Order This petition is directed against the order, dated 7th December, 1978 passed by the Sessions Judge at Mandya, in Criminal Appeal No. 18 of 1977, confirming the conviction and sentence passed by the Additional Civil Judge and Chief Judicial Magistrate, Mandya District, Mandya, in C.C. No. 1789 of 1974 on the petitioners/accused for contravening the provisions of sections 6 (2) , 8 (1) and 27 (1) of the Gold (Control) Act, 1968, (hereinafter referred to as ‘the Act’) made punishable under section 85 of the Act. The petitioners are convicted to suffer simple imprisonment for a period of one month each and to pay a fine of Rs. 2,000 each, in default, to suffer further simple imprisonment, for a period of 15 days. 2. Facts of the case are, that the Inspector of Central Excise (P.W. 3) obtained a search warrant (Exhibit P-3) on 3rd March, 1973, against the accused on reasonable suspicion that the accused firm is dealing in gold in contravention of the provisions of the Act and thereafter searched the business premises of the accused and also the residence which is abutting the business premises of the accused. P. W. 3 went along with the Superintendent of Central Excise (P.W. 1) and the Panch (P. W. 4) and found accused No. 5, Chaganlal in the said premises. P.W. 3 explained the purpose of his visit to accused No. 5 and searched the business premises and found primary gold and also new gold ornaments weighing 7,800 grams and 377.700 grams respectively. Thereafter P.W. 1, the Superintendent of Central Excise, who has accompanied the Inspector, recorded the statement of accused No. 5 and subsequently the said gold and new gold ornaments were seized by him under a mahazar (Exhibit P-4). The statement so recorded was Exhibit P-5 and the M.Os. so seized were M.Os. 1 to 7. Thereafter a departmental action was taken against the accused and, in addition to the same, after obtaining the sanction, from the Collector of Central Excise and Customs (Gold Control) Officer, Bangalore, as per Exhibit P-2, filed a complaint before the Additional Civil Judge, and Chief Judicial Magistrate, Mandya under section 200 , Criminal Procedure Code, alleging that the accused have contravened the provisions of sections 6 (2) , 8 (1) and 27 (1) of the Gold (Control) Act, 1968, made punishable under section 85 of the Act. 3. 3. It may be mentioned here itself that petitioner No. 1, who was accused No. 1, the firm, represented by Chaganlal (accused-5) the second petitioner herein, who was accused No. 5 to the trial Court. Accused Nos. 2 to 4 were also said to be the partners of the said firm and they were acquitted by the trial Court and the trial proceeded thereafter only against the firm, i.e., accused No. 1 and accused No. 5, who represented the said firm. 4. The prosecution examined five witnesses in support of its case and also got marked, Exhibits P-1 to P-5 (a) and M.Os. 1 to 7, in support of its case. The defence of accused No. 5 was that he has not committed any offence and further to a question under section 342 (old Code) ( section 313, Criminal Procedure Code-new Code) accused No. 5 has admitted, that when the business premises was searched a gold wire as per M.O. 1, a gold ingot as per M.O. 2, which are of primary gold and M. Os. 3 to 7, which are, like earrings, jumki, and rings were found. But however he denied that he made any statement before P.W. 3 as per Exhibit P-5. He has stated that he came to Mandya from Rajasthan about 5 or 6 months prior to the date of the search, and that he is not aware of what was taken down in Kannada. In short his defence is to the effect that he has not committed any offence. 5. The learned Magistrate after assessing the evidence of the prosecution-witnesses, viz., P.Ws. 2, 3 and 4 held that M.Os. 1 to 7 seized from the premises of accused No. 1 were of primary gold and that the accused did not possess necessary licence to be in possession or to deal in primary gold and accordingly convicted and sentenced the accused for the aforesaid offences. Aggrieved by the said conviction and sentence A-1 and A-5 preferred Criminal Appeal No. 18 of 1977 on the file of the Sessions Judge, Mandya, who after hearing both the parties confirmed the conviction and sentence and dismissed the appeal. It is the legality and correctness of the said judgment that is challenged in this revision petition. 6. Aggrieved by the said conviction and sentence A-1 and A-5 preferred Criminal Appeal No. 18 of 1977 on the file of the Sessions Judge, Mandya, who after hearing both the parties confirmed the conviction and sentence and dismissed the appeal. It is the legality and correctness of the said judgment that is challenged in this revision petition. 6. Sri S. Shivaram, learned Counsel for the petitioners submitted that the conviction and sentence are not in accordance with law inasmuch as both the Courts have misguided themselves in taking into consideration the alleged admission of the accused in his statement under section 342. Criminal Procedure Code (old Code), that M.Os. 1 to 7 seized from the premises, which were in his possession, were of primary gold origin. When that being so, according to him no evidence was produced by the prosecution to prove that M.Os. 1 to 7 were of primary gold origin. Elaborating his contention what he submitted was that the initial burden of proving, that M.Os. 1 to 7 were of primary gold origin, was on the prosecution and in the absence of any proof the Courts below could not have relied upon the alleged admission of the accused and held that M.Os. 1 to 7 were of primary gold origin. He has also submitted that both the Courts erred in relying upon the alleged admission as they have only taken into’ consideration the inculpatory statement said to have been made by the accused and rejected the exculpatory statement. In other words what he submitted was that the accused no doubt admitted that M. Os. 1 to 7 were of primary gold origin and at the same time he has denied that he has committed any offence, in which case, the Court has to take into consideration the statement of the accused in its entirety and if that was so, there is no admission of guilt on the part of the accused at all, much less the prosecution could not rely upon the alleged admission that M. Os. 1 to 7 are of primary gold origin. He also contended that both the Courts below have erred in relying upon the evidence of P.Ws. 1 to 4 with regard to the seizure of M. Os. 1 to 7. 7. 1 to 7 are of primary gold origin. He also contended that both the Courts below have erred in relying upon the evidence of P.Ws. 1 to 4 with regard to the seizure of M. Os. 1 to 7. 7. On the other hand Sri S.A. Hakeem, learned Additional Central Government Standing Counsel for respondent No. 2, submitted that both the Courts below were justified in holding that the prosecution has proved that what was seized, from the possession of the accused i.e., M.Os. 1 to 7, was of primary gold origin. Further he contended that both the Courts were also justified in relying upon, the admission of the accused when the premises was searched by P.Ws. 1, 2 and 3, that M.Os. 1 to 7 were found and they were of primary gold origin. If that is so nothing prevented the Courts from relying and acting upon the said admission of the accused. He finally submitted that there is no illegality in the judgment and as such there is absolutely no ground to interfere with the impugned order. 8. Few admitted facts are that accused No. 1 is a partnership firm consisting of the partners, A-2 to A-5, and that on the date when the shop was raided it was accused No. 5, who was in charge of the shop and that the lower Court acquitted accused Nos. 2 to 4 on the ground that they have not committed any offence as alleged against them. So it was only the partnership firm, i.e., accused No. 1 and accused No. 5, who is one of the partners, who was present at the time of the search, were tried and convicted by the Courts below. It is the case of the prosecution that A-5 also made a statement, before (P.W. 1) as per Exhibit P-5. The trial Court as also the appellate Court has relied upon the seizure of M.Os. 1 to 7 as borne out by Exhibit P-4, and also the statement Exhibit P-5 to base conviction on the accused for the alleged offences. 9. But the important point which arises for consideration in this petition is whether the prosecution has proved that M. Os. 1 to 7 are of primary gold origin. The legal position in this aspect of the matter is subject to decisions of various High Courts. 9. But the important point which arises for consideration in this petition is whether the prosecution has proved that M. Os. 1 to 7 are of primary gold origin. The legal position in this aspect of the matter is subject to decisions of various High Courts. Suffice at this juncture, one of such cases is the one reported in Government of India v. Mohammed Issak1. Wherein a Bench of this Court while considering the presumption and onus under section 123 of the Gold (Control) Act, has observed thus: “section 123 of the Customs Act relates to seizure of smuggled goods. The emphasis is on ‘smuggled goods’ and not on ‘goods’. This Court has in the decision in Central Excise and Customs Department v. Surajmal2 held while repelling a similar argument advanced under similar circumstances that a presumption under section 123 of the Customs Act would arise only after proof of the fact that the goods seized were within the meaning of section 123 of the Customs Act. section 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. Kohli3 the Supreme Court has, while referring to section 178-A of the Sea Customs Act which is in pari materia to section 123 of the Customs Act, observed as follows: “Section 178-A of the Sea Customs Act places the burden of proving that the goods are not smuggled goods, or 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.” In the decision in Kewal Krishnan v. State of Punjab4 the Supreme Court has, while dealing with section 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 section 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.” 10. Therefore, it is plain that the onus of burden that they are not smuggled or of foreign origin is cast on the accused. No doubt he has to prove that what has been seized from him is not smuggled gold. That was expected to do only after the prosecution discharges its burden of proving that what has been seized from him is gold of foreign origin. The same is the view expressed by the Kerala High Court in V.P. Syed Mohammed v. Astistant Collector of Central Excise, Calicut5 wherein the learned Judge while adverting to section 123 of the Act has observed thus: “As a general rule, the burden of proving that what has been seized is smuggled gold; will be on the prosecution. It is only where the prosecution proves that the goods seized are goods enumerated in sub- section (2) of section 123 that the presumption under section 123 (1) can arise. Then and then alone, the burden shifts to the accused. If the prosecution fails to prove that what has been seized in the reasonable belief to be smuggled gold, is really gold no burden is cast on the accused to prove that what has been seized from him is not gold or smuggled gold. He has to prove that what has been seized from him is not smuggled gold only after the prosecution discharges its burden of proving that it is gold. In other words, if the goods are established to be any of the goods enumerated in sub- section (2) of section 123, then the accused found to be in possession of, or carrying with him, such goods, in order to succeed in his defence, he has to establish that the goods are not either goods of foreign origin, or, in the alternative, even if they are of foreign origin, it is not a case where the goods have been imported or carried without payment of duty in accordance with the law for the time being in force. In this view, in the present case, the burden of proof on the part of the accused can arise only if the prosecution proves that what has been seized is gold. We have already found that the prosecution has not succeeded in proving that what has been seized by the Inspector of Central Excise is gold. Suspicion, however grave, is no substitution for legal proof.” 11. We have already found that the prosecution has not succeeded in proving that what has been seized by the Inspector of Central Excise is gold. Suspicion, however grave, is no substitution for legal proof.” 11. It is therefore, clear, from the aforesaid decision that initial burden is on the prosecution to prove that M.Os. 1 to 7 seized were of primary gold origin. It is then and there afterwards the burden shifts on the accused to prove that it was not of primary gold origin. In the instant case the evidence of P.Ws. 1, 2, 3 and 4 goes to show that they raided the premises in question and seized M.Os. 1 to 7 from the said premises. There is no other corroborative piece of evidence to hold conclusively that it is of primary gold origin. Their evidence cannot be treated as in the same level as that of an expert. Apart from this they have not carried out any test, usually done in those circumstances, to prove that it is of primary gold origin. In the absence of these tests the prosecution proposed to rely upon the statement said to have been made by Accused No. 5, when examine under section 342, Criminal Procedure Code (old Code). It can be useful to cull out the relevant answers of which the prosecution intended to rely upon to hold that the accused has admitted the guilt in so many words. In fact in his statement under section 342, Criminal Procedure Code (old Code), this is what Accused 5 has stated: Q. 3. They have stated that they searched your business premises and found a gold ingot as per M.O. 1, a gold chain as per M.O. 2, which are of primary gold and M.Os. 3 to 6 which are jewels like earrings, jumki, rings, and ear-rings and also M.O. 7. What do you say? Ans: (Kannada matter omitted.) Q. 4. They have stated that they seized M. Os. 1 to 7 under a mahazar Exhibit P-4, What do you say? Ans: (Kannda matter omitted.) Q. 5. They are stated that they recorded the statement of A-5 as per Exhibit P-5. What do you say? Ans: (Kannda matter omitted.) Q. 6…………… Q. 7. You have heard the evidence of P.Ws. 1 to 5 and seen Exhibits P-1 to P-5 and M.Os. 1 to 7. What do you say? Ans: (Kannda matter omitted.) Q. 5. They are stated that they recorded the statement of A-5 as per Exhibit P-5. What do you say? Ans: (Kannda matter omitted.) Q. 6…………… Q. 7. You have heard the evidence of P.Ws. 1 to 5 and seen Exhibits P-1 to P-5 and M.Os. 1 to 7. What do you say? Ans: Search (Kannada matter omitted.) On the basis of these answers of A-5, the prosecution wants to contend and in fact contended before the Court below that they amounted to admission of A-5, who had admitted that M.Os. 1 to 7 are of primary gold origin, and the said admission was quite sufficient to base a conviction on the accused for the aforesaid charge. Sri S.A. Hakeem relied upon a decision in State of Gujarat v. D. Pande1 to canvass the aforesaid proposition. The ratio postulated in the said decision is also sought to be relied upon by the learned Counsel for the petitioners inasmuch as what he submitted was that in the said decision their Lordships of the Supreme Court have held what the Courts have to take into consideration the statements of the accused in its entirety and cannot take into consideration only the inculpatory statement and excluding exculpatory statement of the accused. In the said case the Supreme Court has held thus: “In order to prove the case put forward in the complaints, reliance was sought to be placed on a letter said to have been sent by the accused to the Charity Commissioner. The original letter was not produced; only an alleged copy of the same was put on record. No witness has proved the letter said to have been written by accused No. 1, nor is there any evidence to show that the copy produced is a true copy of the letter said to have been sent by accused No. 1. We are asked to infer the guilt of the accused No. 1 on the basis of the statement made by him under section 342, Criminal Procedure Code. We cannot split that statement into various parts and accept a portion and reject the rest. We have to either accept that statement as a whole or not rely on it at all. We are asked to infer the guilt of the accused No. 1 on the basis of the statement made by him under section 342, Criminal Procedure Code. We cannot split that statement into various parts and accept a portion and reject the rest. We have to either accept that statement as a whole or not rely on it at all. In his statement the accused pleaded that he was not guilty and if his statement is taken as a whole, it does not show that he was guilty of any offence”. The law on the point is clear and there is no ambiguity. If the Courts want to rely upon the statement of the accused, the entire statement has to be taken into consideration and cannot split a statement, which is favourable that is inculpatory statement, and, reject the exculpatory statement to base conviction. If that is the position in law and if the same is applied to the facts of the case what follows is that both the Courts below have not properly applied the principles enunciated therein. I On the other hand they have proceeded on the basis of the arguments advanced on behalf of the prosecution that the admission on the part of Accused No. 5, himself-is sufficient to prove that M. Os. 1 to 7 seized are of primary gold origin. The view taken by the Courts below to the contrary as aforesaid is wholly illegal and cannot be sustained in law. If that is eschewed from consideration, what remains is the evidence of P.Ws. 1 to 4, as already adverted to above. Their evidence is not in the nature of expert evidence and their reasonable belief that the accused was in possession of primary gold cannot be taken at its face value. Apart from saying that they raided the premises in question and seized M.Os. 1 to 7 which were of primary gold origin, there was no satisfactory or reliable evidence to positively prove that it was so. In fact they have not conducted any test. The two methods that are usually employed by the prosecution in such cases, namely ‘touch stone’ method or obtain a certificate in that behalf from the Mint Master, have not been done. The prosecution has not at all discharged the initial burden cast on it in proving such offences. In fact they have not conducted any test. The two methods that are usually employed by the prosecution in such cases, namely ‘touch stone’ method or obtain a certificate in that behalf from the Mint Master, have not been done. The prosecution has not at all discharged the initial burden cast on it in proving such offences. Both the Courts below have not considered this aspect of the matter in its true perspective, but implicitly relied upon the evidence of the prosecution witnesses to hold that the prosecution has proved that M.Os. 1 to 7 so seized were of primary gold origin and that the accused have failed to discharge the burden cast on them under section 123 of the Act. For the reasons stated above the conviction and sentence passed on the accused for the aforesaid offences cannot be sustained and both A-1 and A-5 are liable to be acquitted. 12. In the result, for the reasons stated above, this petition is allowed and the conviction and sentence passed on A-1 and A-5 for contravening the provisions of sections 6 (2) , 8 (1) and 27 (1) of the Act, made punishable under section 85 of the Act, are hereby set aside and they (the petitioners herein) are acquitted of the aforesaid charge. Fine, if any, paid shall be refunded. 13. At this stage Sri S. A. Hakeem, made an oral application under Article 134-A of the Constitution and prays for grant of special leave to appeal to the Supreme Court on the ground that this case involves a substantial question of law for being decided by the Supreme Court. The point that has been raised according to me does not involve any substantial question of law with regard to how far and to what extent the admissions made by the accused under section 342, Criminal Procedure Code (old Code) could be taken into consideration for basing a conviction upon him as the same has already been decided by the Supreme Court. 14. The subject-matter of decisions of various High Courts and finally by the Supreme Court in State of Gujarat v. D. Pande1, referred to above have fully covered the point. In that view of the matter there is no further need for being adjudicated by the Supreme Court on this point. 14. The subject-matter of decisions of various High Courts and finally by the Supreme Court in State of Gujarat v. D. Pande1, referred to above have fully covered the point. In that view of the matter there is no further need for being adjudicated by the Supreme Court on this point. I am therefore, of the opinion that this is not a fit case for granting special leave to appeal to the Supreme Court, and accordingly his oral prayer is also rejected.