Judgment

HEGDE, J.: -The appellant and one R. B. Mathur were tried before the learned Special Judge for Greater Bombay under various charges including a charge of conspiracy. Mathur was acquitted and the appeal against his acquittal was unsuccessful The appellant was also acquitted of all charges excepting a charge under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act. For that offence he was sentenced to suffer rigorous imprisonment for two years and pay a fine of Rs 5,000/-, in default to suffer further rigorous imprisonment for four months. The substance of the charge under which he was convicted is that he by utilising his position as a Government servant sent various articles such as Radios, Transistors, Clothes, etc. from Goa to Bombay without paying customs duty. He was also held guilty of sending his personal articles in the vehicles engaged by the postal department withou1 paying any charge. The trial Court supported its conclusion on a further ground namely that the assets of the appellant were more than that he could have acquired by his known sources of income.

2. The charges framed against the appellant made no reference to the fact that his assets were more than that he could have acquired by his known sources of income, In appeal, the learned Judges of the High Court did not go into that aspect of the case, Nor was that aspect of the case pressed before us at the hearing. Therefore it is not necessary to go into that aspect. Even otherwise that accusation appears to be without any solid basis. The learned Judges of the High Court also did not go into the allegation that the appellant utilised his official position in sending his Personal goods in the vehicles engaged by the postal department. The accusation is that the appellant sent some of his goods in the vehicles engaged by the postal department from Panjim in Goa to Margoa or Sawanthwadi or Belgaum. These places are not very far from Panjim. The High Court held that the offence committed by the appellant in that regard if true, is of a technical nature and therefore it thought it unnecessary to examine the evidence relating to the same. Evidently in its view the accusation regarding the sending of some articles in the vehicles engaged by the postal department was of a trifling nature and therefore not worth examining. But the High Court agreed with the trial Court that the appellant was guilty of evading payment of customs duty and he did so by utilising his official position. In order to examine the correctness of this finding, it is necessary to set out the material facts.

3. In 1961, the appellant was working as a Senior Superintendent of Post Offices at Jaipur. On December 20, 1961 Goa was liberated by the Indian Army. Thereafter the appellant was deputed as a Special Duty Officer to Goa. He took charge in Goa on December 25. 1961. He assumed additional charge as Director of Posts and Telegraphs on May 11, 1962 and he held that office till August 11, 1962. Thereafter he went back to Jaipur. It is alleged that during the period of appellant s stay in Goa, he made large purchases of certain luxury articles. Utilising his official position in the Posts and Telegraphs department he transmitted those articles to Bombay where he sold the same at profits. The prosecution relied in support of that charge on four different instances. Voluminous evidence was led in support of the prosecution case. But it is not necessary to go into that evidence as in our opinion the charge under which the appellant was convicted is without any legal basis. The reamed Counsel for the appellant. Mr. A. S. R. Chari has assailed the judgments of the High Court and the trial Court on various grounds. He contended that the evidence adduced in support of the prosecution case is unreliable and insufficient to support the conviction of the appellant. He also raised various legal pleas in support of the appeal. He contended that as the Prevention of Corruption A