Judgment

N.P. SINGH, J.- The appellant was convicted by the Magistrate for an offence under Section 135(l)(a) of the Customs Act (hereinafter referred to as the Act) and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs 5000, in default of payment thereof, to undergo rigorous imprisonment for further period of six months. The appeal preferred on behalf of the appellant, before the Sessions Judge, was transferred to the High Court, to be heard along with the appeal filed on behalf of the State, against the order of acquittal, passed by the Magistrate against other co-accused persons. The High Court, by the impugned judgment, dismissed the appeal of the appellant.

2. It is the case of the prosecution that on January 30, 1969, the patrolling officials found a truck coming from the side of Moti Daman and proceeding towards Mohangam Railway Crossing, without the headlights being on in a suspicious manner. On inquiry, it was found that the said truck had unloaded some contraband articles at some Wadi. Police and the officials of the Customs Department, found out that goods had been unloaded at the Wadi of the appellant at Iklora. A search was carried out in the said Wadi, and on digging the ground near a well 101 silver ingots, weighing 3274.98 kgs., worth about Rs 18,08,850, were recovered. The said silver ingots were neither covered under any transport voucher nor any of the requirements contemplated under Chapter IV-B of the Act, were found to have been complied with. The Customs officials had reasonable belief that the said silver ingots had been stored at the Wadi of the appellant, for the purpose of illegal export and as such liable for confiscation. Further investigation disclosed that the said silver ingots had been brought by two motor trucks bearing Nos. M.H.T. 2304 and M.R.T. 2751. So far the truck No. M.H.T. 2304 was concerned, which was spotted out first moving in a suspicious manner, was carrying contraband silver ingots 20 in number. Several persons including the drivers and owners of the trucks were made accused in connection with the said recovery. The original accused 2 Shankarbhai Haribhai, brother-in-law of the appellant, was at the time of seizure, present at the Wadi and was guarding the said place. Later he absconded and could not be made available for trial.

3. By. Notification No. C.S.R. 37, dated January 3, 1969, issued by the Government of India, Ministry of Finance, in exercise of the powers conferred by the Act Silver Bullion and Coins had been declared as specified goods. By Notification No. C.S.R. 38, dated January 3, 1969, issued in exercise of powers conferred by the said Act, the area of 50 kilometres in width from the coast of India, falling within the territories of the States of Gujarat, Maharashtra, Mysore and Union Territory of Goa, Daman and Diu, had been declared as the specified area. There is no dispute that the Wadi of the appellant was within 50 kilometres from the coast of India as such within the specified area, and before the seizure were made on January 30, 1969, the silver ingots had been notified as specified goods.

4. After the recovery aforesaid, the statement of the appellant had been recorded, in accordance with Section 108 of the Act. During course of the statement, the appellant admitted that the Wadi belonged to him and 101 silver bars had been buried near a well in the said Wadi. He stated:

"Customs personnel came at night at my Iklora Wadi and they took away 101 silver bars which were buried near the well...."

He again repeated the same thing later in his statement by saying:

"On date January 30/31, 1969 the Customs officials digged the land near the well in the Wadi of my Iklora and found 101 silver bars...."

He, however, stated that he did not know how the silver bars came there. In the case of Veera Ibrahim v. State of Maharashtra{(1976) 2 SCC 302} it was examined, as to whether the statement of the accused in that case recorded by the Customs