S. L. TALATI, J. ( 1 ) IN this case smuggling accused No. 9 pleaded guilty to the charge and he was convicted for an offence punishable under secs. 135 (1) (a) and 135 of the Customs Act and also for the offence punishable under sec. 85 of the Gold Control Act. He was also held guilty for the offence punishable under sec. 120-B of the Indian Penal Code read with sec. 135 of the Customs Act and sec. 85 of the Gold Control Act and sec. 246 (3) of the Customs Act. Accused No. 3 has expired. Accused No. 10 in the case is still absconding. During the trial of the other accused this accused No. 9 gave evidence as prosecution witness. The trial court after considering the various statements made by the different accused persons and also considering the other evidence on record came to the conclusion that accused Nos. 1 2 4 5 6 7 8 and 11 were guilty for the offence punish- able under secs. 135 (1) (a) and 135 (1) (b) of the Customs Act and also for the offence punishable under sec. 85 of the Gold Control Act and sente- nced them to various terms of imprisonments and fine. The Government in case of certain accused appealed for enhancement of the sentences while some of the accused appealed against the conviction. In the appeal it was submitted by the learned advocate Mr. D. C. Trivedi on behalf of accused No. 8 that all these statements of the accused persons are the statements made by the persons who could be termed in eye of law as accomplices and that one accomplice cannot corroborate another accom- plice. The learned advocate also referred to the following cases: (1) Bhubani Sahu v. The King A. I. R. 1949 Privy Council 257; (2) Kashmira Singh v. The State of Madhya Pradesh A. I. R 1962 S. C. 159; and (3) Mohd. Hussain Umar Kochra etc. v. K. S. Dalipsinghji and Another etc. A. I. R. 1970 S. C. 45. . . . . . . . . . . . . . . . . . . ( 2 ) IN the light of the above rulings which are cited before us and in the light of the provisions contained in Law we have to examine the evidence which we have discussed above. So far as sec. . . . . . . . . . . . . . . . . . . ( 2 ) IN the light of the above rulings which are cited before us and in the light of the provisions contained in Law we have to examine the evidence which we have discussed above. So far as sec. 114 illustration (b) of the Evidence Act is concerned it reads as under:"the Court may presume (A) xxxx xxxx xxxxx (B) That an accomplice is unworthy of credit unless he is corroborated in material particulars. But the Court shall also have regard to such facts as the following in consi- dering whether such maxims do or do not apply to the particular case before it : xxxx xxxxx xxxx xxxxas to illustration (b)-A crime is committed by several persons. A B and C three of the criminals are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D and the accounts corroborate each other in such a manner as to render previous concert highly improbable". ( 3 ) ANOTHER provision of law which is required to be kept in mind is contained in sec. 133 of the Indian Evidence Act which reads as under:"133 An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplicethe learned advocate Shri D. C. Trivedi submitted that the combined effect of the above provisions would be that though conviction based on the sole testimony of an accomplice is not illegal prudence requires that the Judge should look for an independent corroboration and the requirement of prudence has now become such a rule that it must be given effect to as if that rule has hardened into a law and it was ultimately submitted that one accomplice cannot corroborate another accomplice and the corroboration must be sought for from an indepen- dent source and that independent source must connect accused No. 8. Unless that is done conviction of accused No. 8 could not be upheld. That was the submission made on behalf of accused No. 8 by the learned advocate Shri D. C. Trivedi. Unless that is done conviction of accused No. 8 could not be upheld. That was the submission made on behalf of accused No. 8 by the learned advocate Shri D. C. Trivedi. We may state here that an accomplice is a person who according to law is a participant in crime and that is the stigma which is attached to that person. Reliability of such person could be doubtful and therefore prudence requires corroboration that is the submission. But we may make it clear that all accomplices are not participants in the criminal act equally. Where is always a difference of degree. Two persons might willingly join a criminal act and participate in it. Each will be accomplice of other. There could be a person who might unwillingly join other and be a participant in the crime. There could also be a person who could only be a servant and for mere getting salary he may occasionally participate in the crime. There are grades and grades of accomplices. They only vary in participation but the grades vary in the fulfilment of the ultimate result which the criminals try to bring about. One may get the whole ill-gotten wealth and another may only get a paltry salary out of it. The needs and objects or different persons differ. We are in this particular case dealing with accused No. 9. We have examined as to whether what he tells to this Court is reliable and whether on his evidence one could safely act and convict accused No. 8. It has been brought in evidence of Mr. Brahmkhatriya P. W. 15 Exh. 120 that he knew accused No. 9. He also knew from his personal knowledge that accused No. 9 was driver of accused No. 8. This fact there- fore is independently established. It is also deposed by accused No. 9 that he was driver. The only work he did was that he carried out a message of accused No. 8 to accused No. 1. Accused No. 1 was to go to the sea and bring gold. Accused No. 9 was not to accompany him. Therefore accused No. 9 was merely acting as a messenger of accused No. 8 who was his master inasmuch as accused No. 9 was driver of accused No. 8. He had pleaded guilty to the charge. He was duly convicted and senten- ced. Accused No. 9 was not to accompany him. Therefore accused No. 9 was merely acting as a messenger of accused No. 8 who was his master inasmuch as accused No. 9 was driver of accused No. 8. He had pleaded guilty to the charge. He was duly convicted and senten- ced. He suffered for the act that he did. He therefore was not out to get any benefit out of what he was to tell the Court. This man was examined in court and he narrated the story which establishes that accused No. 1 was master and he had carried the message to accused No. 1 and alongwith him he narrated one person in a Fiat car who ultimately was to deliver the gold to accused No. 1 and accused No. 1 was to bring that gold with labourers help to the coast near Jampore school. Now this statement in its entirety if looked at one can say that it exactly happened in the manner in which he disposed to. He came in a Fiat car with one person from Bombay and met accused No. 1. P. W. 15 Brahmkhatriya established the fact that he had seen accused No. 9 driving Fiat car with one person When questioned he told that he was coming from Bombay and going to Moti-Daman. That happened on the date of the incident. That therefore There was independent evidence on record that accused No. 9 came to village Jampore in a Fiat car with a stranger and that his presence therefore at that particular village was established by independent evidence. The other evidence showed that accused No. 8 had a Wadi at that particular village. The further evidence showed that red signals were being given from house of accused No. 8 and therefore boat did not come on the coast. That evidence is also coming from independent source and it is deposed by the officers of the customs department who had gone there for the purpose of this raid. ( 4 ) THE further evidence disclosed that when accused nos. 10 and 11 were asked to go and inquire as to why accused No. 9 had not come they were instructed to go to the Wadi of accused No. 8 and inquire for accused No. 9. Now therefore there is a general corroboration to the story which is narrated by accused No. 9. 10 and 11 were asked to go and inquire as to why accused No. 9 had not come they were instructed to go to the Wadi of accused No. 8 and inquire for accused No. 9. Now therefore there is a general corroboration to the story which is narrated by accused No. 9. The learned advocate Shri D. C. Trivedi submitted that the corroboration must be qua accused No. 8. We may say that there is independent evidence from which we can come to the conclusion that accused No. 9 was driver of accused No. 8. He was waiting after his talk with accused No. 1 at the Wadi of accused No. 8 from Where red signals were given. Accused nos. 10 and 11 were to approach him at the Wadi of accused No. 8. We may also say that accused No. 9 was arrested on 15-2-1976 and the statements of accused nos. 1 2 to 7 and 10 and 11 were recorded much earlier before accused No. 9 could be arrested. Most of the statements were recorded on 2 It was submitted that right from morning of 1-2-1970 the Customs Officers and other accused-persons were together and it was likely that they might have talked inter se. But it is clear that they could not have any talk with accused No. 9. Under these circumstances it may be stated that the confessions made by other accused-persons are relevant under the provisions contained in sec. 30 of the Indian Evidence Act which reads as under:" 30 When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved the Court may take into consideration such confession as against such other person as well as against the person who makes such confession". The trial was a joint trial. Accused No. 9 had pleaded guilty. Confessi- onal statements of accused nos. 1 2 to 7 10 and 11 were brought on record. They were found to be voluntary and true. As we have discussed earlier the evidence of accused no. 9 is of such nature on which reliance could be placed. There is general corroboration from the evidence of the customs officers and we also get corroboration and assurances from the confessional statements made by the other accused-persons. They were found to be voluntary and true. As we have discussed earlier the evidence of accused no. 9 is of such nature on which reliance could be placed. There is general corroboration from the evidence of the customs officers and we also get corroboration and assurances from the confessional statements made by the other accused-persons. We might also say here that accused No. 10 is an absconding accused and his sta- tement could be read also under the provisions contained in sec. 138 (B ). The eloquent circumstances are that stranger who ultimately went away in the vessel after delivering gold was brought to the village by accused No. 9 in a Fiat imported Station-wagon and he was the driver of accused No. 8. Another eloquent circumstance was that accused No. 8had a Wadi from where red signals were given and where accused No. 9 had camped after handing over the work to accused No. 1. These circumstances in our opinion are sufficient to come to the conclusion that accused No. 8 was guilty of the offence for which he was charged and convicted. His conviction therefore is required to be confirmed. He is sentenced to suffer rigorous imprisonment for a term of six years. Secs. 135 (1) (a) and 135 provide with imprisonment for a term which may extend to five years. By the amendment which was made by Act No. 36 of 1973 it is now changed from that date and the accused-person could now be sentenced for a term which may extend to seven years. The learned Additional Chief Judicial Magistrate was of the view that after the amendment when the sentence is required to be given it could be given under the Amended Act. That cannot be done. It is a clear error and a person could be sentenced or imprisoned in accordance with the law prevailing on the date on which he commits offence and not on the date on which:h he is sentenced. He therefore should not have been given sentence for more than five years. [the rest of the judgment is not material for the reports. ] .