This is an appeal by Abdullah, Hussain, Hakim and Gazi, against an order of the Commissioner Excise and Taxation, Rajasthan, dated 9.6.1955, in a case under sec. 114(35) of the Marwar Custom Act, whereby the order of the Collector, Jalore, dated 26.11.1954, acquitting the appellants of the offence charged with was set aside and the appellants were ordered to pay a sum of Rs. 2806/- by way of penalty equivalent to the amount of custom duty. 3. We have heard the learned counsel appearing for the parties and have examined the record at length. The case for the prosecution is that the accused intending to export a herd of sheep and goats without payment of prescribed customs duty, started form their village Khoka and avoiding customs outposts in the way would have succeeded in their act but that a party of customs employees having got scent of the affair intercepted them in the way whereupon the accused proceeded to Panchola outposts and offered to pay export duty. The Official-in-charge of the out-post deferred further proceedings till the following day on the ground that the duty would be realised only after counting the heads of the flock. In the night, however, the Inspector Customs appeared on the scene and directed Nakedar to abstain from realising the export duty. An enquiry was held by him under sec. 114(35) Marwar Customs Act and as he was of the opinion that the magnitude of the offence demanded the imposition of a penalty which was beyond his power, he submitted the case to the Collector, Jalore The Collector, Jalore, by his brief order held that there may have been a plan to smuggle goats etc. but that was frustrated by the timely action on the part of Nakedar Panchola. He acquitted the accused. The learned Commissioner reversed this decision on the ground that the export duty was paid after the commission of the offence and as the accused had started along with their herd with the intention of evading custom duty they were guilty of the offence. It is significant to note in this connection that this finding as regards the intention of the accused has been based by the learned Commissioner entirely upon the statements given by the four accused before the Inspector. No reference has been made to the evidence led by the prosecution or the material discrepancies that exist therein. It is significant to note in this connection that this finding as regards the intention of the accused has been based by the learned Commissioner entirely upon the statements given by the four accused before the Inspector. No reference has been made to the evidence led by the prosecution or the material discrepancies that exist therein. We propose to deal with them in this judgment. 3. We would like to observe that the procedure prescribed by sec. 111 of the Act for enquiries into offence under the Act was not at all observed in the case. As laid down in sub-sec. (3) the Customs Officer was bound to state the facts constituting the offence and to ask the accused if he admitted the commission of the offence. The accused were examined on 3.6.1953 and the statement of every one of them begins thus—"In reply to the question put to me I state that............" What was the question that was put to the accused has not been placed on record and hence it cannot be said that the facts constituting the offence were stated to them. It has been argued by Shri Bapna before us that the accused committed an offence under sec. 114(35) inasmuch as they while intending to carry export dutiable goods from a place in Marwar for export to foreign territory failed to obtain a Rawanna from the customs post en-route and got the Rawanna from the customs post of exit. The conviction of the accused is under sec. 114(35;. It is thus doubtful as to what facts constituting the offence were stated to the accused and what charge they were required to meet in the enquiry. The statements made by the accused were evidently not construed as an admission of guilt and the enquiry officer considered necessary to record the evidence for the prosecution. It is not clear from the record as to whether the statement of the prosecution witnesses were recorded in the presence of the accused or that they were given an opportunity to cross-examine them. As provided in sec. 111 sub-sec. (5)(i) and (ii) the Customs Officer was bound to take all evidence in the presence of the accused person. It is not clear from the record as to whether the statement of the prosecution witnesses were recorded in the presence of the accused or that they were given an opportunity to cross-examine them. As provided in sec. 111 sub-sec. (5)(i) and (ii) the Customs Officer was bound to take all evidence in the presence of the accused person. After the close of the prosecution evidence he was bound to enquire from the accused as to whether he had anything to say in his defence or whether he wanted to lead any evidence in his defence. There is nothing on the record to show that after the close of the prosecution evidence the enquiry officer asked the accused to offer explanation for things that may have appeared against them in the evidence, or that the accused were given a chance to lead their defence evidence This so called procedure adopted by the Coustom Officer is clearly against the provisions of the law and would be enough be to vitiate the proceedings conducted against the accused. The Act authorises the prosecutor to function as the judge in his own cause and to ensure a fair and detached enquiry, the necessity of scrupulously following the prescribed procedure cannot be over emphasised. There has been thus no proper enquiry in the case and accused are entitled to the benefit of the same. 4. The merits of the case have also been examined by us The real controversy between the parties exists on the point as to whether the accused appeared at naka Panchola with a genuine desire to pay export duty prior to exporting the flock out of Rajasthan or that they appeared thereafter being detected by the customs staff and that their appearance was merely a product of afterthought for creating a defence The statement of the Nakedar, Pratap Singh, a witness examined by the prosecution which stands corroborated by the entries in his diary makes it perfectly clear that the accused appeared at the naka of their own accord without being accompanied or followed in pursuit by the customs staff and that they offered to pay export duty. It is also in his evidence that at about mid night same other officers appeared on the same and as a result of their intervention this case was stated against them. The evidence of Nara and Sua, however, gives different version. It is also in his evidence that at about mid night same other officers appeared on the same and as a result of their intervention this case was stated against them. The evidence of Nara and Sua, however, gives different version. Accordings to these prosecution witnesses the accused were caught in the act of smuggling when they offered some illegal gratification for silencing them, even offered resistance, and eventually ran away to the naka Panchola ahead of their flock for creating some defence. The prosecution itself is based on two irreconcilable sets of evidence and if one is to be believed the other is bound to be disbelieved. The onus of establishing the charge against the accused beyond all reasonable possibilities of doubt rested upon the prosecution and when the prosecution itself throws distrust and suspicion upon its case the standard of proof laid down for holding the charge established cannot be deemed to have been achieved in this case. It is really unfortunate that the evidence was discussed neither by the trial court not by the first appellate court. Some of the statements having been recorded in very bad hand have presented numerous difficulties in deciphering before us. We could go through them with very great difficulty. The intention of the accused is a factor which is not capable of ocular proof. It has to be judged from events that may have been established by the prosecution. There exists on record a site plan and the learned counsel for the Government frankly conceded his inability to show as the starting point of the accused and the evasions or avoidances record by them for purposes of stealthy movements. The facts given by the accused in their statement are to be viewed in their entirety and it would be unfair to pick up same portions here and there without reference to the context. The accused have stated that they followed Ujar land for marching their flock. The prosecution would have us believe that this was an indication of their ulterior to avoid detection by the customs staff. The reason offered by the accused is that they wanted the flock to be fed on the way and hence they followed a route which offered some possibilities in this respect. There is absolutely nothing on the record to show that there is anything wrong in this explanation. The reason offered by the accused is that they wanted the flock to be fed on the way and hence they followed a route which offered some possibilities in this respect. There is absolutely nothing on the record to show that there is anything wrong in this explanation. To conclude, therefore, we hold that the trial stands completely vitiated by the failure to comply with the mandatory requirements of law, that the evidence for the prosecution abounds in material discrepancies which go a great way in detracting from its credibility and that the conviction based upon conjectures is hardly untenable. It was argued before us that in view of the irregularities committed in the enquiry a fresh trial may be ordered. Looking to the fact that a period of almost two and a half years has elapsed since the alleged commission of the offence during which the accused have undergone much mental agony and material expenses, it would not be in the interest of justice to subject them to a further enquiry. Taking into consideration the various aspects of the case we would, therefore, allow this appeal, set aside the order of the lower appellate court and restore that of the trial court. The fine, if paid, shall be refunded to the appellants.