Srinivasan, J. - (1.) The appellant is the 8th accused in Criminal Case 240 of 1974 on the file of Judicial Magistrate , 1st Class, Umbergaon. He was held guilty of the offence punishable under Sections 135(1-A) and 135(1-B) of the Customs Act, 1962 and also under Section 25 of the Gold Control Act, 1968. He was sentenced to undergo rigorous imprisonment for a period of six years and pay a fine of Rs. 5,000/- for each of the offences under the Customs Act and rigorous imprisonment for a period of 2 years and pay a fine of Rs. 2,000/- for the offence under the Gold Control Act. The sentences of imprisonment were directed to run concurrently. Along with the appellants some other accused were also convicted. There were appeals by the State Government as well as the Assistant Collector of Customs and an appeal by the appellant before the High Court of Gujarat. The High Court while confirming the conviction, partly allowed his appeal and reduced the sentence of imprisonment under Sections 135(1-A) and 135(1-B) of the Customs Act to five years' rigorous imprisonment. Aggrieved by the said judgment, the appellant preferred these appeals on Special Leave.
(2.) The main contention of the learned counsel for the appellant is that the entire case of the prosecution as against him is wholly unbelievable as there is nothing on record to connect him with the alleged occurrence. It is submitted that the Courts below have acted on the sole uncorroborated testimony of PW 7 (PW 27) who was originally accused No. 9 and convicted on his pleading guilty and had undergone imprisonment for a short period. It is argued that if the evidence of PW 27 who claimed to have worked as a driver under the appellant is eschewed there is no material on record to prove the guilt of the appellant. It is further argued that even if the evidence of P.W. 27 is considered, it will be seen that no credence can be given to the same as his version is inherently improbable.
(3.) In the first blush the arguments of the appellant's counsel appear to be attractive but on a perusal of the entire record it is seen that there is no merit. Briefly, the relevant facts are as follows:- On receipt of information that contraband gold was being brought the officers of the Customs Department kept vigil at Village Jampore in Moti-Daman. It was found that two persons (Accused 10 and 11) were coming to the coast from the sea and after interrogation it was learnt that they were to give singnals after coming to the coast and after such signals were given, the boat in the midst of the see would come to the coast on the instructions of the officers. Such signals were given by the said persons but the boat did not come to the coast. The officers saw red signals being flashed from the house of the appellant situated nearby and they went to that house. There were three persons who had flashed red signals. On the next day the officers went to the boat which was at the mid sea and made a search. Accused Nos.1 to 7 were on that vessel. It was learnt from the three accused that 16 packets of gold were dumped in the sea at a short distance. They were taken out and it was found that they contained 32000 tolas of gold. The officers recorded statements under Section 108 of the Customs Act. Ultimately a complaint was filed by the Assistant Collector of Customs, Valsad on 29-3-74 against 11 accused. Accused No. 10 was absconding, Accused No. 3 expired, Accused No. 9 pleaded guilty. He was convicted and sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs. 2,000/-. He was in jail from 15-2-76 but there was a remission of sentence and after release he gave evidence as PW 27.;