NESARGI, J. ( 1 ) IN this appeal, the correctness and legality of the judgment of acquittal passed by the Addl. Chief Metropolitan Magistrate, Bangalore City in C. C. No. 1633 of 1975 acquitting the respondent of the offences punishable, under. S. 135 (b) (ii) of the Customs Act, 1962 and S. 8 (i) read with S. 85 (viii) of the Gold (Control) Act, 1968, is challenged. ( 2 ) THE prosecution case was that P. W. 1 Sri B. J. Rai, who was working as Superintendent, Central Excise Gold Cell, Bangalore, in the year 1970, happened to go to Kalasipalyam Bus-stand in Bangalore on 2-9-1970. He then saw that his Inspector, who is not examined, had detained the, respondent. He collected two panchas, namely, P. Ws-3 and 4 and took the search of the person of the respondent after observing the necessary for malities. He found a tubular cloth belt tied around the waist of the respondent. It was untied and then it was seen that it contained 17 gold biscuits having the foreign markings 'swiss Bank Corporation. P. W.-1 enter tained resonable belief that the said 17 pieces were smuggled goods and hence he seized them under panchanama Ex. P-1. Slips bearing the signatures of the two panchas and the respondent were affixed to each one of the pieces. P. W. 1 took the respondent to his office. Respondent voluntarily stated in Tamil language before P. W.-1 and P. W.-l recorded the same in English as per Ex. P-2. He read over the same to the respondent and the lespcndent admitted that it had been correctly recorded- P. W.-5 S. R. Parthasarathy was present at that time and the respondent affixed his signature below Ex. P-2. P. W.-5 attested Ex. P-2. On 9-9-1970, P. W.-1 secured P. W.-2 H. L. Acharya, a gold-smith and jeweller The gold-smith assayed the 17 pieces said to be gold and gave his certificate Ex. P-5. He found the said gold pieces to be gold of 24 carat purity. There after P. W.-l lodged a complaint against the accused. ( 3 ) THE defence of the, respondent is that he was not found in possession of the said 17 pieces said to be gold, but the same had been found in the possession of one Sangappa and P. W.-l had foisted those pieces on him. There after P. W.-l lodged a complaint against the accused. ( 3 ) THE defence of the, respondent is that he was not found in possession of the said 17 pieces said to be gold, but the same had been found in the possession of one Sangappa and P. W.-l had foisted those pieces on him. He has denied having voluntarily stated before P. W. 1 as per Ex. P-2. ( 4 ) IN support of its ease that 17 biscuits said to be of gold were seized from the person of the respondent on 2-9-1970 in Kalasipalyam busr stand, the prosecution has examined P. Ws-l, 3 and 4. P. W.-4 has not supported thq prosecution and has stated that he had not seen the respondent on that day. P. Ws-1 and 3 have supported the prosecution. P-W-3 is an independent witness. The learned Additional Chief Metropolitan Magistrate has not acted on the evidence of P. W-3. He ha characterised P. W-3 as a stock witness of the Excise Department. ( 5 ) EVEN if the evidencq of P. Ws-1 and 3 in regard to what transpired in Kalasipalyam bus-stand on 2-9-1970 at about 11 a. m is accepted, all that has been satisfactorily established by the prosecution would be that 17 pellets or biscuits appearing to be that of gold were seized from the respondent and the respondent had kept them concealed in a manner which aroused reasonable suspicion of P. W.-1 and his Inspector that there was something fishv about the possession of the same by the respondent. The prosecution has still to establish that the said pieces were really gold so as to attract the provisions in S. 123 of the Customs Act, 1962 and of the Gold (Control) Act, 1968. ( 6 ) THE prosecution has relied on the evidence of P. W-2 only, in proof of the fact that the 17 pieces seized by P. W.-1 from the person of the respondent were gold within the meaning of the Gold (Control) Act, 1966 and attract the provisions in S. 123 of the Customs Act. P. W.-2 has sworn that on 9-9-1970, he was asked to go to the office of P. W.-l and there he was asked to test M. Os-1 to 17 and he tested them by touch stone method. He found that they were gold biscuits of 24 carat purity. P. W.-2 has sworn that on 9-9-1970, he was asked to go to the office of P. W.-l and there he was asked to test M. Os-1 to 17 and he tested them by touch stone method. He found that they were gold biscuits of 24 carat purity. He has nowhere stated that M. Os-1 to 17 were at that timer having slips bearing the signar tures of the respondent and the panchas P. Ws-3 and 4 a ffixed to them. He has nowhere stated that they were in sealed condition. He has not stated as to what are the identification marks, on the basis of which he was able to identify M. Os-1 to 17 as the very pieces he had tested on 9-9-1070. It must be remembered in this connection that P. W.-2 has given his evidence on 12-7-1974, that is nearly 3 years and 10 months after 3-9-1970. This shows that P. W.-2 has identified M. Os-1 to 17 as the very biscuits that he had tested on 9-9-1970 without any basis. We are, not at all convinced that P. W.-2 could have identified the said pieces as the once he had tested on 9-9-1970. Therefore, it is doubtful whe ther this part of the evidence of P. W.-2 can be safely relied upon. In that vieiw of the matter it must be held that the prosecution has failed to establish - satisfactorily that M. Os-1 to 17 before Court were the very biscuits that had been tested by P. W-2 on 9-9-1970. It is the prosecution case that M. Os-1 to 17 had been seized from the person of respondent on 2-9-1970, but it has failed to establish that they were gold so as to attract the provisions in S. 123 of the Customs Act and the provisions of the Gold (Control) Act, 1968. ( 7 ) SRI S. A. Hakeem, Additional Central Government Standing counsel appearing for the Central Government, argued that S. . . 123 of the customs Act would apply and as such a presumption arises that M. Os-1. to 17 are gold and the burden is on the respondent to disprove or rebut that preisumption by producing nepessary evidance, but the respondent has not done anything in discharging the burden shifted, on him. . 123 of the customs Act would apply and as such a presumption arises that M. Os-1. to 17 are gold and the burden is on the respondent to disprove or rebut that preisumption by producing nepessary evidance, but the respondent has not done anything in discharging the burden shifted, on him. ( 8 ) S. 123 of the Customs Act relates to sezure of smuggled goods the emphases is on 'smuggled goods' and not on 'goods'. This Court has in the decision in Central Excise and Customs Department v. Surajma, Cr. A. 87|76. held while repelling a, similar argument advanced under similar circumstances that a presumption under S. 123 of the Customs Act would arise only after proof of the fact that the goods seized were within the meaning of S. 123 of the Customs Act. S. 123 of the Customs Act does not give rise to a presumption that any goods seized should be, taken to be gold or other such articles to which the Customs Act applies. In the decision in Pukhraj v. D. R. Kohli, AIR 1962 SC 1559 . the Supreme Court has, while referring to Section 178-A of the Sea Customs Act which is in pari materia to s. 123 of the Customs Act, observed as follows: "s. 178-A of the Sea Customs Act places the burden of proving that the goods are not smuggled goods, on the person from whose possession the said goods are seized, where it appears that the goods were seized under the provisions of the Sea Customs Act in the reasonable belief that they are smuggled goods. " ( 9 ) IT is apparent that the emphasis laid down by the Supreme Court in respect of burden of proof is on 'smuggled goods' and not on 'goods'. In the decision of Hukma v. State of Rajasthan, AIR 1965 SC. 476 . the Supreme Court while dealing with S. 178-A of the Sea customs Act, has observed as follows:"while S. 178-A has the result of placing the burden of proof that the gold was not smuggled on the accused, it is of no assistance to the prosecution to prove that the accused, was carrying the gold knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India. " ( 10 ) THERE can be no doubt that this observation was in the context of mens rea. Even then there is an indication that the burden of proof on the accused was confined to establishing that the gold was not smuggled when it is proved or admitted that what had been, seized was gold. In the decision in Kewal Krishnan v. State of Punjab, AIR 1967 SC 737 . the Supreme Court has, white dealing with S. 178-A of the Sea Customs Act observed as follows: - "when the goods are seized by the Customs Officer in the- reasonable belief that they are smuggled goods then under S. 178 A of the - sea Customs Act the onus of proving that they are not smuggled goods, that is, not of foreign origin on, which duty is not paid, is on the person from whose) possession goods are seized. " ( 11 ) THEREFORE, it is plain that the nature of the burden cast on the accused admits of no doubt. He has to prove that what hap beep seized from him is not smuggled gold. That he is expected to do only after the prosecution discharges its burden of proving that what has been seized from him is gold. The same is the view expressed by the Kerala High court in the decision in V. P. Sayed Mohammed v. Asst. Collector of central Excise, (1973) 2 Crl. L. J. 1551. We respectfully agree with the said view. In view of the, foregoing reasons, we hold tha,t this appeal fails and is dismissed. --- *** --- .