R.N. Misra, J.
1. Both these revision petitions arise out of a common appellate order of the learned Sessions Judge of Ganjam at Berhampur. The first case is at the instance of the Deputy Collector, Central Excise, Bhubaneswar, while the second one is by the widow of the accused claiming as his legal heir.
2. One Satyanarayan Agrawala was travelling by the Madras-Howrah Express to Cuttack on 13-9-1964. The Central Excise staff boarded that train at Berhampur and travelled in the same compartment which was occupied by the accused on getting some information that contraband gold was being carried by the accused. The luggage of the accused was searched. The prosecution alleged that a bag belonging to the accused containing currency notes amounting to Rupees 21,201.00 and 15 gold tablets each weighing 10 tolas was found from the possession of the accused. Thereupon on the complaint lodged by the Deputy Collector of Central Excise and Customs the accused was prosecuted for offences punishable under Section 135(1)(b) of the Customs Act of 1962 and Rules 126-P (2) (ii) and (iv) and 126 of the Defence of India Rules, 1962 (Gold Control Rules, 1963), for possession of gold without the requisite licence or declaration.
3. The accused in his examination under Section 342 of the Code of Criminal Procedure claimed the money to be his, but denied that any gold had been seized from his possession. A co-passenger (D. W. 1) was examined to support his defence.
4. The prosecution relied upon evidence of 8 witnesses. Out of the seized gold, 9 tablets bore the inscription 'Johnson Matthey 999.0 London 10 tolas' 5 were bearing the inscription 'Argors A Chiasso Fondeur Asa Essayeur 999.0 10 Tolas'; and one had the inscription 'Compagnie Metahx Precieux Paris 999.0 10 Tolas'. On the basis of these inscriptions, it was assumed to be gold im ported from outside and, therefore, the accused was prosecuted under the Customs Act The charge under the Customs Act was, how ever, not proved and the accused was convicted only for the relevant offence under the Defence of India Rules, 1962. read with the Gold Control Rules of 1963. Both the seized currency note and the gold were ordered to be confiscated to the Government of India.
5. Against this conviction, the accused appealed to the learned Sessions Judge at Berhampur, but pending appeal he died. The learned Sessions Judge held that the appeal had abated notwithstanding the fact that the widow of the late accused had appeared and claimed to be heard in support of the appeal. The matter thereafter came up before this Court in Criminal Revn. No. 605 of 1969 (Orissa) at the instance of the widow. By order dated 24th of March, 1972, this Court set aside the appellate order holding the Criminal appeal to have abated and directed that the appeal shall be deemed to be pending and be disposed of again after hearing the widow and the respondent. Accordingly the appeal was heard again by the learned Sessions Judge.
Before him, however, Mr. B. M. Patnaik, appwring for the widow did not challenge the conviction. The conviction had great bearing on the widow's claim for return of the gold and the currency notes. Since on the defence originally adopted by the accused refund of the gold could not be claimed, Mr. Patnaik did not dispute the finding of guilt recorded by the learned magistrate which was based upon negativing the plea of the accused that the gold was not his. The learned Sessions Judge came to find that the currency notes were not liable for confiscation-He accordingly held that the same would be returnable to the legal representative of the accused. He was, however, not prepared to accept the claim laid by the lady that she was the widow of the accused and wanted the trial Court to enquire into the legitimacy of the claim. In regard to the gold he held that it must be made over to the statutory custodian, namely the Government of India to be dealt with in accordance with law. In regard to the direction that the currency notes were returnable to the heirs of the accused, the Deputy Collector, Central Excise has come to this Court in Criminal Revision No. 696 of 1971. Similarly in regard to the direction that the seized gold be made over to the statutory custodian under the Gold Control Act of 1965, the claimant-widow has come before this Court in Criminal Revision No. 708 of 1971.
6. Before me also Mr. Patnaik did not challenge the conviction of the accused based on the finding that the gold had belonged to him. The matter in dispute now is directly connected with the finding of guilt and, therefore, the question requires examination. As I have already indicated the prosecution relied upon the evidence of 8 witnesses in support of the charge that the accused was found in possession of unauthorised gold. P. W. 1 was a co-passenger in the train with the accused. His evidence in regard to the occupation of different seats in the compartment, what transpired before the actual seizure end the manner of detection seems to be somewhat different from the evidence given by the other witnesses. P. W. 1 has cataegorically stated that he had not seen as to who had kept the bag in question. There was another merchant present in the compartment, who was, however, not questioned by the excise staff and his belongings were not searched. P. W. 1 in cross-examination has not been able to deny that the bag in question from which gold was recovered did not belong to the other merchant who was a co-passenger. He, however, stated that the gold and the currency notes were in the same bag. P. W. 5 got into the Madras-Howrah Express from Berhampur and was going upto Bhubaneswar. His evidence in regard to the entire incident does not fit in with the deposition of P. W. 1. He has stated that his belongings were first searched. P. W. 8 is another co-passenger. According to this witness, the accused answered the query of the excise people by saying that he possessed no gold and offered his belongings to be searched. According to P. W. 8 the luggages of all the passengers were searched while P. W. 1 categorically denied that. In making the search, the usual formalities do not seem to have been observed at all. P. Ws. 1, 5 and 8 do not depose about the formalities having been complied with. On the other hand, D. W. 1 has categorically stated supporting the contention of the defence that the bag of the accused had only currency notes and no gold P. W. 2 is the gold tester. All the remaining witnesses are departmental officers. P. W. 3 is the investigating officer who was at the material point of time the Range Officer of the Central Excise Department posted as Berhampur.
The prosecution also relied upon a statement given by the accused before the Superintendent of Central Excise on the same day. This document has not been formally marked as an exhibit though 'Ext. 8' has been written upon it. It does not bear the signature of the Court. The accused denied to have made the statement in question in his examination under Section 342 of the Code of Criminal Procedure. P. W. 7 is the Superintendent of Excise, who is said to have recorded the statement. The statement as made certainly implicates the accused, but it is difficult to accept the evidence of the prosecution witnesses that actual facts were stated in the statement. The accused had a bedding also. It is indeed not explained as to why the accused was carrying the gold in question (admittedly of substantial value) in a bag and had allowed it to hang in the compartment when the alleged contraband gold could have been safely put inside the bedding. Learned Government Advocate's explanation that it was a trick of the clandestine dealer (the accused) does not appeal to me.
7. For sustaining the conviction under the relevant provision of the Defence of India Rules, there is another difficulty. Rule 126-Q of the Defence of India Rules, 1962, provided:
No prosecution for any offence punishable under this Part (Part XII-A) shall be instituted against any person except by, or with the consent of, the Board or any person authorised by the Board in this behalf.
Paragraph 11 of the petition of complaint narrated as follows-
The complainant is the Deputy Collector of Central Excise at Cuttack and is also a Deputy Collector of Customs by virtue of Notification of the Ministry of Finance (Department of Revenue) Customs No. 137/63 dated 25-5-1963. Sanction for prosecution of the accused has been accorded by the Collector of Central Excise, Customs, Calcutta and Orissa Collectorate, Calcutta, who by virtue of Notification, Ministry of Finance (Department of Revenue) Customs No. 137/63 dated 25-5-1963 is also the Collector of Customs for Orissa. The said sanction order is attached herewith as Annexure-I. The complainant is also competent to file complaint under Rule 126 of the Defence of India (Amendment) Rules, 1963....
The sanction in question (Ext. 7) only refers to the Customs Act of 1962. No authority has been produced in this case in compliance of Rule 126-Q of the Defence of India Rules.
8. In this state of the evidence, it is indeed difficult to agree with the finding recorded in this case that the prosecution had established the seizure of the gold from the accused. I would accordingly hold that the prosecution case has not been established beyond reasonable doubt.
9. The accused himself had taken the plea that the seized gold did not belong to him. His widow, therefore, is not entitled to claim back the seized gold. Her claim is without any basis. The revision petition by her (Criminal Revision 708 of 1971), there fore, must stand dismissed.
10. Coming to the revision application (Criminal Revision 696 of 1971) on behalf of the Deputy Collector of Central Excise and Customs, I do not also find any merit in it. In view of my finding that the prosecution failed to establish that the accused was carrying the seized gold, the currency notes which have been found to belong to the accused must be returned to him or upon his death to his heirs, unconnected with the alleged seizure of the gold, the currency notes are not at all liable to confiscation.
11. The learned Sessions Judge while dismissing the appeal on the earlier occasion had not disputed the status of Geeta Devi Agrawala as the widow of the accused Satya-narayan Agrawala. In this Court on the earlier occasion there was no dispute about the status. I do not think the learned Sessions Judge was right in holding that the matter was still open to dispute and the status required adjudication. Geeta Devi Agrawala must be found to have been brought on record as the widow of accused Satyanarayan Agrawala. It is not necessary to hold any further enquiry into the matter. The seized currency notes must be returned to her. If she is not the sole heir, the direction regarding refund of the currency notes to her may not be taken to be an adjudication that she alone to the exclusion of other heirs is entitled to receive the same. She is allowed to take return of the currency notes as representing the estate of the deceased Satyanarayan, all heirs in law being entitled along with her to the currency notes.
12. Both the revision applications accordingly fail and are dismissed.