N.C.SHARMA, J. - (1.)UMESH Chandra, an accused in criminal case No. 287 of 1980, pending in the court of the Chief Judicial Magistrate (Economic Offences), Jaipur by this petition invoked the inherent powers of this Court under Section 482 Cr.P.C. to quash the order of the Chief Judicial Magistrate dated May 6, 1981, whereby the said Magistrate had thought it proper to send the seized 7 biscuits shaped gold bars to the Mint for examination whether they were of pure gold.
(2.)FACTS and circumstances leading to the filing of this petition are that on January 11, 1972, at about 08.10 hours the Central Excise Party headed by Superintendent (Preventive), Central Excise, Ajmer apprehended a man with contraband gold at Nasirabad Railway Station while alighting from 72 down train. At the same time, a clue was received that another boy of a given name and description was also in possession of some contraband gold. But by this time 72 down train had already left Nasirabad Railway Station. Immediately the Superintendent (Preventive) Shri B.D. Dhawan left Nasirabad with two members of his party for Ajmer Railway Station just at the time of arrival of 72 down train there. The boy was the petitioner and he was apprehended by the Preventive Party. The petitioner was taken to the First Class Gent Waiting Room at Ajmer Railway Station and in the presence of two witnesses named Asulal and Hanuman Singh, personal search of the petitioner was made by the Officer in the Waiting Room. Out of a cloth neoli which the petitioner had tied underneath the pant around his waist, there were found 7 biscuits shaped gold bars in addition to currency notes worth Rs. 2000/ -. Each of the two gold bore the makings 'arges Ten tolas Chiasses Founder ASA 999 -O and each of the remaining 5 gold biscuits bore the markings'Jehmson Mathey 999 -O ten tolas. Apart from that a printed letter of M/s. Manakchand Madanlal, bullion merchant, Tilak Marg, Neemuch was also recovered from the pocket of the petitioner and was seized. The gold bars were of 24 carret purity. On demand by the Custom Officer the petitioner could not produce any documentary or legal evidence for the lawful purchase or acquisition or possession in respect of the said contraband gold and also to show their legal importing in India. Shri KG. Sooji, Assistant Collector Customs and Central Excise Jaipur after performing the statutory formalities filed a criminal complaint in the court of Railway Magistrate, Jaipur against the petitioner for the offence under Section 135(b) of the Customs Act, 1962 and Section 185 of the Gold Control (Central) Act, 1963.
The petitioner was summoned by the Chief Judicial Magistrate (Economic Offences), Jaipur to whose court the case was transferred and he was charged under the aforesaid sections of the Customs Act and Gold Control Act. The accused denied charges and claimed to be tried. The petitioner has stated that in the criminal case, evidence on behalf of the complainant and defence had already been recorded and the case was thereafter fixed for final arguments by the Chief Judicial Magistrate. On May 6, 1981, while the case was being argued before the Chief Judicial Magistrate he passed the impugned order whereby he observed that the question about the purity of the gold bars seized in the case had not been ascertained by examination in the case, For a just and proper decision of the case he though it proper that the seven biscuits shaped gold bars seized in the case may be sent to the Mint for a report about the purity of the gold contained in them and for a report about it. It is against this order that Umesh Chandra has come before this court.

(3.)I have heard Mr. K.K. Mehrish for the petitioner and Mr. B.P. Gupta for the complainant -non -petitioner. One of the contentions advanced by Mr. Mehrish was that Section 311 of the Code of Criminal Procedure, 1973 does not confer any power upon the trial court to call for the report or opinion from experienced persons and that also suo moto. He argued that evidence of both sides had been completely recorded in the case and the case was fixed for final arguments and it that stage it was not permissible to the prosecution to fill up any gap or lacuna in its case by getting the purity of the alleged gold bars examined. The impugned order of the Chief Judicial Magistrate, according to the submission of Mr. Mehrish has caused a serious prejudice to the petitioner. It was urged that the burden was on the prosecution to prove that the articles seized from the possession of the petitioner was gold and it would be filling the lacuna which the prosecution has left in the evidence adduced by it and which the trial court is now trying to fill up by the impugned order. The next contention of Mr. Mehrish, although the same has not been taken in his petition, was that the Custom Authorities had also inflation proceedings for confiscation of the seized articles and in that connection, the petitioner had gene in appeal before the Collector of Customs (Appeals). That appeal was decided by the Collector of Customs (Appeals) on December 31, 1984 i.e. after 3 -1/2 years of the filing of the present petition. It was urged that in that appeal, the Collector of Customs has held that it was extremely doubtful matter whether the seizure of the alleged gold articles was made from the petitioner and the Collector taking all factors in to account gave to the petitioner benefit of doubt both under the Customs Act and Gold Control Act and he confirmed the order of confiscation of these golden articles without imposing any penalty on the petitioner. On the basis of this appellate order of Collector Customs (Appeals), New Delhi, Mr. Mehrish contended that doctrine of issue -estopped applied and it should be held that the alleged golden bars were not seized from the possession of the petitioner and more so when the witness as to the seizure memo have denied the seizure of these articles in their presence.