JUDGMENT 1. - The Assistant Collector, Central Excise & Customs, Jaipur has preferred this appeal against the judgment of acquittal passed by the learned Chief Judicial Magistrate, Tonk dated 16-10-79. 2. According to the prosecution story on 7-9-71 accused Prem Chand resident of village Uniara, purchased 7 smuggled gold biscuits from one Jaganath Dalai at Jaipur and handed over them to the accused Ram Nath Mali for carrying them to Uniara. Ram Nath boarded the bus and reached Tonk at 1 a.m. in the night between 8th/9th September, 71. He was apprehended by the Constables on patrolling duty viz., Gajanand and Nanhe Mohammed On search the Constables found 7 gold biscuits in the bag with Ram Nath. The Constables made a bargain for Rs. 1,000/-, but since Ramnath had no money, the constables kept three biscuits with them (sic) with the condition of returning them the next day on payment of Rs. 1,000/- and let off Ramnath with the remaining four biscuits Ramnath, on reaching Uniara, gave these four biscuits to Prem Chand. 3. It is further stated that next day on 9th Sep., 71 Prem Chand and Ramnath both came and contacted those constables and asked them to return the three gold biscuits and on that they stated that two biscuits had been taken by Dy. S. P and only one remain with them. Consequently, the deal was not agreed to. Actually, the constables devided one and half biscuit reach between themselves and Gajanand sold one biscuit to accused Jagdish Narain for Rs. 2,000/-. On 10-9-71. the S.H.O. Abhimanyu Singh recovered one gold biscuit weighing 106 grams and bearing foreign making from the possession of accused Jagdish Narain and also recovered Rs 2,000/- in sealed packets. The recovered biscuit and the amount were handed over by the S.H.O. to the Central Excise Inspector Tonk On 10.9.71. the Excise Inspector recorded the statements of accused Gajanand, Jagdish Narain and Nanhe Mohammed. On 12.9.71, he recorded the statement of Prem Chand and Ramnath and then sent a report to Customs and Excise Superintendent, Ajmer. The statements of these persons were again recorded by the Customs Department and they started investigating the case. The statements of the accused-persons were recorded by the officers of the Customs Department number of times and ultimately the submitted the complaint against six accused persons on 20th May, 74. The statements of these persons were again recorded by the Customs Department and they started investigating the case. The statements of the accused-persons were recorded by the officers of the Customs Department number of times and ultimately the submitted the complaint against six accused persons on 20th May, 74. One accused Phoolchand died on 30th June, 76 and the case proceeded against the remaining five persons. 4. After concluding the trial the learned C.J.M. found accused Gajanand guilty under section 85(7) of the Gold Control Act and sentenced him. Other accused-persons Ramnath, Nanhe Mohammed, Prem Chand and Jagdish Narain have been acquitted by the learned C.J.M. 5. The Assistant Collector, Excise and Customs preferred an appeal against 4 accused persons and prayed from grant of leave for this appeal. No leave was granted with regard to Nanhe Mohammed and Jagdish Narain vide Order dated 3.5.80. Thus, this appeal is against the acquittal of Prem Chand and Ram Nath only. 6. Shri Mathur, learned counsel for the appellant argued that the acquittal of the accused persons was on this ground that the statements recorded of these accused persons under section 107 & 108 of Customs Act, according to the learned C.J.M., cannot be used against them as they were recorded while they were arrested. It was also argued that the so accused persons were not the accused at that time and the Inspector of excise Department who recorded their statement was not a Police Officer. Therefore, the learned C.J.M. has committed error in holding that the statements recorded under section 107 by Inspector Excise and under section 108 recorded by Superintendent of Customs are inadmissible. He has relied on the case of Veera Ibrahim v. The State of Maharashtra, 1976 S.C. 1167 . In this case their Lordships have observed as under: "A statement in order to amount to a "confession" must either admit in terms the offence, or at any rate substantially all the fact which constitute the offence. An admission of an incriminating fact, howsoever grave, is not be itself a confession A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a confession. An admission of an incriminating fact, howsoever grave, is not be itself a confession A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a confession. Where a person (who was ultimately prosecuted under Section 135 (a) of the Customs Act) in this statement under Section 108 of the Act before the Inspector of Customs claiming to be innocent stated that he was not aware that packages which were loaded in the truck were contraband goods and alleged that the goods were not loaded under his instructions, these statements even if taken cumulatively did not amount to admission of all fasts which constitute offence under Section 135 of the Customs Act and as such it was not a ` confession" within Section 24 of the Evidence Act. when it had not been shown that the Customs Officer through a person in authority had offered any inducement or held out any threat or promise to the accused. Such statements are not barred under Section 24 but are admissible under section 21 as an admission of incriminating facts". 7. The learned counsel for the accused persons Prem Chand and Ramnath argued that if the statements recorded by the Customs Inspector are found admissible in evidence then the argument is that the incident bad taken place in 1971. The accused-persons were arrested on 17-9-71 and on that very day they were released on bail. They faced the trial from 1974. For about three years the Customs Department did not submit the complaint against the accused persons which created mental agony to them Thereafter, from 1974 they faced the trial and on 16-10.79 they were found not guilty and were acquitted by the learned C.J.M. Thereafter in 1979 the leave to appeal was filed and in the year 19 0it was granted so far as these two accused-persons are concerned and the case is pending since 1980 This is also a great mental agony to the accused-persons. It was also argued that amendment has been made in Section 140A of the Customs Act and by this amendment the provisions of Section 562 Cr. P.C. of Probation of Offenders Act were not made applicable to the offences under Customs Act. It was also argued that amendment has been made in Section 140A of the Customs Act and by this amendment the provisions of Section 562 Cr. P.C. of Probation of Offenders Act were not made applicable to the offences under Customs Act. Similarly, an amendment was made in the Gold Control Act, 1968 and new Section 98D was amended and according to this amendment the provisions of Section 562 Cr. P.C. and Probation of Offenders Act, 1958 (sic) were not applicable to the offence under this Act. Both these amendments were inserted with effect from 1973. Thus, bringing these amendments it was argued by the learned counsel for the accused-persons that these amendments are not applicable to the present case. The incident had taken place in the year 1971 i.e. prior to coming into force of these amendments So at that time the provisions of Section 562 Cr. P.C. or Probation of Offenders Act were not applicable under such cases. It has also been argued that since 1971 the accused-persons are facing mental agony. They were arrested on 17-9-71 and three years after their arrest the complaint was filed in the Court i.e. in the year 1974. Then upto 1979 they faced the trial and they were ultimately acquitted. So for sufficient period they had already suffered mental agony. It was also argued that Nanhe Mohammed has been acquitted but his leave to appeal was not granted by this Court. Thereafter, his leave to appeal was granted in the year 1980 after his acquittal. Therefore the case of the Nanhe Mohd is similar to the case of other accused-persons. Since 1980 the appeal is pending in this Court i.e. for the last 8 years which gives dear sign of mental agony to the accused persons. It was also argued that it is a fit case where the accused-persons be ordered to be released on Probation of Offenders Act or under section 562 (old) Cr P.C. and now 360 Cr P.C. 8. Considered the arguments advanced by both the learned counsel perfectly agree with the arguments advanced by Shri Mathur that the statement recorded by the Inspector Central Excise, Tonk under section 107 and Superintendent of Customs Department Ajmer under section 108 are admissible in evidence as the position has been cleared by Honble the Supreme Court in the case of Veera Ibrahim v. State of Maharashtra (supra). Therefore, the learned CJM was not correct in holding that the statements of the accused-persons cannot be used against them. In view of these statements a case is made out against them and their acquittal is bad and liable to be set aside 9. The learned counsel for the accused-persons argued that though the accused-persons were found guilty of the charge levelled against them, but in view of the special circumstance as argued by Shri Mathur, counsel for the appellants that this incident relates to the year 1971 and practically since when they were arrested and released on bail, they are facing great mental agony. During trial they were on bail after the judgment by the learned Civil Judge they were acquitted when leave to appeal was granted against them they were called by this Court through bailable warrant of Rs. 1,000/- each and since 1979 they are at bail liberty. If after a period of 9 years from their acquittal they are sent to jail back it would be most unjust on their part. Suffering mental agony for a number of years is itself a punishment and in my view it will cause great hardship to the accused if they are sent back to jail to undergo the sentence awarded to them. 10. In all these circumstances I am of this opinion that this is a fit case where the accused persons be granted benefit of Section 360 Cr.P.C. 11. As a result, the appeal is accepted. The accused-persons are found guilty of the offence under section 135 of the Customs Act and under section 85 (2) of the Gold Control Act, but instead of sending them to jail or imposing any punishment of sentence both the accused-persons are ordered to be released under section 360 Cr.P.C. on furnishing two sureties of Rs. 5.000/- each to the satisfaction of the learned C.J.M. Tonk for keeping peace and good behaviour and not to indulge in such activities for a period of two years. The surety and personal bond be submitted before the learned C.J.M. Tonk within one month from today and if they failed to submit the surety and the personal bond as directed above, each accused will have to undergo six months R.I. and a fine of Rs. 500/-, in default of payment of fine, to further undergo two months R.I.Appeal accepted. *******