Judgment

KOSHAL, J.:- This appeal by special leave is directed against the judgment dated 7th August 1973 of the Bombay High Court upholding the conviction of Seventilal Karsondas Modi (the sole appellant before us) for an offence under Section 120-B of the Indian Penal Code read with clauses (a) and (b) of sub-section (1) of the Section 135 of the Customs Act 1962 and a sentence of rigorous imprisonment for a year recorded by the Chief Presidency Magistrate, Bombay,

2. The appellant was one of 30 accused persons against whom the police initiated proceedings in the court of the trial Magistrate. Out of them, accused Nos. 28 to 30 were not tried as they had absconded and could not be apprehended. The case against accused Nos. 18 and 19 was allowed to be withdrawn by the learned Magistrate on an application made by the Public Prosecutor under Section 494 of the Code of Criminal Procedure. Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistrate for want of evidence against them. Charges were framed by him on 10 counts against the other 20 accused who were tried in consequence. At the trial, 266 witnesses were examined in support of the prosecution case and 6 in defence. Accused Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the trial, while 13 of those charged were convicted and sentenced to various terms of imprisonment. All the 13 last mentioned went up in appeal to the High Court who acquitted accused Nos. 1, 21, 22 and 23. Accused No. 13 happens to be the appellant before us. He was convicted and sentenced by the learned Magistrate as aforesaid and also on a separate charge for an offence under clauses (a) and (b) of sub-section (1) of Section 135 of the Customs Act and sentenced to rigorous imprisonment for six months in consequence. His conviction on that charge, however, was set aside by the High Court, against whose judgment, as already stated, special leave to appeal was granted to him by this Court.

3. The prosecution case in so far as it is relevant for the purpose of this appeal may be briefly stated. V. K. Asthana, (P. W. 228) who was then the Deputy Director in the Directorate of Revenue Intelligence in the Department of Customs at Bombay and is hereinafter referred to as Asthana, received information in the first half of September 1966 to the effect that flat No. 2 forming part of the building known as Sagar Mandir and situated in that locality of Bombay which is called Shivaji Park was being used for storage of smuggled gold and disbursement thereof to its purchasers. After the flat had been kept under watch for a few days by some officials of the Department, a decision was taken by Asthana to raid the premises. The raiding party which consisted of senior Customs Officers, took positions in the vicinity of Sagar Mandir on the morning of 14 September 1966. They included B. M. Sevalia, Preventive Officer, Bombay Customs (P. W. 7 and hereinafter referred to Sevalia) G. N. Alreja, Preventive Officer, Bombay Customs (P. W. 34 and hereinafter mentioned as Alerja), P. G. N. Ayengar, Appraiser in the Directorate of Revenue Intelligence (P. W. 144 and hereinafter called Ayengar) and D. G. Mugwe, Principal Appriasier in the said Directorate (P. W. 152 and hereinafter referred to as Mugwe). Sevalia was debuted to watch the movements of persons entering the flat and to give a signal on the arrival of the suspects. At about 8.50 A. M., accused No. 12 was seen entering the flat and Sevalia alerted the other members of the raiding party by giving the agreed signal. Half an hour later, a car stopped at the entrance to the compound of the building and accused Nos. 5, 6 and 7 alighted therefrom. Accused No. 5 went towards the concerned flat but got suspicious on noticing the presence of strangers near the entrance. He turned back and so did his two companions. All three of them took to their heels but were caught by the raiding party on a direction by Mugwe. Accused No. 12 was found inside that fl