M.S. Nesargi, J.
1. The appellant has challenged the legality and correctness of the judgment of acquittal dated 21-9-1977 passed by the Chief Judicial Magistrate, Bangalore District, Bangalore, in C. C. No. 558 of 1974, acquitting the respondent who was accused therein of the offences punishable under Section 135 (b) of the Customs Act, 1962, and Section 85 (ii) of the Gold (Control) Act 1968.
2. The prosecution case was that Sri A. E. Austin (P. W. 1) was, during the period in question, namely, October 1971, Inspector of Central Excise, Headquarters at Bangalore. He got credible information on 5-10-1971 that contraband gold was being taken from Bangalore to Salem. He took three other Inspectors attached to the said office and proceeded to Attibele. They waited there in Anekal circle. They were checking buses. At about 9 p. m., bus bearing No. 4190 belonging to Parveen Service and proceeding towards Anekal reached there. He stopped the bus. He and the other 3 Inspectors entered into the bus. P. W. 1 made out from the expression on the face of the respondent-accused who was sitting in one of the seats in the bus that he might be the person transporting contraband gold. He asked the respondent whether he was having contraband gold. That question made the accused nervous. Because of the nervousness, he could not give any information. He held out a bag and muttered that nothing like contraband gold was contained in the bag. P. W. 1 asked him whether he was having contraband gold on his person. That made the .accused more nervous. Because of that he admitted that he was carrying contraband gold. He was giving answers in Tamil language, P. W. 1 asked how many pieces he was carrying. The accused said that he was carrying 50 pieces. The Inspector took the accused to the police out post at Atttbele, Inspectors secured panchas including Venkataramanappa (P. W. 4) and in their presence P. W. 1 searched the person of the accused. P. W. II found that the accused was having a cloth pouch round his waist. That pouch contained, when examined, 50 biscuits of gold. Out of them 34 bore the marking 'Swiss Bank Corporation 999.0 and the remaining 16 bore the making 'Argorsa Chiasso Foundeur ASA Essayer 999.10 Tols', P. W. 1 asked the accused whether he had any document or permit for having the said pieces and the accused answered in the negative. In view of these circumstances, P. W. 1 reasonably believed that the said 50 pieces of gold had been smuggled into India and on such reasonable belief he seized them under the panchanama (Ex. P. 1.). Each one of the biscuits was pasted with a slip of paper all around The two panchas and the accused affixed their signatures on the said papers. These biscuits are said to be M. Os. 1 to 50. Then, Superintendent of Excise was contacted and he reached the place. That person is said to be Gopalkrishna, who is not examined. After the seizure proceedings, the accused voluntarily went along with the Excise Officers to Bangalore. He was in the custody of the Excise personnel and on 6-10-1971 he appeared before B. C, Gujjar (P. W. 3), Superintendent, Central Excise Headquarters Prevention, Bangalore. P. W. 3 got the statement of the accused recorded as per Ex. P. 6. It is necessary to state at this juncture that on 16-10-1971 Superintendent Gopalkrishna secured H. L, Acharya (P. W. 2), a goldsmith, to the office and asked him to assay the 50 pieces of gold biscuits (M. Os. l to 50), P. W. 2 tested the biscuits and was of the opinion that they were of 24 carat purity and were of foreign origin because of the markings and fineness. He issued certificate as per Ex. P. 4. From M. Os. 15 and 37 he cut two small bits under his certificate Ex. P. 5, as those pieces were required by the Customs authorities for sending to the Mint Master so as to secure a certificate from him. Ultimately, a complaint was lodged against the accused and on that basis the Chief Judicial Magistrate tried him in C. C. 558/74,
3. Total denial has been the defence of the accused. He has also contended that no gold biscuits had been seized from his person and that he had not voluntarily stated as per the narration in Ex, P. 6 to P. W, 3. According to him, a false case had been foisted against him,
4. The learned Chief Judicial Magistrate has acquitted the accused on finding that the prosecution had failed to establish that M. Os. 1 to 50 were the very biscuits that were seized from the person of the accused at 9 p. m. on 5-10-1971 near Attibele. Sri Hakim, learned Additional Standing Counsel for the Central Government, argued that the finding of the Chief Judicial Magistrate is unwarranted in view of the clear, cogent and consistent evidence of P. Ws. 1 to 4 supported by the circumstances available in the evidence of P. W. 2. In this connection, he pointed out that the certificate (Ex. P. 4) issued by P. W. 2 amply supports the evidence of P, Ws. 1 and 4.
5. In view of the reasons to be presently narrated, we do not consider it necessary to go into this aspect. We will proceed on the basis that the prosecution has established that M. Os. 1 to 50 are the very pieces that were seized from the pouch that was round the waist of the accused when he was in the bus belonging to Parveen Service at 9.00 p. m. on 5-10-1971 near Attibele. In the decision in Government of India v. Mohammed Issak (1979) 2 Kant LJ 19, Division Bench of this Court has held that the burden is on the prosecution to prove that what has been seized from the accused is gold and only on. satisfactory proof of that fact, a presumption under Section 123 of the Customs Act would arise, and not otherwise. Even for the purpose of establishing the offence under Section 85 (ii) of the Gold (Control), Act, 1968, the burden is on the prosecution to establish that what was seized is in fact gold. Thereafter the other considerations arise. The prosecution has in this case sought to establish this fact by examining P. W. 2 who professes to be a gold-smith.
6. H. L. Acharya (P. W. 2) has sworn that he is a gold-smith by profession. He has stated that on 16-10-1971 he was sent for by Superintendent Gopala-krishna and he went there at his own cost and tested M. Os. 1 to 50. On so testing he formed his opinion that each one of them was of 24 carat purity and was of foreign origin because of the markings and fineness. In view of this opinion formed by him he issued the certificate (Ex. P. 4). It is plain to see that P. W. 2 has been examined as an expert in this branch, namely, assaying of metals to find out whether the metal is gold and, if so, of what purity and fineness. Such evidence is admissible only if the ingredients of Section 45 of the Indian Evidence Act are satisfied. Section 45 of the Indian Evidence Act reads as follows:
When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identify of handwriting (or finger impressions), the opinions upon that point of persons specially skilled in such foreign law, science or art, (or in questions as to identity of handwriting) (or finger impressions) are relevant facts.
Such persons are called experts.
A plain reading of the section leaves no doubt in our mind that the party seeking to adduce evidence of such witness, under this provision, should in the first instance show to the court from the evidence of such witness that the witness is specially skilled in the particular science and then only such witness is cased an Expert. Opinions of third persons are, as a general rule, inadmissible and witnesses are to state facts they themselves saw, heard and perceived in any other sense (Section 60 of the Evidence Act). Formation of opinion is left to the Judge on the basis of the facts stated or told and proved. Section 45 of the Evidence Act is an exception to this general rule. But to bring the evidence within the ambit of this exception, the pre-requisite is that the witness, giving such evidence, must be an expert, as contemplated by Section 45 of the Evidence Act. If the evidence does not flow from such a witness, then that evidence would be hit by the general rule and, therefore, would become inadmissible. In the decision in Hanumant Govind v. State of Madhya Pradesh : 1953CriLJ129 the evidence of the witnesses to the effect that the letter in question was not typed on the office typewriter but was typed on another typewriter produced before Court, was gone to, vis-a-vis the provisions of Section 45 of Evidence Act. It was held that those witnesses could not be considered as experts within the meaning of Section 45 of the Evidence Act and as such their evidence was inadmissible. The reasons why they were not experts, need not be gone into by us because what we arc concerned only with is the effect of the evidence of witnesses who are not satisfactorily shown to be experts within the meaning of Section 45 of the Evidence Act. The Supreme Court has held that such evidence is inadmissible. In the decision in the State v. Madhukar Gopinath : AIR1967Bom61 , it has been laid down that when there was no evidence about the nature of training received by the witness, examined as an expert, and he had not given evidence about his qualification and further he had not furnished any data from which he had reached his conclusion and furnished his opinion, his evidence was inadmissible. In the decision in Rai Kishore Rabidas v. State : AIR1969Cal321 , it has been held that when the lawyer for the prosecution had not elicited any facts to show that the witness, examined as an expert, was really an expert, his opinion would be inadmissible in evidence under Section 45 of the Evidence Act. The Privy Council has, in United States Shipping Board v. The Ship 'St. Albans' AIR 1931 PC 189, held:
The opinion of scientific men upon proven facts may be given by men of science within their own science. The witness must have made a special study of the subject or acquired a special experience therein. That is, he must be skilled and have adequate knowledge of the subject.
7. P. W. 2 has nowhere stated anything about his experience in that particular branch, or he had made a special study of the subject of assaying gold so as to make him skilled in that branch. Therefore, P. W. 2 is not an expert within the meaning of Section 45 of the Evidence Act.
8. Sri Hakim pointed out from the certificate (Ex. P. 41 that P. W. 2 has mentioned therein that he had tested 50 biscuits of gold, namely M. Os. 1 to 50, by touchstone method, and argued that that fact is sufficient to satisfy the Court that P. W. 2 is experienced in testing the gold by touchstone method and that he had used that method in testing M. Os. 1 to 50. It is true that it is narrated so in Ex, P. 4. But such certificates by themselves do not constitute evidence. The evidence would be one that is found in the sworn statement of the witnesses. P. W. 2 has refrained from swearing to this fact when he was in the witness box. Therefore, the evidence of P. W. 2 cannot be supplemented by what is contained in Ex. P. 4. In the result, the evidence of P. W. 2 cannot be looked into, as it is inadmissible.
9. One more aspect that is clear from the evidence of P. W. 2 is that he has simply sworn that on testing M. Os. 1 to 50> he came to the conclusion that each one of the biscuits was of 24 carat purity and was of foreign origin because of the markings and fineness. He has nowhere stated what was the test he applied and what were the observations, namely, the data on which he based his conclusion and the opinion. Sri Hakim argued that the defence has not cross-examined P. W. 2 as to what test he had applied and, therefore, there is no lacuna in the evidence of P. W. 2. It is laid down in Madhukar's case that when there is no data on which the opinion is furnished by the so-called expert, the evidence of such a witness is neither legal nor sufficient. We respectfully agree with this view. It was for the prosecution to bring out such data in the evidence of P. W, 2. When it has failed to bring out the data on which P. W. 2 came to the conclusion and furnished opinion that each of the biscuits was of 24 carat purity and was of foreign origin because of the markings and fineness, the evidence of P. W. 2 would not be legal hence, becomes inadmissible. The prosecution has not produced any other evidence in proof of the fact that each one of the biscuits in question is gold and of particular purity and fineness. So, it has to fail.
10. It is unfortunate that what otherwise appears to be presentable case for prosecution, has to fail because of the inept handling by the concerned public Prosecutor. But, the law has to take it own course.
11. In the result, this appeal fails and is dismissed.