JUDGMENT

BHAGWATI, J.:— The appellant was tried before the Presidency Magistrate, 25th Court, Mazgaon, Bombay for offence under Clause (a) and (b) of Section 135 read with Section 135 (ii) of the Customs Act, 1962 and Rule 126H (2) (d) read with Rule 126P (2) (iv) of the Gold Control Rules 1963. The prosecution case against the appellant was that on 7th September, 1965 about at 3.45 p. n. Inspector Tilwe, who was at the material time Sr. Grade Inspector of Customs attached to Gold Circle, Central Excise, Bombay, received information that two persons would be coming down from a building known as Hira Mahal, situated at Kalbadevi Road, and they will be carrying gold in the handle of a cane basket and also in their shoes. Inspector Tilwe, on receipt of this information, sent for Inspector Nichani and both of them kept guard outside Hira Mahal building from about 8.00 p.m. Around 8.45 p. m., the appellant accompanied by his maternal uncles son. Dwarkaprasad, his son Dalip aged 9 years and his servant by the name of Mahadev,came out of Hira Mahal building. The appellant was carrying a basket in his hand and after coming out of the building, the appellant and his companions got into a Victoria and proceeded towards Victoria Terminus Station. Inspector Tilwe and Inspector Nichani followed these persons and when the appellant and his companious got down from the Victoria and entered the platform. Inspector Tilwe accosted them and took them to the office of the Assistant Station Master and searched them there in the presence of three panchas. Two of the panchas were selected by Inspector Tilwe while the third volunteered to act as Pancha. On taking search, it was found that the shoes worn by the appellant and Dwarkaprasad has specially made cavities and four gold biscuits with foreign markings were found in the shoes of each of these two persons. The basket carried by the appellant also contained 27 gold biscuits with foreign markings concealed in the handle which was made of brass and which had a specially made cavity in it for concealing gold biscuits. While the search was going on, one Ticket Collector called Tharandas Bhatia arrived on the sence and he also witnessed the search. Inspector Tilwe seized the gold biscuits which were recovered from the appellant and Dwarkaprasad, in the reasonable belief that they were smuggled and hence liable to confiscation under Section 111 of the Customs Act, 1962. This search and seizure was recorded in a Panchanama Ex. X, which was witnessed by the three panchas. Inspector Tilwe also seized from the appellant two first class Railway Tickets for the journey from Bombay to Kanpur, oneReservation Card and two Platform Tickets and so also were the basket and the shoes seized under the same Panchanama Ex. X Inspector Tilwe then took the appellant and Dwarkaprasad to the Central Excise Office and recorded their statements in the presence of Inspector Nichani under Section 107 of the Customs Act, 1962. The statement of the appellant which is marked Ex. H was written by Dwarkaprasad in Hindi and was signed by the appellant. The appellant admitted in his statement that he was carrying smuggled gold concealed in the handle of the basket and shoes for being handed over to a firm called M/s. Pannalal Durgaprasad at Kanpur and that the he had been doing this work for the last six months ever since his business as a goldsmith was closed down. Another statement of the appellant was also subsequently recorded by Inspector Tilwe on 22nd November, 1965 at the shop of the appellant and this statement was written by one Maganlal an employee of the appellant, in Gujarati and was signed by the appellant. Both the appellant and Dwarkaprasad were thereafter prosecuted for offences under Clauses (1) and (b) of Section 135 read with Section 135 (ii) of theCustoms Act. 1962, and Rule 126H (2)(d) read with Rule 126P (2) (iv) of the gold Control Rules, 1963, Dwarkaprasad pleaded guilty to the charge and was convicted and we