Full Judgment Text
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PETITIONER:
MOHD. HUSSAIN UMAR KOCHRA ETC.
Vs.
RESPONDENT:
K. S. DALIPSINGHJI & ANR., ETC.
DATE OF JUDGMENT:
31/03/1969
BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
SIKRI, S.M.
HEGDE, K.S.
CITATION:
1970 AIR 45 1969 SCR (3) 130
1969 SCC (3) 429
CITATOR INFO :
R 1979 SC1761 (5A)
RF 1991 SC1463 (5)
ACT:
Foreign Exchange Regulation Act 1947, s. 8-Import of gold in
contravention of section whether Punishable under Sea
Customs Act 1878, S. 167(81)criminal conspiracy under s.
120B I.P.C.-One conspiracy or several-Tests to decide-Indian
Evidence Act s. 124, claim of privilege under-Wrong
allowance of plea does not affect trial if it does not
result in failure of justice-Criminal Procedure Code s.
503--Commission need not be issued if sufficient particulars
of witness not given in application-Recalling of witness
when justified-Evidence Act s. 133 & III. 114(b)Accomplice
evidence-Principles relating to--Charges for conspiracy and
substantive offence-Concurrent running of sentences when
justified.
HEADNOTE:
The appellants along with certain other accused were tried
for the offence of’-criminal conspiracy to import and deal
in gold punishable under s. 120B of the Indian Penal Code
read with s. 167(81) of the Sea Customs Act, 1878 and for
substantive offences punishable under s. 167(81). Having
been convicted by the trial judge and the High Court having
dismissed their appeals, they came to this Court by special
leave. The general questions affecting all the appellants
that arose for consideration were: (1) was the import of
gold in contravention of s. 8(1)of the Foreign Exchange
Regulation Act, 1947 punishable under s. 167(81) of the Sea,
Customs Act, 1878; (2) did the prosecution establish the
general conspiracy laid in charge No. 1; (3) did the learned
magistrate wrongly allow a claim of privilege in respect of
the disclosure of certain addresses and cables and if so,
with what effect; (4) did he wrongly refuse to issue
commission for the examination of one Pedro Fernandez as a
witness and (5) did he wrongly refuse to recall P.W. 50 Ali
for cross-examination ? In connection with cases of the
individual -appellants questions relating the testimony of
accomplices and confessions of co-accused and the question
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whether separate punishment for conspiracy should be
-awarded when the accused is already sentenced for the
substantive offence, also came up for consideration.
HELD : (i) The Sea Customs Act 1878 contained a number of
prohibitions on imports by land or sea and by s. 19
authorised the imposition of further prohibitions and
restrictions on import or export by sea or by land. One of
the statutes creating further prohibitions was the Foreign
Exchange Regulation Act 1947. A notification dated August
25, 1948 as amended up to date issued under s. 8(1) of this
Act directed that "except with the general or special
permission of the Reserve Bank, no person shall bring or
send into India (a) any gold coin, gold bullion, gold sheets
or gold ingot whether refined or not........ Section 23A of
the Act provided that the restrictions imposed by s. 8(1)
"shall be deemed to have been imposed under s. 19 of the Sea
Customs Act, 1878 and all the, Provisions of that Act shall
have effect accordingly. ." The effect of s. 23A was that
the contravention of the notification under s. 8(1)
attracted to it each and every provision of the Sea Customs
Act, 1878 in force for the time being including s. 167(81).
[136 F-137 A]
While s. 19 of the Sea Customs Act authorised the imposition
of prohibitions and restrictions on the import and export of
goods by sea and land
131
Only, the ’aforesaid notification under s. 8 of the Foreign
Exchange Regulation Act restricted bringing into India of
gold from any place outside India by land, sea and air.
Section 23A of the Foreign Exchange Regulation Act created
the fiction that the restriction had been imposed under s.
19 of the Sea Customs Act 1878 so that -all the provisions
of that Act would be attracted to a breach of the
notification. But the statutory fiction did not cut down
the wide, ambit of the notification or limit its application
to imports and exports by sea and land only. An import of
gold by air without the permission of the Reserve Bank was a
breach of the notification and the breach attracted to it
the provisions of s. 167(81) of the Sea Customs Act, 1878.
[137 B-C]
The same conclusion follows if the matter is looked at from
the point of view that import or export by air is a species
of import and export by land for the aircraft carrying goods
lands or takes off from land. [137 E]
[On the above view the Court did not find it necessary to
consider whether evasion of duty in case of import by air
became punishable under S. 167(81) of the Sea Customs Act by
the force of s. 16 of the Indian Aircraft Act 1934 and the
relevant notification issued thereunder.] [138 G]
(ii)Criminal conspiracy as defined in s. 120A of the I.P.C
is an agreement by two or more persons to do or cause to be
done ail illegal act or an act which is not illegal by
illegal means. The agreement is the gist of the offence.
In order to constitute; a single general conspiracy there
must be a common design and a common intention of all to
work in furtherance of the common design. A general
conspiracy must be distinguished from a number of separate
conspiracies having a similar put-pose. Where different
groups of persons cooperate towards their separate ends
without any privity with each other, each combination
constitutes a separate conspiracy. The common intention of
the conspirators is then to work for the furtherance of the
common design of his group only. [138 H-139D]
S.K. Khetwani v. State of Maharashtra, [1967] 1 S.C.R.
595, S. Swami’natham v. State of Madras, A.I.R. 1957 S.C.
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340 and R. v. Griffiths, [1965] 2 All. E.R. 448, referred
to.
On the facts of the present case it could not be held that
there were a number of separate conspiracies and that the
charge of a general conspiracy was not proved. Each
conspirator profited from the general scheme and each of
them played his own part in the general conspiracy. [139 F]
(iii)Although the claim of privilege under s. 124 of
the Evidence Act in respect of certain cables and addresses
was wrongly allowed by the Magistrate these cables and
addresses were unconnected with the present case and did not
relate to any person or persons concerned in the offences
for which the appellants were being tried. The non-
disclosure of these documents did -not therefore occasion
any failure of justice. [141 A-B]
(iv)The application for the examination of Pedro Fernandes
on commission did not give sufficient particulars including
his address. The learned Magistrate therefore rightly held
that proper grounds for the issue of the commission under s.
503 of the Code of Criminal Procedure had not been made out.
[141 E]
(v)The -application for recalling Ali as a witness on the
ground that he was repentant for having given false
evidence, was rightly disallowed as there was no affidavit
from Ali, or any other material to show that his testimony
was incorrect in any material particular. [141 H]
132
(vi) (a) The combined effect of ss. 133 and 114 illustration
(b) of the Evidence Act is that though a conviction based
upon accomplice evidence is legal the Court will not accept
such evidence unless it is corroborated in material
particulars. The corroboration must connect each accused
with the crime. it maybe direct or circumstantial. It is
not necessary that the corroboration should confirm all the
circumstances of the crime. It is sufficient if the
corroboration is in material particulars. One accomplice
cannot corroborate another. [142 E-F]
Bhiva Doulu Patil v. State of Maharashtra, [1963] 3 S.C.R.
831 find R. v. Baskerville, [1916] 2 K.B. 658, referred
to.
(b)A participes crimines in respect of the actual crime
charged is an accomplice. The’ witness concerned may not
confess his participation in the crime, but it is for the
Court to decide on a consideration of the entire evidence
whether he is an accomplice. [146 A-B]
(c)If several accomplices simultaneously and without
previous concert give a consistent account of the crime
implicating the accused, then under s. 114 Illustration (b)
of the Evidence Act the Court may accept the several
statements as corroborating each other. But it must be
established that the several statements of accomplices were
given independently and without any previous concert. [147
G-H]
Haroon Haji Abdulla v. State of Maharashtra, 70 Bom. L.R.
540 and Bhuboni Sahu v. The King, L.R. 76 I.A. 146, referred
to.
(vii)The offences under s. 167(8) of the Sea Customs Act and
8. 12OB(1) of the Indian Penal Code are separately
punishable and the separate sentences given in respect of
them by the Courts below were not illegal. However in view
of the fact that the leaders of the conspiracy in the
present case had escaped punishment and the appellants had
undergone a prolonged trial, a direction that their
sentences in respect of all the charges should run
concurrently would be justified. [150 D-F]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 139
to 144 of 1966.
Appeals by special leave from the judgment and order dated
April 18, 1966 of the Bombay High Court in Criminal Appeals
Nos. 1646, 1631, 1652, 1628 and 1626 of 1963 respectively.
Porus A. Mehta, B. M. Parikh, Janendra Lal, J. R. Gagrat
and B. R. Agarwala, for the appellant (in Cr. A. No. 139 of
1966).
A.K. Sen, Porus A. Mehta, B. M. Parikh, M. V. Rao, Janendra
Lal, J. R. Gagrat and B. R. Agarwala, for the appellant (in
Cr. A. No. 140 of 1966).
R. Jethamalani, M. V. Rao, fanendra Lal, J. R. Gagrat and
B. R. Agarwala, for the appellant (in Cr. As. Nos. 141
and 142 of 1966).
R. Jethmalani, Janendra Lal, J. R. Gagrat and B. R.
Agarwala, for the appellant (in Cr. As. Nos. 143 and 144
of 1966).
133
H. G. Khandelawala, A. B. Pandya H. R. Khanna and’ R. N.
Sachthey, for the respondents (in all the appeals).
The Judgment of the Court was delivered by
Bachawat J. The six appellants are A-8, Mohamed Hussain Omer
Kochra alias Mr. Buick alias Nazen, A-12, Maganlal Naranji
Patel, A-16, N. B. Mukherji, A-15, N. S. Rao, A-14,
Parasuram T. Kanel, A-6, Lakshmandas Chaganlal Bhatia alias
Sham. In this judgment "A" mean accused. Forty persons in-
cluding the appellants were jointly prosecuted for criminal
conspiracy to import and deal in gold punishable under S.
120B of the Indian Penal Code read with S. 167(81) of the
Sea Customs Act, 1878 and for substantive offences
punishable under S. 167(81).
A-1 to 5, A-18 to 35 and A-37 are absconding or being
foreigners are not amenable to the processes of the Court.
A-1 Jamal Shuhaibar, A-2 George Shuhaibar and A-3 Jawadat
Shuhaibar of Beirut and A-4 Yusuf Mohamed Lori alias Abdulla
of Bahrein sent gold from the Middle East. A-5 Juan
Castarner Casanovas and A-18 Bernardo Sas of Geneva are
foreign collaborators. A-19 Hamad Sultan and A-37 Chunilal
alias Professor Kamal alias Dwarkadas of Bombay were
concerned in the smuggling of gold. A-20 to A-35 Mrs.
Gisele Minot, B. J. Lupi, J. P. Hoffman, Jacques Minot,
Geoffre Allan, M. Torrens, Mrs. Mora Margaret, Armand
Yavercowaski, Gran Powell, G. J. Flamant, Mrs. A. Ramel,
Mrs. S. B. Taylor, J. C. Catino, E. D. Gill, A. J. Mascardo
and A. A. Grant are foreigners and are said to have carried
gold from foreign countries to India by air.
The trial proceeded against A-6 to 17, A-36, A-38, A-39 and
A-40. A-6 Lakshmandas is a financier. A-14 Parasuram is
his brother-in-law. A-7, Rabiyabi Usman alias Grandma is
the mother of A-9 Rukaiyabai Mohamed Hussain Kochra, A-10
Abidabai Usman and A-38 Hassan Usman. A-8 Kochra is the
husband of A-9. A-11 Murad Asharnoff remitted funds to
foreign countries. A-12 Maganlal Naranji Patel and A-13
Mafatlal Mohanlal Parekh are bullion merchants of Bombay.
A-15 N. S. Rao, A-16, N. B. Mukherji, A-17 Timothy Miranda,
A-39 D. K. Deshmukh and A-40 Jacob Miranda alias Tambaku
were mechanics in the employ of the Air India International.
A-36 Francis Bello was a co-conspirator. The Additional
Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay,
acquitted A-9, 10, 13, 39 and 40 of all the charges. He
convicted A-6, 7, 8, 11, 12, 14, 15, 16, 17, 36 and 38 of
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criminal conspiracy and substantive offences under S.
167(81) and passed sentences of imprisonment and fine.
All the convicted persons file d appeals in the High Court.
During the pendency of the appeal A-11 absconded. The High
134
Court upheld the convictions of A-36 and A-7 but directed
that A-36 be released on probation and that A-7 do pay a
fine of Rs. 4,000 and undergo simple imprisonment for a day
only. The High Court dismissed the appeals of A-6, 8, 11,
12, 14, 15, 16 and 17. The present appeals have been filed
by A-6,8, 12, 14, 15 and 16 after obtaining special leave.
The first count charged that all the 40 accused persons
along with Mohamed Yusuf Merchant, Pedro Fernandez and other
persons at Bombay and other places from 1-11-1956 to 2-2-
1959 were parties to a continuing criminal conspiracy to
acquire possession of, carry remove deposit harbour keep
conceal and deal in gold and knowingly to be concerned in
fraudulent evasion of duty chargeable on gold and of the
prohibition and restriction applicable thereto and committed
an offence punishable under s. 120-B I.P.C. read with s.
167(81)- of the Sea Customs Act, 1878. The other counts
charged the accused persons individually with offences
punishable under S. 167(81).
In broad outline the prosecution case is as follows :
Before, E November 1, 1956 some of the accused persons along
with others were concerned in the illegal importation of
gold. In or about November 1956 Pedro Fernandez and Yusuf
Merchant hatched the present conspiracy to which A-11 Murad
Ashamoff was a party. The scheme was that necessary
finances would be arranged, remittances to foreign countries
would be made through Murad, gold would be sent by air from
foreign countries to Bombay, Delhi, Calcutta and other air
ports and the smuggled gold would be sold in India. A--6
Lakshmandas, A-8 Kochra and A7 Rabiyabai were approached for
the necessary finances. Between February 3 and July 8, 1957
eleven carriers brought gold by air from Switzerland.
Lakshmandas financed the first four transactions and his
telegraphic address "Subhat" was used for receipt and
despatch of cables. On February 3, 1957 the first carrier
Gisele Minot came to Bombay. On February 25, 1957, the
second carrier B. J. Lupi and on March 9, 1957 the third
carrier J. P. Hoffman came to Delhi. The fourth carrier
Jacques Minot went to Colombo. Kochra and Rabiyabai
financed the subsequent transactions and allowed the use of
his telegraphic address "Nazneen". Cables used to be sent
in codes known by the "Private Dictionary", "the new Geneva
Code" and "the Beirut Code", and "the Bahrein Code."
Laxmandas ceased to be a financier but he continued to
participate in the disposal of gold. On April 8, 1957 the
fifth carrier Mora Margaret went to Colombo. On April 19,
1957 the sixth carrier Geoffre Allan and on May 3, 1957 the
seventh carrier came to Bombay. At about this time A-12 is
said to have joined this conspiracy. On May 21, 1957 the
8th carrier Grant Powell came to Delhi. On June 9, 1957 the
ninth
135
carrier Mora Margaret and on June 24, 1957 the tenth carrier
Armand Yavercowaski came to Bombay. On July 8, 1957 the
11th carrier Grant Powell came to Calcutta. A-37 Chunilal
who was despatched to contact the carrier disappeared with
the gold. Thereafter the smuggling of gold stopped for
sometime.
In August 1957 Yusuf and A-38 Hassan representing Kochra and
Rabiyabai went to Beirut and induced Al to A3 Jamal Shuhai-
bar and his two brothers to join the conspiracy. The scheme
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was that the Shuhaibar brothers would send gold from the
Middle East, Kochra and Rabiyabai would remit the necessary
fund and that A-19 Hamad Sultan would have an interest in
the venture. Pedro also came to Beirut. Accounts between
him and Yusuf were settled. It was decided that Pedro would
continue to send gold from Switzerland, that Kochra and
Rabiyabai would supply the necessary finances and that Pedro
would receive a half share of Yusuf’s profits in the
smuggling of gold from the Middle East. Between November 7,
1957 and February 13, 1958 eleven carriers of gold sent by
Pedro came to Bombay. On February 24, 1958 the twelveth
carrier A. J. Mascardo was arrested in Delhi. Simulta-
neously gold was sent from the Middle East. On November 3,
1957 Grant Powell carrying gold sent by the Shuhaibar
brothers came to Calcutta, but he was arrested. In November
1957 A-4 Yusuf Mohamed Lori of Bahrein acting for Shuhaibar
brothers came to India and it was decided that gold would be
hidden in the body of Air India International planes by a
mechanic at Beirut or Bahrein and would be removed in Bombay
by another mechanic and that Kochra and Rabiyabai would
supply funds on the guarantee of Murad. From time to time
the service’s of the mechanics, A-15 N. S. Rao, A-39 D. K.
Deshmukh, A-40 Jacob Miranda, A-17 Timothy Miranda and other
mechanics were requisitioned. Between December 12, 1957 and
January 15, 1958, 4 or 5 consignments of gold concealed
inside the belly of aircrafts were sent by Lori to India.
From February 1958, 7 or 8 consignments of gold concealed in
the rear left bathroom of the aircrafts were sent to Lori to
Bombay. Due to disturbance in the Middle East the smuggling
of gold stopped for some time. Since October 1958 eleven
consignments of gold were sent to Bombay. On February 1,
1959 the Rani of Jhansi carrying the 11th consignment of
gold was searched by the custom officers at the Santacruz
airport Bombay and the gold was seized.
On February 2, 1959 the residence of Yusuf Merchant was
searched and many incriminating articles were seized. From
time to time Yusuf was interrogated, and his statements were
recorded. On October 24, 1959 the investigation was
completed. The trial started in July 1960. The prosecution
examined PW 2 Yusuf Merchant and other accomplices, and
witnesses and exhibited
136
numerous documents. Yusuf Merchant, the main witness on be-
half of the prosecution implicated all the appellants in the
crime. The courts below accepted his testimony, found that
it was corroborated in material particulars, and convicted
the appellants.
All the appeals were heard together. We shall note only
those arguments which were raised in this Court by Counsel.
Having regard to those arguments the following general
questions affecting all the appellants arise for decision :-
(1) was the import of gold in contravention of S. 8 (1 ) of
the Foreign Exchange Regulation Act, 1947 punishable under
s. 167(81) of the Sea Customs Act, 1878; (2) did the
prosecution establish the general conspiracy laid in charge
no. 1; (3) did the learned magistrate wrongly allow a claim
of privilege in respect of the disclosure of certain
addresses and cables and if so, with what effect; (4) did he
wrongly refuse to issue commission for the examination of
Pedro Fernandez and (5) did he wrongly refuse to recall PW
50 Ali for cross-examination ?
As to the first question the law since the passing of the
Customs Act 1962 admits of no doubt. The import and export
of goods by sea, land and air may be prohibited absolutely
or subject to conditions under . 11. Customs duties are
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leviable under S. 12 on all goods so imported or exported.
The fraudulent evasions of duties and of prohibitions are
punishable under S. 135.
In the present case we are concerned with the law in force
before 1962. The Sea Customs Act 1878 contained a number of
prohibitions on imports by land or sea (S. 18) and
authorized the imposition of further prohibitions and
restrictions on import or export by sea or by land (s. 19).
The Act also provided the machinery for the enforcement of
prohibitions and restrictions by means of search, seizure,
confiscation and penalties. Several other statutes
contained further prohibitions and restrictions on the
import or export of goods. Section 8 of the Foreign Ex-
change Regulation Act, 1947 is one such enactment. A
notification dated August 25, 1948 as amended up to date
issued under S. 8(1) of this Act directed that "except with
the general or special permission of the Reserve Bank, no
person shall bring or send into India (a) any gold coin,
gold bullion, gold sheets of gold ingot whether refined or
not. . . " Section 23A of the Act provided that the
restrictions imposed by S. 8(1) "shall be deemed to have
been imposed under S. 19 of the Sea Customs Act, 1878 and
all the provisions of that Act shall have effect
accordingly. . ." The effect of S. 23A was that the
contravention of the notification under S. 8(1) attracted to
it each and every provision of the Sea Customs Act 1878 in
force for the
137
time being including S. 167(81) of the Sea Customs Act 1878
which was inserted by the Amending Act XXI of 1955.
It is to be noticed that S. 19 of the Sea Customs Act,
1878 authorized the imposition of prohibitions,-and
restrictions on the import or export of goods by sea and
land only. But the notification dated the 25th August 1948
issued under S. 8(1) of the Foreign Exchange Regulation Act,
1947 restricted the bringing into India of gold from any
place outside India by land, sea and air. Section 23A of
the Foreign Exchange Regulation Act, 1947 created the
fiction that the restriction had been imposed under S. 19 of
the Sea Customs Act, 1878, so that all the provisions of
that Act would be attracted to a breach of the notification.
But the statutory fiction did not cut down the wide ambit of
the notification or limit its application to imports and
exports by sea and land only. An import of gold by air
without the permission of the Reserve Bank was a breach of
the notification, and the breach attracted to it the
provisions of S. 167(81) of the Sea Customs Act, 1878.
The matter may be looked at from another point of view.
When the Sea Customs Act 1878 was passed,. goods could be
imported or exported by sea and land only. Transport by air
was unknown. After the Second World War traffic by air be-
gan. There is a force in the contention that the import or
export by air is a species of import or export by land. The
aircraft carrying goods lands or takes off from land. The
prohibition or restriction on the import or export of goods
by land is a prohibition or restriction on the import or
export by aircraft, landing or taking off from land. A
fraudulent evasion of the restriction imposed by the
notification under s. 8(1) of the Foreign Exchange
Regulation Act, 1947 was punishable under s. 167(81) of the
Sea Customs Act, 1878 and a criminal conspiracy to evade the
restriction was punishable under S. 120B of the Indian Penal
Code.
In this connection a question arose whether customs duty was
leviable on imports and exports by air and whether a frau-
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dulent,evasion of the duty was punishable under S. 167(81).
The Sea Customs Act 1878 and the rules and notifications
made thereunder set up a complete machinery for the levy of
sea customs duties. Section 20 provided for a levy of
customs duties on goods imported or exported by sea.
Payment of the duty was enforced by compelling all foreign
trade to pass through certain ports. Drastic powers were
given for detection, prevention and punishment of evasions
of duty. The Land Customs Act, 1924 set up the machinery
for the levy of land customs duties, and S. 9 of the Act
applied for the purpose of this levy several provisions of
the Sea Customs Act 1878 with suitable modifications and
adaptations. Rules 53 to 64 contained 2 Sup. CI/69-10
138
in Para IX of the Indian Aircraft Rules 1920 framed under
ss. 3 and 6 of the Indian Aircraft Act, 1911 provided for
the levy of air customs duties. The duty was leviable under
rules 58 and 59 on goods imported or exported by air "as if
such goods were I chargeable to duties under the Sea Customs
Act 1878" Rule 63 provided that all persons importing or
exporting goods into and from India "shall, so far as may be
observed, comply with and be bound by the provisions of the
Sea Customs Act, 1878," with certain adaptations. ’The
Indian Aircraft Act 1934 repealed the Indian Aircraft Act
1911 but the Indian Aircraft Rules 1920 continued in force
in view of s. 24 of the General Clauses Act 1897. The
Indian Aircraft Rules 1937 framed under S. 5 and 8 of the
Indian Aircraft Act 1934 preserved and continued, para IX of
the Indian Aircraft Act Rules 1920. Until the passing of
the Customs Act 1962 Part IX of the Indian Aircraft Rules
1920 continued to be the basic law for the levy of air
customs duties. On behalf of the appellants it was argued
that (1) Rules could not authorize the levy of a tax, (2)
Rules could not create a new offence punishable under S.
167(81) of the Sea Customs Act, 1878, (3) a contravention of
the Rules was punishable under S. 10 of the-Indian Aircraft
Act, 1934 and not under S. 167(81). On behalf of the
respondent our attention was drawn to section 16 of the
Indian Aircraft Act 1934 -which provided --
"The Central Government may, by notification
in the official gazette declare that any or
all of the provisions of the Sea Customs Act,
1878, shall, with such modifications and
adaptations as may be specified in the
notifications, apply to the import and export
of goods by air."
Counsel for the respondent argued that (1) the notification
dated March 23, 1937 continuing Part IX of the Aircraft
Rules 1920 was a sufficient declaration under S. 16; (2)
section 16 was a piece of conditional legislation, and by
force of S. 16 and on the declaration being made the duty
become leviable on goods imported and exported by air, and a
fraudulent evasion of duty became punishable under S.
167(81) of the Sea Customs Act, 1878. We do not think it
necessary to express any opinion on these questions having
regard to our conclusion that a fradulent evasion of the
restriction imposed by S. 8(1) of the Foreign Exchange
Regulation Act 1947 was punishable under s. 167(81).
As to the second question the contention was that the evi-
dence disclosed a number of separate conspiracies and that
the charge of general conspiracy was not proved. Criminal
conspiracy as defined in S. 120A of the T.P.C. is an
agreement by two or more persons to do or cause to be done
an illegal act
139
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or an act which is not illegal by illegal means. The
agreement and the breach attracted to it the provisions of
S. 167(81) of is the gist of the offence. In order to
constitute a single general conspiracy there must be a
common design and a common intention of all to work in
furtherance of the common design. Each conspirator plays
his separate part in one integrated and united effort to
achieve the common purpose. Each one is aware that he has a
part to play in a general conspiracy though he may not know
all its secrets or the means by which the common purpose is
to be accomplished. The evil scheme may be promoted by a
few, some may drop out and some may join at a later stage,
but the conspiracy continues until it is broken up. The
conspiracy may develop in successive stages. There may be a
general plan to accomplish the common design by such means
as may from time to time be found expedient. New techniques
may be invented and new means may be devised for advancement
of the comman plan. A general conspiracy must be
distinguished from a number of separate conspiracies having
a similar general purpose. Where different groups of
persons co-operate towards their separate ends without any
privity with each other. each combination constitutes a
separate conspiracy. The common intention of the
conspirators then is to work for the furtherance of the
common design of his group only. The .cases illustrate the
distinction between a single general conspiracy and a number
of unrelated conspiracies. In S. K. Khetwani v. State of
Maharashtra(1), S. Swaminatham v. State Madras(2) the Court
found a single general conspiracy while in R. v. Griffiths
() the Court found a number of unrelated and separate
conspiracies.
In the present case, there was a single general conspiracy
to smuggle gold into India from foreign countries. The
scheme was operated by a gang of international crooks. The
net was spread over Bombay, Geneva, Beirut and Bahrein.
Yusuf Merchant and Pedro Fernandes supplied the brain power,
Murad Asharanoff remitted the funds, Lakshmandas Kochra and
Rabiyabai supplied the finances, Pedro Fernadez and the
Shuhaibar brothers sent the gold from Geneva and the Middle
East, carriers brought the gold hidden in jackets, mechanics
concealed and removed gold from aircrafts and others helped
in contacting the carriers and disposing of the gold.
Yusuf, Pedro and Murad and Lakshmandas were permanent
members of the conspiracy. They were joined later by
Kochra, the Shuhaibar brothers and Lori and other
associates. The original scheme was to bring the gold from
Geneva. The nefarious design was extended to
(1) [1967] 1 S.C.R. 595. (2) A.I.R 1957
S.C. 340.
(3) [1965] 2 All E.R. 448.
140
smuggling of gold from the Middle East. There can be no
doubt that the continuous smuggling. of gold sent by Pedro
from Geneva during February 1956 to February 1958 formed
part of a single conspiracy. The settlement of account
between Yusuf and Pedro at Beirut did, not end the original
conspiracy. There can also be no doubt that the smuggling
of gold from Beirut by the Shuhaibar brothers and from
Bahrein by their agent Lori were different phases of the
same conspiracy. The main argument was that the despatch of
gold from Geneva was the result of one conspiracy and that
the despatch of gold from the Middle East was the result of
another separate and unrelated conspiracy. ’Me courts below
held, and in our opinion rightly, that there was a single
general conspiracy embracing all the activities. Pedro had
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a share in the profits of the smuggling from Geneva. He got
also a share of Yusuf’s profits from the smuggling of the
Middle East gold. Apparently Shuhaibar brothers and Lori
had no share in the profits from the smuggling of the Geneva
gold but they attached themselves to the general conspiracy
originally devised by Yusuf and Pedro with knowledge of its
scheme and purpose and took advantage of its existing
organization for obtaining finances from Kochra and
Rabiyabai and for remittances of funds by Yusuf. Each
conspirator profited from the general scheme and each one of
them played his own part in the general conspiracy. The
second contention is rejected.
As to the third question, we find that on or about February
22, 1962 the prosecution took out a summons to the Deputy
Accountant General Telegraphs Check Office, Calcutta, for
the production of all records pertaining to 15 cable
addresses including ’Subhat" and "Nazneen" together with the
summons under s. 171A previously issued by the customs
officers to the Telegraphs Check Office, for the production
of the cables and the receipts given by the customs officers
to the Telegraphs Check Office for the cables so produced.
Pursuant to the summons issued on February 22, 1962 Mr.
Madhavan, Superintendent of the Telegraphs Check Office,
Calcutta, produced in court the cables, summons and
receipts. All the cables relating to the aforesaid 15 cable
addresses, and two more addresses with which the appellants
were concerned were exhibited at the trial. The summons
under S. 171A was a consolidated summons issued by the
customs officer to the Telegraphs Check Office for the pro-
duction of the cables relating to the investigations in the
present case and several other cases. The receipt was a
consolidated receipt for the cables produced under the
summons. Affidavits were filed by Mr. P. C. Kalla, Senior
Deputy Accountant, Post and Telegraphs and Mr. S. K.
Srivastava, an Additional Collector of Customs, Calcutta,
claiming privilege under S. 124 of the Evidence Act in
respect of the the disclosure of the other
141
cable addresses mentioned in the summons and receipts and
the cables sent to those addresses. The learned Magistrate
upheld this claim of privilege. In our opinion, the
privilege was not properly claimed under s. 124. It is
difficult to say that the other cable addresses and cables
were communications to a public officer in official
confidence. However, we find that the other addresses and
cables were required in connection with investigations
unconnected with the present case and did not relate to any
person or persons concerned in the offences for which the
appellants were being tried. The other cables and cable
addresses were not relevant to the defence, and their non-
disclosure has not occasioned any failure of justice.
As to the fourth question it appears that Pedro Fernandez
was a material witness. In 1959 he wrote a letter to Yusuf
stating that he was willing to come to India and to be
examined as a witness. The prosecution tried to contact him
but his whereabouts could not be traced. On April 18, 1962
the defence applied for the issue of a commission "to the
appropriate authority or court either in Switzerland or in
United Kingdom or in Pakistan for examination of Pedro
Fernandez and Gimness as witnesses for the defence". Except
stating that the defence undertook to pay all expenses and
supply all relevant -information, the application did not
give any other particulars. The learned Magistrate rejected
the application. He held and in our opinion rightly that
the application was misconceived and proper grounds for the
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issue of the commission under s. 503 of the Code of Criminal
Procedure had not been made out. The defence did not
produce any letter from Pedro or any other material
indicating that he was willing to be examined on commission.
Even his address was not given. The Court could not issue a
roving commission to a court or authority either in
Switzerland orin United Kingdom or in Pakistan.The
application was notmade in good faith and was liable to be
rejected on this ground alone.
As to the last question, we find that examination-in-chief
of PW 50 Ali commenced on October 7, 1960 and was concluded
on October 10, 1960. His cross-examination commenced on
August 21, 1961 and was concluded on September 4, 1961. On
March 6, 1962 and again on June 21, 1962 the defence applied
for recalling Ali for cross-examination. The learned
Magistrate rejected the two applications. According to the
defence Ali was repentant and wanted to say that he had
given false evidence. In our opinion, no ground was made
out for recalling Ali. There was no affidavit from Ali nor
was there ,any other material showing that his testimony was
incorrect in ,any material particular, The Court has
inherent power to recall,
142
a witness if it is satisfied that he is prepared to give
evidence which is materially different from what he had
given at the trial. In this case there was no material upon
which the Court could be so satisfied. The learned
Magistrate rightly disallowed the prayer for recalling Ali.
Mr. Jethamalani argued that the rough notes of statements
given by Yusuf to the customs officers had been destroyed
and that the defence was thereby prejudiced. This point was
not taken either in the trial court or in the High Court.
In our opinion, counsel ought not to be allowed to raise
this new point for the first time in this Court.
On the merits, we find that the two courts have recorded
concurrent findings of fact. Normally this Court does not
reappraise the evidence unless the findings are perverse or
are vitiated by any error of law or there is a grave
miscarriage of justice. The courts below accepted the
testimony of the accomplice Yusuf Merchant. Section 133 of
the Evidence Act says :-
"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
accomplice."
Illustration (b) to s. 114 says that the court may presume
that an accomplice is unworthy of credit unless he is
corroborated in material particulars. The combined effect
of ss. 133 and 114 Illustration (b) is that though a
conviction based upon accomplice evidence is legal the Court
will not accept such evidence unless it is corroborated in
material particulars. The corroboration must connect the
accused with the crime. It may be direct or circumstantial.
It is not necessary that the corroboration should confirm
all the circumstances of the crime. It is sufficient if
the, corroboration is in material particulars. The
corroboration must be from an independent source. One
accomplice cannot corroborate another, see Bhiva Doulu Patil
v. State of Maharashtra,(1) R. v. Baskerville (2) . In this
light we shall examine the case of each appellant
separately.
Case of Accused No. 8 Mohamed Hussain Umar Kochra (Cr. A.
No. 139 of 1966)
Yusuf Merchant deposed that Kochra and his mother-in-law, A-
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7 Rabiyabai acted as financiers after the fourth
transaction, that Kochra’s cable address "Nazneen" at 19
Erskine Road and his telephone was used in connection with
the gold smuggling acti-
(1) [1963] 3 S.C.R. 831.
(2) [1916] 2 K.B. 658.
143
vities. The arrangement was that cables addressed to
"Nazneen" would be received at No. 19, Erskine Road and
would then be forwarded to the Warden Road residence of
Rabiyabai or the Napean Sea Road residence of Kochra and
that on receiving phone messages Yusuf would collect the
cables. Yusuf’s testimony has been corroborated in material
particulars.
Kochra’s mother resided at 10, Erskine Road, 4th floor,.
Esmail Building, Bombay-3. Exhibit Z 70 dated February 19,
1957 is the application for the registration of "Nazneen".
This document purports to have been signed by Ismail Kader,
a domestic servant of Kocbra’s mother. It was proved that
the signature "Ismail Kader" and the address 19, Erskine
Road, 4th floor, Esmail Building, Bombay-3 on Ex. Z-70 were
in the handwriting of Rajabali Karmalli, another servant of
Kochra’s mother. Rajabali Karmalli lived in Kochra’s garage
in Napean Sea Road. Kochra’s mother was invalid and Kochra
held a power--of-attorney from her for management of the
family property. Rajabali Karmalli was under Kochra’s
control and was his trusted servant. Kochra had his office
in the ground floor of the building at 19, Erskine Road and
his denial that he had no office there is false. Both
Rajabali Karmalli and Ismail Kader have now disappeared and
cannot ’be traced. Several cables sent to Nazneen in
connection with the gold smuggling have been exhibited. The
other cables could not be traced. Kochra registered
"Nazneen" because he desired to join the conspiracy and
received the cables sent to this address. The registration
of Nazneen was not procured by Yusuf in collusion with
Rajabali Karmalli or Ismail Kader. Though Yusuf
surreptitiously used other addresses for the receipt of his
cables, Nazneen was used with the full knowledge and
approval of Kochra.
On or about August 13, 1957 Yusuf and Hassan went to Beirut
for inducing the Shuhaibar brothers to join the conspiracy.
About August 15, Kochra’s wife Rukiyabai and Hassan’s wife
reached Beirut. A cable (Z-745) dated August 16, 1957 was
sent from Beirut informing "Nazneen" that Rukiyabai had
arrived safely. On a consideration of the materials on the
record including the written statements of Kochra and
Rukiyabai the courts below have found that this cable was
received by Kochra. The cable Z-745 was produced by PW 207
on April 4, 1962 after the examination of Yusuf Merchant had
been concluded. An application for recalling Yusuf filed on
the same date was rejected. A point was made that Kochra
was prejudiced by the rejection of this application.
Counsel suggested that Yusuf sent the cables Z-745 from
Beirut and that this fact could be established if Yusuf was
recalled for cross-examination. We shall assume that Yusuf
despatched the cable. But the fact remains that the cable
was received at "Nazneen". It was an intimation
144
of the safe arrival of Rukiyabai at Beirut and was obviously
meant for her husband. The courts below rightly held that
the cable was received by Kochra, and that there was no
substance in the defence case that he was not aware of the
existence of Nazneen. The rejection of the application for
recalling Yusuf -did not prejudice Kochra.
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The carrier Grant Powell arrived in Calcutta on November 3,
1957 and was arrested. PW 127 Chandiwala and Jagban-dhudas
were sent to Calcutta to contact the carrier. Yusuf’s
brother PW 50 Ali also went to Calcutta. On November 6, Ali
sent a telephone message to Kochra informing him of a
message from Chandiwala that there was a raid in his room by
the customs--officials ,and that the carrier had not come.
Kochra received the message on his telephone No. 72328 at
his residence. Exhibit Z-459 dated November 7, 1957 is a
copy of the bill for his telephone call. Thereafter Kochra
contacted Chandiwala on the telephone and assured him that
nothing would happen and asked him to return to Bombay
immediately. On November 7, 1958 Ali sent a phone message
to Kochra at his telephone No. 72328 informing him that
Chandiwala was returning to Bombay. Exhibit Z-459 dated
November 7, 1957 is the copy of the bill for this telephone
call. Taking into account Kochra’s statement, Ex. Z-703
para 6 and his written statement para 72 the courts below
rightly held that Kochra received the two telephone messages
from Ali relating to matters connected with the gold
smuggling. Even after the receipt of these messages Kochra
allowed the use of Nazneen for receipt of cables from Pedro
and acceptance of cables by Yusuf. PW 31 Mastakar proved
that Kochra did not send any complaint to the telegraphic
office that Nazneen was registered or was used with-out his
authority.
Mr. Mehta suggested that (a) Nazneen was used before Kochra
joined the conspiracy and that (b) Kochra did not join the
cons-, piracy on or about April 8, 1957 when the fifth
carrier came -and in this connection read to us several
documents. The courts below rejected this contention and we
find no reason for re-appraising the evidence. It may be
pointed out that by the cable Ex. Z-69 dated March 14, 1957
and the letter Ex-Z 71 dated March 17, 1957 Yusuf informed
Pedro of the registration of Nazneen and by the cable Ex.
Z-77 dated March 17, 1957 Yusuf asked him to send the cables
to the new address. The materials on the record show that
Kochra had then joined the conspiracy and the address
Nazneen was used for despatch and receipt of cables after
March 17, 1957. Mr. Mehta commented on the fact that Yusuf
implicated Kochra for the first time in his statement given
on April 30, 1957 and that Yusuf had not referred to Kochra
in his earlier statements. Yusuf at first wanted to shield
145
his friend Kochra. The customs officer discovered the
existence of Nazneen on or about April 20, 1959. On being
then questioned with regard to Nazneen, Yusuf was compelled
to disclose his connection with Kochra and the circumstances
under which Nazneen came to be registered.
The materials on the record clearly established the
connection of Kochra with the conspiracy and materially
corroborates the testimony of Yusuf Merchant. The courts
below rightly convicted Kochra.
Case of Accused No. 12 Maganlal Naranji Patel (Cr. A. No.
140 of 1966)
The prosecution case is that since May 3, 1957 Maganlal was
buying the smuggled gold from Yusuf Merchant and that when
consignments of gold bearing the mark "chaisso" and having
the fineness of about 99.99 came from Beirut, Yusuf Merchant
and Maganlal had the gold melted in the silver refinery of
PW 127 Chandiwala at Bandra by his employees Bahadulla and
Shankar in December 1957 and Ram Naresh and Mohamed Rafique
in February 1958 with a view to remove the mark "chaisso"
and to reduce the fineness of the gold. The mark "chaisso"
and the 99.99 fineness indicated that the gold was of
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foreign origin. The object of melting the gold and reducing
the fineness was to destroy the tell-tale evidence of its
origin. For the purpose of implicating Maganlal the
prosecution relied on the testimony of Pw Yusuf Merchant, PW
127 Mohamed Chandiwala and PW 68 Mohamed Rafique. It is
common case that Yusuf and Chandiwala are -accomplices. The
question in issue is whether PW 69 Mohamed Rafique was also
an accomplice. The two courts held that Rafique was not an
accomplice but we are unable to agree with this finding.
The melting was done late in the night after normal working
hours. The melting of gold in the silver refinery was
unusual. On no other occasion gold was melted in the
refinery. Rafique was asked to keep the matter secret. For
two hours’ secret work, he got about Rs. 10 though his daily
wage was Rs. 3 only. Once, the gold was brought in a jacket
usually -worn for carrying smuggled gold. In his statement
Ex. 25-K Yusuf admitted that of the two workmen Rafique had
more intimate knowledge of the reason for the secret
handling of the gold. The secrecy of the job, the unusual
hours, the special remuneration, the carriage of gold in
jackets, the user of silver refinery for the melting of
gold, the inside knowledge of Rafique of the purpose of the
melting, lead to the irresistible conclusion that Rafique
was knowingly a party to melting of _smuggled gold with
intent to destroy the evidence of its foreign origin and to
evade the restrictions on its import. He was clearly a
participes crimines in
146
respect of the offences with which Maganlal was charged and
was liable to be tried jointly with him for those offences.
As pointed out by Lord Simonds in Davis v. Director of
Public Prosecution(1) a participes crimines in respect of
the actual crime charged is an accomplice. The witness
concerned may not confess to his participation in the crime,
but it is for the Court to decide on a consideration of the
entire evidence whether he is an accomplice. Rafique was an
accomplice, and his evidence cannot be used to corroborate
the evidence of Yusuf and Chandiwala, the other accomplices.
There is no corroboration of the evidence of the accomplices
from an independent source. On the materials on the record
it is not safe to convict Maganlal of the offences with
which he is charged.
We may also point out that the positive case of Yusuf and
Chandiwala was that Rafique melted the gold in February
1958. The books of Chandiwala shows that in February 1958
Rafique did not work in the refinery. In his place one
Kedar worked there. Chandiwala suggested that Kedar was
another name of Rafique. This is an impossible story.
Rafique himself did not say that his other name was Kedar.
Thumb impressions of the workers used to be taken on the
muster roll of the refinery but that document was not
produced and the identity of Rafique with Kedar was not
established. The High Court rightly held that Kedar and
Rafique were different persons. The High Court made a new
case for the prosecution and held that Rafique might have
melted the -old towards the latter part of December 1958.
Mr. Khandelwala frankly stated that he could not support
this finding. In this Court Mr. Khandelwala maintained that
the gold was melted by Rafique in February 1958 and that
Rafique was also known as Kedar. For the reasons given
above, we are unable to accept this case. In our opinion,
Criminal Appeal No. 140 of 1966 should be allowed and
accused No. 12 Maganlal Naranji Patel must be acquitted of
all the charges.
Case of Accused No. 16 N. B. Mukherjee (Cr. A. No. 141 of
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1966)
Mukherjee was the engineer-in-charge of Group A base main-
tenance. According to the prosecution Mukherjee was
responsible for removing gold from aircrafts bringing gold
from the Middle East. PW 2 Yusuf Merchant, PW 49, Maxie
Miranda, PW 129 C. B. D’Souza, PW 143 Bhade and PW 148
Zahur, implicated Mukherjee. All these witnesses are
accomplices. The High Court found that their evidence has
been corroborated in material particulars from independent
sources. We are unable to accept this finding. Mr.
Khandelwala argued that the following
(1) (1954) A.C. 378,400-402.
147
circumstances corroborated the evidence of, the accomplices
:(1) the reference to Mukherjee in Ex. Z-209, a letter
dated July 8, 1958 from Lori to Yusuf, and Ex. Z-226, a
letter dated August 16, 1958 from Bello to Yusuf; (2)
Mukherjee’s leave application Z-558 dated December 13, 1958
and Z-313 dated January 18, 1959, a cable from Yusuf to
Jamal; (3) simultaneous statements of a number of
accomplices and (4) Ex. Z-697 the retracted confession of
Bello. Mr. Khandelwala did not rely on any other
circumstances.
In Ex. Z-209 Lori referred to Bello’s friend. Ex. Z-226 is
a letter of Bello to Yusuf referring to "our friend". These
two letters do not refer to Mukherjee by name. There is no
corroboration from any independent source, that Mukherjee
was one of the co-conspirators referred to in these letters.
The two, letters cannot be regarded as a corroboration of
Yusuf’s evidence.
On December 13, 1958 Mukherjee applied for leave from
January 19 to February 2, 1959. The leave application Ex.
Z-558 was allowed on December 14, 1958. This document is
innocuous and does not implicate Mukherjee in the crime.
Maxie Miranda now says that Mukherjee asked Maxie not to
remove the gold during his absence on leave, that Maxie
desired to remove the gold surreptitiously without
Mukherjee’s knowledge and arranged for the change in the
place of concealment of gold in aircrafts and that
accordingly Z-213, a cable dated January 18, 1959 was sent
by Yusuf to Jamal informing the latter that a new place of
concealment had been airmailed. Ex. Z-313 on the face of
it does not implicate Mukherjee. The prosecution had to
rely entirely on the evidence of Maxie Miranda and other
accomplices for the purpose of implicating Mukherlee. Ex.,
Z-558 and Ex, Z-313 do not connect Mukherjee with the crime.
Section 114 of the Evidence Act says thus as 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
impoliciting D, and the accounts corroborate each other in
such a manner as to render -previous concert highly
improbable." If several accomplices simultaneously and
without previous concert give a consistent account of the
crime implicating the accused the Court may accept the
several statements as corroborating each other, see Haroon
Haji A bdulla v. State of Maharashtra(1). But it must be
established that the several statements of accomplices were
given independently and without any previous concert, see
Bhuboni Sahu v. The King(2). In the present case the Rani
of Jhansi was searched on February 2, 1959. Yusuf gave his
first state-
(1) 70 Bom. L. R. 540, 5.45.
(2) L.R. 76 I.A. 146 156-57.
148
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ment on February 3, 1959. He did not then implicate Mukher-
jee. Maxie Miranda gave his statement on February 4, 1959
implicating Mukherjee. No other accomplice made a statement
on that date. There was ample opportunity thereafter for
the accomplices meeting together and conspiring to implicate
Mukherjee. On February 8, 1959 C. B. D’Souza, Bhide and
Yusuf made separate statements implicating Mukherjee. On
June 27, 1959 Zahur made a similar statement. These
statements cannot be regarded as having been made
independently and without any previous concert and do not
amount to sufficient corroboration of the accomplice
evidence.
On February 11, 1959 Bello made a confession implicating
Mukherjee. At the trial he retracted the confession. Under
S. 30 the Court can take into consideration this retracted
confession against Mukherjee. But this confession can be
used only in support of other evidence and cannot be made
the foundation of a conviction, see Bhuboni Sahu’s Case(1)
page 156. It cannot be used to support the evidence of the
other accomplices.
In our view, Criminal Appeal No. 141 of 1966 should be
allowed and Mukherjee should be acquitted of all the
charges.
Case of Accused No. 15 N. S. Rao
(Cr. A. No. 142 of 1966)
In this, case there is sufficient independent corroboration
of Yusuf’s testimony implicating Rao. Counsel for the
appellant did not dispute the finding of the High Court that
Rao is guilty of the offences with which be had been
charged. The High Court rightly convicted N. S. Rao.
Case of Accused No. 14 Parasuram T. Kanel
(Cr. A. No. 143 of 1966)
Counsel did not dispute the finding of the High Court that
there is sufficient independent corroboration of accomplice
evidence implicating Kanel. We have perused the records and
we ’find that the High Court rightly convicted Kanel of the
charges against him.
Case of Accused No. 6 Lakshmandas Chbaganlal Bhatia
(Cr. A. No. 144 of 1966)
The courts below accepted the testimony of Yusuf Merchant
implicating Lakshmandas in the conspiracy and other specific
charges against him. Lakshmandas acted as the financier in
the first four transactions and subsequently participated in
the disposal of gold. Yusuf’s testimony has been
corroborated in material particulars. It is sufficient to
mention two circumstances which connects Lakshmandas with
the criminal conspiracy and ,other charges against him.
(1) L.R. 76 I.A. 146,156.
149
Exhibit Z-20 shows that on November 26, 1956 Lakshman-das
had the telegraphic address "Subhat" registered. The appli-
cation for registration of "subhat" was signed by
Lakshmandas. The address for the delivery of the cables was
Lakshmandas Chhaganlal Bhatia, 8, Little Gibbs Road,
Alimanor Building, lst Floor, Bombay-6. Numerous cables
with regard to the smuggling of gold were received by
Lakshmandas at the telegraphic address "Subhat". The
evidence shows that the address "Subhat" was registered for
the purpose of the smuggling activities only. It does not
appear that any cable relating to any legitimate business
was received by Lakshmandas at this telegraphic address.
The third carrier J. P. Hoffman arrived in Delhi. The
contact of Lakshmandas with this carrier is clearly
established. Ex. Z64 is a cable dated March 6, 1957 from
Yusuf to Pedro stating that he was awaiting the party at
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Hotel Marina in Delhi and that the code name was captain.
The passenger manifest of the Indian Airlines Corporation
(Ex. Z-566) shows that A-14 P. T. Kanel the brother in law
of Lakshmandas travelled from Bombay to Delhi by flight No.
125/66 on March 7, 1957. The reservation chart Z-566A shows
that the reservation for Kanel was made from telephone No.
70545 of Lakshmandas. The register of Hotel Marina, New
Delhi, -Ex. Z-65 shows that Kanel arrived at the hotel on
March 8, 1957 at 7.30 A.M. and occupied room No. 22. At the
hotel Kanel declared that Thamba Chetty Street, Madras, was
his permanent address, though - in fact he had no such
address at Madras. The telephone register of Marina Hotel
Ex. Z-65 C shows that on March 8, Kanel attempted to
contact telephone No. 70545 but the call was cancelled. The
passenger list of Indian Airlines Corporation Ex. Z-567A
shows that a seat was booked for Bhatia by plane from Bombay
to Delhi and the manifest shows that he travelled by the
plane on March 9, 1957. The manifest of K.L.M. Airways Ex.
Z-489 shows that Hoffman travelled by plane from Geneva and
arrived at Palam Airport, New Delhi, on March 9. The
register of Hotel Marina Ex. Z-66 shows that Hoffman
arrived at the Marina Hotel on March 9, at 1.40 A.M. and
occupied room No. 39: The bill of Hotel Marina Ex. Z-65 B
shows that Kanel was charged Rs. 3/8/- extra for a guest and
that he left the hotel on March 10. The passenger manifest
Ex. Z 537 shows that on March 10, 1957 Kanel and Lakshmandas
travelled by some plane from Delhi to Bombay and their tic-
ket Nos. were 194885 and 194886. There is nothing to show
that Kanel and Lakshmandas came to Delhi for any legitimate
business. The documentary evidence completely corroborates
Yusuf’s testimony that Kanel came to Delhi, and later he was
joined by Lakshmandas and that the object of their visit was
to contact the carrier Hoffman and to receive from him the
smuggled gold. The courts below rightly convicted
Lakshmandas of the charges against him.
150
Counsel for the appellants pleaded for a mitigation of the
sentences. The courts below passed on them sentences of
rigorous imprisonment on the charge of conspiracy and on the
individual charges for which they were convicted and
directed that the sentences on all the charges except the
charge of criminal conspiracy would run concurrently.
Counsel argued that a separate punishment on the conspiracy
charge was not justified and referred us to the following
passage in Glanville William’s Criminal Law, 2nd ed.,
(General Part), art. 220, page 685
"Conspiracy is a useful feature on which to
seize for punishing inchoate crime; it is not,
in general, an aggravating factor when crime
has been committed. Where there is a
prosecution for a consummated crime and for
conspiracy to commit it, no separate
punishment would be justifiable on the
conspiracy count. However, the fact that
criminals are organized professionally for
crime may be taken into consideration in
determining the punishment for the crime."
We find that the offence under s. 167(81) of the Sea Customs
Act, 1878 was punishable with imprisonment for a term not
exceeding two years or to fine or to both. A party to a
criminal ,conspiracy to commit this offence was punishable
under s. 120B (1) of the Indian Penal Code in the same
manner as if he had abetted the offence. A criminal
conspiracy is a separate offence, punishable separately from
the main offence. The sentences passed by the courts below
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cannot be said to be illegal. However, in the present case,
Yusuf and Pedro, the ring leaders of the conspiracy, have
escaped punishment. There has been a prolonged trial
commencing in July 1960 and ending in conviction on Sep-
tember 30, 1963. Considering all the circumstances, we
think, that the sentences on all the charges should run
concurrently.
In the result, Criminal Appeal No. 140 of 1966 is allowed
and Maganlal Naranji Patel is acquitted of all the charges.
Criminal Appeal No. 141 of 1966 is also allowed and N. B.
Mukherjee is acquitted of all the charges.
Criminal Appeal Nos. 139 of 1966, 142 of 1966, 143 of 1966
and 144 of 1966 are allowed in part and we direct that all
the sentences passed on the appellants will run
concurrently. In other respects, the appeals are dismissed.
G.C. Appeals dismissed.
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