Judgment

SIKRI, J.: - These Appeals, by special leave, are directed against the judgment of the High Court at Calcutta whereby the High Court (A. K. Das and K. K. Mitra, JJ.) set aside the order of acquittal and convicted the appellants before us under S. 23 (1A) of the Foreign Exchange Regulation Act (VII of 1947)-hereinafter referred to as the Act . The appellant, Girdharilal Gupta and the appellant Puranmall Jain, were sentenced to rigorous imprisonment for six months each and to pay a fine of Rs. 2,000 each, in default, to rigorous imprisonment for a further period of three months each. The appellant, Bhagwandeo Tewari was sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 1,000, in default, to rigorous imprisonment for two months. The firm was sentenced to pay a fine of Rs. 2,000. It does not appear that any special leave was obtained on behalf of the firm.

2. In order to appreciate the contentions made before us it is necessary to state the relevant facts. On October 25, 1958, Customs Preventive Officer B. Roy examined a parcel {wooden case) which purported to contain Rasogolla, Achar, Papar and dried vegetable, booked for Hongkong , to be taken by the Swiss Air of which the Indian Airlines Corporation had been the cargo-handling agent. The articles were declared to be worth Rs. 20 but the freight which had been paid came to Rs. 127-73 np. This excited the suspicion of the Customs Preventive Officer, B. Roy, and on opening the parcel and breaking down the case, five hundred ten Currency notes of the denomination of hundred rupees each, valuing Rs. 51,000, were found. The name of the consignor was Ramghawan Singh at Karnani Mansion, Park Street, Calcutta, but on enquiry no trace could be found of this Ramghawan Singh at Karnani Mansion. In the course of further investigation suspicion fell on M/s Agarwala Trading Corporation of which the appellants Girdharilal Gupta and Puranmall Jain were the partners and the appellant Bhagwandeo Tewari was an employee. On January 22, 1959, the office of the firm at 191, Mahatma Gandhi Road and the alleged residence of the partners at 11-B, Jatindra Mohan Avenue were searched. The appellant, Bhagwandeo Tewari, on being identified by the Traffic Assistant of the Indian Airlines Corporation, Ambar Nath Sen, P.W. 4, and one loader of Thai Airways, S. K. Battu, P.W. 26, was arrested. Certain incriminating documents, including account slips and cash-books of the firm were seized.

3. On June 3, 1959, a complaint was lodged at the instance of the Assistant Collector of Customs Calcutta. After stating the above facts it was alleged in the complaint that sending out money in Indian currency was prohibited under S. 8 (2) of the Act and any attempt to do the same was punishable under S. 23-B of the Act.

4. At the trial a number of witnesses were examined. B. Roy, Customs Preventive Officer, gave evidence regarding the discovery of Rs. 51,000 in Indian currency notes, apart from Rasogollas, pickles, etc., on October 25, 1958. No cross-examination was directed to show that this did not happen on October 25, 1958.

5. S. A. D. Moira, Traffic Assistant of the Indian Airlines Corporation P.W. 2, who checks freight and does other transhipment work in course of his duties at Dum Dum Airport, deposed that he received the relevant documents on October 25, 1958, from Calcutta office. He said that the documents were in the handwriting of N. Sen of the Freight Section of the Calcutta Office. Armed with the letter of authority, he took the parcel to the Customs Officer and P.W. 1, B. Roy, asked him to open the parcel and currency notes of the value of Rs. 51,000, along with other things were discovered.

6. R. R. Mukherjee, Traffic Office of the Indian Airlines Corporation, P.W. 3, is another witness to the recovery of the currency notes. P.W. 4, Ambar Nath Sen, was the Traffic Assistant in the Indian Airlines Corporation, who had typed out the consignment note in respect of this parcel after