1. This group of appeals arises out of a prosecution against these appellants and some others for offences of conspiracy under Section 120-B of the Indian Penal Code for importing and bringing into India gold in contravention of the provisions of the Sea Customs Act. 1878 read with the relevant Notifications and individual charges against several accused in respect of certain individual transactions. In the complaint 40 persons were named as defendants, out of whom defendants Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 36, 38, 39 and 40 only were amenable to the process of the Court. Rest of the defendants were not amenable to the process of the Court inasmuch as many were foreigners and some had absconded.
(2) Defendants Nos. 1, 2 and 3, who are brothers, are referred to as Shuhaibar brothers and are of Beirut. Defendant No. 4 Yusuf Lori alias Adulla apparently is from Baherein. Juan Casanovas, defendant No. 5 is of Geneva. Defendant No. 19 Hamad Sultan of Bombay had absconded and was not available. Defendant No. 20 Mrs. Gisele Minot, Defendant No. 21 B. J. Lupi, defendant No. 22 J. P. Hoffman defendant No.23 Jacques Minot, defendant No. 25 M. Torrens, defendant No. 26 Mrs Mora Margaret, defendant No. 27 Armand Yavereowaski, defendant No. 28 Grant Powell, defendant No. 29 G. J. Flamant defendant No. 30 Mrs. A. Ramel, defendant No. 31 Mrs. S. B. Taylor, defendant No. 32 J. C. Catino, defendant No. 33 E. D. Gill defendant No. 34 A. J. Mascardo and defendant No. 35A. A. Grant are all foreigners and were concerned as carriers of gold from foreign countries to either Delhi, Calcutta or Bombay.
(3) Defendant No. 14 Parsuram Kanel is the brother-in-law of defendant No. 6 Lakshmandas alias Sham. Defendant No. 7 Rabiyabai is the mother of defendant No. 9 Rukaiyabai and defendant No. 10 Abidabai. Defendant No. 9 is the wife of defendant No. 8 Mohamed Hussain alias Mr. Buick alias Naznen. Thus, he is also son-in-law of defendant No. 7 Defendant No. 8 originally was residing with his mother at Ismail building Erankine Road upto 1953, and thereafter he shifted to another place. It is alleged he had a Buick car and he earned alias of Mr. Buick. Defendant No. 33 Hassan Usman is the son of defendant No. 7. He is thus the brother of defendants Nos. 9 and 10 and brother-in-law of defendant No. 8 Defendant No. 11 Murad has absconded after his conviction jumping bail. Defendant No. 12 Maganlal and defendant No. 13 Mafatlal are running a partnership shop known as Maganlal Maneklal and Co., and reside at Linking Road Khar. The firm does business in bullion in Jhaveri Bazaar and defendant No. 12 Maganlal is the leading partner. Defendant No. 15 N. S. Rao is a neighbor of the main witness in the case Yusuf Merchant who was the axle of the whole organisation. He is an engineer in the Air-India International. Similarly, defendants Nos 16 and 17. Mukherji and Miranda, are mechanic in the Air-India International Defendant No. 36 Francis Bello alias Bell is an employee of Messrs. Trade Wings. Defendant No. 37 Chunilal alias Professor Kamal alias Dwarkadas was absconding Defendant No. 39 Deshmukh is an employee in the Air-India International as a mechanic and so also defendant No. 40 Jacob alias Tambaku.
(4) The investigation started with the information received by the Customs Offices to the effect that gold was being transported into India by a particular flight of the plane 'Rani of Jhansi' to arrive at Santacruz Airport on February 1, 1959. As a result of this information the Customs Officers led by Ramchandran ( P. W 146) the Deputy Director Revenue Intelligence. New Delhi, remained present at the air-port at 7.00 p.m. on that day. Immediately after its arrival when the plane was searched under the instructions of Ramchandran by Pinto ( P. W. 34) Inspector of Customs, large quantity of gold was found concealed in the plane and it was seized under a panchanama, exhibit Z/435. As a result of questioning probably the engineers on February 2 1959 the residence of Yusuf Merchant (P. W. 2) was searched and many incriminating articles were seized. From time to time, the statements of Yusuf Merchant were recorded. They are exhibits 25 to 25/O. In the meantime some of the others were also questioned. The investigation was completed on October 24, 1959, and eventually the complaint was filed after obtaining relevant sanctions.
(5) The period of conspiracy under charge No. 1 is from November 1, 1956 to February 2, 1959. The evidence, consisted of a large number of witnesses and a far larger number of documents. The oral evidence may be divided into several groups, most important being some of those who were actually concerned in this conspiracy in one way or another, and who have not been named as defendants in the complaint; Yusuf Merchant ( P.W. 2) the axle of the conspiracy Md Zahur Ahmed (P. W. 148) his driver, and P. W 127 Chandiwalla, the father-in-law of Yusuf Merchant who has a silver refinery at Bandra. P. W. 49 Maxie Miranda is a mechanic in the Air India International since 1948 and was concerned with the removal of gold from the aircraft. P. W. 135 Quintin Aranha is an employee in the Times of India office known to defendant No. 15 Rao. P. W. 143 Yeshwant Bhide is a mechanic in the Air-India International since 1954. He was also concerned in this conspiracy P. W. 129 D' Souza similarly a mechanic employed in the Air-India International at the Santacruz Airport is also concerned in the conspiracy.
(6) The next group of the witnesses is that of the investigating officers of the Customs Department. Only a few of them need be referred to P. W. 86 Abdul Gafoor Saguaro a preventive officer in the Customs, Bombay played only a minor part in the investigation. P. W. 146 Ramchandran, who is a Deputy Director Revenue intelligence, New Delhi and was probably in the same post in 1959, was present at the initial stages of the search and the investigation. Persons mainly concerned are these. P. W. 149 M. S. Mehta is a Deputy Director, Tax Research Unit Department of Economic Affairs, Ministry of Finance, New Delhi, and was at the relevant time the Assistant Collector Investigations. Directorate of Revenue Intelligence P. W. 183 Srivastav was at the relevant time a Deputy Director, Revenue Intelligence New Delhi, and now he is Additional Collector of Customs. Calcutta, P. W. 193 Narandranath Dewan is a Deputy Director Revenue Intelligence New Delhi.
(7) The next set of witnesses are officers of the Telegraph Office. They are: P. W. 30 Anand Udipi was a Supervisor in the Overseas Communication Service attached to Central Telegraph Office P. W. 31 Sumant Mastakar, a clerk in the Central Telegraph office and C. Madhavan (P. W. 196), a Superintendent in the Message Record Section of the Senior Deputy Accountant General, Posts and Telegraphs, Calcutta.
(8) The next group of witnesses are the employees of various hotels where the receivers are shown to have contacted the carriers and stayed during their journey at various places. These witnesses are: P. W. Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 102, 119, 136 and 144. It is not necessary to give their names. Out of these, Mr. Jethmalani referred to P. W. 14 Martin Thaddeus only as important one as some argument is made in respect of this witness.
(9) Then the nest group is that of Panchas who were present at various searches an seizures. P. W. 203 Surendranath Chopra is from the Indian Consulate, in Berne, Switzerland, who merely proved that the photostat copies were certified by the Telegraph Office, Berne, Switzerland, which are exhibited as exhibit Z/743. Then there is the handwriting expert Jal Gimi ( P. W. 187) who identified the handwriting of some of the defendants in some of the documents.
(10) One of the witnesses we have not referred to as belonging to any of the groups is P. W. 50 Ali Merchant the brother of Yusuf Merchant, the main accomplice in the case. The prosecution relied on the evidence of Ali Merchant to corroborate certain matters spoken to by Yusuf Merchant, as an independent witness. After the seizure of gold from 'Rani of Jhansi' on February 1, 1959. During the course of investigation this witness was sent to Beirut, Geneva and other places to collect the letters and correspondence made by Yusuf Merchant, with the various suppliers of gold abroad and through him various documents were sought to be proved. The defence, on the other hand, urged that this witness is equally an accomplice. We have, therefore, not put him in the first class of witnesses who are all accomplices.
(11) All the defendants denied that they had committed any offence. Whatsoever. They sought to explain various circumstances appearing in the case and finally said that Yusuf Merchant was making false accusation against them to save his own skin at the instigation of the Customs. Officers. The learned Magistrate before whom the case was heard acquitted defendants No. 9, 10, 13, 39 and 40 and convicted defendant No. 6 Lakshmandas Bhatia alias Sham defendant No. 7 Rabiyabai, defendant No. 8 Mohamed Omer defendant No. 11 Murad Asharanoff defendant No. 12 Maganlal Patel, defendant No. 14 Parsuram Kanel, defendant No. 15 N. S. Rao Defendant No. 16 N. B. Mukherji, defendant No. 17 Tinothy Miranda defendant No. 36. Francis alias Bell and defendant No. 38 Hassan Usman. He imposed various sentences on each of these defendants. Defendant No. 38 was sentenced to pay a fine only of Rs. 2,000 and he has not, therefore, appealed. The rest of the defendants have appealed to this Court.
(12) Now, the allegation in this case was that gold was smuggled into Indian territory by planes either through passengers or crew or actually hidden in the aircrafts. Mr. Porus Mehta, therefore, raised a contention that such import of gold by air cannot amount to an offence under S. 167(81) of he Sea Customs Act read with the relevant provisions of the Foreign Exchange Regulation Act, 1947. His argument is that Sea Customs Act applies only to import by sea. Similarly, the Land Customs, Act, 1924, applies to imports by land. Though all restrictions under S. 8 of the Foreign Exchange Regulation Act, 1947, are deemed to be restrictions under Sea Customs Act, it cannot touch import of gold by air. Thus, he says no offence with which they are charged is actually made out. The relevant provisions of the Sea Customs Act referred to in this connection are Ss. 2(f), 2(gg), 18, 19, 20 and Chapters VII and IX.
(13) Now S. 2(f) gives inclusive definition of 'Vessel' made for conveyance by water of human beings or property and S. 2(gg) defines 'Indian customs waters' to mean the waters extending into the sea to a distance of twelve nautical miles measured from the appropriate base line on the coast of India. Section 18 is a prohibitive section and says, 'No goods................shall be brought, whether by land or sea, into India'. Section 19 is an enabling section which enables the Central Government by a notification in the Official Gazette to prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government. Section 20 provides for the levy of, and exemption from, customs duties. Chapter VII relates to arrival and departure of vessels and deals with vessels carrying goods by water. Chapter IX again deals with import by sea. The Land Customs Act by 9. Provides that certain provisions of the Sea Customs Act specified in the Schedule along with all notifications, orders, rules, forms etc. under the same shall, so far as applicable, apply for the purpose of levy of duties of land customs under the Land Customs Act. Mr. Mehta says that though there is the Indian Aircraft Act of 1934, in the said Act, no such provision appears, and therefore, goods carried by air in aircrafts do no attract the provisions of the Sea Customs Act. No doubt, S. 16 of the Aircraft Act enables the Central Government by notification to apply the provisions of the Sea Customs Act, but it has not chosen to do so. For this reason, therefore, he says such importation does not amount to an offence.
(14) If the matters had stood thus, probably, Mr. Mehta may have been right. But matters do not rest here. The Foreign Exchange Regulation Act, 1947, as the preamble shows, was intended to regulate, among other things, import and export of currency and bullion. The relevant sections do not lay down any limitation as to the manner of import or export. Section 8 of this Act, as Section 19 of the Sea Customs Act, enables the Central Government by notification to order, subject to exemptions, if any, that no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any prescribed, bring or send into India any gold or silver or nay currency notes or bank notes or coin whether Indian of foreign. The explanation and sub-section (2) need not be reproduced as they do not affect the present question. Section 23(1) of this Act, as it stood in 1959 when the offences came to light, provided for punishments for contravention of Sections 4, 5, 9 and 12(2) or any rule or order etc. with two alternative penalties, one, such as may be levied by the Director of Enforcement, or, on conviction, by a Court, Section 23(1-A) similarly provided punishment upon conviction by a Court extending to two years or fine or both for contravention of any of the provisions of the Act or rules other than those referred to in S. 23(1), while S. 23(1-A) (b) prescribed penalty on conviction by a Court for contravention of any direction or order made under S. 19. The rest of that section is not material. Section 23-A is very material and runs as follows:
'Without prejudice to the provisions of S. 23 or to any other provision contained in this Act, the restrictions imposed by sub-sections (1) and (2) of S. 8, sub-section (1) of S. 12 and clause (a) of sub-section (1) of S. 13. 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, except that S. 183 thereof shall have effect as if for the word 'shall' therein, the word 'may' were substituted.
Mr. Mehta argues that though the language of S. 23-A may appear to be general, the Legislature intended that import of the articles intended to be touched by the Foreign Exchange Regulation Act would attract the application of the Sea Customs Act only and only if the imports were by sea, and not otherwise. In other words, he says if the import were by sea, then in spite of the fact that no notification except one under the Foreign Exchange Regulation Act had been issued it would still be deemed to be a notification under S. 19 of the Sea Customs Act, and it would be punishable under the latter Act. But if the import were otherwise than by Sea, only the provisions of the Foreign Exchange Regulation Act would be attracted and the violation would be punishable under S. 23 of the Foreign Exchange Regulation Act only. The provisions, he says, were intended only to save the publishing of another notification under the Sea Customs Act. He says that it is wrong to suppose that by S. 23-A the provisions of the Sea Customs, Act were incorporated in to the Foreign Exchange Regulation Act or vice Versa, and relies in support upon Collector of Customs, Madras, v. N. Sampathu Chetty, : 1983ECR2198D(SC) and Mohammed Kasim v. Assistant Collector of Central Excise. Madurai : AIR1962Mad85 (FB). He also says that the fiction should have a very limited effect, and for this relies upon the decision in Bengal Immunity Co. Ltd. v. State of Bihar : 2SCR603 and Commissioner of Sales Tax, U. P. v. Modi Sugar Mills Ltd. : 2SCR189 . We must now, therefore examine the contention.
(15) In order to ascertain the intention of the Legislature, every legislative provision had to be fairly and reasonably interpreted. The language must carry its ordinary meaning unless the subject or its context suggests otherwise and the Court is not entitled to speculate as to the intentions of the Legislature and invent restrictions and prohibitions not justified by the language of the statute on the ground that would be the intention of the Legislature. Intention must be taken to have been expressed by the language used by the Legislature. A plain reading of S. 23-A of the Foreign Exchange Regulation Act, does not show that the provisions of the Sea Customs Act were intended to be transposed into those of the Foreign Exchange Regulation Act or what is called incorporation at all. The section in clear language speaks that the restrictions imposed under the provisions there referred to shall be deemed to have been imposed under S. 19 of the Sea Customs Act Omitting the unnecessary portion, the language would read, 'the restrictions imposed by.....................shall be deemed to have been imposed under S. 19 of the Sea Customs Act. 1878' There is nothing to suggest that the restrictions which are deemed to be imposed under the Sea Customs Act, are only such are as are in respect of import and export of the articles dealt with by the Foreign Exchange Regulation Act. only by sea. The natural meaning of the words is that all the restrictions in reference to the articles dealt with by the Foreign Exchange Regulation Act howsoever imported (whether by air, by sea or land) shall be deemed to be imported under S. 19 of the Sea Customs Act. It is clear therefore that the restrictions regarding import of the goods notified only by sea were not deemed to be restrictions under S. 19 of the Sea Customs Act, but all imports of goods by any method howsoever, and once they became restrictions under S. 29 of the Sea Customs Act, without anything more all the provisions of the latter Act ,must apply. The legislature that not left any matters in doubt and it has specifically applied all the provisions of the Act in express words and as it was intended to give discretion to the officer in cases where confiscation is authorised by the Act, as to S. 183 some change was effected. This is a clear case not of incorporation of one Act into another with its necessary consequences, but providing certain effects by reference.
(16) : 1983ECR2198D(SC) referred to above came before the Supreme Court against the decision of the Madras High court, and the question was whether S. 178-A of the Sea Customs Act, which was introduced in the statute, in 1955 after the Foreign Exchange Regulation Act, 1947, was enacted, applied to a contravention of a notification under the Foreign Exchange Regulation Act. The Madras High Court held that by S. 23-A of the Foreign Exchange Regulation Act, the provisions of the Sea Customs Act, as they then stood were incorporated into the later Act, and therefore, the amending S. 178-A was not attracted. The Supreme Court rejected the contention that the earlier statue was incorporated in the later. They analysed the doctrines of incorporation and its effect and held overruling the decision of the Madras High court that the earlier Act was not incorporated into the later Act at all, and that S. 23A brought about certain effects by reference to the earlier Act. The Court held that a notification issued under S. 8(1) of the Foreign Exchange Regulation Act, is deemed for all purposes to be a notification issued under S. 19 of the Sea Customs Act, the contravention of the notification attracts to it each and every provision of the Sea Customs Act which is in force at the date of the contravention (see para 42). The decision in Secy. Of State v. Hindustan Co-operative Insurance Society Ltd. was distinguished. This decision in our view, apart from negativing the theory of incorporation of the earlier Act into later Act is against the contention of Mr. Mehta. The Supreme Court clearly indicated that all restrictions under the referred sections under the earlier Act, and the provisions of the earlier Act became applicable. In the same volume, there is another decision Pukhraj v. D. R. Kohli : 1983(13)ELT1360(SC) . There also the Supreme Court held that a notification issued by the Government of India under S. 8(1) of the later Act has the force of a notification issued under S. 19 of the earlier Act, and the relevant provisions, including Sections 167(81) and 178-A were applicable Mr. Jethmalani distinguishes these cases on the ground that they did not apply. The next case is : AIR1962Mad85 (FB) This case again negatived the theory of incorporation, this time, of Foreign Exchange Regulation Act in the Sea Customs Act, and held that S. 23-A of the Foreign Exchange Regulation Act was a referential section and having regard to the rule of construction. S. 167(81) of the Sea Customs Act applied, though it was introduced into the Act after the Foreign Exchange Regulation Act was enacted. This decision also does not help Mr. Mehta and is really against him.
(17) Mr. Mehta relied upon : 2SCR603 and : 2SCR189 , where it is said that a legal fiction ought to be limited for the purpose for which it was created and should not be extended beyond its legitimate field. We are not extending the fiction in any manner whatsoever. The Legislature has provided that the restriction shall be deemed to be a restriction under S. 19 of the Sea Customs Act, which it is really not. The Legislature intended that for all purposes, it became a restriction under S. 19 of the Sea Customs Act and it attracted the provisions of that Act. Even if the portion commencing with 'and all the provisions .....' were absent from the section, having regard to the language used in S. 23-A of the Foreign Exchange Regulation Act, we would have been bound to hold that the provisions of the Sea Customs Act became applicable, for it has been held in State of Bombay v. Pandurand Vinayak. : 1953CriLJ1049 , that full effect must be given to the statutory fiction and it should be carried to its logical conclusion. We may also in this connection refer to Lord Acquith's observations in East End Dwelling Co. Ltd. v. Finsbury Borough Council (1952) AC 109 which are cited in the above case. Lord Acquith:
'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.............The statement says that you must imagine, a certain state of affairs; it does not say, that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs'.
Mr. Jethmalani, admitting that a restriction, imposed under S. 8 of the Foreign Exchange Regulation Act can be said to be one imposed under S. 19 of the Sea Customs Act, contended that if the language of a particular section of the Sea Customs Act was not appropriate then to that extent it would not be applicable. We do not see how it is possible to accept this contention except by adding the words so far as applicable' to the latter part of S. 23-A beginning with 'and all the provisions ............shall be applicable' which we are not entitled to do. To accept this contention would be to boggle the intention of the Legislature when it has in very clear language provided for the application of all the provisions of the Sea Customs Act and S. 183 with slight modification as there mentioned.
(18) These provisions were considered in Jagnnath Sonu Parkar v. The State : (1965)67BOMLR38 by a Bench of this Court of which I was a member, though in a slightly different context. We did not accept the theory of incorporation of one Act into another, and gave the deeming provisions of S. 23-A of the Foreign Exchange Regulation Act its full effect, including all its logical consequences. We, therefore, reject Mr. Mehta's contention that no offence is made out as contended by him.
(19) Mr. Mehta then contended that in any event no offence of evasion of duty under S. 167(81) of the Sea Customs Act can in any circumstances be made out inasmuch as S. 20 of the said Act imposes a duty only on imports by sea. Assuming this to be so S. 167(81) does not concern itself merely with offences of evasion of duty. It is a very widely worded section and creates an offence for acquisition or possession or being concerned in carrying or removing, depositing, harbouring or concealing or in any manner dealing with goods or with respect to importation or exportation of which any prohibition or restriction is in force, and so on. If the import of the bullion is prohibited and if it is established that any of the accused had done any of the facts mentioned in S. 167(81), then he would be guilty of the same. This contention also must, therefore fail.
(20) Mr. Jethmalani argued that, on the evidence, Yusuf, Merchant and Chandiwalla, out of the accomplices, ought to have been prosecuted along with the accused as there was sufficient evidence against them. If the Customs Authorities wanted to use their evidence against the accused, they ought to have proceeded to obtain the same by the procedure prescribed by the Criminal Procedure Code or otherwise, by law, but they had no right, on their own responsibility, to choose particular persons as witnesses and prosecute the others. He complains that the Magistrate was bound to issue process against them under S. 204 of the Criminal Procedure Code. The non-prosecution of these witnesses has resulted in violation of the Constitutional guarantee of equality under Article 14. He further contended that the evidence of these witnesses is obtained contrary to the provisions of Ss. 337 and 338 and that the evidence of Yusuf Merchant and Chandiwalla is obtained by promising them that no member of their family would be prosecuted though there was evidence against them. Thus the evidence has been obtained in violation of the provisions of Ss. 163 and 343 of the Cr. P. C., and hence the conviction is not 'in accordance with procedure established by law' as required by Art. 21, and therefore, ought to be set aside. Mr. Khandalwalla contended that the offences under the Sea Customs Act are not investigated according to the Sea Customs Act, that Ss. 337 and 338 and 494, Cr. P. C. do not apply and the Customs Authority has discretion under S. 187-A to prosecute, or not, any person who has committed breach of any of its provisions, that the accused and the witnesses are not similarly situated, that Art 14. Therefore cannot be attracted, that the learned Magistrate was justified in not issuing process and that no inducement was offered by the Customs Officer to Yusuf Merchant and Chandiwalla.
(21) It is now well settled that Art. 14 does not ensure absolute equality amongst all but ensures it amongst persons similarly situated. It is for this reason that classification is permissible, provided there is a nexus between the classification and the purpose to be achieved. In answering a similar plea for the prosecution of some of the witnesses along with those who were accused, in Narayandas v. The State : (1964)66BOMLR17 a Bench of which I was a member held that as the witnesses and the accused were no similarly situated, the authorities were not wrong in not prosecuting them. Same answer was given in Lakshmipat Choraria v. State : (1965)67BOMLR618 Assuming that there is sufficient evidence against P. W. 2 Yusuf Merchant and P. W. 127 Chandiwalla and that they are otherwise similarly situated what is the right of the accused? Mr. Jethmalani says that the accused should be put in the same position as that of the witnesses by their acquittal. We are by no means satisfied that this consequence must follow. While dealing with the exclusionary theory of evidence enunciated by the American Federal Court, Cordozo J. in people v. Defore, (1915) 242 N. Y. 13, (cited in Wigmore on Evidence, McNaughton Revision p. 37) in a different context says:-
'We are confirmed in this conclusion when we reflect how far reaching in its effect upon society the new consequences would be The pettiest peace officer would have in it his power, through over zeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed and the murderer goes free. Another, search, once more against law, discloses, counterfeit money or implements of forgery, the absence of a warrant means freedom of the forger. Like instances may be multiples. We may not subject society to these dangers until the Legislature has spoken with a clearer voice'.
It is true that, in the supposed interest of the society, constitutional guarantee cannot be reduced to nullity. But, if without bringing about the result of exposing the society to crimes, the accused can be restored to equality, they cannot complain. In our view, the Court may, if it is satisfied, that the witnesses are similarly situated order their prosecution, but ought not to acquit the accused only on this ground.
(22) Mr. Khandalwalla contended that the proper remedy would be to apply by a writ petition to the High Court if any of the accused is dissatisfied, by the non-prosecution of any one who was a party to the offence. So far as at present advised, we are not prepared to hold that is the only remedy available to them. Much depends upon the nature of the relief claimed by the accused.
(23) Mr. Jethmalani urged it is the duty of the officers concerned to prosecute the law-breakers and they cannot pick and choose. He says section 120B of the Penal Code and Section 167(81) which create these offences do not create any exception and enable the officers to exercise their choice according to their pleasure. Mr. Khandalwalla relied upon section 187A of the Sea Customs Act which prevents any Court from taking cognizance of an offence under the Act except upon a complaint by an officer there in specified and urged that discretion is left to the officer whether to proceed or not to proceed against a particular person Mr. Khandalwalla is indeed right when he says that offences under this Act and the Penal Code are essentially different. The customs Officers are Revenue Officers and, in accordance with the scheme of the sea Customs Act, much discretion is left with the authorities to prosecute or not to prosecute in a given case, while that is not to prosecute in a given case. while that is not so regarding offences under the Penal Code, the investigation of which is governed by the Criminal Procedure Code. This Court has held in : (1964)66BOMLR17 and : (1965)67BOMLR618 that under the Criminal Procedure Code, the investigating officer has discretion not to charge-sheet an offender only if in his opinion the evidence against him is not sufficient. If the evidence is sufficient, he has no choice Indeed, there is no such provision in the Sea Customs Act. In the latter case, it is also held that investigation of offences under the Sea Customs Act is not under the Criminal Procedure Code and it does not apply. Mr. Jethmalani's contention is that discretion however, is confined to offences only. In other words, he says that the Customs Authority has discretion to prosecute or not to prosecute for a given offence, but where the offence is committed by two or more persons and they decide to file complaint, they have no choice. For, he says, to hold that such a discretion is vested in the Customs Authority by the Section without prescribing the principles for its exercise would render the section ultra vires and the Court would not to construe it. The circumstances can be so varied and numerous that it is not possible to lay down any principle regarding the exercise of the discretion. The Court is entitled to grant pardon under section 337 of the Criminal Procedure Code, but no principles are laid down for the exercise of the discretion. Nor, so far as we are aware any Court has defined the principles for the exercise of the powers of pardon for the matter must be left to the discretion of the officer concerned.
(24) At first sight there may appear to be substance in what Mr. Khandalwalla says. But this section does not stand by itself. Section 190 of the Code has considerable effect on section 204 of the code. This court is Lakshmipat's case, : (1965)67BOMLR618 held that the section does not mean that when a complaint is made by the Customs Officer, it is not open to the Magistrate before whom the complaint is made, to proceed against a person against whom, in his opinion, there is sufficient evidence, even if the complaint. This decision binds us and the matter is not open to argument.
(25) Mr. Jethmalani then complained that the learned Magistrate rejected his application under section 351 summarily. The application was made on behalf of the accused immediately after he was examined in Chief praying that Yusuf Merchant be joined with them as co-accused. The purpose of this was obviously to prevent his being examined as a witness at the trial. This application was resisted by the prosecution. In : (1964)66BOMLR17 . We have held that the provisions regarding joinder of accused contained in the Criminal Procedure Code, are merely enabling and they do not give an accused a right to insist that some one else though he may be an accomplice in the crime alleged, be joined with him at the trial. If an accomplice is desired to be used as a witness without the procedure of pardon, his trial can be separated and he may either be tried first and then be examined as a witness or he may be examined as a witness first and then tried. In either case, that is no advantage to the accused.
(26) Mr. Jethmalani then contended that, in any event the learned Magistrate should have acted under section 204, Criminal Procedure Code, and issued process against Yusuf Merchant and Chandiwalla, as against them, there was sufficient evidence Our attention is invited to the evidence against such of them in support of this submission. Mr. Khandalwalla says that section 204 9s nearly an enabling section intended to give a discretion to the Magistrate to issue a particular kind of process. According to him, the word 'accused' refers to the person who is named as an accused and not to one who is not so named. He reasons thus Section 190 which concerns with initiation of proceedings enables the Magistrate to take cognizance of offences in three classes of cases : (1) upon receiving a complaint. (2) upon police report and (3) upon information from any person other than a police officer or upon his own knowledge or suspicion Chap. XVI deals with complaints to Magistrates and prescribes the procedure to be followed by the Magistrate, and by section 203 requires him to dismiss the complaint if he thinks there is not sufficient ground. Then follows Chapter XVII which consists only of two sections, Section 205 enables him to issue summons in summons cases or either a warrant or summons even in a warrant case and conditions of such issue. Section 205 enables him to dispense with the personal attendance of the accused. Section 207-A falls in Chapter VIII and deals with the procedure to be adopted on a police report. Section 207-A (3) says: '...............when the accused appears or is brought before him ............'. The 'accused' would mean accused named in the report as 'accused'. Similarly, in section 204, it also means one who is named as an accused. It seems that this contention is not accepted by the Bench in : (1965)67BOMLR618 , where the Court applied, section 204 and held on merits that the learned Magistrate was justified in not issuing process against the witness. Similarly in : (1964)66BOMLR17 also, it was on the basis that section 204 applied that the contention was negatived or merits.
(26A) We must now deal with Mr. Khandalwalla's contention that Yusuf Merchant and the accused are not similarly situated. Yusuf Merchant's statement showed that he was the connecting link amongst all the conspirators and it would only be his evidence that could give the particulars of the conspiracy and its working. Without his evidence, the pillars of the conspiracy could not have been reached. Even the statement of accused No. 6 at Exhibit Z-682 was recorded as late as July 15, 1959, and it is one of evasion. Those of accused No. 8 at Exhibit Z-703, of accused No. 12 at Exhibit Z-704 and Exhibit Z-705 show nothing and are of no us at all. Those of accused No. 15 and accused No. 36 at Exhibits Z-684, Z-700, Z-684-A and Z-697 give only a very small part of the story. It can be seen, therefore, that evidence of none of the accused could have been of any case, except that of accused Nos. 15 and 36 As to accused Nos. 15 and 36 there is nothing to show that they would have willingly given evidence. The officers were, therefore right in excluding Yusuf Merchant, Chandiwalla, Zahoor, Maxie Miranda and Desouza as witnesses. One very often comes across cases where two of the accomplices may be almost similarly situated as to their complicity and may also be willing to be witnesses, and the officers may have the difficult task of selecting one of them only as a witness. The other is no doubt bound to make a grievance of the same, but that does not render the decision of the officer illegal or void. The only other alternative is not to use either of them. Which again cannot be countenanced.
(27) Mr. Jethmalani referred to Matajog Dobey v. H. C. Bhari, : 28ITR941(SC) , and contended that the accused who is discriminated against has the right to complain. In this case, the complaint charged the accused to assault etc. who were Government servants in two complaints. In one complaint the Magistrate discharged the accused on the ground that sanction under section 197, Criminal Procedure Code, was not granted and this view was confirmed by the High court. In the other complaint, the Magistrate issued process but the High Court quashed the proceedings for want of the requisite sanction. The complainant appealed to the Supreme Court. The Court holding section 197, Criminal Procedure Code, did not offend Article 14 of the Constitution said:-
'If the Government sanctions against one public servant but declines to do so against another. then the one against whom sanction is given may possibly complain of discrimination..................'.
This case in our view, does not help Mr. Jethmalani's contention.
(28) As to the contention based on section 343 Criminal Procedural Code in Queen Express v. Mona Puna ILR (1892) 16 Bom 661 it was held that the evidence of an accomplice who was illegally discharged by the Police was admissible, construing the word 'accused' in section 342. Criminal Procedure Code, to mean a person over whom the Court is exercising jurisdiction. This principle was later affirmed in Keshav Vasudeo Kortikar v. Emperor : (1965)67BOMLR618 . But this is not saving that the police have the right not to charge-sheet a particular accused, They must either obtain pardon in accordance with Section 337 of the Criminal Procedure Code or either have discharged or acquitted under section 494. The police may charge him separately and he may plead guilty. If he is discharged or acquitted under section 494 or convicted on his own plea and sentenced then the temptation to give false evidence and purchase immunity for himself by involving another is reduced to a minimum. Both in Banusingh v. Emperor, ILR (1906) 33 Cal 1353 & 37 Bom LR 179=AIR 1935 Bom 186 it was said that the value of the evidence of a witness not charge-sheeted by the police was practically nil. We would say that such evidence ought to be received with great caution and may be given more or less weight according to the facts and circumstances of each case.
(29) It was then argued by Mr. Jethmalani that circumstances in the case show that the customs Authorities had induced Yusuf Merchant to make disclosures contrary to Ss. 163 and 347 (Sic 343?) and therefore, the evidence should be struck down.
(30) Section 163 (1) enjoins upon police officers and persons in authority not to offer or make or cause it to be offered or made any inducement. This Section is in Chapter XIV The whole part relates to information to the police and their power to investigate Clearly therefore the section can apply to investigation made under the Criminal Procedure Code only Section 343, on the other hand is one of the general provisions as to inquires and trials falling in Part VI dealing with proceedings in prosecutions. Section 342 which precedes it refers to accused i.e. one who is being tried by the Court. It is obvious that this section must refer to only such a person, and it is intended to prevent a Court by unfair means from getting incriminating material from the person under trial. This section obviously cannot apply.
(31) The next question is whether any inducement is offered by the Customs Authorities to Yusuf Merchant Mr. Jethmalani had drawn our attention to certain circumstances in support of his contention. The first statement of Yusuf Merchant is Exhibit 25 and was recorded on February 3, 1959. He admitted in this statement that he had two lockers, one in the Bombay Mercantile Co-operative Bank, Mohamed Ali Road, and the other in the Union Bank of India at Bandra, and that he had about Rs. 45,000 cash and jewellery valued at Rs. 15,000 in this locker. He claimed that the cash was respecting the house which he was building on advance basis and the jewellery was his wife's. The locker was operated by Yusuf Merchant's father on February 4, 1959 as stated by D. W. No. 2 Pallanji Mistri. The lockers were searched only on February 19, 1952 when nothing was found. Mr. Jethmalani says this must be a pre-arranged plan. And money has been used for purchasing immunity for Yusuf Merchant and the members of his family Yusuf Merchant (P.W.2) denied to have made the statement in the witness-box which is untrue. P. W. 183 Srivastav says he gave instructions for the search of the two lockers but the derelict officers were dealt with departmentally. No further questions are asked to him, and it is not possible therefore, to draw the inference suggested by Mr. Jethmalani.
(32) The second circumstances relied upon is in connection with one Abdullah Yusuf, a foreign conspirator. In his statement, Exhibit 25 he had said that the said Abdullah was known to be operating in smuggled gold Yusuf Merchant invited Abdullah Yusuf to his house and gave information to the Customs Authorities about the time of meeting Abdullah Yusuf went to the house of Yusuf Merchant according to the appointment and was arrested when he was leaving the house P. W. 183 Srivastav says Yusuf Merchant had informed them about the appointment. The third circumstances is the promise of Yusuf Merchant when he made statement Exhibit 25 K dated April 30, 1959 (para 129) to help the Customs authorities in obtaining all the correspondence that he had made from outside parties and to assist the authorities, in roping in the accused and bringing them to book. It may appear from this that Yusuf Merchant had some promise and this suspicion of the defence was apparently confirmed when the State claimed privilege in respect of the report made by P. W. 183 Srivastav to his superiors Now Srivastav and the other Customs officers have denied that any inducement was offered to Yusuf Merchant. The report of this witness to his superiors was produced before us and we have read it fully. It is made in July when the investigation was not even complete and it did not show that any promise was given to any one of the suspects. Srinivastav denied that he had anything to do with the ultimate decision as to who should be prosecuted. We are not prepared to disbelieve his evidence. It seems to us that Yusuf Merchant may have thought and hoped that if he disclosed the truth, which apparently he gave out from time to time, he may be not be prosecuted. We do not think that from this any inducement can be inferred. The same could also be said of Alli's (Yusuf Merchant's brother) agreeing to go to Beirut, Geneva and other places for obtaining the correspondence of Yusuf Merchant with foreign conspirators.
(33) Yick Wo v. Hopkins, (1886) 118 US 356=30 Law Ed. 220 arose out of the conviction of a Chinese for breach of licensing ordinance in respect of laundries. He had a licence for the laundry but renewal was refused on its expiry. The allegations showed that more that one hundred and fifty Chinese laundry operators were refused licences, while others who were not Chinese were allowed to do similar business. The fact of discrimination was admitted and as no reasons were shown, it was held that discrimination was illegal. It is clear that refusal of licence to the applicant contravened the constitutional safeguard to equality and, therefore, they could not be convicted for the offence. In Weeks v. United States (1913) 232 U.S. 38=58 Law Ed. 652 the applicant was indicated and convicted for use of the mails for the purpose of transporting certain coupons or tickets representing chances or shares in a lottery or gift enterprise in violation of section 213 of the Criminal code. The applicant was arrested without warrant. The Police officers searched his premises and seized some documents from his home without warrant, and in his absence. The accused made an application before the trial had begun, for an order for the return of the papers and the property seized. This was denied The action of the police officers amounted to a breach of the guarantee afforded by 4th Amendment. The Court said.
'To sanction such proceedings would be to affirm by judicial decision a manifest neglect it not an open defiance of the prohibition of the Constitution intended for the protection of the people against such unauthorised action.
And refused to permit the use of this material. Jack Trupiano v. United States of America (1948) 334 US 699 arose out of a denial of a motion to exclude and suppress evidence that was obtained by illegal seizure and return of the property seized. The property consisted of an operating still for manufacture of liquor. One of the applicants was present near the still and apparently looking after it. He was arrested and the property was seized. The majority of the Judges ruled that the seizure violated the Fourth Amendment to the Federal Constitution as the search was effected by the Federal agents without a search warrant even when there was abundant time to secure the warrant. This case seems to have introduced a qualification to the doctrine developed in Week's case, (1913) 232 US 38.
(34) The above cases show that in the case of a constitutional violation in obtaining the evidence, the evidence should be rejected. Even to this qualifications have been re rejected. Even to this qualifications have been introduced-see Wigmore on Evidence, page 39 -the first and foremost of them being that the exclusionary rule does not apply to all 'illegally obtained' evidence. It applies only to evidence obtained by that species of illegality which consists of violating the Federal search-and-seizure laws (in almost all cases this means violation of the Fourth Amendment). We have pointed out above that if Article 14 of the Constitution is violated, merely because a witness is not charge-sheeted by the police, it does not mean that it results in violation of Article 21. The right of the accused would be to say that similar situation of the two having been proved, he should also be charged. To hold otherwise would involve consequences which are far-reaching. In this connection, the observations of Cardozo J. in (1915) 242 NY 13 may be called:
'..............The question is whether protection for individual would not be gained at a disproportionate loss of protection for the society. On the one side is the social need that crime shall be repressed. On the other the social need that law shall not be flouted by the insolence of office. There are dangerous in any choice............' (Wigmore on Evidence p. 37).
It is interesting to notice in this connection that by the Common Law Rule, a co-conspirator or accomplice is a competent witness-2 Wigmore on Evidence, para 580 page 707. There does not appear any decided case not has any been cited to show that such a contention has been, upheld on the ground that it violated the equal protection clause.
(35) The contention that as the conviction is based on evidence of Yusuf Merchant and Chandiwalla obtained as above would not be 'according to procedure established by law', as prescribed by Article 21 and should be set aside is still weaker Under the Constitution the Legislature is free to prescribe any procedure subject to the limitations of Articles 14, 20 and 22 In Gopal v. State of Madras : 1950CriLJ1383 it was said, 'by adopting that phrase the Constitution gave the Legislature the final word to determine law 'The Legislature has not expressly or impliedly provided that violation of the procedural provisions would render the conviction bad. Sections 24 and 25 of the Evidence Act permit the rejection of evidence obtained in a particular manner from an accused. Chapter XLV of the Criminal Procedure Code. deals with irregularity of proceedings and section 530 in it enumerates irregularities committed by Magistrates which vitiate proceedings. Section 530 finally provides: no finding, sentence or order shall be reversed on the ground of error, omission or irregularity in proceedings before or during trial or enquiry of other proceedings under the Code, unless there is failure of justice. In our judgment, therefore merely because some provisions of the code is not observed if at all the application of Article 21 of the Constitution is not attracted.
(36) Mr. Jethmalani then contends that the prosecution have in one charge joined several conspiracies as one conspiracy and also several charges in respect of overt acts which could not be done. He says, this has resulted in prejudice to the accused who have been hampered in their defence.
In order to understand this contention we must give broadly the nature of allegations. One Pedro either alone or with another Juan Casanovas are the foreign collaborators. Originally Pedro, was doing this business with one Hamad Sultan, defendant No., 19, who had absconded and was not before the Court. He was doing this work with the help of P. W. 2 Yusuf Merchant and accused No. 6 As there was a quarrel between Pedro and Hamad Sultan. Pedro who had come to Bombay from October, 7 1956 to December 19, 1956. Persuaded Yusuf Merchant to do work with him independently. As Yusuf Merchant had no funds to invest or did not want to invest any he suggested that help of accused Nos. 7 and 8 or accused No. 6 should be taken. They therefore, approached accused Nos. 7 and 8 who agreed to join them the terms of which were finalised after some meetings between them but that they wanted to be assured that the scheme could be successful Pedro and Yusuf Merchant then approached accused No. 6 who agreed to join in the business but insisted on certain terms. He agreed to invest Rs. 18,000 and his condition was that he should be in the know of every transaction. He therefore wanted that all telegrams should come to him and that he should dispose of the gold With this end in view accused No. 6 applied for a telegraphic address on November 20. 1956 and obtained it from November 26 1956. It was 'Subhat' Help of accused No. 11 was taken for transmitting the sale proceeds to foreign countries Yusuf Merchant says accused No. 6 was financier in the first four transactions Thereafter as import of gold was slow he expressed a desire of withdrawing from these transactions. By that time accused Nos. 7 and 8 were satisfied about the efficacy of the method and they therefore stepped in, but accused No. 6 continued to help them in disposal of gold. Pedro sent under this arrangement in all eleven carriers, including those in first four transactions. The 11th receiver was one Professor Kamal who was sent to Delhi to receive the gold from a carrier one Powell. As Professor Kamal did not hand over the gold, for some time thereafter the supply stopped. This Mr. Jethmalani calls the first Pedro conspiracy.
(37) In about July 1957 Yusuf Merchant was contacted by one Akram Mobiyed regarding this business and he called him to Beirut As suggested by him Yusuf Merchant prepared a code for their use at Beirut. This may be called the Beirut Code. He had discussion with accused Nos. 7 and 8. They sent accused No. 38 to Beirut with him. Yusuf Merchant and accused No, 38 went to Beirut in August 1957. Accused No. 9 (daughter of accused No. 7 and wife of accused No. 8) and wife of accused No. 38 went a week later At Beirut he met accused Nos. 1 to 3 After discussions they agreed to do business with him and as they did not mind who became financier he decided upon accused No. 8. He then communicated with accused No. 8 and asked him to sent Rs. 4600 which he actually sent With this money, account in the name of Rubaiyabai Abdul Latiff was opened in Beirut in Middle East Bank Jamal Shuhaibar insisted that Hamad Sultan also should have interest in these transactions. They had decided that gold would be brought to India by the crew of brought to India by the crew of the BOAC Airways Later Yusuf Merchant sent them a copy of the Beirut Code Jamal Shubaibar also asked them to contact Mohamed Abdulla at Bahrein Under this arrangement, a carrier A Grant arrived at Calcutta, with gold but was arrested. This is termed the 1st phase of Beirut conspiracy by Mr. Jethmalani.
(38) During their stay at Beirut, they also met Pedro Yusuf Merchant and he settled the past account. On settlement of account it was found that Yusuf Merchant had to pay Pedro Rs. 12,000 to Rs, 14,000. They then talked of more business Accused Nos 7 and 8 agreed to invest Rs. 50,000 and it was agreed that Pedro and Yusuf Merchant would earn Rs. 340 per kilo as commission Accused No. 38 was to go to Geneva on behalf of accused Nos. 7 and 8 and supervise the business. Then Pedro left Beirut taking all the papers with him However after coming to India accused No. 38 did not go to Geneva Under this arrangement first delivery was made on 17-11-1957 and the last twelfth carrier one Mascardo who arrived at Delhi on February 24 1958 was arrested This Mr. Jethmalani has called the second phase of Pedro conspiracy.
(39) As stated earlier, Jamal Shuhaibar had suggested to Yusuf Merchant and accused No. 38 at Beirut to contact Muhamad Abdulla (now Lorry) at Bahrein which they did Lorry was acting for Shuhaibar brothers. Some arrangement took place as a result of which Lorry came to India in November 1957 and stayed at Lentin Court from November 1957 and at Hotel Waldorf from December 4, 1957 to December 14, 1957. Lorry decided after consultations with Yusuf Merchant and accused No. 8 that gold would be hidden in the belly of the plane by a mechanic at Beirut or Bahrein and would be removed in Bombay by a mechanic. The gold was to be transported in the planes of Air India International. Accused No. 11 agreed to become the guarantor regarding the gold if it was misappropriated, by any one of the agents at Bombay end. Services of accused No. 15, an employee of A. I. I., were requisitioned for removal of gold at the Bombay end. As an experiment once sample was sent and it became successful. Thereafter regular supplies were sent. Lorry also asked accused No. 36 to get some other mechanic employee of A. I. I. also. Services of accused No. 39 were therefore requisitioned. Similarly, those of accused No. 40 were utilised. Under this arrangement, four lots arrived. Under this arrangement, four lots arrived. There was some defalcation by accused No. 39. This Mr. Jethmalani calls the first phase of Lorry Conspiracy. This lasted from November 1957 to January 1958.
(40) Then in February 1958, Lorry again in consultation with others decided to conceal gold in the rear left side bath room of the plane. At this time, another mechanic in addition was employed for the removal of the gold i.e. P. W. 49 one Batsy. This Mr. Jethmalani calls the second phase of Lorry Conspiracy Under this arrangement, gold was brought on seven or eight occasions at Bombay and was removed from the plane by P. W. 49. Thereafter, it seems the place of concealment was changed and it was decided to conceal the gold in the front bath room and services of another mechanic accused No 16 were obtained. Only as experiment some dummy material was brought but no gold. By this time, there were disturbances, in the Middle East and bringing of gold stopped for some time. This is the third phase and it proved abortive. But the business started from October 1959. This Mr. Jethmalani calls the fourth phase of Lorry Conspiracy. In this phase, on about eleven occasions gold was brought in Bombay when on the last occasion due to prior information Rani of Jhansi came to be searched on February 1, 1959.
(41) In about July or August Pedro also joined in these transactions, but the gold was to be brought by some passenger and was not to be concealed as in the other cases. Only on one occasion, it was brought by one Armand Yawartibai on August 30. 1958.
(42) Both Mr. Jethmalani and Mr. Mehta rely upon the evidence of Yusuf Merchant for their contention. Inasmuch as it is alleged that Pedro and Yusuf Merchant decided to do gold smuggling work independently and then separately contacted accused No. 6 on the one hand and accused Nos. 7 and 8 on the other, who agreed to do business with them, they argue that there were two separate conspiracies. Thereafter, after the fourth transaction as accused No. 6 ceased to have interest as financier, accused Nos. 7 and 8 became financiers, this was new conspiracy. Thereafter new arrangement is alleged with Shuhaibar brothers. So they say, there is third conspiracy which they call BOAC conspiracy in which accused No. 6 does not even figure. Then came new arrangement with Pedro at Beirut where again accused No. 6 does not figure. This is the fourth conspiracy. Then comes new arrangements with Mahomed Abdulla alias Lorry where again accused No. 6 does not figure. This is the fifth one. Here accused No. 11 guaranteed the loss of gold and gold was to be hidden in the plante. This lasted till January 1958 and then from February 1958 to May 1958 gold was concealed in near bath room on the left side of the planes of A. I. I. From May 1958 place of concealment was to be front bath room. Then for some time the work stopped because of disturbances and then again resumed in October 1958 when Pedro also joined. So they say that at least five conspiracies have been joined in the charge. In support of their contention that there is misjoinder of several conspiracies they have relied upon the decisions in Rash Behari Shaw v. Emperor : AIR1936Cal753 , Kishanchand v. Emperor, AIR 1926 Sind 171, Ram chandra Rango v. Emperor, 41 Bom Lr 98= AIR 1939 Bom 129; R. v. Dawson, (1965) 2 All ER 448. A. Krulewitch v. United States of America (1949) 93 Law ED 790 Criminal Law and Its Administration, Michael and Wechsler page 688.
(43) Under the scheme of the Criminal Procedure Code separate trials is the rule (section 233) and joint trial the exception. Yet for reasons of convenience, joint trials are provided for and in some case may become necessary. These are provided for by sections 234, 235 236 and 239 of the code. Section 239(d) is material and it permits joint trial of several persons together if accused of different offences committed in the course of the same transactions With the addition of section 120-B to the Penal Code, came the development of conspiracy trials and in spite of some obvious inconveniences have come to stay for obvious reasons.
(44) The inconveniences of trial conspiracy charge together with large number of overt acts are many and often commented upon. In (1960) 1 All ER 558, the following observation of Humphreys J. from R. v. Cooper Compton, (1947) 2 All ER 701 was cited with approval. It is : 'Although conspiracy there was, it was a number of conspiracies......In addition to the other matters which we have mentioned we are satisfied this was not one conspiracy, and it is no more correct to charge several conspiracies though called one conspiracy if it is to include other different charges in one count. Again we want to say in the strongest possible way that quite part from that we think it is wholly undesirable and in this case, it is obviously quite unnecessary to have a long count of this kind because it has lengthened the case enormously and we think that in the result to which we have come it plainly, worked injustice on one at least of the appellants before this Court.................' in (1960) 3 All E R 533 again the inconvenience in a trial in which more than one conspiracies were charged together as one were pointed out. After referring to 1960 1All ER 558, the learned Judge said (p 540); 'We only mention that matter because if the conspiracy charge was bad it may well be that it introduced evidence on the specific charges against the appellants which otherwise would not have been admissible...........' In (1949) 93 Law Ed 790 Jackson J voiced concern at the growing tendency of prosecution bringing in one trial such charges and said at page 799:-
'A co-defendant in a conspiracy trial occupies an uneasy seat There generally will be evidence of wrong doing by some body. It is difficult for the individual to make his own case stand on the merits in the mind of jurors which are ready to believe that birds of same feather flocked together. If he is silent he is taken to admit it and if as often, happens, co-defendant can be produced into accusing or contradicting each other they convict each other. There are many practical difficulties in defending against a charge of criminal conspiracy which I will not enumerate.'
(45) These cases do not help us in constructing section 239 (d) of Criminal Procedure Code Yet they illustrate the prejudice that may be caused to the accused at least in some cases Similarly joinder of several conspiracies as one have been strongly deprecated in India See : AIR1936Cal753 , It may be mentioned that far greater prejudice would be caused in the case of trials by jury than in trials without jury, though a long drawn out trial may itself be a prejudice.
(46) The question then becomes one of test to be applied Section 120-A which defines conspiracy requires that there should be meeting of minds. This would mean unity of purpose. The agreement to do the illegal act may even be implied.
(47) In Barindrakumar Ghose v. Emperor (1910) 37 Cal 467 it is said:
'Though to establish the charge of conspiracy there must be agreement there need to proof of direct meeting or confederation nor need the parties be brought into each others presence, the agreement may be inferred from circumstances raising a presumption of a common concerted plan to carry out the unlawful design.
So, again, it is not necessary that all should have joined in the scheme from the first Those who came in at a later stage are equally guilty provided the agreement is proved'.
(48) In Swaminathan v. State of Madras : 1957CriLJ422 the Court said.
'Where the charge as framed, describes one single conspiracy although spread over several years and that is to cheat the members of the public, the fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy does not change the conspiracy and does not split up the single conspiracy into several conspiracies'.
While considering the question at the committal stage the Supreme Court considered the question again in Natwarlal Mody v. State of Bombay (1963) 65 Bom LR 660 (SC) The conspiracy therein charged of the Board of Directors of Colaba Hand Mills Company Ltd in 1949 and became its Managing Director on July, 20 1950 His brother accused No. 2 became one of the Directors of the Company on May 18 1948 In March 1949, accused No 1 took accused Nos 5, 6, 8, 11, 12, 14, 15 and 16 the employees of the Company in his confidence and told then that they should arrange for payment of at least Rs. 10,000 per month to him from the Company. Out of these accused No. 6 was a store-keeper accused No. 12 a clerk, and accused No. 15 a cashier Accused Nos. 3, 4, 7, 9, 10 and 13 were some dealers, with the Company By entering into fraudulent transactions with the dealers, the employees committed the offences of criminal breach of trust and forgeries. This was between March 14 1949 and March 20, 1956 and about Rs. 6,00,000 were misappropriated After referring to the observations of the Supreme Court in : 1957CriLJ422 which we have reproduced above, the Court said:-
'The only principle this Court laid down is that an accused need not be a member of a conspiracy from its inception but he may join it at a later stage and that every one of the conspirators need not take part in every incident'.
The Court on the ground that the High court did not say anywhere that there was material to support the case that the appellants committed the offences attributed to them to implement the object of the conspiracy of that they had even knowledge of such conspiracies ordered separate trials in respect of separate conspiracies. This would suggest that if an accused has with the knowledge of the conspiracy taken part in some act connected with it then he may be regarded as a member in the same conspiracy, and the ultimate order that accused Nos. 1, 2, 6, 9, 10 and 13 be tried together would justify this inference. Accused Nos. 9, 10 and 13 were dealers who had done the fraudulent transactions individually. They did not know each other and we doubt if they knew even the existence of each other, and yet they were ordered to be joined together.
49. Similar cases cited in Criminal Law and Its Administration by Michael and Wechsler, United States v. Bruno, p. 651, Rex v. Meyrick and Ribuffi, (1928) 21 Cr. App. Rep. 94, illustrate when a person a may be regarded a member of a conspiracy. In the first case the conspiracy charges was to import, sell and purchase narcotics. The judgment says:-
'..................The evidence did not disclose any co-operation or communication between the smugglers and either group of retailers, or between the two groups of retailers themselves; however, the smugglers knew that the middlemen must sell the retailers, and the retailers knew that the middlemen must be of importers of one sort or another. Thus, the conspirators at one end of the chain knew that the unlawful business would not and could not stop with the buyers; and those at the other end knew that it had not begun wit their sellers.....It might still be argued that there were two conspiracies; one including the smugglers, the middlemen and the New York group, and the other, the smugglers, the middlemen and the Taxes and the Louisiana group, for there was apparently no privy between the groups of retailers. That too would be fallacious. Clearly quod the smugglers, there was but one conspiracy, for it was of no moment to them whether the middlemen sold to one or more groups of retailers, provided they had a market somewhere. So too of any retailers; he knew that he was a necessary link in a scheme of distribution, and the others, whom he knew to be convenient to its execution, were as much parts of a single undertaking or enterprise, as two salesman in the same shop. We think, therefore, that there was only one conspiracy...........'.
In (1928) 21 Cr. Au. Rep. 94, the charge of the defendants to corrupt the Police. Each of the defendants operated a night club in London. Neither knew the other. Each was charged with bribing Goddard, a sergeant of police, to make false reports to his superiors regarding the manner in which the particular defendant's night club was operated, and, in addition, both were charged with Goddard and one Gadda, another night Club owner, to effect public mischief by corruption the Police. The Lord Chief Justice says:
'............but once it is conceded as it must be conceded, that in order that persons may conspire together it is not necessary that there should be direct communication between each and all, one has to look at the circumstances to see whether this criticism of mutual exclusion is satisfactory. How precisely here is the case for the prosecution put? It is not suggested that Mrs. Meyrick was in direct communication with Ribuffi but it is more than suggested nay, the jury are asked to fine as a matter of fact upon the evidence-that Mrs. Meyrick was in communication with Goddard, not for a purpose individual and special in one case to Mrs. Meyrick, or in the other case to Ribuffi; but for a common design-a design common to all of them-a common design, namely, (to effect public mischief by corrupting the police force)'.
We may refer in this connection also to the decision in (1965) 2 All ER 448 relied upon by Mr. Jethmalani. The Government had introduced a system of subsidy for the use of lime by agriculturists. Indictment on twenty-five counts was directed to alleged frauds by G, a supplier of lime, B, his book-keeper and various individual farmers, in obtaining or attempting to obtain, by false pretences money from the Ministry of Agriculture and Fisheries and Food on account of lime subsidy. Count 1 charged conspiracy against G, B and the farmers alleging a conspiracy between them. There was no link as between any one farmer and any other farmer, none of whom was in contact with another; nor did any of them knew of B's existence, nor was any farmer shown to have known that any other of the farmers was contracting for the supply of lime by G. The test for one conspiracy applied was that there must be evidence from which it could be shown that each farmer knew that there was or was coming into existence, a scheme to which he attached himself, to which there were other parties and which went beyond the act that he agreed to do, so that all would be shown to have been acting in pursuance of a common criminal purpose. The case of (1965) 2 All ER 448 was distinguished, saying 'in view of the size and nature of the locality there were clearly facts on which a jury could come to the conclusion that the night club proprietors in that district well knew what was happening generality in relation to the police'.
(50) We need not define the exact limit of conspiracy. This argument could be urged here because in the complaint forty persons are shown as parties, a large number of whom were foreigners or were absconding. However, the actual charge is framed against defendants Nos. 6, 7, 8, 9, 10, 15, 16, 17, 36, 38, 39 and 40 who were Indian parties to the conspiracy of smuggling gold into India and who were before the court, they being numbered accused Nos. 1 to 16 (see p. 193). It would mean that Yusuf Merchant and Pedro Fernandez formed a conspiracy to smuggle or caused to be smuggled gold into India and obtained the help of the financiers accused Nos. 6 and 7 and 8 and others in its exeqution, i.e. commenced the partnership to do illegal acts and in the course of this illegal acts and in the course of this illegal partnership, some new persons joined and some dropped out.
51. To decide whether or not several conspiracies were rolled up into one, we must consider only the material that the Court had when the charges were framed, whether or not the charge of conspiracy is established being a different matter, which means several statements before the Customs Authorities and examination-in-chief of the witnesses. Therefore, mainly evidence of Yusuf Merchant and his statement Exhibit 25-K and those following show that there were discussions between Pedro, Yusuf Merchant and accused Nos. 7 and 8 and they all agreed to do this business. Accused Nos. 7 and 8 wanted to be sure, however, of the success of the scheme and, therefore, Pedro and Yusuf Merchant contacted accused No. 6. This may suggest that there was a different conspiracy as Yusuf Merchant does not say that accused No. 6 was told about accused Nos. 7 and 9 joining in the business. But Yusuf Merchant says in Exhibit 25-K, para 48, that Kochra, i.e. accused No. 8, was also kept in the picture. This may reasonably be said to establish the connecting link. However, assume that the agreement of accused No. 6 to do the business with Pedro and Yusuf Merchant and invest of Rs. 18,000 were a separate conspiracy, there is still another aspect of the matter. Yusuf Merchant alleged that after the first 4 transactions where accused No. 6 was a financier were put through, accused Nos. 7 and 8 commenced this business and accused No. 6 was excluded, but he agreed to work as broker and actually participated in the disposal of the gold. If this is so, the charge of his being a party to the conspiracy between Yusuf Merchant, accused Nos. 7 and 8 would be a proper charge. As to accused No. 38, he obviously is alleged to have taken part in the conspiracy in that he went to Beirut and Behrein with Yusuf Merchant, and accused No. 9 and his wife joined later with this that previous to leaving India they had consultations for reorganising their forces.
52. Mr. Jethmalani invited our attention to paragraphs 48 to 52 of Exhibit 25-k, the statement of Yusuf Merchant, and some portions of his evidence, and contended on the authority of the decision in 41 Bom LR 98=AIR 1939 Bom 129, that as continuity is broken one conspiracy ended and another began. In Exhibit 25-K, Yusuf Merchant said in para 48:
'............After the above arrangement was made the smuggling of gold went on successfully and smoothly during March, April, May and probably also June 1957. The claim was broken as a result of mis appropriation of one lot of gold by a person known as Professor Kamal............' and then in para 50-
'As a result of the above incident, this smuggling was discontinued. However, in Beirut, accused No. 38 and I met Pedro Fernandez. He initiated a proposal of resuming the business. He wanted that accused No. 8 should invest to the tune of 50 per cent. Kochra agreed and he remitted Rs. 50,000 after we returned from Beirut through accused No. 11....................' Then in para 52-
'............Many lots of gold arrived as a result of the above arrangement until Mascardo's apprehension in Delhi'.
It is also in evidence that at Beirut, Yusuf Merchant and Pedro settled the accounts. In the above case, observations of Mr. Justice Wassoodew relied upon are at pp. 119 and 120 (of Bom LR)=(at pp. 140-141 of AIR). The court was considering the words 'same transaction' in Section 239 (d) of the Criminal Procedure Code and said that 'the test to determine whether a series of acts are parts of the same transaction is to find whether they are linked together to present a continuous whole. That the expression 'same transaction' as judicially interpreted signified 'related to one another in point of purpose or as cause and effect or as principle and subsidiary acts as to denote one continuous and completed action'. Similarly it was said, ' a mere common purpose does not correspond to a transaction'. The learned Judge also cited with approval the observation of Mr. Justice Broomfield in Emperor v. Shapurji Sorabji, 38 Bom LR 106=AIR 1936 Bom 154, to the following effect:-
'Continuity of action in the context must in my opinion mean this: the following up of some initial act through all its consequences and incidents until the series of acts or groups of connected acts comes to an end either by attainment of the object or by being put an end to or abandoned. If any of these things happens and the whole process is begun over again, it is not the same transaction but a new one in spite of the fact that the same general purpose may continue'.
In this case and in the case where similar observations occur, the accused were charged with series of offences of similar kind without a charge of conspiracy. And, as observed in : 1957CriLJ422 , the cases can have no application.
53. Mr. Jethmalani relies upon a passage which if from the decision in Mc. Donald v. The United States, cited in Criminal Law and its Administration by Michael and Wechsler, p. 668, where the learned Judge says:
'But if a Court were so hardy as to attempt to formulate a general rule as to when a continuing criminal conspiracy having for its object illicit gain is at an end, it might well mean somewhat thus: whenever the unlawful object of the conspiracy ever the unlawful object of the conspiracy has reached that stage of consummation, whereas the several conspirators, having taken in spendable form their several agreed parts of the spoils, may go their several ways, without the necessity of further acts or consultation, about the conspiracy with each other or among themselves, the conspiracy has ended......
However, the Judgment shows it is a question of fact to be decided on the facts of each case. The passage one preceding the quoted above is:
'The phase of the rule of law here involved, namely, that a continuing conspiracy ends only upon the accomplishments of the object thereof, is a settled rule of decision. No general rule of law can be accurately laid down touching when accomplishment has been achieved. It follows that the later question, therefore, is one well nigh wholly of fact to be resolved by commonsense and human observation and experience, and largely each category must be weighed in its own facts'.
54. What is the conspiracy alleged here? Pedro Fernandes and Yusuf Merchant entered into a conspiracy to import gold, i.e. entered into the partnership to earn money by illegally smuggling gold into India. In doing so, they needed the help of financiers and therefore, they enrolled the help of accused Nos. 7 and 8 and 6, and from time to time acquired new business in one shape or arrangements with Jamal Shuhaibar, Lorry and Juan Casanova. In execution of the Scheme, they took the help of the other conspirators. One may call it a partnership in criminal purpose as has sometimes been done. In Abdul Kadar Saleb Mohammed, : AIR1964Bom133 , the following observations of Mr. Justice Holmes in United States v. Kissel, (1910) 218 U. S. 601, were cited and followed:-
'................A conspiracy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract, is not the contract but is a result of it..............A conspiracy is a partnership in criminal purpose. That as such it may have continuation in time is shown by the rule that an overt act of one partner may be the act of all without any agreement specially directed to that act'.
Just as a business partnership does not come to an end merely because the partners settle their account or merely because there is some set-back or because new method of business is evolved to make the business fool-proof, so also in the case of a criminal partnership it does not end by the 'Each one takes his gain in spendable form and goes his separate way' is the test this is not satisfied here. In the present case, with the incident of Professor, Kamal, further gold could not be sent, but the partners' desire to do further business had not ended. Yusuf Merchant and accused No. 38 as representing accused Nos. 7 and 8 and the latter's wife accused No. 9 went to Beirut and there secured the business from Pedro, Shuhaibar Brothers and Lorry who also acted for and with Shuhaibar Brothers. In the business with Shuhaibar Brothers and the Lorry also Pedro Fernandes has interest as we will point out later. Again, when Grant was arrested, Shuhaibar Brothers did not send gold but when Lorry came to India their forces were rearranged and the business continued, with greater vigour. This also stopped for some time when there was trouble in the Middle East, but was again resumed. At no stage the desire of the partners to end the partnership is in evidence until when the racket was broken up as a result of the search of 'Ranee of Jhansi'. In our view, therefore, in the present case there was continuity and unity of purpose though according to the evidence each of the Indian collaborators mostly collected his shares of profit or commission at each transaction. However, the capital by way of funds and desire remained. True again that at one stage accused No. 6 dropped out as collaborator but continued to have interest in the business as alleged as a disposer of gold. He had the requisite knowledge that Yusuf Merchant was giving his smuggled gold which was illegally imported in consort with foreign collaborators and with that knowledge he participated in the minor role. The tests, therefore, laid down in the decided cases are satisfied as to him as well as others, who joined later.
55. It is then contended that large volume of inadmissible evidence has been taken on record and this has prejudiced accused Nos. 6 and 14 in their defence. This point arises only in connection with accused Nos. 6 and 14. The evidence is respect of which complaint is made is of the following kinds:-
(1) The evidence is respect of smuggling of gold and remittances of money to foreign countries by Hamad Sultan who was helped in receiving and disposing of gold by Yusuf Merchant and accused Nos. 6 and 14 prior to the alleged period of the conspiracy, i.e., prior to November 1956.
(2) The evidence in respect of certain transaction in smuggling of gold, the foreign collaborator being one Bernardo Sas during the period of the conspiracy alleged.
(3) The evidence in respect of the second phase of Pedro conspiracy when accused No. 6 is not even alleged to have financing interest.
(4) The evidence in respect of smuggling of gold in collaboration with Lorry.
(5) The evidence to the effect that some time in the end of 1957, accused No. 6 met Yusuf Merchant and told him that he carried on gold smuggling business in partnership with one Jack Frankel.
(6) The evidence to the effect that even during the period of conspiracy alleged, accused No. 6 was continuing to deal in smuggled gold in association with Hamad Sultan.
Real objection however, seems to have been raised only in respect of the first kind as to the second kind of evidence, Mr. Khandalwala conceded that was not being used for proving the guilt of the accused. That evidence was given in order to explain some telegrams of Pedro Fernandes which contained reference to his own transactions and transactions of Barnardo Sas where he acted merely as agent. As the third and fourth categories the charge itself is of one conspiracy and it being in relation to the period of the conspiracy which is a part of the very conspiracy charged so far as it affects either accused No. 6 or 14 it would be relevant and admissible. As to the fifth and six categories, it would clearly be not admissible it being character evidence under Section 54. It, therefore, really leaves only the first category.
The learned Magistrates order is at p.6 of Vol. I. He overruled the objection of the defence to the reception of this evidence relying on Sections 8, 9, 11 and 14.
56. In support of his contention Mr. Jatmalani relies upon the decisions in Reg v. Parbhudas Ambaram, (1874) 11 Bom HCR 90; M. L. Pritchard v. Emperor AIR 1928 Lah 382 Emperor v. Wahidjuddin (No 1), 32 Bom LR 324=AIR 1930 Bom 157; Emperor v. Goma Rama. 46 Bom LR 811 =AIR 1945 Bom 157; Noor Mohamed v. The Kind, AIR 1949 PC 161; The King v. Fisher 1910 (1) KB 149. The Kind v. Ellis, (1910) 2 KB 746; R. v. Slender, (1938) 2 All ER 387, and Emperor v. Panchu Das, ILR 47 Cal 671=AIR 1920 Cal 500 (FB).
57. On the other hand, in support of his contention that this evidence is admissible, Mr. Khandalwala relies upon the decisions in J. Makin v. Attorney General. New South Wales, (1894) AC 57; Thompson v. The King, 1918 AC 221; Harries v. Director of Public Prosecutions, (1952) 1 All ER 1044; Emperor v. Debendra Prosad ILR (1909) 36 Cal 573; Sital singh v. Emperor, ILR 46 Cal 700=AIR 1920 Cal 300; Srinivas Mall v. Emperor, AIR 1947 PC 135. A decision of a Division Bench in Talab v. .....Cri. Appeal No. 441 of 1960 dated 21st June 1961 (Bom); and last but not the least Sardul Singh v. State of Bombay, : 1957CriLJ1325 .
58. Now, conspiracy alleged is to smuggle gold into India contrary to the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act and is made punishable under Section 167(81) of the Sea Customs Act. The clause is widely worded and even being concerned in any way is made punishable. Mr. Khandalwala says that the evidence regarding conspiracy is that accused No. 6 after he agreed to finance in some measure the bringing of gold into India and helped Yusuf Merchant in its being received. He applied of registration of telegraphic address and acquired it on November 19, 1956, the address being 'Subhat'. On some occasions, he instructed accused No. 14 to make trips to recover gold from Delhi. The evidence of part taken by both accused Nos. 6 and 14 as helpers of Hamad Sultan along with Yusuf Merchant is necessary to be introduced to show that neither the acquisition of telegraphic address 'Subhat' nor the trips to Delhi were mere accident. In other words, this evidence is relevant to show the intention of these accused both in the obtaining of the telegraphic address and in the trips one or both made under Sections 9, 11 and 14 and 15. Moreover, there was quarrel between Pedro and Hamad Sultan, would be the cause for commencing arrangement by Pedro with Yusuf Merchant independently of Hamad Sultan and this would be relevant under Section 7.
59. Before referring to authorities, we will examine the relevant sections. Sec 7 makes facts relevant provided they are; (1) the occasion or (2) the cause or (3) the effect, whether immediate or otherwise of (i) relevant facts of (ii) the fact in issue. The second part makes facts which constitute the state of things under which they happened or which afforded the opportunity for occurrence or transaction are relevant. The illustrations indicate the amplitude of the words used in the section. Whether there was a conspiracy between Pedro and Yusuf Merchant is a fact in issue in the charge of conspiracy Evidence led to the effect that Hamad Sultan was doing gold smuggling, that there was a quarrel between the foreign collaborator Pedro and Hamad Sultan over the payment of dues to former in respect of the gold transactions, that because of the said quarrel Pedro Fernandes persuaded Yusuf Merchant to deal with independently of Hamad Sultan and thus form a new conspiracy in which accused Nos. 6, 7 and 9 were persuaded to join. That evidence is the cause of the new conspiracy or new evidence is the effect of the new conspiracy the existence of which is a fact in issue. Under Section 7, therefore, this part of the evidence would be admissible, so also the other connecting facts. These facts would also be relevant under the second part of Section 7, for it was the quarrel between Pedro and Hamad Sultan which afforded the opportunity for the new conspiracy.
60. The first part of Section 8 has evidently no application. Even in the second part, the latter portion of the section can only be referred to i. e. the conduct of any person against whom an offence is a subject of any proceedings is relevant if such conduct influences or is influenced by any fact in issue or relevant fact, whether it was previous or subsequent thereto. But then we find it difficult to find that the conduct of accused No. 6 which is sought to be established in this case, influenced any fact in issue or relevant fact or that conduct was influenced by any fact in issue or relevant fact. There is no question that motive of accused Nos. 6 and 14 in joining the new conspiracy cannot be established by their being associated with Hamad Sultan or by the proof of a quarrel between Pedro and Hamad Sultan. It is no one's case that accused Nos. 6 and 14 had quarreled with Hamad Sultan and, therefore, accused Nos. 6 and 14 had occasion to drift away from Hamad Sultan and be associated with Yusuf Merchant and Pedro.
61. Section 9, which is also relied upon, when broken up into its distinct parts, would be as follows:
62. Facts necessary (1) to explain or (2) to introduce a fact in issue or relevant fact, are relevant; (3) facts (i) which support or (ii) rebut an inference suggested by a fact in issue or relevant facts are relevant; (4) facts (i) which establish the identity of anything or (ii) the person whose identity of anything or (ii) the person whose identity is relevant or (iii) fix the time or (iv) fix the place at which any fact in issue or relevant fact happened, are relevant; (5) fats which show the relation of parties by whom any such fact was transacted, are relevant. The last sentence is vary important and it is, 'in so far as they are necessary for that purpose', which means that if these facts are introduced in evidence, the can be used only for that purpose, and no other. Mr. Khandalwala suggests that the prior transactions of Hamad Sultan and the part played by Yusuf Merchant and accused Nos. 6 and 14 in them is relevant to explain or introduce the facts in issue, and therefore, the evidence was admissible. It is difficult to sustain this part of the contention. To admit every such fact and require again to a volume of proof in respect of the same would unnecessarily complicate matters; but he would seem to be right in the second part of his contention that in any event these facts are necessary in order to support the inference that the registration of the telegraphic address and the trips made by accused No. 6 and accused No. 14 to Delhi were in relation to these gold smuggling transactions, and not innocent as sought to be made out on behalf of the accused the registration of the address and each trip being a relevant fact.
63. Section 11 makes irrelevant facts relevant (1) if they are inconsistent with any fact in issue or relevant fact, (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. Now, the prior conduct of accused Nos. 6 and 14 in respect of transactions of the issue of a relevant fact, that 'Subhat' was registered for the purpose of gold smuggling, highly probable, and the fact that their trips to Delhi were in connection with gold smuggling in this conspiracy equally highly probable, and that being so, these would be admissible in evidence.
64. Section 14 next relied upon on behalf of the prosecution makes facts relevant if (1) they show the existence of any state of mind or (2) the state of body or bodily feeling, when such state of mind or body is in issue or is irrelevant. The explanation 2 says that the prior conviction f a person for an offence is relevant if the offence itself is relevant under this section. It would seem that it only means that if the prosecution brings forth the evidence of prior offence as being relevant under this section, then it may also prove the conviction, which would make the evidence of previous offence more effective in its being accepted. It is also true that the general tendency of an accused cannot be proved as that would amount to proving his had character, but the facts offered in proof must show the state of mind in reference to a particular matter in question.
65. Section 15 enables a series of acts similar to the one in question to be proved when a question arises whether the particular act charged with was accidental or intentional. Mr. Jethmalani contended that this section applies only to those cases where mens rea is a constituent of the offence and the transactions to be proved must be transactions exactly similar to those in question. He also contended that the acts sought to be proved must be part of the same transaction. No doubt the illustrations suggest that the question of intention must arise in reference to the act with which an accused is charged and notary act which may be a relevant fact.
66. Mr. Jethmalani contended that Section 54 which makes the character of an accused person irrelevant in a criminal proceeding controls all the other sections in the Evidence Act, and therefore, evidence of anything offered by the prosecution, if it tends to show the bad character of the accused, cannot be admitted at all. Prima facie, Section 54 cannot be given overriding effect. The section itself is not so worded as to be directly contradictory to the sections to which we have referred. What is made inadmissible is the evidence of bad character and it is not the prosecution's desire to offer any evidence of bad character either of accused No. 6 or 14. If such a strained meaning is given to the language of Section 54, it would prevent very often relevant evidence being introduced and hamper the course of justice. True that the use of such evidence of prior transactions which is given by the prosecution must be confined within its proper and legitimate limits only. The Court cannot, merely because there was evidence of similar actions on the part of the accused some time previous, infer that the offence under inquiry must also necessarily have been committed by the accused, and to that extent one may with advantage restrict the operation of Section 11. If that were not done, under the provisions of the widely worded Section 11, the Court would be invited to hold the accused guilty not by direct evidence regarding the crime charged by means of evidence in respect of previous incidents. This construction of Section 11 must be inferred from the words of the section. The section requires the irrelevant fact, to be introduced in evidence in order to be relevant must be (1) inconsistent with the fact in issue or relevant fact..........or makes the existence or non -existence of such fact highly probable, which means very high degree of probability is required. Facts which are of merely probative force cannot be offered in evidence under the section.
67. In (1874) 11 Bom HCR 90, the Court considered Sections 11 and 14. The accused was charged with having forged a promissory note which purported to have been passed in his favour by one Fakir Chand. Four other accused were charged for abetting this offence. With them were found large number of blank stamp papers purchased in the name of different persons, some deeds purporting to have been signed by some obligors and which had no attestation, and some bore the signatures of obligors to blank documents which were found with the accused should be excluded from evidence even though in respect of some of the documents some evidence was forthcoming. Mr. Justice West said that :-
'If a fact has a probative force, it is not excluded by the English rule; but if its force is merely mediate through its tendency to prove another cognate offence, it is excluded. I do not think the rule in the Indian Evidence Act was intended to go beyond this'.
This case does not say that Section 54 wholly controls the other sections, as is contended.
68. After this case was decided, came decision in (1894) AC 57, where the couple was tried and found guilty of the murder of an infant child of one Amber Murray. The body of the infant was found buried in their garden. There was no evidence that either the husband or the wife had killed the child. The finding of the body may have meant either that they had murdered the child or that the burial was irregular. AT the trial evidence of finding of other bodies than the body of the child and evidence of other witnesses who had entrusted their children similarly to this couple in the past and were not thereafter heard of, was given. The Privy Council made the following observation:-
'It is undoubtedly not competent for the persecution to adduce evidence tending to show that he accused had been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused'.
Their Lordships approved of the decision in Reg. V. Geering, 1849 18 LJ MC 215, Reg. v. Dossett, 1848 2 Car and Kir 306, Reg. v. Gray, (1866-4F and F 1102) and explained the decision in Reg. v. Oddy, 1851 2 Den 264 on the ground that in that case the prosecution attempted to prove the previous felony in proof of the felony in question. These cases were not cited before the Court in (1874) 11 Bom HCR 90.
69. In AIR 1947 PC 135, A was a Salt Agent and B, his employee, who was entrusted with the duty of allotting the appropriate quantity of salt to each retail dealer. B was convicted for having sold salt to certain dealers at a price exceeding the maximum fixed by the order of the District Magistrate under the Defence of India Rules. A was convicted for having abetted B's contravention of the order. It appears that lawful price was paid to another employee of A and excess charge was paid to B. It was argued that what was paid to B went into B's pocket and did not form part of the purchase price. At the trial, evidence of several dealers was given who spoke of transactions which were not the subject of any charge which they had with the accused, both shortly before and after the period covered by the offence they were charged. This evidence would show, beyond doubt, that accused A knew of B's illegal transactions, but connived at them. The Privy Council held that the evidence was relevant both on the principal charge as well as the charge of abetting. It was said that the evidence was relevant to the charge of abetting because it showed an intention to aid the commission of the offence and an intentional commission of the offence and an intentional commission to put a stop to an illegal practice. This decision also shown that if the evidence, is relevant under S. 14 or Section 15, merely because it might show previous misconduct of the accused, it is not inadmissible because of Section 54. In other words, Section 54 would not control the other sections. Similarly, in (1952) 1 All ELR 1044 (House of Lords) the principle in Makin's case, 1894 AC 57, was reaffirmed and it was further held that acts of similar transactions in the past are admissible to show intention or to rebut a possible defence of the act being accidental. As the House of Lords was dealing with English Law, discretion in the Court to reject such evidence was recognised, though it is doubtful if under the Indian Evidence Act, any evidence if relevant and satisfied the condition laid down in the various sections, the Court could possibly exclude it only on the ground that it may deepen suspicion against the accused was of cheating by falsely representing to the complainant that he was the dewan of a particular estate and could procure for the complaint appointment to a vacant post of manager to the estate, and thereby obtaining a sum of money as a pretended security deposit. As this trial, evidence of instances of similar but unconnected transactions with other persons before or after the date of the offence charged was held admissible under Sections 14 and 15, not to establish the factum of the offence but to prove that the transaction in issue was one of a systematic series of frauds (Section 15) and that the intention of he accused on the particular occasion in question was dishonest and fraudulent (Section 14).
70. Mr. Jethmalani invited our attention to the observation or Lord Summer in (1918) AC 221, which is as follows:-
'Before an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant,. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with the fancy defences in order to rebut them at the outset with some damning piece of prejudice'.
The test, however, laid down in Makin's case, 1894 AC 57, satisfied by the proposal evidence and it held admissible. In AIR 1949 PC 161. The accused was tried for the murder of a woman by show that the accused had previously murdered another woman, his wife, in similar circumstances. It was a case from New Guiana, where the practice and procedure of the High Court of Justice and Courts of Assize in England applied. In this case, there was no evidence to show that the accused had administered the poison to the woman for whose death he was charged.. Their Lordships approved of the principles formulated in Makin's case, 1894 AC 57, and applying the same rejected the evidence. They also accepted the principle stated by Lord Sumner above referred to with some modification. Under the circumstances, the evidence of the death of his previous wife by arsenic was ruled out. It is hard however to distinguish Makin's case.
71. In the decision in 1910 1 KB 149, evidence of prior frauds was ruled out on the ground that it did not show a systematic course of fraud, but that the prisoner was of a general fraudulent disposition. In 1910 2 KB 746, evidence of prior false pretences was rejected on the ground that false pretences in the prior cases were of a slightly different kind. Similarly, in 1938 2 All EKLR 387, evidence of obtaining money by false pretences on prior occasions was ruled out on the ground that the pretence used was different. These cases would be relevant when one is applying Section 15 of the Evidences Act.
72. In : 1957CriLJ1325 , the Court held, accepting the principle of 1894 AC 57, That:-
'It is well settled that the evidence in rebuttal of a very likely and probable defence on the question of intention can be led by the prosecution as part of its case. To anticipate a likely defence in such a case and to give evidence in rebuttal of such defence is in substance in rebuttal of such defence is in substance nothing more than the letting in of evidence but the prosecution of the requisite criminal intention beyond reasonable doubt'.
73. In 32 Bom LR 324 =AIR 1930 Bom 157, relied upon by Mr. Jethmalani, several persons were being tried for the offence of committing or conspiring to commit a dacoity. It was sought to be proved by the prosecution that some of the accused were closely and intimately connected with the approver and the object of that association during a period of several months prior to the dacoity in question had been the commission of thefts and other discreditable acts. Mr. Justice Kemp held that as the evidence related to the character of the accused, it could not be relevant under Section 54. It is plain that the evidence, was not and could not be relevant under any of the group sections we are considering. The evidence of association of the accused with the approver was held relevant, under Section 9 to support the approver's statement that conspiracy in fact existed. But the nature and character of the association was held to be inadmissible, as it had no probative value but merely 'deepened the suspicion against the accused'. In 46 Bom LR 811: AIR 1945 Bom 152 the accused were not charged under Section 120-B of the Indian Penal Code. They were hurt to policemen on duty. Some of the accused had made confessions and subsequently retracted, in which they referred to various acts of sabotage done by them along with other persons outside the charge in other places. And on different dates in Kolaba and Thana Districts previous to the dacoity charged, and two of the accused referred similarly to the dacoity after the date of he dacoity in (1874) 11 Bom HCR 90 cited above and held that those parts of confessions were not admissible to prove that the dacoity charged was committed by the accused, following the decision of the Calcutta High Court in ILR 47 Cal 671=AIR 1920 Cal 500 (FB). In this case one P introduced himself as a Raja's or zamindar's son to a prostitute who passed into his keeping, and he then introduced G. as his durwan, and both after wards visited her house till the night of December 9, 1914. Next morning, she was found to have been murdered and robbed. Both the accused were tried on charges of murder, conspiracy to rob, theft and abetment of each other in the offences of the theft and murder. It was sought to be established that on two or three prior occasions, they had adopted similar modus operandi. The Court ruled out the evidence as being inadmissible, holding that there was no connecting link between the prior acts and the acts with which they were charged, and therefore, they were not similar occurrences, and that Section 14 was not applicable as the evidence of subsequent occurrence did not show state of mind of the accused towards the murdered woman. Section 11 also was held not applicable, on grounds similar to those in (1874) 11 Bom HCR 90. Section 9 was ruled out on the ground that no question of identity arose till the offenders committing the crime charged were ascertained by independent evidence.
74. The principle may be said to be settled the difficulty very often arises in their applicability. No two cases are alike. As stated by Lord Viscount Simon in (1952) 1 All ER 1044:-
'It must be remembered that every case is decided on its own facts, and expressions used, or even principles stated, when the Court is considering particular facts, cannot always be applied as if they were absolute rules applicable in all circumstances'.
We must therefore consider the question in the light of established principles and the statutory provision. In the present case, Mr. Khandalwala frankly concedes that the evidence of the association of accused Nos. 6 and 14 with Hamad Sultan along with Yusuf Merchant in smuggling and their frequent trips to Delhi and other places for collection of gold and the quarrel of Pedro with Hamad Sultan are sought to be proved not to make the proof of smuggling by the accused with which they are charged probable or even highly probable under Section 11, For, for this purpose the evidence may only raise suspicion against the accused. The evidence is admissible to show under Section 7 that the new conspiracy which was formed between Yusuf Merchant and Pedro in which accused No. 6 and others joined was the effect of the quarrel between Pdero and Hamad Sultan. That evidence is also relevant under Section 9 as it would support the inference of new conspiracy suggested by the relevant fact of acquisition of the telegraphic address. The trips prior to the period of conspiracy would be relevant under Section 15 of the Evidence Act as showing the intention with which trips during the period of conspiracy were undertaken.
75. It is then argued that the learned Magistrate was in error in allowing the claim of privilege in two instances.
76. The first was in respect of certain documents which were produced by Gorath Madhavan (P. W. 196), a Superintendent from the Telegraphic Check Office. It appears that the Customs Authorities at Calcutta had issued a summons under Section 171 of the Sea Customs Act to the Post and Telegraphic Department asking to be produced copies of all foreign cable both incoming and outgoing to certain telegraphic addresses. In response to the notice large number of such copies were produced before the authorities. These were taken charge of by the authorities and receipt was then passed. At the trial, prosecution applied that the copies of cables in respect of only fifteen addresses out of the many be produced. The witness produced the document and also the receipt. But receipt related to large number o other addresses. On Mr. Khandalwala's application, the hearing was adjoined to enable the prosecution to claim privilege on the ground that the disclosure of the record of addresses other than those with which the parties were concerned i.e. the fifteen addresses would be prejudicial to public interest. On the next date, Mr. Cullah of the Telegraphic Department and Mr. Srivastav filed the necessary affidavit and claimed privilege under Section 124 of the Evidence Act. The ground made in both the affidavits was that the summons by the customs Authorities to Post and Telegraph was a consolidated summons for several addresses connected with several matters that were being investigated by the department and disclosure of those addresses would warn the wrong doers and further investigation would be frustrated. The learned Magistrate perused the documents and held that they were confidential communications and question of privilege is for the authority to decide, he upheld the claim to privilege. He allowed only relevant portion of the summonses, the receipt and the copies of telegrams to be produced.
77. Mr. Jethmalani contends that the disclosure of all those documents and the whole of the receipt would have enabled the defence to ascertain whether Yusuf Merchant was using cable address other than 'Subhat' and 'Naznen' which would support their contention that he was in the habit of using bogus addresses and the privilege was claimed with the ulterior motive of preventing the defence from getting this material. We are not satisfied that it was, with ulterior motive that the privilege was claimed. Even after the order was made by the learned Magistrate, Srivastav found that by mistake record of one address Jacastor was no disclosed. Then he released that part o the record. As to whether privilege was properly claimed is not in our view necessary to decide. The defence is not entitled to make a fishing inquiry into the papers or records of the prosecuting agency. They had no definite allegation to make. If they wanted any information or record in connection with any particular telegraphic address and had requested the Customs Authorities or the Telegraphic Department of supply the same, they would be bound to supply the same. The record and documents regarding other addresses which were not connected with the transaction were wholly irrelevant and the witness was not bound to disclosure the same. We therefore, reject this contention on this ground only.
78. The second claim to privilege related to a report submitted by Srivastav (P. W. 183) to his superior officers. One of the contentions of the appellants is that Yusuf Merchant was made a tool in the hands of the Customs Officers by a promise of pardon to him It is said that a promise of pardon where Yusuf Merchant and the members of his family were deeply involved as there was plenty of evidence against them, that alone could persuade him to involve so many persons in this offence.
79. Srivastav asserted that he was the juniormost officer in charge of the investigation and except one or two decisions, all other decisions were taken by him. That the question as to who should and who should not be prosecuted was decided by his immediate Superior and the Legal Advisers. His own role was to put up a report and summarise the result of the investigations. In his cross-examination )p. 1237) be said that he made the report in September 1959 and it was secret and contained confidential information. An application was made on behalf of the accused (p. 4934 of the trial Court record) asking for a witness summons to the Director of Revenue Intelligence, New Delhi to produce or cause to be produced the report Diwan the Deputy Director of Revenue Intelligence, claimed privilege and gave his reasons for the same. Tarachand Sheth the Director of Revenue Intelligence, also made the affidavit as head of the department. The order of the learned Magistrate is at page 147 Vol. I.
80. The learned Magistrate perused the report and held that it was confidential communication by one officer to another and allowed the claim. He held that Diwan ought not to be allowed to be cross-examined on the question of privilege.
81. Mr. Jethmalani says that since cross-examination of Diwan is denied, the order is bad. It is decided in State of Punjab v. Sodhi Sukhdev : 2SCR371 , that in dealing with an objection to production under Section 124, the court will have first to decide under Section 162. Whether the communication has been made in official confidence. If the answer is in the negative, the document must be produced. If the answer is in he affirmative then it is for the officer concerned to decide whether the document should be produced or not. Section 162 of the Evidence Act enables the Court to inspect the document or take other evidence to determine its admissibility. The Court followed in its discretion the first of the courses and we think he was right in doing so. It would have meant a further waste of time in an already long-drawn-out trial without any benefit to any one. We have perused the document which was produced before the document which was produced before us in sealed cover. There is no doubt that it is made in official confidence. It is also marked secret and contains some material outside of the inquiry. One may only say that the report was made in July. When the investigation had not fully ended and that Srivastav is truthful when he says that the decision as to who should be prosecuted and who should not, was not his. He had merely placed some alternatives before his superiors. We accordingly reject this contention too.
82. The next contention is that the learned Magistrate wrongful refused to recall witnesses.
83. * * * * *
84. Mr. Jethmalani says that it is necessary that when an allegation is made that witness has given false evidence, he should be recalled. He relies on Archibald's Criminal Pleading Evidence and Practice Paragraph 1397; where R. v. Grant, (1958) Cri LR 42, is referred to. There cannot be a general rule in these matters. The Court must be satisfied that there is sufficient independent material before it which justifies and inference that the witnesses may have told lies. Evidence cannot be reopened merely on unfounded allegations, for if it were allowed, there would be no end to any trial. In (1958) Cri LR 42, there are clearly distinguishing features. Both the Counsel for the prosecution and the defence told the Recorder that they had certain information, which indicated that two witnesses might have committed perjury. The Recorder felt he could not do anything in the matter. It is under these circumstances that the Appeal Court held that the witnesses should have been recalled.
85. Mr. Jethmalani referred us to R. v. Flower, (1965) 3 All ER 669, which again has no application, there was something more positive in the shape of an affidavit of the witness herself, and not a mere allegation against the witness. In our view, the learned Magistrate was right in refusing to call the witness.
86. As to not allowing the cross-examination of Sriguroh we think the learned Magistrate was in error. We, however, feel that the learned Magistrate ought into to have examined Saguaro in the first instance which he did in spite of the protests of Mr. Khandalwala. In our view, the allegations themselves were so vague, that no Court could be justified in acting on the same.
87. As to the application for recall of Alli dated March 6, 1961 (p. 3534) we do not think there is any merit in it, Ali had alleged that he was in Calcutta in the first week of March 1957, for lawful business. He was asked if the had any documents to show this. He said he had not got the documents then, but would try to find them to Court. Why should the defence want him to produce them later, one fails to see. If he did not produce the documents, inference would be against him and so much the worse for the prosecution. The application to call him as defence witness was admittedly for the purpose of showing that he had gone to Calcutta for collecting Shubair gold, i.e. he was in accomplice. For asking all necessary questions for that purpose there was ample time. Presumably, the Hotel Register containing entry Z-349 was produced as early as October 7, 1960, and the cross-examination began in August 1961 i.e. practically after eight months. Inspection of the register could have been taken earlier, and relevant questions could have then been asked, on the basis of the entry showing his presence at Calcutta on October 13, 1957.
88. In any event, we have as will appear later on consideration of his evidence decided to treat his evidence as that of an accomplice, and this serves the defence purpose.
89.* * * * *
90. The right of the defence t call witnesses in rebuttal is given by Section 257. Indeed, it is a vital right and it would be highly unjust to convict an accused without giving him on opportunity to show that the prosecution evidence is untrue. The Court is no doubt entitled to refuse the application only on proper grounds. But when a witness has been examined for the prosecution and the defence had opportunity to cross examine the witness and had ample time for the purpose, an application to call him as defence witness is something different. The Court may recall the witness only if proper ground is made out and justice requires it.
[Para's 91 to 354 x x x x x x x]
355. There remains now only the case of accused No. 11. Accused No. 11 has been convicted by the learned trial Magistrate for all the charges 1 to 187. The sentences on all the charges except the 1st charge are directed to run concurrently. His appeal is Appeal No. 1625 of 1963. After filing the appeal, he obtained bail from this court. Within a short time thereafter be not only jumped bail, but has run away from this country and he is no longer away from this country and he is no longer subject to the process of this Court. The question is how his appeal should be dealt with.
356. It is against all reasons that this Court should be compelled to hear the appeal on merits even though the accused has, after obtaining bail, removed himself out of the jurisdiction of this Court. If that were so, he would take a chance of success in the appeal and return to the country triumphant if his appeal is allowed, but if his appeal is dismissed, he would say he cares little for the orders of the Court. Unless, therefore, there is any obligation on the Court to hear the appeal, the Court would be justified in dismissing it only on this ground.
357. Section 423 (1) of the Criminal Procedure Code deals with the powers of the Appellate Court to dispose of appeal after it is admitted. It requires the Court to decide it after perusing the record and hearing the appellant or his pleader if he appears. This section would suggest, therefore, that even if the appellant does not appear to argue his appeal, the Court ought to hear ht appeal on merits. It is because of this wording what it has been held in a large number of cases that merely because the appellant does not appear, his appeal cannot be dismissed for default. Even so, the principle of this section cannot apply to the case of an appellant who has obtained bail and jumped bail. Along with the section must be read Section 561-A which speaks of the inherent power of the High court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure ends of justice. It is undoubtedly an abuse of the process of this Court to obtain bail and then to leave its jurisdiction and render it impossible to enforce its orders. Inasmuch as the other provisions of the Code do not limit this power of the High Court to prevent an abuse of the process of the court, in our view, we will be justified in refusing to hear the appeal on merits and dismiss it in limine. In this connection, it may be noticed that the practice of the Court of Criminal Appeal in England, where the appellant escaped from the prison and is not present at the hearing of the appeal, is either to adjourn the appeal or to dismiss it according to the justice of the case. (See 1965 (3) All ER 669. No. doubt the English practice cannot have relevance when we have to construe the Code of Criminal Procedure. We have referred to it only to show that there can be no injustice in dismissing an appeal where the appellant has jumped bail and does not appear in Court. In the result, Appeal No. 625 of 1963 by accused No. 11 fails and is dismissed.
358 to 360. (The rest of the judgment is not material for reporting).