M.D. Bhat, J.
1. This is the appeal, preferred by Union of India through Central Excise Department against the acquittal of the respondent-accused Nirmal Kumar Jain of the offence punishable under Section 8(1) read with Section 85 of the Gold (Control) Act.
2. Nirmal Kumar was one of the partners of the Firm M/s. Kewalchand Kailashchand, dealer of gold and silver ornaments in Chowk Bazar, Satna. The officers of the Central Excise Department, under a search warrant had made the search of the residence-cum-shop of the said Firm from about 5 p.m. to 9 p.m. on 12-5-73.
3. According to the prosecution when the search party, comprising of the senior officers of the Central Excise Department and two Panch witnesses, proceeded to make the surprise search of the shop and when the officers, before making the actual search, were in the process of giving their own personal search to the proprietors of the shop, the respondent-accused Nirmal Kumar, taking out something from his pant pocket, threw that stuff which struck itself on the wooden panel of the door of the shop and fell down on the dasa (projected platform of the shop on parapet). The stuff thrown was found to be a gold biscuit of primary gold with marking of 'Swiss Bank' weighing 45 grams and the gold mohar and two addhis weighing 23 grams (68 grams in total) for which there was no licence; and as such, the same was seized by the Central Excise Officers vide seizure memo Ex. P-2. For such an unlawful possession of the primary gold and mohar, the respondent-accused was put up for trial under the complaint filed by the proper authority of the Central Excise Department. The respondent-accused abjured the guilt and denied to have thrown the stuff in question. A few witnesses were examined in defence. In the trial Court, one of the Panch witnesses viz. P.W. 3 Bhailal was found to have turned hostile; and as such he did not corroborate the oral testimonies of other two Excise officials. The testimonies of the two Excise officials viz. P.W. 1 M.K. Hururey and P.W. 2 Pritam Chanchaldas Premani were found to be highly discrepant and mutually conflicting on material aspects of the incident regarding the throwing of the particular gold items by the respondent-accused. Their evidence, being thus not reliable to any extent, the respondent-accused was acquitted. Hence, now, the present appeal by the Central Government.
4. The learned Advocate Shri R.P. Sinha appearing for the appellant, has urged that the trial Court was wrong in not relying on the oral testimonies of the two Central Excise Officers whose evidence was wholesomely mutually corroborative regarding the salient aspects of the incident, the contradictions and inconsistencies being just minor, deserving to be overlooked.
5. I have scrutinised the evidence on record. In a case of appeal against acquittal, the appellate Court is normally loath and reluctant to interfere in the trial Court's order of acquittal unless such order is based on perverse appreciation of evidence or by overlooking any material facts as may have been proved by the prosecution beyond any shadow of doubt. Thus scanning the evidence on the complainant's side with abundant caution, I am of the view that the appreciation of the evidence by the trial Court is in no way, perverse or foolish, and on the contrary, it is well reasoned,-the finding being based undue appreciation of evidence by proper application of mind. The mere fact that this court may be inclined to take a view, different from the one, taken by the trial Court, would not be sufficient for interference, with the trial Court's order of acquittal, particularly when the trial Court's findings may well, be reasonably deduced from the facts and circumstances of the case, as proved.
6. Out of the two Panch witnesses Bhailal/Bhairam and Baijnath, only the former has been examined by the complainant, and even though he is found to have turned hostile, no care was taken to examine the other Panch witness to lend corroboration to the oral testimonies of the two Excise Officials. Normally, no capital can be made out of the circumstance that the Panch witness, supposed to be an independent witness, was found to have turned hostitle; because, it is a common experience during trials that the so-called independent witnesses viz. Panch witnesses are generally found to be prone to turn hostile for apparent reasons, and they do hardly have any regard for the truth. Such conduct on the part of the independent witnesses, suffice to say, is an unfortunate state of affairs in this country. The trial Court as well as this Court would well have been inclined to place reliance solely on the oral testimonies of the public servants viz. the Central Excise Officers, provided the same impression itself as straightforward and mutually corroborative on the material aspects of the incident. But, unfortunately, for reasons best known to them, these two Excise Officers Hururey and Premani are not unanimous in their averments regarding the material circumstances i.e. regarding the throwing of the gold items by Nirmal Kumar after taking out the same from the pant pocket and regarding the same having been found lying upon the projected platform and then picked up by the particular Inspector of the Central Excise. P.W. 1 Hururey has confused himself, as to whether, at the relevant time of such throwing by the respondent-accused, he and other Excise Officers were already inside the shop or were standing on the outer platform or were just standing on the threshold of the door dividing the outer platform and the shop. He is found to have himself made different statements on the point which shows his confused state of mind which may well be due to long lapse of time, when he has come to depose in Court after about two years of the incident.
7. This witness Hururey is positive only on the point that his own personal search had already been taken but he is not sure whether the personal search of other accompanying Excise Officers had also been taken or not. He claims to have seen the respondent-accused taking out something from his pant pocket and then throwing it away, resulting in the noise of Khut due to the impact of the articles on the panel of the door and the consequent falling of something on the dasa. He claims to have picked up these four gold pieces i.e. one biscuit, one mohar and two adhhis. On close scrutiny of his evidence, there are found to be very many discrepancies in his evidence.
8. Then again, the Excise Official Premani's oral testimony is found to run sufficiently counter to that of P.W. 1 Hururey. This witness is not sure as to which particular officer had picked up the gold pieces from the dasa. He is not sure whether the personal search of Hururey and others had already been taken or not before the incident. Contrary to Hururey's statement, this witness has deposed that none of the Excise Officers were inside the shop when this particular incident of throwing the gold pieces by the respondent-accused had taken place. According to him, they were all standing on the dasa itself, at the relevant time. On scrutiny of the evidence of these two witnesses, when considered in the light of mutual contradiction, the matter is not free from doubt as to whether, it was the respondent-accused who had thrown the gold pieces on the dasa. The possibility of implant cannot be completely ruled out.
9. Then again, the seizure memo Ex. P-2 which was prepared at about 9 p.m. after the whole search had been completed during 5 p.m. to 9 p.m. is not free from suspicion. Normally at about 5 p.m. when this incident of the wing, four pieces of gold had been detected and when the pieces of gold had been picked up from the dasa by the Central Excise Officers, the seizure memo of the same should have been immediately prepared and a separate memo for the rest of the proceedings regarding the shop search should have been prepared later. Contrary to the statements of the two witnesses Hururey and Premani, the Panchnama Ex. P-2 is found to show that all the Excise officials had already given their personal search and this was over when they were just starting to make the search of the shop itself, this incident of throwing away of the gold pieces by the respondent-accused had taken place. Such mention in the Panchnama Ex. P-2 is obviously at variance with the averments of the two Excise officials. The trial Court has discussed these material contradictions, throwing reasonable doubt on the authenticity of the prosecution story. In the circumstances, the acquittal of the respondent-accused obviously appears to be proper and the respondent-accused is well entitled to the benefit of doubt in the attending circumstances when the whole incriminating evidence is so conflicting as to make it suspicious.
10. In the result, thus, the appeal, being without any merit, is dismissed; and the order of acquittal as passed by the trial Court being proper, is maintained. Bail-bonds of the respondent-accused are discharged.