M.G. Chaudhari, J. - While acquitting the appellant for the offence under section 135 of the Customs Act, the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay by his judgment and order passed in Case No. 31/CW -1981 dated 29.3.1982 convicted the appellant for offence punishable under section 5 of the Imports and Exports (Control) Act and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 7,500/- in default to undergo R.I. for four months. The appellant has challenged his aforesaid conviction in this appeal.

2. This appeal was originally filed before the Sessions Court, Greater Bombay and was numbered as Criminal Appeal No. 187 of 1982 in that Court. The appeal was admitted in that Court on 22.4.1982 and was pending. However, on 27.7.1982 the Respondent-State filed Criminal Appeal No. 505 of 1982 in this Court against the acquittal of the present appellant for the offence under section 135 of -the Customs Act by the very same judgment and order which arc impugned in this appeal. An order was passed in that appeal on 9.7.1984 and the appeal was transferred from the Sessions Court to this Court and was directed to be heard along with Criminal Appeal No. 505 of 1982.

3. The appeal when it was filed in the Sessions Court was filed by Mr. G.A. Merchant, advocate on behalf of the appellant. However, after the appeal was transferred to this Court the said advocate expired. Hence this Court issued notice on Court Service to the appellant on 20.7.1985 "to arrange for engaging another advocate in place of late Mr. Merchant or to appear in person and that the appeal would be disposed or in his absence if he did not comply within fourteen days. That notice however was returned unserved with the report that the appellant was not found residing on the given address.

4. It may be stated that in Criminal Appeal No. 505 of 82 action under section 390, Cr. P.C. was directed to be taken at the time of admission of appeal on 17.8.1982. In pursuance of that order, the appellant was released on bail on 25.10.1992. Since both the appeals were being proceeded together in this Court and as the notice issued in the instant appeal to the appellant was not served an order was passed by Daud J. on 17.6.1988 in Appeal No. 505 of 1982 to issue notice to the surety to show cause as to why the bonds furnished by him should not be forfeited and the entire amount thereof be recovered from him by way of penalty; It may be mentioned that from the record it transpires that the surety is a female by name Mrs. Savitaben Babulal Zagda. The notice issued in pursuance thereof however has not been served on the surety till date. It is in these circumstances that the appeal was placed on board for hearing, along with Appeal No. 505 of 82.

5. In as much as Mr. Rizwan G. Merchant, advocate has filed his vakalatnama in Appeal No. 505 of 1982 wherein the present appellant was the respondent and when both the appeals were directed to be heard together there was no point in keeping this appeal pending as Mr. Merchant could have very well be asked to argue on behalf of the appellant in this appeal or to Secure his presence in the companion appeal in which he represented him. Moreover, after going through the record as I found that the appellant had already undergone custody of which he would get set off covering the period of sentence it was not necessary to keep the appeal pending. It was also necessary for the appellant to have prosecuted his appeal and since he did not take any steps or showed any interest all these years it must be presumed that he is no longer interested in prosecuting this appeal. Hence I have heard the learned Additional Public Prosecutor and propose to dispose of this appeal.

6. The case of the prosecution briefly stated was as follows:

"On 11.12.1979 the appellant arrived by an International flight at Santacruz Airport, Bombay from Dubai. He entered the red channel in the Customs at the Airport. H