Wanchoo, J. - (1.) These two appeals by special leave arise out of the same criminal trial before a magistrate at Porbunder and will be dealt with together. The three appellants along with one more person, namely, Keshavlal Nagjibhai were prosecuted under S. 167 (81) of the Sea Customs Act, No. 8 of 1878, (hereinafter referred to as the Act). The prosecution case briefly was that Vallabhdas Liladhar, who is now dead, came in contact with an Arab from whom he purchased smuggled gold weighing a little more than 84 tolas on December 1, 1956. Before this, Vallabhdas Liladhar had borrowed Rs. 3,600/- from the other two appellants and Keshavlal about November 28, 1956, in order to make the purchase. After making the purchase, Vallabhdas Liladhar came to Porbunder to the house of the other two appellants and Keshavlal and informed them of the purchase and wanted their help in the disposal of the gold. The other two appellants namely, Narandas Nagjibhai and Vallabhdas Nagjibhai are brothers. Keshavlal was also the brother of these two appellants. The prosecution case further was that Narandas Nagjibhai asked Vallabhdas Nagjibhai to take the gold to Bantwa and sell it at the rate of Rs. 103/- or so per tola. Vallabhdas Nagjibhai was also instructed that in case he could not sell the gold at that rate he should contact Vallabhdas Liladhar and Narandas Nagjibhai at Bantwa bus stand from where they were to go to Junagadh to dispose of the gold it no suitable buyer could be found in Bantwa. Consequently Vallabhdas Nagjibhai proceeded to Bantwa by bus on December 2, 1956 in the afternoon. In the meantime information was received by Mehta who was Inspector of Customs about the smuggling of this gold. He consequently followed the bus in which Vallabhdas Nagjibhai was travelling and intercepted him at Kutiyana bus stand at about 3 p. m. The Deputy Superintendent of Customs was also with Inspector Mehta and Vallabhdas Nagjibhai was taken down from the bus at Kutiyana. On search in the presence of witnesses, five bars of gold weighing about 84 tolas were recovered from his possession. All these five bars bore marks of foreign origin and were taken in possession by the customs authorities after preparing a recovery list. Further investigation was made in the matter and eventually on October 7, 1957, the collector of Central Excise, Baroda confiscated the gold bars under S. 167 (8) of the Act read with S. 23 of the Foreign. Exchange Regulation Act, 1947 and also imposed a penalty of Rs. 1,000/- each on the three appellants and a penalty of Rs. 500/- on Keshavlal. Thereafter a complaint was filed by the Assistant Collector of Customs under S. 167 (81) of the Act before the magistrate at Porbunder on June 27, 1958.
(2.) The case of Vallabhdas Liladhar was that he had not purchased the gold from any Arab but had brought it with him from Karachi in the year 1946. Vallabhdas Nagjibhai admitted the recovery of gold from him but said that it belonged to Vallabhdas Liladhar and he was carrying it at the request of the latter and that he did not know that it was smuggled gold. Narandas Nagjibhai also admitted that Vallabhdas Liladhar had come to their house with the gold but added that it was not smuggled gold and that Vallabhdas Liladhar had told him that it belonged to him and was for sale. Keshavlal, the fourth person, who has been acquitted, said that he did not know anything about the matter and had no connection with it.
(3.) It may be added that the three appellants had made statements before the customs authorities and those statements were also put in evidence in support of the prosecution case. In those statements, they practically admitted the prosecution case that the gold was smuggled gold and they were trying to dispose it of. The magistrate convicted all the four persons under S. 167 (81) of the Act and sentenced them to rigorous imprisonment for six months and a fine of Rs. 500/-. He relied on the statements made by the appellants and Keshavlal before the customs authorities and also on the evidence produced before him, which was mainly about the recovery of gold.;