Mohd. Hussain Umar Kochra Vs. K. S.
Dalipsinghji & ANR  INSC 96 (31 March 1969)
31/03/1969 BACHAWAT, R.S.
CITATION: 1970 AIR 45 1969 SCR (3) 130 1969
SCC (3) 429
R 1979 SC1761 (5A) RF 1991 SC1463 (5)
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.
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 whether separate punishment for conspiracy should be -awarded
when the accused is already sentenced for the substantive offence, also came up
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
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
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,  1 S.C.R.
595, S. Swami'natham v. State of Madras,
A.I.R. 1957 S.C. 340 and R. v. Griffiths,  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 nondisclosure 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,  3 S.C.R.
831 find R. v. Baskerville,  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
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]
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
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 including 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 criminal conspiracy and substantive offences under S.
167(81) and passed sentences of imprisonment
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 2-21959 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
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 some
In August 1957 Yusuf and A-38 Hassan
representing Kochra and Rabiyabai went to Beirut and induced Al to A3 Jamal
Shuhaibar and his two brothers to join the conspiracy. The scheme 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. Simultaneously 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 behalf
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
not 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 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.
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 Exchange 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 began. 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
In this connection a question arose whether
customs duty was leviable on imports and exports by air and whether a fraudulent
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 evidence 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 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)  1
S.C.R. 595. (2) A.I.R 1957 S.C. 340.
(3)  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 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 production 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 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 nondisclosure 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 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 ori United Kingdom or in Pakistan. The application was not made 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, A7 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)  3
(2)  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
Kochra's mother resided at 10, Erskine Road,
Esmail Building, Bombay-3. Exhibit Z 70 dated
February 19, 1957 is the application for the registration of
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.
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
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 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
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 1966) Mukherjee was the engineer-in-charge of Group A base maintenance.
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
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 ment on February 3, 1959. He did not then
implicate Mukherjee. 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 application 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 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 ticket 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 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 September
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.