JUDGMENT Ansari, C. J. 1. This revision petition by the first accused in the case seeks to vary concurrent orders by two courts, whereby the petitioner and the third accused were found guilty and sentenced to 6 months under section 109, I.P.C., read with sections 8 (1) and 23 (1) of the Foreign Exchange Regulation Act, 1947. They were further found guilty and sentenced to 6 months under section 109 I.P.C., read with section 167 (81) of the Sea Customs Act, 1878. Both the sentences were to run concurrently, and the two accused were also ordered under section 167 (81) of the Sea Customs Act, to pay Rs. 500 as fine, or, in default of payment, to undergo a further imprisonment for two months. 2. The facts not disputed in this petition are that P.W. 19, a Central Excise Officer, intercepted a car M.S.P. 557, which belonged to the petitioner, at Vengalam Railway Level Crossing Gate near Elathur, on the night following January 14, 1956, and called the revision petitioner, who was then inside, to open the dicky. The petitioner stated that he did not have the key, and the car was then taken on suspicion to the Customs House at Kozhikode by the concerned Officer, where on the petitioner's opening the car dicky, 7 bundles containing gold were discovered. The gold bore the mark 999' in the middle, some bars bore the mark 10' and weighed 17,336 odd tolas. In respect of this gold, the Collector of Central Excise, Madras, passed order on June 15, 1956 whereby the gold was confiscated under sections 167 (2) and (8) of the Sea Customs Act read with sections 8(1) and 23-A of the Foreign Exchange Regulation. The car was also confiscated under section 167 (8) read section 168 of the Sea Customs Act and also a penalty of Rs. 1,000 was imposed on the petitioner. 3. The next set of facts not in dispute before us is that Customs Officers having obtained a search warrant from the local Sub-Magistrate, searched the house of accused 2 and 4 in this case, who are the brother and the father respectively, of the petitioner; and, on August 26, 1956, recovered by digging from several places in the compound gold bars which bore the mark ' 999 in the middle, some bars had the mark 10' at the end, and all weighed, 32,078 odd tolas. Thus, about 49,415 tolas of gold, valued at Rs. 43,77,500, have been recovered, which would be liable to pay duty amounting to Rs. 6,48,571. 4. The complaint against four persons was then filed before the District Magistrate, Tellicherry, the petitioner being the first, his brother the second, his associate the third, and his father the fourth accused. Thereby the prosecution case, put forward is that: (1) The four accused and some others had en?ered into conspiracy to bring contraband gold into India from some foreign countries, at their instance some gold bars were brought to Cannanore on the night following January 13, 1956, in two Arab vessels and landed at Payyambalam beach, the bars were transported to Jyothi Textiles, Cannanore, belonging to the petitioner and all the gold bars were then stored in an almyrah. (2) On January 14, 1956, the petitioner and the 3rd accused removed 7 bundles of gold from the Jyothi fextiles and transported the same to Kozhikode in the petitioner's car, M.S.P. 557, at Vengalam Level Crossing Sate near Elathur, the car was stopped by the Central Excise Officers and the gold was later seized. (3) As soon as the news of the seizure reached the second accused, he removed from the Jyothi Textiles the remaining bars of gold to a house at Talap, Cannanore where he and his father were residing, and buried the gold in the compound, wherefrom, during the search on August 25, 1956, the gold was recovered. 5. A large mass of evidence was adduced in support and the District Magistrate found that the petitioner and the 3rd accused were the principal culprits in the importing of the gold from foreign countries in contravention of the Foreign Exchange Regulation Act and of the Sea Customs Act. He further held that they were responsible for transporting and concealing the same : and, on careful consideration of all the circumstances, found accused 1 and 3 guilty of abetment under section 109, I.P.C. read with sections 8(1) and 23 (1) of the Foreign Exchange Regulation Act and under section 167 (81) of the Sea Customs Act, 1878. He accordingly sentenced them, but acquitted the other accused. The Sessions Judge of Tellicherry has dismissed the appeal, where, against this revision petition has been filed by only one person. 6. He accordingly sentenced them, but acquitted the other accused. The Sessions Judge of Tellicherry has dismissed the appeal, where, against this revision petition has been filed by only one person. 6. It is necessary to state on what evidence the petitioner has been found guilty, for the grounds on which the petition has been filed are that oral evidence in support of the case consists of depositions of associates and the documentary evidence are inadmissible. The oral evidence, on which the case against the petitioner rests, comprises the depositions of P.Ws. 2, 4, 7, 8, 9, 10, 13, 17, 18,19, 21, and 22. Out of these, P.Ws. 2, 4, 7, 8, 10 and 13 took part in, transporting the gold from the Pathemar and landing at Payyambalam beach on January 13, 1956. 7. The substance of their depositions is that they went to Payyambalam beach on the nights of January 11 and 12, 1956, some had gone out into the sea and waited for hours in boats ; but, no Pathemar was found, and they had to return. On both these nights, P.W. 2 was taken to the petitioner's shop, and he obtained Rs 5 for his wages. 8. The next part of the evidence is that on January 13,1956, the Pathemar was sighted, the boat was taken near, someone went inside, 11 or 12 gunny bags containing something heavy were brought from the Pathemar, placed in the boat, on the boat's arrival at the shore, the petitioner and the 3rd accused were waiting; the petitioner took all the packages, put them into his car, went to the Jyothi Textiles, where he deposited the bags, and the same acts were repeated a second time, so that, in all, 24 bags were brought and locked at the Jyothi Textiles. 9. P.Ws. 4, 9, 19 and 22 swear to the transport of 24 bags of gold on the night of January 14, 1956; when the Central Excise Officers stopped the car at Vengalam Gate during the early hours of January 15, 1956. 9. P.Ws. 4, 9, 19 and 22 swear to the transport of 24 bags of gold on the night of January 14, 1956; when the Central Excise Officers stopped the car at Vengalam Gate during the early hours of January 15, 1956. This part of the prosecution evidence is that the petitioner, the 3rd accused and P.W.4 started from Cannanore in the petitioner's car M.S.P.557, at Badagara they met Abdul Rahiman Mooppan, who came in another car, M.S.P. 1313., which was driven by P.W. 9, there was conversation, all returned to Cannanore, half an hour later, the petitioner and the 3 accused told Abdul Rahiman Mooppan that seven bundles were loaded in the car, they started for Kozhikode, when they, came to Vengalam Crossing, P.W. 19, the Inspector of Central Excise, who was patrolling the area, stopped the two cars, nothing was found in the car M.S.P. 1313; but, when the petitioner was asked to open the dicky of his car, he said the key was not with him, which aroused suspicion, the car was taken to the Customs House; and,, on openings the dicky, seven bags of gold were found. P.W. 22 is the gateman, who was on duty at the Vengalam Railway Gate, and P.W.18 is the Deputy Superintendent of Central Excise, who was called at the Custom House: and in his presence, on opening the packages, in 2,49714/16 tolas of gold was seized. 10. The third part of the prosecution case is sworn to P.Ws. 3, 5, 6, 13 and 17 and concerns the recovery of gold on August 26, 1956, after the commodity been removed on the two accused being arrested and buried in the compound. The substance of their depositions is that P.W. 13 was instructed by the petitioner on any emergency arising to take the gold was to bury in the compound of the house, where accused 2 and 4 were living; that as soon as P.W. 13 heard about the seizure at Vengalam Gate, the petitioner's nephew and P.W. 3 immediately proceeded to the Jyothi Textiles, removed the remaining quantity of gold in the taxi car, which was driven by P.W. 6, the cooli who assisted the second accused to remove the gold is P.W. 5. This was on January 15, 1956, the Superintendent of the Central Excise, P.W. 25, on August 25, 1956, came to know about the gold being buried in the compound, whereupon P.W. 19 obtained a search warrant, conducted the search and thereby recovered gold weighing 31,9681/4 tolas. 11. In addition to the aforesaid, evidence, there are several statements by the accused that had been recorded by the Central Excise Officers. Ext. P-31 is, dated January 15, 1956, Ext. P-35 of January 16, 1956, Ext. P-38 of August 27,1956 and Ext. P-42 of August 30, 1950. These contain admissions about the accused being parties to the landing of contraband gold at the beach, its transport to the Jyothi Textiles, to the further transport from Jyothi Textiles, to Kozhikode, and to the detection at Vengalam Gate. The persons convicted were given notice, Ext. P-7, on October 5, 1956, to produce any general or special permission they had for transport of gold, and Ext. P-8 and P-10 are the replies sent by them, which are affirmations of the earlier admissions. 12. The several objections to the aforesaid evidence are that the important prosecution witnesses are accomplices to the crime, their evidence were not worthy of credence, and the courts below have erred in relying on such evidence. The next part of the argument is that adverse inferences should be drawn from prosecution's failure to examine Abdul Rahiman Mooppan, whose evidence was essential to the unfolding of the prosecution case. The next objection is that the accused's statements recorded by the Central Excise Officers were in exercise of powers by these officials as Police Officers under section 21 (2) of the Central Excise and Salt Act, and therefore, the accused's admissions in the several exhibits, on which the courts below have relied, were as confessions inadmissible in evidence and have been wrongfully made basis of the conviction. We feel adjudications on these points are hardly unnecessary for the conviction of the petitioner is sustainable on another ground. 13. It is not disputed that in the exercise of the powers under section 8(1) of the Foreign Exchange Regulation Act, the notification was issued, whereunder, except with the general or special permission of the Reserve Bank of India no person can bring or send any gold in or out of India. 13. It is not disputed that in the exercise of the powers under section 8(1) of the Foreign Exchange Regulation Act, the notification was issued, whereunder, except with the general or special permission of the Reserve Bank of India no person can bring or send any gold in or out of India. Further section 23 (a) of the Foreign Exchange Regulation Act provides that the restrictions imposed by sub-sections (1) and (2) of section 8 should be deemed to have been imposed under section 19 of the Sea Customs Act. That section gives power to the Government to prohibit or restrict the bringing or taking by sea or land, goods of any specified description into or out of India, and the result is that any infringement of the notifications under section 8 of the Foreign Exchange Act would be deemed to be contravention of the prohibitions under section 19 of the Sea Customs Act. Such an act would then be punishable under section 167(81) of the Sea Customs Act, which provides that if any person knowingly and with intent to defraud Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto, acquire possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse, or which are chargeable with a duty, which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force such person shall, on conviction before a Magistrate, be liable to imprisonment for any term not exceeding 2 years, or to fine, or to both. Now, the petitioner cannot deny that he was concerned in carrying gold with respect to the importation of which a prohibition is for the time being in force, nor can he deny that he was doing so knowingly. Nor the establishment of the intention to evade the prohibition should unnecessarily trouble us, for the notification under the Foreign Exchange Regulation Act having become part of the prohibition under the Sea Customs Act, section 178-A of the latter Act would apply to proceedings when contravening the prohibition is being investigated into. Nor the establishment of the intention to evade the prohibition should unnecessarily trouble us, for the notification under the Foreign Exchange Regulation Act having become part of the prohibition under the Sea Customs Act, section 178-A of the latter Act would apply to proceedings when contravening the prohibition is being investigated into. The section reads as follows : "178-A Burden of Proof" (1) Where any goods to which this section applies are seized under this. Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetic and any other goods which the Central Government may, by notification in the Official Gazette, specify in this behalf." * * * It follows that the burden is on the petitioner for the gold was in his car and therefore in his possession, when it was seized in the night of 14th January 1956, and the circumstances, under which the seizure was effected, justify the belief of the gold being smuggled. The petitioner has produced no evidence to show the gold being not smuggled and therefore the intention to evade prohibition is established in the case. We therefore, think that the petitioner's conviction under section 167 (81) cannot in these circumstances be varied. 14. Coming to the question of sentence, we feel six months' R.I. to be a harsh one in the circumstances of the case. The offence had been committed on January 15th. 1956 and the petitioner has already been made liable to payment of fine of Rs. 1,000. His car has also been confiscated by the Customs authorities. He had lost his business that he had been carrying on, and the final adjudication on his objections has been unnecessarily delayed till the end of 1960. The question, therefore, for consideration is whether he should be sent back to jail for the unexpired period of this sentence. Now the punishment is an evil and is justified only by its effect in deterring the offender from committing the offence in future and in deterring others by the example from the commission of it. The question, therefore, for consideration is whether he should be sent back to jail for the unexpired period of this sentence. Now the punishment is an evil and is justified only by its effect in deterring the offender from committing the offence in future and in deterring others by the example from the commission of it. So far as deterring the petitioner from committing the offence in future is concerned, it is obvious that he has incurred sufficient losses to prevent his repeating the act. He has lost the car, he has been fined by Customs authorities, by the courts below and the duration of criminal proceedings has been sufficiently prolonged to prevent his resuming any normal life during the period. Under these circumstances, the sentence of six months imprisonment would be an unduly harsh sentence. Coming to the question of whether the sentence of imprisonment is necessary by deterring others from committing the offence, we feel, nobody would risk importing gold with the consequences that have followed the acts, for which the revision petitioner has been convicted. In these circumstances, we feel that shutting the revision petitioner in prison for full six months would be useless piece of security measure. We would therefore, reduce the sentence of imprisonment to the period of imprisonment already undergone by petitioner. The other parts of his sentence given by the lower courts shall stand. 15. The revision petition is accordingly allowed. The conviction is upheld; but only the sentence of imprisonment is modified to the period of imprisonment the prisoner has already undergone. The other parts of the sentence, namely of fine and the period of imprisonment on default of payment will stand.