JUDGMENT

SARKARIA, J.

( 1 ) THIS appeal by special leave preferred by the State of Maharashtra, is directed against a judgment, dated 1/11/1973, of the Bombay High Court.

( 2 ) MOHD. Yakub respondent 1, Shaikh Jamadar Mithubhai respondent 2, and Issak Hasanali Shaikh respondent 3, were tried in the court of the Judicial Magistrate First Class, Bassein, Bombay, in respect of three sets of offences punishable under Section 135 read with Section 135 (2) of the Customs Act, 1962. The first charge was the violation of sections 12 (1), 23 (1) and 23 (d) of the Foreign Exchange Regulation Act, 1947, the second was violation of Exports (Control) Order No. 1 of 1968 E. T. C. dated 8/03/1968; and the third was the contravention of the provisions of Sections 7, 8, 33 and 34 of the Customs Act, 1962. They were also charged for violation of the Exports (Control Order No. 1/68 E. T. C. dated 8/03/1968 issued under Sections 3 and 4 of the Imports and Exports (Control) Act, 1947 punishable under Section 5 of the said Act. The gist of the charges was that the respondents attempted to smuggle out of India 43 silver ingots, weighing 1312. 410 kgs. worth about Rs. 8 lakhs, in violation of the Foreign Exchange Regulation Act, the Imports and Exports (Control) Act, 1947, and the Customs Act.

( 3 ) THE facts of the case were as follows :-ON receiving some secret information that silver would be transported in Jeep No. MRC 9930 and Truck No,. BMS-796 from Bombay to a coastal place near Bassein, Shri Wagh, Superintendent of Central Excise along with Inspector Dharap and the staff proceeded in two vehicles to keep a watch on the night of 14/09/1968 at Shirsat Naka on the National Highway No. 8, Bombay City. At about mid-night, the aforesaid jeep was seen coming from Bombay followed by a truck. These two vehicles were proceeding towards Bassein. The officers followed the truck and the jeep which, after travelling some distance from Shirsat Naka, came to a fork in the road and thereafter instead of taking the road leading to Bassein, proceeded on the new National Highway leading to Kaman village and Ghodbunder creek. Ultimately, the jeep and truck halted near a bridge at Kaman creek where after the accused removed some small and heavy bundles from the truck and placed them aside on the ground. The Customs Officers rushed to the spot and accosted the persons present there. At the same time, the sound of the engine of a mechanised sea-craft from the side of the creek was heard by the officers. The officers surrounded the vehicles and found four silver ingots near foot-path leading to the creek. Respondent 1 was the driver and the sole occupant of the jeep, while the other two respondents were the driver and cleaner of the truck. The officers sent for Kana and Sathe, both residents of Bassein. In their presence respondent 1 was questioned about his identity. He falsely gave his name and address as Mohamed Yusuf s/o Sayyed Ibrahim residing at Kamathipura. From the personal search of respondent 1, a pistol, knife and currency notes of Rs. 2,133. 00 were found. Fifteen silver ingots concealed in a shawl were found in the rear side of the jeep and twenty-four silver ingots were found laying under saw-dust bags in the truck. The truck and the jeep together with the accused-respondents and the silver ingots were taken to Shirsat Naka where detailed panchanama was drawn up. Respondent 1 had no licence for keeping a pistol. Consequently, the matter was reported to Police Station Bassein, for prosecuting the respondent under the Arms Act.

( 4 ) THE respondents and the vehicles and the silver ingots were taken to Bombay on Sept. 15, 1968. The statements of the respondents under S. 108 of the Customs Act were recorded by the Shri Wagh. Superintendent of Central Excise. by his order dated 28/05/1969, confiscated the silver ingots. After obtaining the requisite sanction, the Assistant Collector, Central Excise made a complaint against all the three accused in the court o