Judgment

BHAGWATI, J. :- These appeals by special leave are directed against a common judgment dated 27th August, 1973 passed by a single Judge of the High Court of Bombay in so far as it acquitted the first respondent in Criminal Appeal No. 146 of 1978, respondents Nos. 1 & 2 in Criminal Appeal 147 of 1974 and the first respondent in Criminal Appeal No. 418 of 1974 (hereinafter referred to as the accused) of the offence under Section 135 (1) (a) (ii) of the Customs Act, 1962. The entire controversy between the parties in these appeals turn on the true interpretations of Sec. 135 (1) (a) (ii) and it is therefore not necessary to set out the facts in detail, but in order to appreciate how the question arises for consideration we may briefly reproduce a few relevant facts.

2. On 9th June 1968 at about 2 p.m. Shri. Mugve, the Assistant Collector of Customs, who was then Principal . Appraiser in the Directorate -of Revenue Intelligence, Bombay, received information that a fishing vessel was going to load silver at Ghas Bunder after 9 p. m. on that day and it was going to take the silver to a spot near Khanderi island in order. to put it on an Arab Dhow for dispatching it to Dubai. On receipt of this information, Shri Mugve kept A watch in a privately owned, motor launch in the stream near Ballard, Pier about four miles away from the shore. At about 11 p.m. Shri Mugve and the other customs officers accompanying him noted that a heavily loaded fishing vessel was proceeding towards the Khanderi island without navigational lights. They immediately chased the fishing vessel and asked the crew to stop it but instead of stopping the crew increased the speed and tried to run away. The fishing vessel was chased and eventually it was intercepted by Shri Mugve and the other customs officers. On being questioned the Tindel of the fishing vessel made a statement that 194 ingots of silver of the value of Rupees 92 lakhs were being taken towards Khanderi island for being loaded on an Arab Dhow which was going to Dubai. The fishing vessel was thereupon towed to Ballard Pier and 194 ingots of silver found in it were seized under a Panchnama in the reasonable belief that they were being smuggled out of India. The accused who were in the fishing vessel were also prosecuted in the Court of Additional Chief Presidency Magistrate 5th Court Dadar for offences under Section 126-B of the Indian Penal Code, Section 135 (1) (a) (ii) of the Customs Act 1962, Section 5 of the Imports and Exports (Control) Act 1947 and Section 23 (IA) of the Foreign Exchange Regulation Act 1973. The Additional Chief Presidency Magistrate found the accused guilty of all the offences charged against them and sentenced them to various terms of imprisonment including. fine. The accused thereupon preferred three appeals in the High Court of Bombay against the order of conviction and sentence passed against them by the Additional Chief Presidency Magistrate. These appeals were heard by a single Judge of the High Court and by a common Judgment dated 27th August, 1973 the learned single Judge confirmed the conviction of the accused under Section 120B of the Indian Penal Code and Section 6 of the Imports and Exports (Control) Act 1947 but set the conviction under Section 135 (1) (a) (ii) of the Customs Act 1962 and on 23 (1A) of the Foreign Exchange Regulation Act 1973. The Assistant Collector of Custom accepted the judgment of the learned single Judge in so far as it acquitted the accused of the offence under Section 23 (1A) of the Foreign Exchange Regulation Act 1973 but he was aggrieved by that part of the judgment, which set aside the conviction under Section 135 (1) (a) (ii) of the Customs Act 1962 and he accordingly preferred the present three appeals with special leave obtained from this Court.

3. Before we set out the rival arguments addressed before us, it would be convenient to reproduce S. 135 (1) (a) (ii) of the Customs Act 1962. That section reads as follows :

135. Evasion of