1. In these Rules we are concerned with the trial of a number of persons who were tried before Mr. P.C. Ghose, Magistrate of the first class, at Alipore. In all forty six persons were tried before that Magistrate upon a charge under Section 120-13, I.P. C, read with Section 9, Opium Act, (Act 1 of 1878), Sections 13, 14-A and 19, Dangerous Drugs Act, (Act 2 of 1930), and Section 19(a) and (c), Arms. Act, (Act 2 of 1878.) The charge was that they were parties to a criminal conspiracy to export, import possess and sell opium, (that part had reference to Section 9, Opium Act), import into British India and export from British India and tranship dangerous drugs, i.e. opium and cocaine (Section 13, Dangerous Drugs Act) import and export interprovincially, transfer possess and sell manufactured goods, i.e. cocaine (that part had reference to Section 14(a), Dangerous Drugs Act), to hold and control a trade in dangerous drugs, i.e. opium and cocaine, obtained outside British India and supplied to persons outside British India (Section 19, Dangerous Drugs Act), and to import and sell firearms. (Sections 19(a) and (c) of the Arms Act). We are not concerned with any question relating to the Arms Act as that part of the charge was not proceeded with in course of the trial.
2. On the main part of the charge thirty seven out of the forty six accused were convicted by the learned Magistrate as appears from the very elaborate and careful judgment which he delivered on 24th April 1933. The thirty seven convicted persons appealed against their conviction and sentences and the appeal was heard by Mr. B.H. Parker, Additional Sessions Judge at Alipore. As a result of the appeal thirty of the appellants had their conviction and sentences affirmed, and seven of the appellants were acquitted. Of the thirty convicted persons two were content apparently with the position which then was. The other twenty eight convicted persons came before this Court and were successful in obtaining Rules directed against their conviction and sentences. The Rules were issued in September, 1933 and between that time and the time the matter came before us a fortnight ago, two of the convicted persons named Joy Bhagwan and Golam Jalani had died. We therefore have to consider the cases of the remaining twenty six convicted persons. All these twenty six persons were represented before us by learned Advocates who put forward a number of points of law, some of which concerned the cases of all the twenty six persons and the others concerned only a certain number of them. The matter was argued before us for a number of days, and undoubtedly all that could possibly have been urged on behalf of these twenty six persons was fully and forcibly put before the Court. We have therefore to consider whether the arguments put before us were sufficient to lead us to the conclusion that any one of these twenty six persons is entitled at the hands of this Court to have his conviction set aside or the sentence imposed upon him reduced or varied or, on the other hand, whether inspite of the forcible and cogent arguments put forward, we ought to come to the conclusion that on the whole the judgment of the learned Additional Sessions Judge should stand.
3. The points put forward and elaborated before us may be classified under six heads (1) that by reason of non-compliance with the requirements of Section 196-A, Criminal P.C., the whole of the proceedings before the learned Magistrate who tried the case were invalid; in other words, the trial itself was unlawful by reason of the provisions of that section; (2) that the judgment given by the learned Additional Sessions Judge was not according to law, and that, therefore apart altogether from the illegality of the original trial there ought, at least to be a re-hearing of the case on appeal; (3) that the charge laid against all the accused persons was bad in law and wholly unsustainable by reason of the fact that the allegation made against all the accused was that they were parties to a criminal conspiracy which began in the year 1920 and continued until the month of March 1932, and the charge had included within its scope an allegation of contravention of certain sections of the Dangerous Drugs Act of 1930 which only came into operation on 1st February 1931; (4) that under the provisions of the Opium Act, 1878 even as amended in the year 1914, the maximum sentence provided for is one year's rigorous imprisonment, and that as the Dangerous Drugs Act did not come into operation until the year 1931, it was not competent to the Court to impose the higher sentence of two years' rigorous imprisonment which was the sentence imposed on a large number of convicted persona, nor was it competent to the appellate Court to apply the provisions of Section 18, Dangerous Drugs Act of 1930 and so to require the giving of security as provided for in that section which was in fact done in the case of a considerable number of convicted persons by the learned Additional Sessions Judge of Alipore; (5) that by reason of the fact that a certain number of the accused persons had on previous occasions been convicted of various offences in connection with the illegal trafficking in opium and raw cocaine, those particular convicted persons were entitled to pray in aid the provisions of Section 403, Criminal P.C, as a protection against these subsequent proceedings; seeing that they were basedon a charge of conspiracy contravening the provisions of the Opium Act 1778 and the Dangerous Drugs Act, 1930: and (6) that as regards certain of the accused it was manifest on the face of the judgment of the appellate Court that the evidence adduced against them was not sufficient in law to warrant the conviction, and in connection with this point Mr. N.K. Basu in particular on behalf of Abdul Bahaman, who was a petitioner in Rule 951 of 1933, took the objection that at the trial two sets of accounts had been taken into consideration, namely those of a man named Fazladdin and those of a man named Amiruddin, though these accounts had not been properly proved and were therefore inadmissible in evidence on behalf of the prosecution.
4. We now proceed to deal with the points which I have just enumerated in more detail. As regards the first point, namely that relating to Section 196-A, although this was originally taken by several of the Advocates who appeared on behalf of the petitioners before us, it was ultimately only relied upon to any extent by Mr. N.K. Basu on behalf of the petitioner Abdul Rahaman, and by Mr. Fazlul Huq on behalf of the petitioners in Rr. 958 and 961 to 972. At the same time, however, it is clear that if it has any substance in it at all, all the petitioners in spite of the attitude adopted by their respective counsel, would be entitled to have the advantage of that point of law if in fact it operates in favour of the defence.
5. Mr. N.K. Basu and Mr. Fazlul Huq,, the latter in particular very strenuously urged that the whole of the proceedings both those before the appellate Court below and those before the Magistrate ought to be quashed by this Court on the ground that Section 196-A, Criminal P.C., provides that no Court shall take cognizance of an offence of Criminal conspiracy punishable under Section 120-B, I.P.C, (1). In a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an offence to which the provisions of Section 196 apply, unless upon complaint made by order or under authority from the Governor-General in Council, the Local Government or some officer empowered by the Governor General in Council in this behalf, or (2) in a case where the objects of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, unless the Local Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the local Government, has, by order in writing, consented to the initiation of the proceedings. The section contains a proviso which is not material for our present purpose.
6. Much stress was laid upon the word 'initiation'as it appears in this section and it was pointed out to us that the trial before the Magistrate at Alipore began on 5th October 1931, and that the charge was formally framed on 14th September 1931, perhaps instead of 'framed' I ought to say 'submitted,' and that at that time no sanction had been given as required by Section 196-A. Admittedly, however, a sanction in due from was given by the Local Government on 30th October 1931. It is to be noted in connection with the discussion on this point, (the point under Section 196-A) that the charge made against all these accused persons did include an allegation that they had committed an offence which was punishable not only under the provisions of the Opium Act of 1878 but also under the provisions of the Dangerous Drugs Act, 1930; Therefore, having regard to the fact that punishment under the relevant section of the Dangerous Drugs Act, 1930 extends to rigorous imprisonment for two years, it may well be the position that in these particular series of cases, I may use the expression 'series' with reference to the Rules before us, Section 196-A has no application at all because it is clear from the terms of Sub-section (2) of Section 196-A that if the offence charged is one punishable with rigorous imprisonment for a term of two years or upwards, no consent of the local Government is essential or indeed required at all. But having regard to the arguments which were put forward with regard to the validity of the charge itself it is perhaps better that by reason of the inclusion in it of a reference to the Dangerous Drugs Act 1930, we should dispose of the contention with regard to Section 196-A upon the footing that in this case the consent of the Local Government was necessary as a condition precedent to the initiation of the proceedings. Upon that view of the matter there was no doubt a formal defect. The trial was commenced, as I have said, on 5th October 1931, and the consent of the Local Government was not given until some 25 days later, and at a time when the trial had already started on its long course. I use the expression 'long course' because actually the proceedings before the learned Magistrate lasted over a period of something like 18 months. Assuming therefore that there was this formal and technical flaw with regard to the initiation of the proceedings, the question then arises whether we should be justified in declaring that the whole of these lengthy and costly proceedings is nugatory and tainted with illegality and whether we should be obliged to order that they be quashed. It seems to me that on the whole anything of the kind would be utterly unreasonable and indeed absurd.
7. The real position seems to have been this: that on 14th September 1931 the Police put forward a charge upon which the accused were subsequently tried on 5th October 1931. The trial was opened and the Public Prosecutor of Alipore on behalf of the Crown embarked upon his opening speech and in the course of that speech he no doubt with his usual clarity in all proper detail indicated the nature and gravity of the offence with which the accused had been charged. At that stage it apparently became manifest to the advisers of the Crowrn that it might be desirable, even if it were not absolutely essential, that a formal consent of the Local Government should be obtained and that consent was in fact obtained and given, as already noted, on 30th October 1931. Upon any view of the matter the utmost that can be said is that there was a technical defect as regards the initiation of these proceedings, but it must, at the same time, be transparent and obvious as anything over could be that no one of the accused in any sense at all could have been prejudiced by the belated, even if it was belated, formal consent of the Local Government. The provisions of Section 196A are designed to provide a safeguard against the initiation of vexatious prosecution for criminal conspiracies of the kind indicated in the section. The section is certainly not intended to provide a means of escape for persons who have been convicted on charges brought against them even though those charges relate to the kind of offences indicated in the section, if it could have been shown to us that any one of these accused persons had been prejudiced in his defence by reason of the defect complained of, the matter might 'have been otherwise, but as it is it is clearly impossible, as Mr. S.K. Sen at any rate seems to have realised for this Court to interfere in the way asked for by Mr. N.K. Basu and Mr. Fazlul Huq.
8. We hold therefore that there is no ground for our interference with any of these convictions by reason of the non-compliance, strictly speaking, with the provisions of 8. 196A, Civil P.C. In any view it is not the function of this Court when exercising its revisional jurisdiction to allow guilty persons to escape the just reward of their misdoings on the basis of an unsubstantial technicality. The next point urged on behalf of the 26 persons before as, actually Rules 23 were issued, is that the judgment of the learned Additional Sessions Judge is not in accordance with law. That is a very wide and sweeping assertion. It may mean a great deal or it may mean nothing at all. The proposition is wide enough to comprehend arguments on points of law and arguments on questions of fact. It may mean nothing more in essence than that the judgment is wrong because it had the effect of affirming the convictions of 30 persons and setting aside the conviction of seven other persons. But in the course of the argument which was put forward before us mainly by Mr. N.K. Basu on behalf of the petitioner Abdul Rahaman, it emerged that the real contention was that the judgment of the learned Additional Sessions Judge was bad because as Mr. N.K. Basu (and Mr. Fazul Huq) contended the learned Additional Sessions Judge had not properly complied with the provisions of Section 367 and 424, Criminal P.C. Opon numerous occasions in this Court judgments of appellate Courts below have been assailed on the ground of non-compliance with those sections. The contention made on behalf of the petitioners was crystallised by one of the learned Advocates before us in the phrase 'the judgment of the appellate Court must be self-contained' and it was suggested that the judgment given in this case was not sufficiently detailed or sufficiently definite. Mr. N.K. Basu urged that nowhere in the judgment of the learned Judge is there any finding that there was any conspiracy as alleged in the charge, and that therefore there is no finding in the judgment of the appellate Court as to what the objects of the conspiracy were. Mr. N.K. Basu supported his argument by emphasising that upon the facts relied upon by the Crown for the purpose of substantiating the charge which was made, it was not possible for any Court rightly to come to a conclusion that there was one general conspiracy between all the accused persons, and that therefore it was all the more necessary for the Judge to come to a definite finding upon the question whether there was a conspiracy or not. Mr. N.K. Basu permitted himself to be somewhat trenchant and indeed sarcastic in his comments upon the judgment of the appellate Court below.
9. He opened his address to us by saying that what had been written by the learned Additional Sessions Judge was not in the nature of a judgment at all but was in effect 'a treatise on logic, psychology and penology.' Then Mr. Basu proceeded to say that not only was there no finding as to the existence of a general conspiracy, but there was no satisfactory discussion with regard to the position of each of the individual accused persons. The contentions made on behalf of the petitioners with regard to the form and contents of the judgment of the appellate Court below are undoubtedly of some substance, particularly having regard to the fact that it was strenuously argued on behalf of the petitioners that it had never been satisfactorily established that there was one conspiracy, in which they were all involved, of a kind which could be relied upon to found a single charge under Section 120-B, I.P.C. It has been our task to endeavour to ascertain how far the comments and contentions in connexion with the judgment of the learned Judge are justified and to what extent the arguments in this connexion put forward on behalf of the petitioners are at all in their favour.
10. In dealing with this particular point it may be said at the outset that while not accepting Mr. N.K. Basu's somewhat vitriolic attack on the form and contents of the judgment of the learned Additional Sessions Judge, we think that we are bound to recognise the force of the contention that nowhere in this judgment is there in terms a definite finding as to the existence of the widespread and integral conspiracy as alleged by the prosecution. My learned brother in course of the argument pointed out that the appropriate place in the judgment where one Would expect to find a sentence or two definitely indicating that the Judge was satisfied as to the existence of the conspiracy, was at the end of para. 1, on p. 12 of the printed judgment. In the previous pages the learned Judge had discussed the charge and had discussed certain points of law which had been raised on behalf of the defence at the trial, e.g., the question how far the evidence of accomplices can be relied upon, the nature and extent of corroboration required, the point with regard to the applicability of the Dangerous Drugs Act and the defence raised under Section 403, Criminal P.C. The learned Judge had also discussed in general outline the main evidence which had been given on behalf of the prosecution, and it is not to be overlooked that when considering the contentions put forward by the defence that the charge itself was vague and that there was no proof of any agreement, nor any date when the conspiracy was agreed to or dissolved, the learned Judge at p. 9 had made this observation: 'I have now disposed of all the legal points involved.' That may perhaps be taken as an indication, at any rate that the learned Judge was not accepting the contention put forward by the defence that there was no conspiracy. But as I have observed the passage in the judgment where one would expect to find a categorical pronouncement on the question of the existence of the conspiracy is at p. 12 of the print. We find there this short paragraph:
In the light of the foregoing remarks I shall now examine the case against each of the appellants, and I shall continue to use the procession of the judgment though I have examined the evidence independently.
11. Now if the learned Judge had put in front of that paragraph a line or two stating in clear terms that he was satisfied as to the existence of a general conspiracy, no comment or criticism as regards this point could have been possible. It is therefore to be regretted that the learned Judge, no doubt inadvertently, did not say definitely that he held that the existence of one general conspiracy had been satisfactorily established. We find however on the page following, in course of the discussion as regards the evidence against the two accused Ahmed Shah and Reza Khan, that the learned Judge says this:
The evidence referred to above proves his complicity (i.e., Ahmed Shah's complicity) in this conspiracy and I hold that he has on all grounds been rightly convicted.
12. Looking back to the short paragraph which I quoted a moment ago, I think that we must take it that when the learned Judge said: 'I shall now examine the case against each of the appellants' what he meant was that he was about to proceed to consider how far each of the appellants severally and individually was implicated in the conspiracy. What the learned Judge had in his mind was that he was at any rate satisfied that the conspiracy had been proved at the trial to exist. The short paragraph on p. 12 of the judgment seems to have been designed to close one part of the judgment, namely, that dealing with the discussion as to whether or not there was a general conspiracy, and to serve as an introduction to the other part of the judgment which is concerned with an inquiry into the question as to whether all or some and which of the accused persons, were members of the general conspiracy. The learned Judge has undoubtedly considered, as far as one can see, fully and adequately the case of each one of the accused and in the end he came to the conclusion that it was his duty to pick out not less than seven of the convicted persons who were convicted at the trial, and to hold that the case against each of those seven persons had not been sufficiently and satisfactorily established. Whenever an appellate Court makes a selection of this character and distinguishes the position of some out of a number of appellants, one is bound to feel that the appellate Court had exercised a judicial discrimination after seriously and carefully considering the evidence as adduced against each one of the appellants before the Court.
13. It is all very well to say that an appellate Court must comply strictly with the provisions of the sections I have mentioned. But Section 367 must be interpreted reasonably and so long as the appellate Court below writes a judgment from which this Court can gather what the decision of the appellate Court really was, that in the majority of instances ought to be sufficient. It would be manifestly most unreasonable to expect an appellate Court to dot every 'i' and cross every 't', if I may use the expression. The judgment of the appellate Court is written by some one who is to be presumed to know the value of the words, and it is written with the object amongst other things of its being understood by this Court if it be necessary for this Court to pass it in review. If, therefore, it is possible for this Court reasonably to arrive at an understanding of what has been found in the Court below, it is not necessary that this Court should captiously or capriciously set aside the judgment of the Court below or even comment on it with any severe strictures. Still less is it obligatory upon this Court to hold that the proceedings in appeal ought to be quashed and the matter reheard in appeal from the beginning. Looking at this judgment as a whole we are quite satisfied that the learned Additional Sessions Judge did come to the conclusion that the existence of one general conspiracy had been fully established upon the evidence, and having come to that conclusion it was then his function to ascertain which of the accused, and to what extent each of the accused had been a party to that conspiracy.
14. I now come to the third of the main points put before this Court, namely, the contention that the charge itself was bad in law and wholly unsustainable by reason of the fact that the general conspiracy alleged was said to have been inaugurated in the year 1921 and to have remained in existence, and indeed in full operation, until the month of March in the year 1932. It was argued by several of the learned advocates appearing on behalf of the petitioners that it was quite wrong and indeed impossible to charge a number of persons with being parties to a conspiracy which originated in the year 1920, a conspiracy having one or part of its objects the contravention of certain provisions of the legislative enactment which only for the first time came into existence in the year 1930 and into force in the month of February in the year 1931. On the face of it that contention appears to be one of considerable weight, and the arguments put forward in support of it were plausible, and well reasoned, and superficially, at any rate, damaging if not wholly destructive of the case made on behalf of the Crown. Bearing that in mind, we have considered this particular point with very great care and have scrutinized it from every possible angle.
15. In order to arrive at a proper estimation of the value of this contention it is necessary in the first instance that one should examine the precise language used in the charge itself. I have already mentioned the charge as it is summarised at p. 4, of the printed judgment of the Magistrate who conducted the trial. But the actual indictment, if I may so refer to the charge as drawn, puts rather a different complexion upon the matter. The formal charge begins in this way I, P.C. Ghose, Magistrate, 1st class, hereby by charge you...; then follows the names of the forty six accused including of course the present petitioners before us; then come these words:
That you between the year 1920 and the 19th day of March 1932, at Kidderpore, Calcutta,. River Hooghly, Delhi, Muttra, Rangoon, Akyab, Chittagong and other places in British India, along with....
then follows a long string of names of persons who were said to be engaged jointly with the accused as parties to the conspiracy and the document proceeds as follows:
Were parties, to a criminal conspiracy to unlawfully export, import, possess and sell opium (punishable under S..9(a), (b), (c)and (d), Opium Act): import into British India and export from British India and tranship dangerous drugs i.e. opium and cocaine (punishable under Section 13, Dangerous Drugs Act). Import and export interprovincially, tranship, possess and sell manufactured drug i.e. cocaine (punishable under Section 14A, Dangerous Drugs Act), engage in control of trade by which dangerous drugs, e.g. opium and cocaine, were obtained outside British India and supplied to persons outside British India (punishable under Section 19, Dangerous Drugs Act.).
Import and sell firearms and ammunitions (punishable under Section 19(a) and (c), Arms Act). The modus operandi of the conspiracy being to remove opium from Rampur State, Jaypur State Delhi, Muttra and other places in Upper and Central India including Native States to Calcutta, and then to despatch it to Burma, Chittagong, Straits, China, Japan and other places in the Far East in ships or otherwise from Calcutta and to import cocaine from Japan by reverse process to Calcutta and thence to above-mentioned places in Upper and Central India including Native States and in pursuance of said conspiracy there was a trafficking on a huge scale in opium, cocaine and firearms and thereby committed an offence punishable under Section 120 B, I.P. C, read with Section 9 a, b, c, d, Opium Act (Act 1 of 1878), Section 13, 14A and 19, Dangerous Drugs Act (Act 2 of 1930) Section 19(a) and (o) of the Arms Act (Act 2 of 1878) and within the cognizance of this Court,
and then comes the concluding paragraph:
And I hereby direct that you be tried by the said Court on the said charge.
16. It appears therefore that in the month of October 1931. forty six persons whose names appear at the head of the charge, were being indicted for being parties to one vast conspiracy which had come into existence in the year 1929 and subsisted right down to the 19th March 1932, that is to say, for a period of some twelve years. The objects of this widespread conspiracy, put shortly were these: to acquire and collect opium from Indian States and other places in Upper and Northern India, (and for that purpose there was a group of conspirators in Delhi and possibly in other places in Upper and Northern India); then to cause opium to be conveyed to Calcutta where it was received and possibly accumulated by a group of Peshwaries who were acting not only in concert with each other but in conjunction with the consignors in Northern India. From this group in Calcutta the opium was conveyed to another group in Kidderpore, a group consisting of a number of persons who have been referred to as Karbaris. They were said to have been acting in concert with the first two groups. The Karbaris in their turn transferred the opium to another group of persons who have been referred to as the Manjhis. They were acting in concert with the Karbaris and under their directions the Manjhis conveyed the opium in country boats and surreptitiously handed it over to sailors or other members of the crew of various ships leaving the Port of Calcutta for places in the Far East. The chain thus consisted of five main links. Each link in its turn was comprised of smaller links and the whole thing formed an organization for doing what the learned Magistrate in his judgment has desoribed as an organised trafficking on a huge scale and an international trade in opium. The charge also alleged that by this organization cocaine was brought from Japan and other places in the Far East and conveyed through the links of the large claim until it reached the other end of the chain, and was distributed in Northern India and possibly in other places.
17. The gist of charge therefore against all these forty six persons was that they were units of varying degrees of importance in one large organization. They were all members of one body, some of whom might have been or no doubt were of more importance than the others. But that is the case with regard to any large and complicated piece of a machinery; some of the cogs are of more importance than the others but each of them has its own part and in the sense that it may be said that the smallest nut may be just as vital as bigger parts of the machinery. For the purpose of resolving this question with regard to the validity of the charge one has to bear in mind what the essence of the allegation against the forty six persons really was. In essence the allegation was nothing more or less than what I have been endeavouring to describe, namely that each one of these forty six persons was an integral part in a vast piece of machinery designed to serve the object of unlawfully exporting opium and unlawfully importing cocaine. To put it even more tersely, the charge against the forty six persons was that of illegal trafficking in opium and cocaine.
18. That was a violation of the law in this country even before the passing of the Dangerous Drugs Act in the year 1930. It is not necessary, I think that I should refer in detail to the various sections of the Opium Act of 1878 or to the Bengal Excise Act of 1909 (Bengal Act 5 of 1909) in order to show that long prior to the year 1930 it had been unlawful to deal with opium and cocaine in the way these substances were dealt with by the present accused in this case. In order fully to appreciate how the law stood, it is necessary to examine a number of sections of both the enactments I have mentioned, and to take into consideration the definition appearing in them. We have been referred to all the relevant sections and provisions of those Acts in the course of the argument, and we have very carefully considered how the matter stood prior to the beginning of February 1931, and it is quite clear that long before that date it would have been possible to frame a charge almost precisely in the same terms as the charge in the present case with only slight alterations as regards the reference to the relevant sections as contained within brackets in the charge.
19. Looking at the matter therefore from that point of view, I think it may be taken that the material part of the charge is that which sets out the nature of the offence and gives a description of the manner in which it was alleged that the operations of the conspiracy were carried out and in effect and for all practical purposes the enactments were merely referred to in the charge for the purposes of indicating under what provisions of the law as it existed at the time of the trial, the accused persons could be punished if they were found guilty of the allegations made against them. The learned advocates who stressed the point with regard to the validity of the charge, based a great deal of their arguments upon the fact that Section 120-A, I.P.C, states
When two or more persons agree to do, or cause to be done, (1) an illegal act or, (2) an act which is not illegal by illegal means,'such an agreement is designated a criminal conspiracy.
20. Then follows a proviso which is not relevant for our present purposes, because it only relates to agreements which are not agreements to commit an offence). It is correct to say that the gist of an offence of conspiracy, or more accurately, the gist of an offence under Section 120-A is the conspiracy or agreement between the accused persons. In other words a mere agreement between two or more persons to do an illegal act, or an act which is not illegal by illegal means is of itself a criminal conspiracy.
21. The learned advocates who relied so much on this contention, that is to say the contention with regard to the form of the charge endeavoured to induce us to adopt the view that because a mere agreement to do an illegal or a legal act by illegal means is itself a conspiracy, therefore the conspiracy is not only complete but is concluded directly the agreement is made in the sense that the agreement having been made the offence is, once and for all, constituted and therefore in effect a conspiracy is an offence which begins and ends at one and the same time. That in my opinion, is an entirely fallacious argument. It is one thing to say that a mere agreement constitutes a conspiracy in certain circumstances, i.e., the gist of he offence under Section 120-A is the agreement, but it is entirely another thing to say that the agreement having been; made it is impossible that the conspiracy should exist beyond the actual time at which the agreement is born, if I may so put it. The learned advocates appearing for the petitioners would have held that the birth and death of the conspiracy are simultaneous or at any rate so closely does one follow the other that there is no appreciable period of time between the two.
22. It seems to me that any such argument is based upon entirely a wrong interpretation of what the section means. The section cannot be used in aid of the defence where it is said that a criminal conspiracy was in existence for a certain period of time. It is true that a mere agreement may bring the conspiracy into existence but nowhere it is said in the Code that after that the offence no longer exists. It seems to me that it is only reasonable to hold that criminal conspiracy may come into existence, and may persist and will persist so long as the persons constituting the conspiracy remain in agreement and so long as they are acting in accord, in furtherance of the objects for which they entered into the agreement. Therefore in my opinion, the question whether this particular conspiracy was in existence or not at the time when the Dangerous Drugs Act came into operation in 1931 is solely a question of fact. No doubt in the course of the years some of the original conspirators fell out and others came in: some of the persons who entered into agreement to traffic in opium in the year 1930 might get tired of taking part in it, and some might have waxed fat on the illicit profits and thought it well to retire: others may have died and various new links in the chain I have described might have been forged by other persons coming in and taking the place of the others who fell out, or the large links, as I have called them, in the chain may have become more extensive, or some of them may have shrunk but in effect the conspiracy went on, beginning in 1920 and lasting up to the year 1930. There is a definite finding upon that point on the part of the Magistrate who tried the case. At P. 52 of the printed judgment he says:
From a thorough consideration o all evidence, oral, documentary, and circumstantial, produced by the prosecution as enumerated above at length, I hold without hesitation that the main issues have been definitely established e.g. (1) The existence of a conspiracy to smuggle opium and cocaine between Northern and Central India at one and Burma ports and ports in the Far East at the other, Calcutta being the centre of the great secret trade; (2) that the accused persons in general are parties to the above conspiracy. Then he proceeds to consider the case of each of the accused persons.
23. The learned Additional Sessions Judge touching the matter as regards the duration of the conspiracy at p. 8 of the print says: If Exs. 87/8, 106, 88/9, 87/47, 105/5, 102/24 C are significant of smuggling transactions at all, they are evidence that the conspiracy was still in existence till 30th August 1931 and 31st July 1921:
Perhaps it would be more correct if those dates are reversed but it is quite clear from those dates that the learned Judge was of opinion that the conspiracy was in existence in the month of August 1931. Then he says: It is the Crown case that these transactions were the concluding parts of the general conspiracy. The law applying to the general conspiracy must be that law which is in existence on its last day, which was the day on which the charge was framed. Then he proceeds to say: It was argued for the Crown that Section 41, Dangerous Drugs Act, also covered the matter.
24. I regret that I am unable to agree with what the learned Judge says as regards the applicability of Section 41. In my opinion it has no application to the present case at all. The importance of those passages in the judgment to which I have just referred is that there is a definite finding that the conspiracy, that is to say, the unlawful agreement was still in existence in the year 1931, and findings of both the Courts indicate in my opinion, that this illegal conspiracy, that is to say, this vast organisation having unlawful objects had been functioning continuously from some date even anterior to the year 1920. Both the Courts have dealt with the matter upon the footing that the conspiracy was in existence and that the agreement was in operation continuously between the years 1920 and 1931. Both the Courts having formed that opinion, proceeded to satisfy themselves as to how many or which of the accused persons were members of that conspiracy. The learned Magistrate, it is to be observed, said (at p, 52 of the printed judgment):
It was represented by the learned Counsel for defence that as the period of the charge has been taken to commence from 1920, no evidence has been given to show that the conspiracy was hatched in that year, nor has any evidence been given as to when, where and what, agreement was made between the parties to the conspiracy from one end of the chain to the other, or when each individual conspirator joined the conspiracy. The evidence however is definite that the conspiracy existed from long before 1920 and a particular period was taken for this case for confining the evidence to that period. The agreement in the present case can be easily and very strongly inferred from the oral, documentary and circumstantial evidence which raise the strongest presumptions of the existence of a common concerted plan among the accused persons to carry out their unlawful design.
25. It was argued before us that there was a mis joinder in this case, in that all the forty-six persons ought not to have been tried together on one and the same charge. That would have been a more satisfactory course from some points of view, but the Crown chose to think and no doubt rightly, as the case was presented to the advisers of the Crown, that it was better to charge all these persons as being parties to one conspiracy. The Crown took the risk of being able to establish that charge, and in the opinion of the two Courts below, they succeeded in doing so. The matter comes before us in this position: that there is a finding that there did exist a general conspiracy, and that is a finding which cannot be challenged before us. Therefore we have to decide this matter upon the footing that there was a conspiracy from the year 1920 until late in the year 1931, and that the twenty-six persons who have come before this Court were parties to this conspiracy.
26. When one realizes the position it seems quite clear that in order to deal with these twenty-six persons on the footing that they had contravened not only the provisions of the Opium Act, i but the provisions of the Dangerous Drugs Act, we may recall for what it is worth, that some of these persons continued in their nefarious acts even when they were on bail. The findings of the Court below are entirely destructive of any argument which is based upon the suggestion that there were no overt acts after the Dangerous Drugs Act came into force, because the findings indicate that the conspiracy was extant at the time and these persons were still in agreement, and either acting in accordance with that agreement, or ready to act when occasion arose.. On the view that there was this conspiracy there is nothing in the argument that there was any misjoinder and that the trial was bad, because so many persons were tried jointly. They were all alleged to be members of a criminal conspiracy, and they have been found to be members of a criminal conspiracy. What I have said disposes of third point put forward on behalf of the defence and inferentially it disposes of the fourth point.
27. The fourth point was that it was not competent to the Crown to include in the charge any reference to the, Dangerous Drugs Act, 1930, i.e., it was not right to charge any of the persons, with a contravention of the Dangerous Drugs Act, and none of them should be punished with the punishment provided for in the relevant sections of the Dangerous Drugs Act, and that therefore the maximum penalty which could have been imposed, was not two years but one year's rigorous imprisonment. That being the position the majority of the sentenced imposed were illegal. There was a further argument that if the Dangerous Drugs Act, 1930, be ruled out altogether, as the defence contended, then it was not competent either to the appellate Court below or to this Court, or to any other Court to require security to be furnished in the manner ordered by the learned Additional Sessions Judge of Alipore. This argument has no substance in it, and fails completely, one comes to the conclusion, as we have for the reasons which I have already given, that it was quite in order and lawful for these persons to be charged with being members of a conspiracy which was punishable not only by reading Section 120-B with certain sections of the, Opium Act, but also by reading Section 120-B I.P.C., with certain sections of the Dangerous Drugs Act, 1930. Upon the view that the Dangerous Drugs Act, 1930, does have application to the circumstances of this case, it follows that the order made by the learned Additional Sessions Judge with regard to the giving of security was a valid order.
28. I have now dealt with the four main points which were relied upon directly or indirectly by all the petitioners before us. As already explained some of the Advocates appearing pressed some or all of these points made quite clear to-us that the latter associated themselves with the arguments of the former and relied upon these points as being of vital importance to their respective clients. I now come to the point which is taken on behalf of certain of the accused, namely, the petitioners Abdul Rahaman in Rule 951, Eazaldin in 952, Fazaldin described as the brother of Golam Jelani in 958, Din Mohamed in 959, Chunu Mia, Hafizar Rahman and Mokleswar Rahaman in 960, Amiruddin in 962 and lastly Ali Azam Pundit in 965. This point amounted in effect to a plea under the principle of English Criminal Jurisprudence of autrefois convict or in one or two instances autrefois acquit. This plea was, it was urged, available to these convicted persons respectively by reason of the provisions of Section 403, Criminal P.C. The point was argued very fully and very forcibly by four of the learned Advocates appearing for the persons whose name I have just mentioned, namely, by Mr. N.K. Basu on behalf of Abdul Rahaman, by Mr. A.K. Fazlul Huq on behalf of Fazaldin and Amiruddin and Ali Azam Pandit, by Mr. Talukdar on behalf of Fazaldin of Amposta the petitioner in Rule 952, and further by Mr. Daud on behalf of Din Mohamed, Chunu Mia and Hafizar Rahaman. The arguments put forward by the four learned Advocates I have mentioned, follow the same lines.
29. Mr. Talukdar however in arguing the case of Razaldin of Amposta, called our attention to certain chronological facts, Mr. Talukdar pointed out that the first statement made by the witness Rokunali was made on 15th June 1930, and that at or about the same time certain accounts which are said to bear upon the conspiracy, were in the hands of the police. The second statement made by Rokunali was on 19th July 1930, on that occasion also other accounts came into the possession of the police, and thereupon the house of Razaldin who was also described as Fazlu, was raided. In December 1930, the third set of accounts came into the hands of the police. These accounts constitute the first set of accounts which, according to the arguments put forward by Mr. N. K; Basu on behalf of Abdul Rahaman, were not properly proved in evidence at the trial and ought not to have been taken into consideration. Mr. Talukdar however put these dates before the Court for the purpose of founding his argument that in December 1930, the police were or ought to have been in a position to charge Fazldin with an offence very similar if not entirely identical with the offence with which he stood charged in the present proceedings, and that therefore the fact that he was convicted of certain offence under the Opium Act by the Chief Presidency Magistrate of Calcutta on 3rd December 1930, ought to operate in such as way as to enable Fazaldin to rely on the plea of autrefois convict as provided for in Section 403, Criminal P.C.
30. It is to be observed however that the third statement which was made by Rekunali and which seems to have been much more detailed and much more comprehensive than either of the previous ones, was made in April 1931 and we must take it that it was only after the third statement came before the authorities that it was decided that there was sufficient material to justify a wholesale prosecution of the kind, which was ultimately commenced on 5th October 1931. The question of the applicability of Section 403, Criminal P.C., to the accused persons whose names I have enumerated, is one by no means free from difficulty, and we have given to it our most anxious and careful consideration. The arguments put forward and so well put forward by the four advocates whose names I have given, were undoubtedly impressive, and at first sight it had appeared that the clients of those four learned advocates might be entitled to be let out of these proceedings by reason of their previous convictions, or in one or two instances by reason of their previous acquittals on charges made against them in connexion with trafficking in opium or raw cocaine.
31. It is to be borne in mind however that the principle that no one ought to he put in jeopardy twice for the same offence (which is of course an agelong principle of the Common Law in England) has so far as this country is concerned, been laid down in the precise provisions of Section 403, Criminal P.C. No doubt the legislature did intend to embody in that section as far as possible that fundamental principle of English criminal jurisprudence, but it has to be borne in mind that the provisions of statutory enactments must always and necessarily be somewhat less elastic than those to be gathered from the Common Law which in effect, at this time of day is enshrined in judgments in decided cases. We have to administer and to apply as accurately as lies in our power, the precise words of the relevant statutory enactments. Therefore it is essential for our present purpose to see and understand the precise language of the section under consideration. Section 403, Sub-section (1); Criminal P. C, reads as follows:
A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
32. Sub-section (2) says:
A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).
33. And Sub-section (3) says:
A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened at the time when he was convicted.
34. For our present purpose I no not think it necessary to do more than to emphasize the precise words of Sub-section (1); and the effect of that sub-section comes to this: that a person who has once been tried for an offence and either convicted of it or acquitted of it, shall not be tried again either for the same offence or for any other offence based on the same set of facts.
35. Mr. Talukdar referred us to a number of authorities, but in a matter of this kind previous decisions are, on the whole, of very little assistance, because in every case where this plea is raised the necessary answer must depend almost entirely upon the facts of each particular case. Amongst the authorities cited by Mr. Talukdar was the case of Cheragali Bepari y. Satis Chandra Ghose, 1926 Cal 450. In that case the petitioners had on one occasion been tried under Section 193, I.P. C, and after a careful and exhaustive examination of the whole evidence were acquitted. Subsequently they were put on their trial under Sections 467 and 471 read with Section 120 B.I.P.C. As an outcome of these proceedings the matter came before this Court, where it was held by Suhrawardy, J., and Mukherji, J., that inasmuch as the facts on which the complaint had been founded, were inseparable from those upon which the previous case was proceeded with, the proceedings should be quashed. It appears from the judgment that the learned Judge came to the conclusion that the facts of the case with which they were then concerned, were wholly inseparable from the facts on which the previous case had proceeded. We do not in any way dissent from the principles which were applied in that case, and in so far as that case is of any assistance for our present purpose, it seems to apply against rather than for the contention put forward by Mr. Talukdar, because as far as we can see it is impossible to say that the facts of the present case are inseparable from those of the case previously brought against Mr. Taludar's client. It is necessary I think that I should state what were the charges previously made against those of the petitioners who are seeking to rely upon the protection afforded by Section 403, Criminal P.C.
36. Abdul Rahman, Din Mahammad and Amiruddin were prosecuted at Delhi on 6th January 1932 on charges under Section 120 B read with Section 9, Opium Act, as amended by the Punjab Act 3 of 1925, in respect of the export of five consignments of opium from Delhi and one consignment from Rajputana between the months of January and July 1930; they were also charged with Section 9, Opium Act, read with Section 109, I.P.C., in respect of possession of 4 mds. and 25-1/2 seers of opium which was conveyed by or was, at any rate, in the possession of a man named Mathews on 25th July 1930. Mathews was a witness in the present case, and it is said that he was one of the agents employed for the purposes of conveying opium from Delhi to Calcutta and possibly between other places. With regard to these charges against Abdul Rahaman, Din Mahammad and Amiruddin, it is to be observed that they were limited to certain definite operations which took place during certain period. The same, man Amiruddin was again charged with Din Mahammad on 19th February 1929 with being in possession of a quantity of cocaine, charash and opium on 20th November 1928 contrary to the provisions of S 9, Opium Act, and Section 46, Bengal Excise Act, and also with conspiracy to possess 'that quantity of drugs between 1st November 1928 and. 20th November 1928 in Calcutta. Both charges related to one and the same discovery of drugs.
37. Fazaldin of Amposta (Mr. Taludar's client) was charged jointly with Ali Azam Pundit, one of Mr. Huq's clients on 3rd December 1930, before the Chief Presidency Magistrate, Calcutta, with an offence under S 9, Opium Act, for having possession of 9 seers of opium on 11th August 1930 and under Section 46, Bengal Excise Act, in respect of a quantity of cocaine. They were convicted only in respect of the opium, under Section 9, Opium Act, and also for conspiracy to possess opium under Section 120-B, I.P. C, read with Section 9, Opium Act. There had been a charge laid against them under S 120-B, I.P. C, read with Section 9, Opium Act and Section 46, Bengal Excise Act, that is to say, conspiracy to possess opium between 27th May 1929, on 11th August 1930. Choonnoo Mia and Hafizar Rahaman, two of Mr. Daud's clients were charged in the year 1931 before the Police Magistrate at Alipore with charges under Section 9, Opium Act, in respect of possession of 29-1/2 seers of opium on 18th March 1931 at Choonnoo's house at Kidderpore. Choonnoo was convicted but Hafizar Rahaman acquitted. They were also charged under Section 120-B read with Section 9, that is to say, with conspiracy to possess a quantity of opium. Fazldin (described as brother of Golam Jelani deceased) another client of Mr. Huq, was charged on 17th December 1925, before the Chief Presidency Magistrate of Calcutta under Section 9, Opium Act, in respect of the possession of 35 seers of opium and also under Section 46, Bengal Excise Act, in respect of the possession of 37 ounces of cocaine which was found in the house of Golam Jelani who was convicted on his OWN plea of guilty, and Fazldin was discharged tinder Section 253, Criminal P.C.
38. It is of course the fact that all these charges which I have enumerated, were charges in respect of illicit dealings in drugs and in most of the cases there was a charge of conspiracy extending over short period of time and those periods of time were part of the period of time set forth in the charge of the present proceedings. It was therefore argued on behalf of Abdul Rahaman Amiruddin Fazldin Choonnoo Mia, Haflzur Rahaman, Fazldin and Ali Azam Pundit, that they had no previous occasions been convicted or acquitted, as the case might be, of conspiring with one or another of the persons who are now said to be parties to the larger and main conspiracy and have been invited to take the view that it was not open to the Crown to pick out two or three or more conspirators from a larger body of conspirators and charge them with offences which for all practical purposes were merely overt acts or as Mr. Camel very happily put it manifestations of the existence of the widespread conspiracy that argument has a great deal of force in it.
39. Nevertheless when one applies the criterion laid down by the precise words in Section 403 itself, it does not seem to us possible to say that any of these persons had on any previous occasion, either been charged with the same offence with which they are now charged or that they are now being charged with an offence founded on facts which are the same as those upon which the previous charges were founded. Having regard to a fact which Mr. Talukdar brought to our attention which is a decisive and dominating factor in the case, namely that the third statement of Rokunali was not in existence at the time when any of the previous charges were made can it be rightly said that at the time when the previous charges were made, the Crown was in a position to have made a charge against these persons identical with or even similar to the charge which was made in the present proceedings. In none of the previous cases was there any question of exporting opium out of India or importing cocaine into India, and it is crystal clear, in my opinion that the gravamen of the present charge was the international trafficking of opium and cocaine.
40. I have endeavoured to describe the nature of the vast conspiracy which at the trial, was proved to have existed. It is abundantly clear that the prime object of that conspiracy was to send opium out of India and to bring cocaine into India. If it were possible to conceive of an unlawful organization having the formal constitution of a limited liability company with a proper memorandum of association and articles of association no doubt in this case in the memorandum of association we should have found set out as two of the main objects for which the company was formed: one the exportation of the opium and secondly the importation of cocaine In these circumstances after giving the matter our very careful and anxious consideration we feel that we should not be justified in saying that the previous convictions to which I have referred in detail afford any protection to the persons relying on them by reason of the provisions of Section 403, Criminal P.C.
41. The learned Magistrate at the trial considered this point fully and carefully and the learned Sessions Judge has also given it his serious and careful attention. At page 6 of the print of his judgment he says
I shall now discuss the other law points, upon which the defence relies. The first of these was the claim by some of the appellants that their previous trial and conviction before a Court at Delhi before the Chief Presidency Magistrate and the Police Magistrate here have attracted the protection afforded by Section 403, Criminal P.C. Under the Evidence Act the burden of proving that claim rests upon the persons who will thereby profit. A perusal of the section shows that its intention is to protect any man from being tried twice on the same facts whether those facts would have justified a graver charge or a different one from that upon which he was tried or not.
42. Then he gives an example and continues:
The test is therefore whether the facts are the same or not whether an ordinary intelligent man using ordinary common sense which I take to be the measure of the legislature would on reading both charges infer that the facts were the same. If the matters common in both charges and pleaded in the second can be subtracted from the first without altering the substantial identity of it, it becomes obvious that they are not the same and Section 403 will not be attracted. We find here that the points of similarity between the two trials are much more apparent than real. Some of the individuals are the same, the offences laid are the same, but the conspiracies are different, the confederations are different and the times do not coincide.
43. Later on he says:
The section (Section 408) means what it says which is that a man is not to be put on his trial twice on the same facts even though they would justify other charges under other Acts or sections or interpretations.
44. At the end he says:
It prevents a man from being tried in Delhi and in Calcutta for the same conspiracy. But it does not save him from trial in either place for a conspiracy in either place unless he can prove that it was the same conspiracy.
45. There are definite findings of facts in this case that it was a different conspiracy, and those findings are not matters behind which we can go, and we must therefore accept the position that this was a different conspiracy at any time, in the sense of having an organisation and objects different from those charged in the previous case. We therefore hold that S 403, Criminal P. C, has no application to the present proceedings. The sixth point which has been put before us has reference to the admission of certain items of evidence namely, the accounts of Fazldin, which I have already mentioned and those of Amiruddin. Mr. N.K. Basu said that these accounts were not proved to be Fazldin's accounts or Amiruddin's accounts at all, and that from the mode in which they were presented to Court, they were not admissible in law.
46. These accounts have been discussed by the learned Sessions Judge at some length at p. 7 of the print of his judgment. He says:
The next law point taken by the defence was the admissibility of the accounts, the plea being that they do not conform to the Evidence Act. The crux of Section 10 is whether there is reasonable ground to believe that two or more persons have conspired together. There can be no doubt that the belief was reasonable. In other words the learned Judge says that there was a good ground for satisfying that there was conspiracy and therefore the accounts might be used as evidence against persons other than the conspirators who actually made the accounts or kept the account. The second impeachment was that the accounts were inadmissible and unreliable because they were not drawn up in the ordinary course of business, nor were they in regular form. The learned Judge says: If I say so there is here betrayed a certain casuistry. The ordinary course of business means the habit of any business at all not, merely of any honest business whether the irregularity of the entries is such as to destroy their reliability is a question of fact, but it was certainly never the intention of the legislature to rule that only accounts kept in a certain form are admissible. These particular accounts are drawn out to aid smugglers in breaking the law, and in disposing of the proceeds thereof, they were never to be the basis of a civil suit. The facts to which they related were a matter of common knowledge when only dates and sums were really necessary to keep on record to explain a certain balance to a partner, or an agent, or to a Selish. If they conveyed these facts to the parties, it was sufficient for their purpose and if it was sufficient for that, it is sufficient to infer their purpose from it.
47. In other words the learned Judge seems to have come to the conclusion that these accounts were kept by some of the conspirators for the purpose of recording transactions in which others of the conspirators were concerned. The accounts were used for the purpose of linking up one or other of the conspirators as parties to the general conspiracy. The question of the value as evidence of these accounts really seems to resolve itself into a question of fact. It is quite impossible for us to say that the accounts ought to have been excluded without undertaking a lengthy and detailed examination of the great deal of the evidence given in the course of the trial. We are of opinion that we must accept the learned Judge's View with regard to the accounts to all intents and purposes, as a finding of fact.
48. The same observation applies with regard to the argument very fully put forward by Mr. Camel. Counsel on behalf of Abdul Majid in Rule 956, Mr. Camel, referred us in detail to the items of evidence set forth by the learned Additional Sessions Judge as being sufficient in his opinion to sustain the conviction of that particular accused. Mr. Camel argued that the conviction had been upheld by the appellate Court below upon a consideration of evidence which was inadmissible and ought not to have been received in evidence at all and which in any event was not reliable. As regards one of the findings of the learned Additional Sessions Judge, Mr. Camel said that was based on no evidence whatever. We can only say with regard to Mr. Camel's argument... and with regard to all the other arguments put... forward on questions of fact, that as these are proceedings in revision we have not thought it right any challenge to the findings of facts of the two Courts below. It is clear to us that the learned Magistrate who tried this case fulfilled his task in a very able and conscientious, and careful manner. A tribute to him was paid by the learned Sessions Judge who heard the case on appeal. The learned Judge said:
He (i.e., Mr. Ghose) has conducted a trial of great size and difficulty very competently and fairly and written a judgment which had placed all material matters before me in an admirable way, fittingly bringing his 18 months work to a close.
49. We have read the judgment of Mr. Ghose, and we are therefore in a position to endorse what the learned Sessions Judge has said with regard to it, at all events to the extent of forming the opinion that the learned Magistrate at the trial did consider with great care the case of every single one of the accused persons, in order to ascertain whether or not they and which of them were members of the conspiracy which was the basis of the charge. Equally too the learned Sessions Judge adopted the very proper and right course of taking the case of each of the accused separately in order to ascertain whether the conviction of the 32 persons who were convicted by the Magistrate should be maintained or not. The learned Judge considered the case of each of the accused in the same order as that in which it was considered by the trial Magistrate and in the result as I stated at the outset the learned Sessions Judge came to the conclusion that he ought to set aside the conviction of seven out of the 37 persons who had been convicted by the Magistrate.
50. In our opinion after examining that part of the judgment of the learned Additional Sessions Judge which deals with the individuals cases, there was evidence on which the appellate Court below could come to the decision at which he is in fact arrived. It is not open to the petitioners in these revisional proceedings to ask us to estimate whether that evidence was sufficient or not. So far as the facts are concerned we must accept the findings of the Court below.
51. There is one point I ought to refer to in connexion with the conclusion of the learned Judge and it is this: Mr. N.K. Basu on behalf of Abdul Rahaman, complained that the learned Additional Sessions Judge upheld the conviction of that particular accused upon the basis of the oral evidence given against him by the first three of the prosecution witnesses. Mr. N.K. Basu voiced his grievance in no uncertain terms, because he said that he personally had been misled by an observation which fell from the learned Sessions Judge to the effect that he need not perhaps rely upon the evidence of the second and the third of the prosecution witnesses upon which Mr. Basu who was appearing for that particular appellant formed the opinion that it was unnecessary for him to address the learned Judge upon the matter of evidence given by those witnesses. It is impossible for us of course in the absence of further testimony on a point of this character to come to any conclusion as to how far the petitioner Abdul Rahaman might have been prejudiced by reason of the incident complained of by Mr. N.K. Basu. It seems to us that the learned Advocate must either have misunderstood what the learned Additional Sessions Judge said or attached greater importance to what he said than the occasion warranted. It may well be that any observation made by the learned Additional Sessions Judge with regard to the evidence of these two particular witnesses might have meant nothing or very little more than that the learned Advocate need not trouble to stress the nature or quality of the evidence given by these witnesses because they were in a sense accomplices and it may be well that the learned Sessions Judge might have only meant to indicate that he did not propose to rely upon those two witnesses save in so far as they were corroborated by other testimony or possibly save in so far as they were corroborated by the testimony given by the first witnesses. In order that Mr. Basu's client should have the satisfaction of knowing that the incident has not really prejudiced him we have looked into some of the other evidence against him, and we are quite satisfied that his conviction was warranted.
52. There is one more topic with which I desire to deal. The learned Additional Sessions Judge at the end of his judgment thought it right to animadvert on what he considered to be the inadequacy of the penalties provided under the existing law for offences in connexion with trafficking in dangerous drugs. The learned Additional Sessions Judge at page 23 of the print of the judgment says.
The very lucrative nature of the trade raises up for it allies everywhere, and it is not inconceivable that in the world financial stringency which now exists the less enlightened Governments within and without India might wink at a trade from which a great deal of Indirect revenue is brought into account while their own nationals are not much affected by the results.
53. Then he says:
The alternative seems to be to attack the trade itself on the lines of decreasing the profits and increasing its dangers and that entails a full dress campaign of adequate detection and adequate sentences.
54. At present even when prosecutions are made, and convictions are the result the maximum punishment is out of all proportion. In the 'Talma' case cocaine to the value of 7,500 was seized, but no one was caught. If any one had been convicted the sentence would have only amounted at most to two years and a fine of a couple of thousand rupees which compared to the sums noted in these exhibits is merely ridiculous. Two years would keep an individual smuggler out of business for that time but the fear of the fine would not persuade a single gang to suspend even one operation. When this case was being opened before us we made some comments out the gravity of the offences with which these persons were charged. The wholesale trafficking in drugs on the scale which seems to have taken place through the operations of the unlawful conspiracy of which these persons have been found to be the members, is not only a fraud on the revenue but is something far more pernicious having regard to the physical and mental effects which accrue from the use of these dangerous drugs, I am not at all sure that I should not be right in saying that any person, who habitually supplies drugs of this character for the use of other persons is almost as blameworthy as if he had committed murder. We entirely agree with the comments made by the learned Additional Sessions Judge with regard to the inadequacy of the penalties provided for both under the Opium Act 1878, and the Dangerous Drugs Act 1930.
55. It seems manifest on the face of it that the sentence of two years rigorous imprisonment imposed upon the persons found guilty is likely to exert only a very slight if any deterrent effect. I have given the reasons why in our opinion the learned Additional Sessions Judge was competent to superimpose and was justified in imposing the requirements with regard to the giving of security. We feel however that in some of these cases the amount of security required ought to be increased, Sub-section (4), Section 18, Dangerous Drugs Act provides that an order under this section may be made by an appellate Court or by the High Court when exercising its powers of revision. We have accordingly power to order any of these petitioners to execute a bond for such sums as we think might in order to bring about as far as possible that they shall abstain from the commission of offences punishable under Sections 10, 12, 13 and 14 of the Act, for a period of not exceeding two years. A point was raised that the accused in this case had been sentenced not under the section of the Opium Act of 1878 nor under the section of the Dangerous Drugs Act, but because this was a charge of conspiracy they were really sentenced under the provisions of Section 120 B.I.P.C. itself. But when one looks at that section one finds that no definite penalty is there provided and that in order to ascertain what the penalty in any particular case should be one has also to look at Section 109 I.P.C. and then to look at the relevant sections of the Opium Act and to those of the Dangerous Drugs Act. In these circumstances I think it would be unreasonable to hold that these persons have not been sentenced under the Dangerous Drugs Act. In that view of the matter Section 18, Dangerous Drugs Act, is applicable. We propose to mark our sense of the gravity of the offence of which these persons have now been found guilty and our approval of the course adopted by the learned Additional Sessions Judge and at the same time to endeavour to do something more to put a stop to this trafficking in drugs by varying the requirements with regard to the giving of security in an upward direction. With regard to Abdul Rahman, the petitioner in Rule 951, we think that he must be ordered to execute a bond for Rupees 10,000 with four different sureties. As regards Fazldin in 952 the amount should be increased from Rs. 5,000 to Rs. 8,000. In the case of Abdul Karim. the petitioner in Rule 955 the amount should be increased to Rs. 6,000; in the case of Abdul Majid the petitioner in Rule 956 the amount should be increased to Rule 1,000. In the case of Ibrahim Sadaghar, the petitioner in Rule 957, the amount should be increased from Rupees 3,000 to Rs. 5,000. In the case of Motiyar Rahman the petitioner in Rule 961 the amount should be increased from Rs. 500 to Rs. 1,000. In the case of Saleh Ahmed, the petitioner in Rule 963, the amount should be increased from Rs. 500 to Rs. 1,000 so also in the case of Abdul Rashid the petitioner in Rule 964 and Ali Azzam Pandit the petitioner in Rule 955 and lastly in the case of Yakubali, the petitioner in Rule 972 we, increase the amount from Rs. 500 to Rs. 1,000. We desire to say that we are much obliged to the learned Advocates who appeared for the petitioners in these cases for the able and clear way in which all the points were put before us; they have been of very great assistance to us; we are also much indebted to the learned Advocate General and Rai Bahadur Banerjee for the arguments they have put forward on behalf of the Crown. We have derived much assistance from the learned Advocates and the matter has been put before us in the way which has enabled us to deal with it expeditiously and I hope, satisfactorily. The result is that all these rules are discharged and that the order of the learned Additional Sessions Judge at Alipore with regard to the giving of security will be varied in the way we have indicated. The petitioners must surrender to their bail and serve out the sentence imposed upon them respectively. Rr. 953 and 973 were struck out at the beginning of the hearing as the petitioners are dead.
M.C. Ghose, J.
56. I agree.