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Nirmal Chandra De Vs. King-emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1927Cal265
AppellantNirmal Chandra De
RespondentKing-emperor
Cases ReferredAmrita Lal Hazra v. King
Excerpt:
- .....were not produced at any of the meetings and there is no evidence on the record that the second accused possessed those arms and ammunition at the time when negotiations were taking place between the parties. on these facts it is argued that the offence of conspiring to possess firearms has not been made out. it is contended that there must be some definite property about which the parties were1 negotiating or which they had conspired1 to possess. this in our judgment is not the correct view of the law. an offence under section 120b consists in the conspiracy without any reference to the subject-matter of the conspiracy.5. criminal conspiracy consists in the agreement of two or more persons to commit an offence punishable by law. it is undoubtedly true that the law does not take.....
Judgment:

1. In this case the accused Nirmal Chandra De alias H.K. Roy has been convicted under Section 19(f) of the Arms Act read with Sections 120B and 116, I.P.C., and sentenced to nine months rigorous imprisonment. The case for the prosecution, shortly put, is that the Accused Nos. 3 and 4 (who is the present appellant) entered into a conspiracy to possess firearms and ammunition and negotiated with Accused No. 2, a Chinaman, for the purchase of some eight pistols and ammunition. There were several meetings between the second accused, and the third and the fourth accused but the actual sale, for some reason or other, did not take place. Some portion of the price was advanced to the second accused but further negotiations broke off because either they could not come to terms or that the accused persons expected some people to come from outside and take delivery of the pistols but they did not come in time. The evidence in the case mainly consists of police officers and spies. In a case like this it is difficult for the prosecution to secure outside and independent evidence. The prosecution has to depend upon evidence of people who are engaged in detecting crimes of this sort. In a case like this therefore the evidence of such persons should be scrutinized and received with a great deal of caution. We have gone through the evidence and have considered all the submissions made on behalf of the appellant by the learned vakil appearing for him, and we have come to the conclusion that, so far as evidence goes, it has to our satisfaction established the occurrence as related by the prosecution.

2. The first objection taken to the conviction is with regard to the insufficiency of evidence relating to identification. The two superior police officers engaged in this matter no doubt were unable to identify the accused because they were hiding themselves in a room from where the accused could not be seen. But the other evidence on the record satisfactorily establishes the identity of the accused. In this connexion the statement of the accused must also be taken into consideration. The occurrence took place in a house in Bow Street and he admits that on the day of occurrence he was taken by the other accused who, according to him, asked him to wait within the square near the house and himself went inside the house. The presence of the accused near the place of occurrence and at about the time at which the occurrence took place is particularly admitted.

3. It is next argued that the conviction ought to have been under Section 22 of the Arms Act and not under Section 19(f). That section says that whoever knowingly purchases any arms, etc., etc., or delivers any arms, etc., etc., etc, into the possession of any person without previously ascertaining, etc., etc., The learned Chief Presidency Magistrate is right in his view that this section deals with persons without licenses dealing with licensed vendors or purchasers or with persons with licenses dealing with unlicensed vendors or purchasers. It is therefore not applicable to the present case.

4. The real question that arises in this case and requires consideration is whether on the facts found by the learned-Magistrate an offence under Section 19(f) read with Section 120B, I.P.C., has been made out. The facts found are that the accused with another person (Accused. No. 3) went to a place and met the second accused for the purpose of purchasing from him arms and ammunition. The arms and ammunition were not produced at any of the meetings and there is no evidence on the record that the second accused possessed those arms and ammunition at the time when negotiations were taking place between the parties. On these facts it is argued that the offence of conspiring to possess firearms has not been made out. It is contended that there must be some definite property about which the parties were1 negotiating or which they had conspired1 to possess. This in our judgment is not the correct view of the law. An offence under Section 120B consists in the conspiracy without any reference to the subject-matter of the conspiracy.

5. Criminal conspiracy consists in the agreement of two or more persons to commit an offence punishable by law. It is undoubtedly true that the law does not take notice of the intention or the state of mind of the offender and there must be some overt act to give expression to that intention. It was observed in the case of Mulcahy v. The Queen [1868] 3 H.L. 306 by Willes, J., as follows:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable, when two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contractum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.

6. This dictum has been accepted as good law. The overt act therefore, in a case of conspiracy consists in the agreement of the parties and this is the view which has bean adopted by the Indian Legislature in the definition of 'conspiracy' as given in Section 120A I.P.C., in which the proviso says that:

no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

7. This definition excludes the agreement to commit an offence from the category of such conspiracies in which it is necessary that the agreement should be followed by some act.

8. This view was taken also in the case of Amrita Lal Hazra v. King-Emperor [1915] 42 Cal. 957, where the accused was charged with conspiracy to possess explosive substances under Section 120B I.P.C., and Section 4 of the Explosive Substances Act (6 of 1908). It was there, as here, argued that the explosive substances not being in existence, the charge was bad. Their Lordships after an exhaustive consideration of the authorities observed that where the illegal act charged under Section 120B is the unlawful and malicious possession of explosive substances, it is not essential to specify in the charge the explosive substance which the accused have conspired, to have in their possession or under their control; and that a person may be guilty of criminal conspiracy oven though the illegal act, which he has agreed to do, has not been done, for the 'crime of conspiracy' consists only in the agreement or confederacy to do an illegal act by legal means or a legal act by illegal means. The third and the fourth accused having, according to the finding of the Magistrate, conspired to possess firearms, it is not necessary for the prosecution to specify in the charge or to prove that they conspired to possess any particular firearms. This objection, therefore, is overruled.

9. It is contended next that the learned Magistrate was wrong in taking into consideration the statement of the second accused which was an admission of his guilt implicating the present appellant. It doss not appear from a perusal of the learned Magistrate's judgment that he has placed reliance upon the statement made by the second accused because though it was a confession of his guilt he refused to accept it and proceeded with the trial against that accused also and in his finding against the present appellant he has nowhere relied upon the statement of the second accused. Besides we are not convinced that the statement made by the second accused in Court implicating himself as well as the other accused could not be taken into account} in considering the guilt of the latter.

10. We have been asked by the learned vakil for the appellant to treat the appellant under Section 562, Criminal P.C., as this was his first offence and he is said to belong to a respectable family. Under other circumstances we would have been induced to extend the provisions of Section 562 to the accused in consideration of the fact that he belongs to a respectable family and that he is a law student; but considering the nature of the crime we are not disposed to do so. It is a very serious offence for a citizen to possess-firearms without a license. The very act itself may not be very serious but it may lead to serious consequences.

11. We are lastly pressed to consider the sentence passed on the accused. The maximum punishment under the section is three years rigorous imprisonment and as the offence was not complete the learned Magistrate has in view of Section 116, I.P.C., sentenced the accused to one-fourth of the maximum punishment, namely, nine months. We have given our best consideration to the facts of this case and we do not think that it is a proper case in which we should interfere with the sentence. The accused was trying to get hold of 8 pistols with ammunition for some mofussil party. He has not succeeded in his attempt; and we do not know how the weapons were intended to be used.

12. The appeal is accordingly dismissed.


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