him. Final Result : Allowed