1. In this rule, the District Magistrate of the 24-Perganas has been, called upon to show cause (1) why the conviction of, and the sentence passed upon, the petitioner Solomon Ezekiel in respect of charge No. 15 in the Gariahat Excise Conspiracy Case should not be set aside and (2) why the sentences passed upon both petitioners should not be reduced. Charge No. 15 is under Section 420, I.P.C., and relates to the sale of three bottles of liquor falsely labelled Miller Macpherson's House of Lords Scotch Whisky. The petitioner Solomon Ezekiel was originally convicted and-sentenced as follows:
(1) On charge No. 1 (criminal conspiracy) ... 2 yeara' R. I.
(2) On charge No. 3 (abetment of certain excise offences) ... 6 months' R. I.
(3) On charge No. 8 (Do) ... 6 months' R. I.
(4) On charge No. 12 (Do) ... 6 months' R. I.
(5) On charge No. 14 (attempt to cheat) ... 2 years' R. I.
(6) On charge No. 15 (cheating) ... 2 years' R. I.
2. The sentences on the last five charges were to be concurrent inter se, but consecutive to the sentence on the conspiracy charge. In appeal, the petitioner was acquitted on charges Nos. 8, 12 and 14, while his sentence on charge No. 15 was reduced to one year's rigorous imprisonment. The net result was to reduce the total effective imprisonment to be suffered by him from four years to three years. We are concerned in this rule first with the sentence on charge No. 15. The main ground urged on behalf of Solomon Ezekiel is that there is no evidence to connect him with the particular sale which forms the subject-matter of this charge. The sale was effected on behalf of Edward & Co., whereas the petitioner was the iSScretary of Davidsons Ltd., and was rot concerned in the management of Edward Co. There is however another aspect of the matter to be considered. It has been found in this case that there was a general conspiracy to cheat by selling faked liquor and of this conspiracy the petitioner has been found to have been one of the ringleaders. That is the basis of his conviction on charge No. 1 (Section 120-B, I.P.C., read with certain Sections of the Bengal Excise Act, 1909 and Section 420, I.P.C.), a conviction in respect of which no rule has been granted by this Court. Then we have the undoubted fact that in pursuance of this conspiracy, Subodh Bhattacharjee, another of the con. spirators, arranged the particular sale to which charge No. 15 relates. The question arises whether these two facts alone would not be a sufficient foundation for a conviction of the petitioner under Sections 420/109, I.P.C., in respect of this sale, even assuming that he had no other connexion with the sale than is implied by his participation in the general conspiracy. Whether the conviction is under Section 420, I.P.C., or under Sections 420/109, I.P.C., can make no substantial difference. We do not however consider it necessary to decide this point, in view of the order we are about to make on the question of sentence. On this question, it seems to us that since the petitioner's proved connexion with the specific offence is only through the general conspiracy and as he has already received a sentence of two years' rigorous imprisonment for his part in the general conspiracy, there should be no additional sentence on the cheating charge. We therefore direct that the sentence of one year's rigorous imprisonment passed in respect of charge No. 15 shall be concurrent with the sentence of two years' rigorous imprisonment on charge No. 1. This will not affect the sentence on charge No. 3, on which no rule has been granted and which will therefore continue to be consecutive to the sentence on the conspiracy charge. The result of the modification now made is to reduce the total effective imprisonment to be suffered by the petitioner Solomon Ezekiel to two years six months. We see no ground for any further reduction of his sentence; as already mentioned, he has been found to have been one of the ringleaders of the conspiracy.
3. As regards petitioner E.E. Gubbey, we notice that the only sentence now subsisting against him is in respect of charge No. 1 (criminal conspiracy), for which he originally received two years' rigorous imprisonment. The Appellate Court reduced the term to one year. The trying Magistrate's judgment gives details of his activities and warrants the Magistrate's conclusion that he was closely associated with a large number of illicit transactions of Davidsons Ltd. We are unable to accept the contention that he was nothing more than a 'cooly sirdar' and can see no justification for any further reduction of his sentence.
4. I agree.