Judgment : 1. By the present appeal, the appellant Assistant Collector of Customs, Marine and Preventive Wings, Bombay has challenged the judgment and order of acquittal dated 1.02.1994 passed by learned Chief Metropolitan Magistrate, Esplanade, Bombay acquitting Respondent No.1 from the charge of commission of offences under Section 135(1)(b)(i) of the Customs Act, 1962 and under Section 85(1)(ii)(a) of the Gold (Control) Act, 1968. The said prosecution has emerged from the complaint filed by Assistant Collector of Customs, Marine and Preventive wings, Bombay, Shri C.C. Nagapure against Respondent No.1 of commission of such offences. 2. According to the said prosecution in pursuance of a confidential information received at Central Intelligence Unit, Marine and Preventive, Bombay Customs on 19.11.1987; PW 1 Shri Sudhir Kulkarni, Inspector of Marine and Preventive Customs at about 14.00 hours had been to Dadar T.T. in the vicinity of the Preetam Hotel. One officer and two peon were accompanying PW 1. Informant had also been to the said spot and he was present when PW 1 reached the said spot. The informant at that stage pointed one Suzuki Motor Bicycle parked in front of Hotel Preetam. 3. At about 15.30 hours, one person came near the motor bicycle who was with a sweetmeat box in his hand. PW 1 identified him as accused. He was apprehended. PW 1 asked him the name and other particulars and questioned as to what he was carrying in the sweetmeat box. He disclosed that the box contained some foreign marked gold bars. PW 1 asked him as to from whom he had received said gold. He replied that the same was given to him by one unknown person who had been to the said place and went way. Due to gathering of crowd, the accused was instructed to take the box and accompany them to office of Marine Preventive Customs at Everest House. According to the prosecution, two panchas were called at the place and along with them the said person was taken to the office of the PW 1. The box was opened in the office in presence of panchas and found containing 4 gold bars of 10 tolas each with foreign markings concealed in the 'Burfi' in the said box. The said person was not having any documents to show legal possession of gold. The box was opened in the office in presence of panchas and found containing 4 gold bars of 10 tolas each with foreign markings concealed in the 'Burfi' in the said box. The said person was not having any documents to show legal possession of gold. The same gave reason to believe of the gold being the smuggled gold and liable for confiscation under Gold Act. Gold of value Rs.1,50,000/was seized under the panchanama. PW1 has written the said panchanama. The panch No.1 Shri Lalit Malkan read over the panchanama to other panch. He accepted the same and both of them signed the said panchanama and so also PW 1. 4. After completion of the primary enquiry and processing of the papers and receipt of sanction and authorization from Collector of Customs. The complaint against same person i.e. Respondent No.1 was filed by Assistant Collector of Customs Shri C.C. Nagapure. In the meanwhile, PW2 Sitaram Vishnu Pangarkar, Superintendent of Customs and Central Excise, Bombay, after issuing summons to the Respondent No.1 under Section 108 of the Customs Act, 1962 recorded his statement in English after questioning him. According to PW 2, the respondent No.1 wrote his statement and signed the same and PW 2 counter signed the said statement. PW 2 recorded further statement of the respondent on the next date. Similarly on 8th December, 1987, PW 2 recorded the statement of Tekali Tembrikar, the owner of the scooter. The assay report states that material sent for assay being gold, was received. After institution of the prosecution and examination of PW 1 and PW 2, the charge for commission of the offence as described earlier was framed against respondent No.1, he pleaded not guilty to the said charge. The prosecution examined four witnesses at the said case i.e. earlier referred two witnesses and first panch Lalit Kumar Malkan PW 3 and second Panch PW 4 Prakash Kukreja. 5. The defence of the respondent No.1 at the trial was that of partial denial i.e. though he admitted his presence at the spot but he denied that sweetmeat containing gold bars were found in his possession. During his examination made under Section 313 of the Code of Criminal Procedure, he claimed that at the relevant time, he was proceeding on motar scooter towards Bandra and to avoid the traffic signal on reaching Dadar he had taken the left turn to proceed further. During his examination made under Section 313 of the Code of Criminal Procedure, he claimed that at the relevant time, he was proceeding on motar scooter towards Bandra and to avoid the traffic signal on reaching Dadar he had taken the left turn to proceed further. He claimed that then he noticed one boy running on the road chased by two to three persons. The said boy dashed with his scooter and fell down. He was having one box with him. The same had also fallen. The respondent, in order to help the said boy picked up the said box. Then two to three persons who were chasing the said boy came near him and asked him as to what was in the box. He told them that he was unaware about it as it was the box of the said boy who was running away. The said persons told him that they were officers of Custom and he had to accompany them to their office for explaining the things to the officer and he would be treated as witness. He denied that the box was opened in presence of panch witnesses and the same was found containing the gold bars having foreign markings. He claimed that on the next day in the morning he was shown the box by one officer and told that in the said box he had found gold biscuit and sweetmeat. He claimed that however no gold was shown to him. He denied receipt of any summons under Section 108 of Customs Act, 1962, though he admitted that his purported statement was in his handwriting, he denied the same being voluntary statement. He claimed that Custom Officer, after showing him some writing in English has asked him to sign the same by telling that thereafter he would be released on the next morning. The said officer gave him option to copy down the statement and sign the same. Respondent No.1 claimed that he cannot speak English but he can write down English. He claimed that therefore he copied down the statement given by the Officer and signed the same and Exhibit P 7 being the said statement but not the voluntary statement made by him and having written the same as in the circumstances stated by him. 6. Respondent No.1 claimed that he cannot speak English but he can write down English. He claimed that therefore he copied down the statement given by the Officer and signed the same and Exhibit P 7 being the said statement but not the voluntary statement made by him and having written the same as in the circumstances stated by him. 6. The Trial Court, after assessing evidence of the said witnesses in light of the submission canvassed, came to the conclusion that the prosecution had failed to establish the commission of the offences for which respondent No.1 was charged and acquitted him. 7. Smt. A.A. Mane, learned Special Public Prosecutor contended that fact of gold being seized from the respondent was duly established by adducing the evidence of PW 1 who had carried raid effected after keeping surveillance at the spot near Pritam Hotel and through evidence of panch witnesses PW 3 and PW 4. She urged that the Trial Court by giving unnecessary importance to the minor discrepancies within the evidence of the said witness erroneously came to the conclusion that the prosecution had failed to establish the fact of seizure of gold bars from the accused. Learned Special Public Prosecutor contended that the Trial Court overlooked the admissions given by the accused in his statements recorded under Section 108 of the Customs Act. She urged that the view taken by the Trial Court of the prosecution evidence is not only erroneous but perverse. It was urged that the Trial Court failed to properly appreciate the evidence of the prosecution as leaving aside, normal discrepancy arising in the evidence of even honest witnesses, appreciating the said evidence lead to the conclusion of the prosecution having established the commission of offence by the accused. She urged that the judgment delivered by the Trial Court, being not only erroneous but perverse and not being based upon the surface at the trial, the same deserves to be quashed and set aside and so also order of acquittal passed in favour of the Respondent. She urged that this guilt of respondent-accused is borne out/established by the evidence surfaced at the Trial, he be convicted and sentenced in accordance with law by allowing the appeal. 8. None having appeared on behalf of Respondent, there was no advantage to hear any submissions on his behalf. 9. She urged that this guilt of respondent-accused is borne out/established by the evidence surfaced at the Trial, he be convicted and sentenced in accordance with law by allowing the appeal. 8. None having appeared on behalf of Respondent, there was no advantage to hear any submissions on his behalf. 9. In order to appreciate the submissions advanced by learned A.P.P. the record and proceeding and particularly the judgment impugned, oral evidence adduced at the trial as well as the documentary evidence were duly considered. 10. After careful perusal of the judgment impugned, it is difficult to accept the submission advanced that the Trial Court had not taken into consideration the relevant facits of the evidence adduced by the prosecution or has not passed the judgment upon the evidence surfaced at the trial. Such a conclusion is inevitable as the matter stated/recorded in paragraphs 8 and 9 which are running into few pages clearly reveal that the Trial Court has meticulously considered the evidence of PW1, PW3 and PW4 in the same. Without retreating or reproducing the matter stated in the said paragraphs it can be safely said that factual observations made therein are in consonance with the matters arising from the evidence of the concerned witnesses regarding which the discussion is made in the said paragraph. Perusal of the said discussion reveals that on the basis of such a material surfaced during the prosecution evidence, the Trial Court had come to the conclusion of their being variance regarding the place at which the seizure panchanama was drawn i.e. whether drawn at the spot of the seizure rear of Pritam Hotel or as claimed by PW 1 in the office of the Customs. It also came to the conclusion of their existing variance regarding the place at which both the panchas were called as PW 1 claimed that he had taken both panch witnesses from the spot when the accused was taken to the office of Marine and Preventive, while first panch PW 3 claimed that after he had reached office of the customs along with PW1, the second panch was called after recording of panchnama has began. It is difficult to find any fault with the observations made by the Trial Court that out of the said witnesses PW1 being involved in a raid, was an interested witness, while PW 3 was the independent witness. 11. It is difficult to find any fault with the observations made by the Trial Court that out of the said witnesses PW1 being involved in a raid, was an interested witness, while PW 3 was the independent witness. 11. The said discussion also reveals that PW 3 has admitted that during the enquiry respondent had disclosed that he had received the box from unknown persons. On the said basis Trial Court had come to the conclusion that second panch being called at the office of Marine and Preventive would not have known the happenings at the spot of the incident. The Trial Court, after duly taking into consideration the answers received from PW 3 during the cross-examination regarding the place at which he was working, came to the conclusion that his evidence was doubtful that he was working in the A to Z shop in Dadar Branch. Careful perusal of all the said reasonings does not give any reason for accepting the same being illegal or improper. Similarly, the Trial Court, after duly took into consideration the evidence of PW 1 regarding the reason for which the respondent was taken from the spot to the office and claimed that the panchanama was drawn in the office and in light of the admission of PW 3 that when he had been to the spot, sweetmeat box was with the officer and same was not with the respondent and fact that no signature of panch was obtained on the sweetmeat box, came to the the conclusion that in all probabilities pancha witnesses has not seen the sweetmeat Box and concealment of gold in the same. The conclusion drawn by the Trial Court of their being strong probability of panch witnesses, having merely signed the panchanama without seeing sweetmeat box and its contents, for the reasons given by the Trial Court, can neither be said to be erroneous nor perverse. 12. In the instant case, for coming to the conclusion about guilt of the respondent, it was necessary for the prosecution to prove that the respondent was in conscious possession of the contraband article i.e. the gold when he was prohibited by raiding party at the spot. 12. In the instant case, for coming to the conclusion about guilt of the respondent, it was necessary for the prosecution to prove that the respondent was in conscious possession of the contraband article i.e. the gold when he was prohibited by raiding party at the spot. There being paucity of evidence of independence witnesses regarding the said aspect, the Trial Court had declined to draw such inference on the basis of the evidence of the members of the raiding party i.e. PW 1 and PW 4. The said conclusion drawn by the Trial Court being based upon the relevant facits of the evidence of the members of the raiding party and particularly that of PW 1 and of the panch witnesses and absence of signatures of panch witnesses on the box, can neither be said to be perverse nor can be dehorsed the evidence of the witnesses. The reasons given in para 10 also cannot be said to be erroneous or dehorse material surfaced at the trial. Thus, finding reached by the Trial Court of the defence version being true also cannot be said to be erroneous or perverse in light of the reasons given for the same. Having regard to the same, the order of acquittal recorded by the Trial Court cannot be said to be improper upon the possible view of the evidence surfaced at the trial. 13. In the premise aforesaid, hardly any case is made out for interfering with the order of acquittal passed by the Trial Court. Resultantly, there are no merits in the appeal and the same deserves to be, and accordingly stands dismissed.