Judgment

KHANNA, J.:- This appeal by special leave is against the judgment of the Bombay High Court affirming on appeal the conviction of the appellant under Section 167 (81) of the Sea Customs Act and the sentence of rigorous imprisonment for two years.

2. The prosecution case is that on August 17, 1961 Sub-Inspector Sahani of the Railway Preventive Section on receipt of some information, went to room No. 2 on the second floor of Bori Chawl in the 13th lane, Kamathipura, Bombay. The accused was found present there, holding a bag. The said bag was taken into possession by the Sub-Inspector and was found to contain 25 bars of gold, weighing ten tolas each, of the value or Rs 78,400/-. The bars had foreign markings. The Sub-Inspector arrested the accused for an offence under Section 124 of the Bombay Police Act. As the articles recovered from the accused consisted of gold bars with foreign marking, the matter was entrusted to the Customs Officer H. C. Advani (PW. 2). The gold bars too were handed over to Advani. Advani recorded statement Ex. A of the accused. A complaint thereafter filed against the accused by the Assistant Collector of Customs on the allegation that the accused had committed an offence under S. 167 (81) of the Sea Customs Act.

3. The accused in his statement under Section 342 of the Code of Criminal Procedure stated that the gold bars in question had not been recovered from him. According to him, the bag containing gold bars was recovered by the police officer from the second floor of the building whereas the accused resided on the ground floor. The accused denied having anything to do with the gold bars which were taken into possession by Sub-Inspector Sahani. No evidence was produced in defence.

4. The Chief Presidencey Magistrate before whom the accused was sent up for trial accepted the prosecution allegations and rejected the version of the accused. The judgment of the trial court, as mentioned earlier, was confirmed on appeal by the High Court.

5. In appeal before us, Mr. Gupte on behalf of the accused appellant has argued that the conviction of the accused is based upon the sole testimony of Sub-Inspector Sahani. It is pointed out that Sahani made contradictory statements during the course of the trial and as such, his evidence cannot provide a solid foundation for basing the conviction of the accused. In this respect we find that the statement of Sahani and Advani were recorded by Mr. Nasrullah, Chief Presidency Magistrate on February 6, 1964. Charge under Section 167 (81) of the Sea Customs Act was thereafter framed against the accused. There was further cross-examination of these two witnesses on February 12, 1964 after the framing of the charge. In February 25, 1964 the trial court stayed further proceedings in the case to await the decision of a case pending in this Court, wherein it was stated a question of law having bearing upon the present case was involved. The proceedings in the case were revived on 10-11-1967 after this Court gave its decision in the other case. In the meanwhile, Mr. Nasrullah, Chief Presidency Magistrate had retired and had been succeeded by Mr. Gahani. It was then noticed that the charge framed against the accused by Mr. Nasrullah had not been signed by him. Fresh charge in identical terms was thereafter framed by Mr. Gahani against the accused and was signed by him. Sahani was thereafter recalled for further cross-examination by the accused. Sahani PW had in the meantime been compulsorily made to retire from police department as a punishment. Sahani in his further cross-examination made a volte face and stated that the bag containing the gold bars was found lying in room No. 2 of that building, while the accused was not present there. Sahani furhter stated that he had made the accused hold the bag in his hand at the time of the panchas were called by him. The trial court found that the statement of Sahani made in further cross-examination after the framing of the charge by Mr.