JUDGMENT

FAZAL ALI, J. :— These two appeals by special leave are directed against a judgment dated February 16, 1973, of the Bombay High Court by which the two respondents, who were Accused No. 1 and Accused No. 5 before the Trial Court, were acquitted of the charges framed against them. As both the appeals arise out of the same case, we propose to dispose them of by one common judgment.

2. The two respondents and others were tried by the Chief Presidency Magistrate under various sections of the Customs Act as also Section 5 of Imports and Exports (Control) Act, 1947, read with Section 120B, of the Indian Penal Code. The learned Magistrate convicted the respondents under Section 135 (a) and (b) of the Customs Act read with Section 120B, I. P. C. and also under Section 5 of the Imports and Exports (Control) Act, 1947, and sentenced respondent No. 1 (A-1), P. K.Pathak to rigorous imprisonment for three years under Section 135 (a) and (b) of the Customs Act and for one year under Section 120B, I. P. C. and Section 5 of the Imports and Exports (Control) Act. He further directed that the sentences would run concurrently. Respondent No. 2 (A-5). Shri Madhukar Keshav Waity, was also convicted of the aforesaid offences but sentenced only to rigorous imprisonment for one year.

3. We have heard the learned counsel for the State but unfortunately no one appeared on behalf of the respondents, despite repeated calls, although they were represented by a counsel in this Court.

4. The material facts constituting the prosecution case have been detailed in the judgment of the learned Magistrate and also of the High Court. After conviction, the respondents filed an appeal before the High Court which came to the conclusion that the prosecution case was not proved and accordingly acquitted both the respondents. Hence this appeal.

5. Put briefly, the case arose out of an incident which led to the recovery from both the accused, of a huge quantity of smuggled goods worth Rs. 15 lakhs which consisted partly of imported watches valued at Rs. 12.50 lakhs and partly of diacem antwerpen packed in 40 small cartons (each containing 20 sticks) worth about Rs. 2.50 lakhs.

6. The central evidence in the case consisted of the confessions made by the respondents before the Customs authorities, particularly PW 4, corroborated as it was by the recovery of the smuggled articles at the instance of the respondents witnessed by P. Ws. 1, 2, 4 and 9. P. W. 9, was an independent witness whereas P. W. 1 was a police officer and P. Ws. 2 and 4 were customs officials. As the confessions were retracted, the learned Trial Court, as a rule of prudence, decided to act on them only if they were corroborated in material particulars by some other evidence. The learned Magistrate found that the search witnesses, P. Ws. 1, 2, 4 and 9, fully corroborated the statements made by the respondents in their confessions. Apart from the recovery of the smuggled articles at the instance of the respondents, the circumstances under which respondent No. 1 (A-1) was arrested, at the instance of A-5, from a bus stand which were proved by P. W. 9, was also relied upon by the learned Magistrate in holding that the case against the respondents stood proved.

7. The High Court disagreed with the view of the learned Magistrate and found that as no independent witness or witnesses from the locality were taken by the Customs authorities to witness the search, no reliance could be placed on the searches or recovery of the smuggled articles and that thus since the confessions were not corroborated, the conviction of the respondents was bad. The High Court also rejected the evidence of P. W. 9 and independent search witness, on the ground - (1) that he was not a witness of the locality, and (2) that he gave his assent to accompany the police and Customs Officers to witness the various recoveries wherever he was taken by the police.

8. We have gone through the evidence of P. Ws. 1, 2, 4 and 9 who are the witnesses