JUDGMENT - V.V. VAZE, J.:---One Haji Mohamed Moosa has three sons, Abdul Aziz who works in Dubai, Abdul Razak and Abdul Hamid. Abdul Hamid deals in silver under the name and style of sunshine Traders. According to prosecution A13 Haji Mohamed Moosa, his two sons A14 Abdul Razak and A7 Abdul Hamid along with some others imported contraband goods of foreign origin into India somewhere near Surat in the State of Gujarat and in pursuance of the above conspiracy on or about 19/20th September, 1969 A7 met A1 Abdul Razak Abdul Gani near Crawford Market at Bombay and proceeded towards Surat. They stayed in the house of one Abdul Gafoor Mohamedbhai-A9. The next day A5-Mohamed Bilal called on A9-Abdul Gafoor and in furtherance of and to effectuate their object an ambassador car GJC 4505 was purchased at Surat for the price of Rs. 15000/-. Though the consideration for the car flew from A7-Abdul Hamid the R.T.O. forms were filled in showing A1 the owner thereof- that is as a benamidar. 2. Next day in pursuance of the conspiracy the accused loaded imported goods in truck near the seashore of Dhumas near Surat and camouflaged the same with gunny bags containing Dal. A2 along with a sikh driver came to Dhamus in a truck and A1, A3, A4, A5 and A6 along with others loaded goods in the truck which was sent to Bombay for sale. According to the prosecution even though the contraband was worth about Rs. 5,00,000/- the truck escaped detection. This was a first incident. 3. Emboldened by their first successful attempt the conspirators again loaded similar contraband goods on 24-9-1969 in a truck MHB-2816 on the seashore of Dhumas. A2 accompanied by A11 (since deceased) and A12 the cleaner were first to go to Dhumas for loading goods. A1, A3, A4, A5 and A6 and some unknown persons also came to Dhumas and operations were directed by A7 who was acting on behalf of his father Haji Mohamed Moosa and brother Abdul Razak. A7 fixed the haulage charges of the truck at Rs. 1200/- and after the truck was loaded it was piloted by the recently purchased Ambassador car and the two vehicles came near a plantain groove. A station wagon in which A8, A9 and A10 were seated was waiting for them. A7 fixed the haulage charges of the truck at Rs. 1200/- and after the truck was loaded it was piloted by the recently purchased Ambassador car and the two vehicles came near a plantain groove. A station wagon in which A8, A9 and A10 were seated was waiting for them. Some of the occupants of the car and the wagon interchanged their places and the convoy left for Bombay with the car in the lead and the station wagon trailing behind the truck. A5 asked the driver of the ambassador car to note down the number of the truck in case of difficulty in spotting the same. To avoid detection a circuitous road via Naisk was taken instead of the usual one. The convey reached Chikhali Phata at about 8-30 a.m. on 25th September, 1969 at the crossing of Gujarat-Nasik road and Ahmedabad Bombay Road. When the convoy came some 30 miles near Nasik near the village Ambaner a police posy ordered it to halt after putting road blockades. Sensing danger the driver A11 and the cleaner A12 made efforts to run away. Upon search the truck was found to contain packages of imported articles. A panchnama was drawn up and the station wagon and the car were brought to Nasik for a more detailed panchanama. A7 had instructed A1 to A6 and A8 to A12 that he would be waiting at a predetermined place at Chaar Rasta at Bhiwandi and had also given Rs. 4000/- to A1 to be used as hush money should an occasion arise. In the search a sum of Rs. 3883/- being the balance out of this 4000 was found in pant-pocket of A1. After learning that Haji Moosa and his two sons are carrying on the business under the banner of 'Sunshine Traders' the residence of A7 was searched in which a letter from Dubai containing reference to Safed Machhi' which is generally used as a code name for silver was recovered. The value of the goods was Rs. 4,10,923/-. After learning that Haji Moosa and his two sons are carrying on the business under the banner of 'Sunshine Traders' the residence of A7 was searched in which a letter from Dubai containing reference to Safed Machhi' which is generally used as a code name for silver was recovered. The value of the goods was Rs. 4,10,923/-. After obtaining sanction under section 137(1) of the Customs Act the accused were arraigned before the Chief Metropolitan Magistrate, 8th Court, Esplanade Bombay who convicted A2, A3, A4, A5, A6, A8, A9 and A10 under section 120-B of the Indian Penal Code and under section 135(a) and (b) read with section 135(1) of the Customs Act and also under section 5 of Imports and Exports (Control) Act, 1947 to 6 months' R.I. and fine of Rs. 3000/- i.d. 3 months' R.I. 4. The learned Chief Metropolitan Magistrate found A12 guilty under section 135(a), 135(b) read with section 135(1) of the Customs Act and under section 5 of the Imports and Exports (Control) Act and sentenced him to 6 months R.I. and pay fine of Rs. 200/- i.d. two weeks' R.I. The Court acquitted A13-Haji Mohamed Moosa and his two sons; A7-Abdul Hamid and A14-Abdul Razak. Against this judgment Criminal Appeal No. 683 of 1976 was filed by the State. According to the appellant the acquittal of all the 8 accused and A12 of charges Nos. 2, 3 and 4 which pertains to the first consignment of goods which escaped seizure was erroneous. As regards the second seizure the State was aggrieved that the learned Magistrate has acquitted A7, A13 and A14 of all the charges 1 to 7. 5. In the trial Court, when the evidence of two witnesses was recorded an application dated 1-3-1973 was filed by the Customs requesting the Court to grant permission under section 494 of the Criminal Procedure Code to the learned Public Prosecutor to withdraw from the prosecution against A1 as he was willing to enter in the box on behalf of the prosecution as the bedrock of the prosecution case rested on the statement of A1 who was examined as P.W. 3. His evidence was completed on 3-9-1974 and evidence of other witness was recorded on 2-12-1974. Abdul Razak Abdul Gani was cross-examined by the defence Counsel when he resiled from his previous deposition and went to support the defence. His evidence was completed on 3-9-1974 and evidence of other witness was recorded on 2-12-1974. Abdul Razak Abdul Gani was cross-examined by the defence Counsel when he resiled from his previous deposition and went to support the defence. With the leave of the Court he was declared hostile and cross-examined by prosecuting Counsel. Similarly P.W. 28-Nizamuddin and P.W. 29 Puthawala who had deposed about the sale of ambassador car also turned round in the cross-examination and were declared hostile. 6. According to Mr. Kher, learned Counsel for the appellant the approach to the weighing of evidence of an approver has been stated by Subha Rao, J., who after discussing the earlier case of (Sarwan Singh v. State of Punjab)1, A.I.R. 1957 S.C. 637 observed in (Major E.G. Barsay v. State of Bombay)2, A.I.R. 1961 S.C. 1762 at 1780. "This Court could not have intended to lay dawn that the evidence of approver and the corroborating pieces of evidence should be treated in two different compartments, that is to say, the Courts shall have first to consider the evidence of the approver de hors the corroborated pieces of evidence and reject it if it comes to the conclusion that this evidence is unreliable; but if it comes to the conclusion that it is reliable then it will have to consider whether that evidence is corroborated by any other evidence. After pointing out that in Sarwan Singh's it had happened that the evidence of the approver was so throughly discrepant that the Court thought that he was wholly unreliable witness the Court proceeded : "But in most of the cases the said two aspects would be interconnected that it would not be possible to give a separate treatment, for as often as not the reliability of an approver's evidence, though not exclusively, would mostly depend upon the corroborative support it derives from other unimpeachable pieces of evidence." 7. Mr. Ram Kumar, learned Counsel for the respondent countered that in a recent case, Orissa High Court in (B.K. Kutty v. State)3, 1984 Cri.L.J. 1289 has commented : "As a rule of prudence, however, the evidence of an accomplice should be corroborated in material particulars being tainted evidence, the evidence of an accomplice is to satisfy a double test. The evidence must be reliable and if this test is satisfied, it must be sufficiently corroborated." Mr. The evidence must be reliable and if this test is satisfied, it must be sufficiently corroborated." Mr. Ram Kumar has made great play on the words "if this test is satisfied" occurring in Kutty's case to propound a proposition that the reliability test and corroboration are two independent tests and the question of applying the second test would only arise if the evidence satisfies the first test of reliability. According to Counsel as all the three main witnesses have turned hostile they can by no stretch of imagination be called reliable witnesses and hence the Court need not proceed to examine the corroboration pieces of evidence at all. 8. I am afraid the Orissa Judgment does not in so many words put the two tests in water tight compartments and the leading authority of Major Barsay's case would have to be applied in weighing evidence of an accomplice. The Supreme Court in (State of Andhra Pradesh v. Ganeswara Rao)4, A.I.R. 1963 S.C. 1850 has repeated that : "While it must be shown that approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and even for judging the credibility of the approver the evidence led to corroborate him in material particulars would be relevant for consideration. The Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not." 9. Mr. Ram Kumar thereafter pressed his argument of separate test by relying on (Piara Singh v. State of Punjab)5, 1969(1) S.C.C. 379 in which on the authority of Sarwan Singh, the Court observed :--- "It is well settled that the appreciation of approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all the witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration." To my mind there is no language in Piara Singh to support the proposition that the two tests are in water tight compartments. Piara Singh only reiterates that even if the approver's evidence passes the first test about reliability, the evidence has to satisfy the second test about corroboration. Piara Singh only reiterates that even if the approver's evidence passes the first test about reliability, the evidence has to satisfy the second test about corroboration. The use of the words "second test which still remains to be applied" only reaffirm that the passing of the first test alone will not inspire the confidence about approver's evidence and that the evidence must also satisfy one more test viz that of corroboration. Speaking about corroboration the House of Lords in (Director of Public Prosecution v. Kilbourne)6, (1973)1 All E.R. 440 observed that : "The word 'corroboration' had no special technical meaning; by itself it meant no more that evidence tending to confirm other evidence. No distinction could, therefore be drawn between evidence which could be could be used as corroboration and evidence which might help the jury to determine the truth of the matter." A recent trend about the manner of weighing the evidence of accomplice has appeared in the judgment of the Supreme Court of Canada in (Vetrovec v. R)7, (1982)136 D L.R. (3d.) 89 which may be noted for academic interest. It was argued before the Canadian Supreme Court that corroboration requirement at common law was both unduly technical in its formulation and over broad in its application. Dickson, J., giving judgment in Vetrovec's case pointed out that there was nothing inherent in the evidence of the accomplice which automatically rendered him untrust worthy. Therefore, to construct universal rule singling out an accomplice was "to fasten upon this branch of the law of evidence a blind and empty formalism." The Law Reform Commission of Canada in its report of evidence (1975) as well as the Uniform Law Conference of Canada in its report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982) had also expressed opinion that every rule of law that require the corroboration of evidence as basis for a conviction or that requires that the Jury be warned of danger of convicting on the basis of uncorroborated evidence should be abrogated. The Canada Evidence Bill was introduced into a Senate on November 18, 1982 but retained the provisions of corroboration so far as the accomplice evidence is concerned as would be clear from Clause 125; "(1) xxx xxx xxx (2) The Court shall instruct the trier of the fact on the special need for caution in any case in which it considers that an instruction is necessary, and shall in every case give the instruction with respect to (a) ............................; (b) the evidence of a witness who, in the opinion of the Court would be an accomplice of the accused if the accused were guilty of the offence charged." Thus, even in the other Commonwealth countries where the traditions of common law are followed an attempt to do away with the second test of corroboration of an accomplice has not found favour either with the legal community or the legislatures. 10. Mr. Kher, then places reliance on the newly added section 138-B of the Customs Act for the purpose of treating a statement made and signed by A1 before the officers of the Customs during the course of enquiry under the Act relevant for the purpose of proving in any prosecution for offence under the Act the truth of the facts which it contains. According to Mr. Kher, statement of A1 becomes not only relevant but also one which should be admitted in evidence in the interest of justice when A1 was examined as a witness in the present case. Thus, Counsel submits that inspite of the fact that A1, and P.W. 28 and P.W. 29 have turned hostile the statements made by them before the Customs Officers are pieces of substantive evidence which by themselves corroborate the evidence of A1 in the examination-in-chief wherein he has implicated A7, his father A13 and brother A14. Mr. Ram Kumar agrees that the newly added section 138-B introduces a Rule of procedure but undersoures the fact that this rule of procedure was introduced by section 9 of the Act of 1973 and it would be unfair to apply this Rule of procedure to an event which has taken place in 1969. Mr. Mr. Ram Kumar agrees that the newly added section 138-B introduces a Rule of procedure but undersoures the fact that this rule of procedure was introduced by section 9 of the Act of 1973 and it would be unfair to apply this Rule of procedure to an event which has taken place in 1969. Mr. Ram, Kumar draws sustenance from the observations from the judgment of a Division Bench of this High Court in the case of (State of Maharashtra v. Amirali)8, 1983(1) Bom.C.R. 463 wherein the Court observed: "As regards the provisions of section 138-A of the Customs Act, as also of section 135 of the said Act, it would seem to us that these provisions were introduced in the Customs Act for the first time in the year 1973, and it is doubtful whether recourse could be had to these provisions in respect of the offence committed in the year 1969." 11. The use of the word 'doubtful' in the above observations takes out this observation from being a binding ratio ad more so when the judgment does not show that the Supreme Court judgments in (N.G. Mitra v. State of Bihar)9, A.I.R. 1970 S.C. 1636 and (Balumal Jamnadas v. State of Maharashtra)10, A.I.R. 1975 S.C. 2083 were cied at the bar in that case. The Supreme court has unequivocally ruled that procedural laws can have retrospective operation and this also the thinking in England. See (Blyth v. Blyth,)11, (1966)1 All E.R. 524. 12. Even though P.W. 3 and P.W. 29 and 30 have turned hostile Mr. Kher on the authority of (Bhagwan Singh v. State of Pubjab)12, A.I.R. 1952 S.C. 214 urged that the former statement recorded before the Customs Officers could be used as corroboration of the evidence in-chief under section 157 of the Evidence Act. Bhagwan Singh's case related to previous statements in committal proceedings and hence could not be used as substantive evidence but in the instant case in view of section 138-B of the Evidence Act, even the previous statement recorded before the Customs Officer could be treated as substantive evidence and hence Bhagwan's Singh ratio applies with all the more force in this case. 13. 13. Armed with the enabling provisions clause (b) of sub-section (1) of section 138-B of Customs Act, as respects the statement of A1, P.W. 28 and P.W. 29 so recorded which corroborates the evidence of these witnesses as recorded in the examination-in-chief, Mr. Kher then lists a number of circumstances which lends corroboration to the evidence of these witnesses in the examination-in-chief and says that the interval between the conclusion of the examination-in-chief and commencement of the cross examination was unfortunately so great that it can be inferred that A7 a resourceful king-pin who was the master-mind-behind these operations must have won over these witnesses who at one time were very close to him. It would now be necessary to examine all these circumstances ad seriatim to see whether they lend a colour of veracity to the statements of P.W. 3 P.W. 29 and P.W. 30. 14. The first circumstance relied upon by Mr. Kher stands out from Z-439 which is current account opening form. One R.H. Mavani had applied to the Manager of the United Commercial Bank, Mahatma Gandhi Road, Bombay that he would like to open a current deposit account and the form shows that he was introduced by A13-Haji Moose. The investigating Officer Monkar was shown Exh. Z-439 and was asked whether he himself or through his subordinates tried to find out the identity of the account opener Mavani or the identity of the introducer of the constituent to which Monkar replied in the negative. Further the Gujarati noting below the signature describes Haji Moosa as merchant which description does not appear in the name of A13. The telephone number 328259 appearing at the foot of the address of the introducer probably could have been connected with A13. But no effort, as such, was made by the Investigating Officer to show that it was A13 who had introduced Mavani, It is a matter of common knowledge that Haji Moosa or Haji Merchant is quite a popular name and that 'Haji' only proclaims that the person had made a piligrimage to Haj Consequently it would be difficult to rely on this slender evidence to say that A13 Haji Moosa had opened an account in fictitious name of Mavani. 15. Secondly Mr. Kher places Z-37 which was a letter recovered during the search of the residence of A7. 15. Secondly Mr. Kher places Z-37 which was a letter recovered during the search of the residence of A7. The letter is addressed to one Riyaz Ahmed Taufiq and nothing is shown as to who this Riyaz Taufiq was. The Investigation Officer Monkar on being showing Exh. Z-37 came to the conclusion from the statements of the accused that he could find out that this Riyaz was not one of the inmates of the said premises. Monkar did not make enquiries with the servants of the premises to see whether the addressee of the letter Z-37 was an occupant of that flat. This letter makes a reference to "Safed Machhi" and it is urged by the learned Counsel for the appellant that this word was used commonly for silver the price of which being higher in international market than the one prevailing in India, it was the usual practice of smugglers to pay for the foreign goods in silver. The letter does not connect Riyaz with A7 or A13 or A15 and hence the letter alone and by itself does not lend support to the prosecution story. 16. The third circumstance placed on behalf of the prosecution was a counterfoil of the Hundi dated 12-7-1969 for Rs 20,000/- in the name of R.K. Mehta according to which P.W. 3-Abdul Razak (former A1) had signed it. P.W. 3 was shown 11 more counterfoils and he identified his signature and explained that it was then practice to hand over hundis to A7-Abdul Hamid and he alongwith others used to take the same to Bombay. At Bombay the hundis were given to A14 Abdul Razak. In cross-examination P.W. 3. Abdul Razak explained that the amounts pertaining to 11 drafts related to proceeds of sale of silver and not those of smuggled goods. The value to be attached to the evidence subsequently resiled from, has been explained in Bhagwan Singh's case but as regards the hundis drawn on the firm of Laxmichand Bhagaji no corroboration piece of evidence is available to conclude that these hundis represent proceeds of sale of Foreign goods. No doubt the modus operandi of drawing the bills of exchange on Laxmichand Bhagaji has been deposed by P.W. 36 and 43 to which I shall advert later but they also do not speak about the source from which the funds came. No doubt the modus operandi of drawing the bills of exchange on Laxmichand Bhagaji has been deposed by P.W. 36 and 43 to which I shall advert later but they also do not speak about the source from which the funds came. A7 Abdul Hamid, in his statement before Monkar had justified the legality of the transactions by maintaining that he deals in silver and electrical goods under the name and style of "Sunshine Traders" at 301, Abdul Rehman Street, 4th floor. This place has been declared by him to be storage place for silver to the Central Excise department, where he used to keep account books and stock register in respect of silver in which all these transactions have been noted. Abdul Hamid maintained that he used to issue bills in respect of silver sold by him. The prosecution has not been able to show from examination of the accounts books that these 11 hundis could not have represented the proceeds of the silver which A7 claims he had sold during the period. An argument was addressed that R.K. Mehta and Mavani are fictitions persons and the transmission of money in the names of fictitious persons was done with a view to avoid detection as pointed out earlier. If the transactions were under the cover of fictitious names these amounts could not have appeared anywhere in the account books. The Investigating Officer after being informed by A7 that he is keeping detailed account books of stock and statement of sale could easily have demonstrated that the hundis do not find place therein. 17. The fourth circumstance, according to the prosecution, which is indicative of friendliness of A7 with A11 appears from the fact that details of passport were found in A7's place. Even assuming that A7 had financed taking out of the passport by A1 it would mean spending hardly a couple of hundreds. From this instance it would be difficult to spel out anything more. To spend a couple of hundreds for A7 who was admittedly acting as the carrier for A7 and used to carry silver bars from place-to-place on commission basis would appear to be common business like proposition. 18. Fifthly Exhs. Z-178 and 179 were produced and relied upon by the prosecution to indicate closeness of A14 and P.W. 30. To spend a couple of hundreds for A7 who was admittedly acting as the carrier for A7 and used to carry silver bars from place-to-place on commission basis would appear to be common business like proposition. 18. Fifthly Exhs. Z-178 and 179 were produced and relied upon by the prosecution to indicate closeness of A14 and P.W. 30. In these documents P.W. 3 Abdul Razak and Haji Moose have informed the Collector of Central Excise that the hearing in show cause notice should be kept pending as the matter is subjudice and that both of them had given "Bombay General Stores, Katapur Bazar, Bharuch," as their addresses. According to Mr. Kher this address is of the shop and belongs to A14 which gives a lie to the story of P.W. 3 as given in the cross-examination that there was a quarrel between A7 and himself as A7 had declined to give him a loan of Rs. 1000/- or 1500/- for the treatment of his wife. According to Mr. Kher the witness resiled in cross examination only to please the accused and invented the story of quarrel which is belied by the letters written by P.W. 3. Whenever persons are in trouble they may make a common cause allowing their internal feuds to smoulder and this single act of giving the address of the store of A14 would not prompt me to conclude that the story of quarrel given by P.W. 3 is not correct. 19. The sixth circumstance catalogued by the appellant was the fact that Mohamed Chacha's telephone number was found in the diary of A7. Mohamed Chacha is father of A9 one of the dealers of the goods and A7 and P.W. 3 had stayed with Mohamed Chacha at Surat. This circumstance pressed at the bar to show friendship of A7 with A9 and it is surmised by the prosecution that Mohamed Chacha's house was the rendezvous of the cospirators where instructions were given by A7. In the first place this stay with Mohamed Chacha is denied by P.W. 3 and it could as well be that A7 had some business relationship with Mohamed Chacha. That explains why Surat telephone number of Mohamed Chacha was found in the diary of A7. 20. Same remarks would apply to the fact that the telephone number and address of A7 was found with P.W. 3. That explains why Surat telephone number of Mohamed Chacha was found in the diary of A7. 20. Same remarks would apply to the fact that the telephone number and address of A7 was found with P.W. 3. It is common ground that P.W. 3 was working on commission basis with A7 in the matter of carrying silver bars and it is but natural that the carrier should know the name and address of the owner so that he could be contacted if necessary. 21. When search of the premises of A7 was being carried out one Bhavsar entered the premises and was searched. His statement under section 108 was also recorded in which he has explained that his business of cotton wastes and mattersses was not lucrative enough to maintain his family and hence he started business of sale and purchase of old motor cars. One broker near Opera House told him that on the 4th floor of the building Queen's Road Naka stayed the owner who is interested in disposing of his car. Search of his person yielded diaries containing codewords involving one Ratilal Tailor of Billimora. Kishorilal admitted that Ratilal deals in smuggled goods and that he joined hands with him because he was not gainfully employed. Though his first statement did not implicate A7 in another statement recorded some 1.1/2 years thereafter Kishorilal explained how the phone numbers and addresses as dictated by Ratilal have been put in codes and he implicates A7 as well. According to P.W. 56 Rameshbhai Bhavsar, Kishorilal's brother-in-law. Kishorilal left for Canada and did not have any correspondence with his brother. From the tact that diaries seized from Kishorilal contained addresses of P.W. 3 and A7, an argument is developed that A7, P.W. 3 were joining hands with agents of smugglers such as Ratilal and that Kishorilal was asked by Ratilal to visit A7 for business transaction but was caught at the residence by the party which was searching premises of A7. Herein also the failure of Kishorilal to implicate A7 in his first statement takes the wind out of the sails of the prosecution. The somersault of Kishorilal to say that what he told in the statement recorded earlier was not true also casts doubts about his veracity. 22. It has been urged that the story given by P.W. 3 about payment of Rs. The somersault of Kishorilal to say that what he told in the statement recorded earlier was not true also casts doubts about his veracity. 22. It has been urged that the story given by P.W. 3 about payment of Rs. 4000/- to him by A7 is corroborated by the seizure of almost the same amount from his pant pockets. Similarly cigarette packet seized bears the number MHS-2816 which was the number of the truck and that this corroborates the story given by P.W. 3 that A5 was asked to note down the truck number. The number was noted by A5 and the roping in of A7 by P.W. 3 appears to tenuous. 23. At this stage it would be necessary to examine the explanation given by P.W. 3 as to why he was resiling from his earlier statement because that may throw light on some factual aspects of the matter. According to P.W. 3 when he and others were remanded to custody after his statement was recorded he realised that all of them have been involved in the case by is false statement. In the words of P.W. 3 "at that time I felt remorse because they were arrested when they were innocent that remorse is going on even till today in my mind." After his first statement involving A7 in the examination-in-chief in the Court he had a word with his wife at home. He told her that after he had falsely implicated others to save himself, his daughter had become ill and he himself also suffered from a liver ailment. He had involved A7 in the statement before Monkar and Srivastava and thought that he would be able to escape and also take revenge on A7 against whom he had a grudge. But the compunctions of conscience prompted him to resile from his earlier statement and he maintains that the real brains behind the scheme were of Mohan and Ramdas and not A7. The ownership of Rs. 4000/- as well as the findings for purchase of ambassador car are also being attributed to Mohan. It was Mohan who asked him to sign on the R.T.O. from in the benami purchase of the ambassador car. 24. According to Mr. The ownership of Rs. 4000/- as well as the findings for purchase of ambassador car are also being attributed to Mohan. It was Mohan who asked him to sign on the R.T.O. from in the benami purchase of the ambassador car. 24. According to Mr. Kher, the evidence of P.W. 28 Nizammudin garage owner and P.W. 29 Puthawala the broker clearly points out to A7 as the person who paid the money and made A1 benamidar. Evidence of Nizammudin and Puthawala has been assailed by Mr. Ram Kumar on the ground that no identification parade as such was held and the garage owner and the broker identified A7 only from some photographs. It is no doubt true that the identification parade is the usual method of identifying a person because in a parade the Executive Magistrate can line up people of similar appearance whereby the power of memory and observation of the witness can be tested. A broker is interested in brokerage and would pay little attention as to the name of the person in whose name the car is being purchased and hence the details given by Nizammudin about the benami nature of the car did not inspire conspiracy. 25. The upshot of the above transaction shows that even though some stray circumstances have been marshalled by the prosecution to connect A7 with the affairs these circumstances cannot be called proof in the sense as understood in criminal jurisprudence to brand A7 as the king-pin or man who master minded the entire operation. 26. As regards the first seizure which has escaped detection the only argument that could be advanced is an argument of similar circumstances and the retracted evidence of P.W.. 3 and the statement of the accused. It would be a flimsy argument to say that a gang of smugglers must have managed a successful get away with goods earlier which could not be detected. Such a surmise would not afford a basis for conviction. I do not see any reason to interfere with the judgment of the trail Court in exhonerating the accused as respects the first consignment which want undetected. 27. In the result the appeal fails and is dismissed. Bail bond of the accused shall stand cancelled. Appeal dismissed. -----