Tambe, J.

1. Criminal Appeal No. 1759 of 1963, is preferred by original accused No. 5 - Laxman Padma Bhagat : Criminal Appeal No. 53 of 1964, is by Haroon Haji Abdulla, original accused No. 8 : and Criminal Appeal No. 1 of 1964, is by Ayub Kassim Kika. Original accused No. 9. These three appeals can be disposed of by one judgment. They arise out of the judgment of the learned Presidency Magistrate, 19th Court. Esplanade, Bombay, where the aforesaid three appellants along with 15 others were put up for trail. Out of these 18 accused, accused No. 17 was discharged; accused Nos. 14, 15 and 18 - Haji Mahamed Barkati, Haji Sattar and Yusuf Habib had been absconding, and therefore their cases were separated, original accused No. 4, Noor Mohamed Alu Bhati was jointly tried along with the remaining accused, but on the date of the judgment, it was found that he had absconded, and., therefore, his case was separated/ Accused No. 1 Govind Narayan Bengali, who was jointly tried, died after the close of the case but before the pronouncement of the judgment. Accused Nos. 11, 12, 13 and 16 - Shankar Aitwar Koli, Usman Saleh, Adam Budda and Gulam Nabi have been acquitted.

(2) In short, as a result of the judgment only 8 of the accused, namely, accused Nos. 2, 3, 5, 6, 7, 8, 9 and 10 have been convicted of offences under section 120-B. Indian Penal Code, for having conspired to smuggle gold into India without a valid permit and thereby evading duty payable thereon, and to evade the prohibition enacted in this matter by notifications made under certain various enactments. Only accused Nos. 5, 8 and 9 have appealed.

(3) The following facts are no more in dispute, and there is ample evidence establishing them. In April or May 1961, Police Inspector Mr. Bhesadia (P.W. No. 30) attached to the Anti-Corruption and Prohibition Intelligence Bureau, Bombay, received certain information about smuggling operations, and he took certain measures to pursue the information and to arrange for watch. On 13th of August 1961, he received certain information at his residence in Dhobi Talao that smuggled gold was likely to be landed at Versova beach the same night. He, therefore, went to Madh Island at about 4 p.m. in a police car driven by one Rajaram Sawant, the police driver. At about 8-40 p.m., he received information that the smuggled gold was to be landed at Versova Beach. He, therefore, proceeded in his car from Madh Island to Versova beach reaching there at about 9-3- p.m. On reaching the beach, he recerved further information as a result of which he went to the house of Govind Narayan Bengali, the first accused in this case. The house of this Govind is situate in a locality at Versova known as Tare Gally which is close to the Versova beach. The house consists only of one room and a verandah. As Mr. Bhesadia and his driver Rajaram approached the house, the door of the house from outside, kept Rajaram on guard at the dorr, and rushed to the window, the only other opening of the room. At the time, one Ismail Tharu was trying to escape through the window. Bhesadia pushed him, in, called Rajaram and put him on guard at the window, and then opening the door, entered the room, where he found Govind, accused No. 1, his brother Dharma Narayan accused No. 2, his cousin Bhaskar Bhavan Pedhe accused No. 3, Ismail Tharu, a foreigner, and Kashinath, the first witness in this case, P.W. No. 1. Accused Nos. 1 to 3 and Kashinath are fishermen residing in the village Versova. Ismail is a foreigner. Bhesadia also noticed that there was a heap of small gunny bags in a corner of the room. He further found that the gunny bundles were wet and were heavy, he surmised that the gunny bags would contain smuggled gold. He, therefore, sent Rajaram to fetch panchas. Rajaram brought three panchas including panch Minoo Fitter (P.W. No. 12). One of these persons was sent back to Bombay to inform at the houses of the two panchas remaining behind that they had been detained. Bhesadia