M. HIDAYAlULLAH, C.J.

(1) IN this appeal by special leave against the judgment of the High court of Bombay, December 22/23, 1966, the appellant Ambalal Chimanlal Chokshi stands convicted under Rule 126-P(2)(11) of the Defence of India Rules and Section 135(ii), read with Section 135(b)ofthe Customs Act by the Additional Chief Presidency Magistrate, 8th court, Bombay and sentenced to nine months rigorous imprisonment and Rs. 2,000.00 fine for each offence. The sentences of imprisonment are to run concurrently. His convictions and sentences were confirmed by the High court) on appeal.

(2) CHOKSHI was residing in Neeta Building opposite Marine Lines Railway Station, Bombay in a flat on the second floor. On 5/04/1963, Rane(P.W. 1.) Deputy Superintendent of the Excise Department with other officers went to make a search of his flat. He was authorised by Wagh (P. W. 2) officer Incharge of the Excise Department, to make this search under the provisions of the Gold Control Order. When Rane reached the door of the flat he found that the Panchas, who were to have met him there at the appointed time (12-30 p. m.), had not arrived. The door of the flat opened and two persons by name Chandchankar and Ashok (son of the accused) came out. Rane asked them to go back and stay inside within his sight in the drawing room. Rane stood at the door and did not enter the flat. Chokshi then came to the door. Rane told him that a search of the flat was to be taken. Rane was invited to go in but he declined as the Panchas had not arrived. At 12-45 p. m. the Panchas arrived. Rane showed his authority to search the flat and then they entered. The raiding party was conducting the search of the flat and of the persons inside the flat, which, as already shown, were Chokshi, Chanchankar and Ashok (son of the accused). There were two other ladies in the flat at that time because the wife of Chokshi arrived while Rane was at the door. and was allowed to enter the flat. The other lady was a girl aged 16 years and was the daughter of the accused. It is not clear whether there was a boy also, but in any case his age was 4 to 5 years and he does not count in this case.

(3) WHEN Rane and the raiding party entered the flat they had left two persons on the road to keep a watch, on the house. ; They were Patel (P. W. 5) and one Chuggani, both officers of the Department. Meanwhile something was happening to which a separate reference is necessary. One Rotak (P. W. 3), who was living in a flat on the 1st floor below Chokshis Bat, switched on his radio at 2 minutes to 12-30 p. m. for the news. He heard a big thud and opened the window and looked out. This was at the back of the building where there was a pit. He saw in the pit two bags with some yellow blocks lying near about the two bags. He also saw a pigeon lying near the two bags. He attempted to contact one Mody (P. W. 3) Chairman of the Co-operative Society of the owners of the flats, but could not get his atones. He again tried and Mody came down to the flat of Kotak and saw two persons who were keeping watch on the building from the road end he called out to them. Patel thereupon shouted from the road telling them to go to the second floor and call Rane to the first floor from the second. In the meantime, Wagh, Superintendent of the Excise also arrived. They went and saw the two bags and the pigeon lying in the pit. Photographs of bags were found to contain gold slabs, some of which had fallen out. Meanwhile Mody came and informed Wagh that in the balcony of his flat which adjoins the balcony of Chokshis flat a cloth bag was lying which did not belong to him. This cloth bag was opened by Wagh and was found to contain a plastic bag inside. In the plastic bag bundles of currency notes wrapped in the newspaper of the value of Rs. 1,04,000.00 were found. The bag also contained an exercise book some pages of which were found to be torn and a diary in which something was written in code language. Th