1. This is an appeal by five persons, Jumman Bepari, Tasaddak, Hossain alias Bachu Mia, Mahammad Kurban Hossain, Tilla Mahmud Khan and E.St.C. Moss who have been convicted by the learned Additional Sessions Judge of Dacca sitting with a Jury under Section 46 of the Bengal Excise Act read with Section 120B, Indian Penal Code and sentenced to various terms of imprisonment and fine.
2. The case for the prosecution briefly is that the accused Moss who was a Sergeant in the Railway Police at Dacca went down to Calcutta ostensibly because his wife was ill but substantially in order to arrange for smuggling cocaine from Calcutta to Dacca and for that purpose he engaged in a conspiracy with the four other accused Bachu Mia, Kurban Hossain, Tilla Mahmud Khan and Jumman Bepari. In pursuance of this conspiracy one Kalu Mia who was a servant of the accused Moss set out for Dacca from Calcutta with a box which contained a quantity of cocaine. Bachu Mia who is one of the appellants went with him in the same train. When they arrived at a station called Tezgaon which is at a short distance from Dacca on the order of Bachu Mia Kalu got down from the train. Their movements were observed by one Azizar Rahaman, who is an Excise Sub Inspector. The box at Tezgaon was made over to one Jumman to be taken in a ghary. Jumman in whose possession the box was, was arrested at Tezgaon and the box was taken to the Station Master's room. There it was searched and a packet of cocaine was found in it which was placed on a table in the room. While the Excise Sub-Inspector proceeded to write the names of the witnesses a man snatched up the packet of cocaine and ran away. On these facts the accused were charged with committing an offence under Section 46 of the Bengal Excise Act read with Section 120B, Indian Penal Code, and were convicted as stated before. Mr. Pugh who appears for the appellants has raised a number of objections to the charge of the learned Additional Sessions Judge to the Jury. It is unnecessary to deal with all the points which Mr. Pugh has raised because two of them are fatal to the trial. Mr. Pugh's first argument is that the Judge has not explained the law to the Jury or rather that he has not set out in his charge how he has explained the law and, therefore, this Court is not in a position to say whether he has or has not correctly explained the law to the Jury. In dealing with this point the learned Judge observed as follows: 'Section 46, Excise Act, and Section 120B, Indian Penal Code, read and explained to the Jury.' This is all. Obviously it is impossible for this Court to determine from these words whether the law was or was not correctly explained. Mr. Pugh further contends that it is obvious that the law has not been properly explained because the learned Jadge does not even know how to correctly draw up a charge under Section 120B and that he could not have convicted the accused of an offence under Section 46 of the Bengal Excise Act read with Section 120B, Indian Penal Code. Mr. Bose who appears for the Grown argues that the law both of conspiracy and also in Section 46 of the Bengal Excise Act is so simple that it would be sufficient for the Judge to read out the sections to the Jury and that it does not require an explanation. I am prepared to admit that possibly Section 46 does not require much elaborate explanation. The Judge would have to explain to the Jury what an excisable article was and beyond this the section does not require much explanation. But I am not prepared to say that Section 120B is such a simple section that it would be sufficient to read out the section to the Jury without any further explanation. As has been pointed out in the case of Abdul Gafur Khan v. Emperor 71 Ind. Cas. 56 : 26 C.W.N. 996 : 35 C.L.J. 437 : A.I.R. 1922 : Cal. 192 : 24 Cr. L.J. 8 by my learned brother Walmsley, J., the law, no doubt, requires that the Judge should record only the heads of charge, but the learned Judge points out, as has been often explained in this Court, that the Judge must put down sufficient in the charge for this Court to ascertain whether he did or did not correctly explain the law to the Jury. This omission would of itself be sufficient to render a re-trial of the case necessary in the present case It is quite impossible to say whether the Judge did or did not correctly explain the law to the Jury.
3. Mr. Pugh has raised a further objection that the man Kalu is nothing better than an accomplice and that if so the learned Judge should have directed the Jury to consider whether or not Kalu was an accomplice and that if they considered Kalu to be an accomplice then it would be for the Jury to apply to his evidence the ordinary rules that are applied to the evidence of an accomplice. The Jury should have been warned that the evidence of an accomplice is unworthy of belief unless corroborated in material particulars and it should have been pointed out to them that although it was open to them to convict an accused upon an uncorroborated evidence of an occomplice it was, as a general rule, unsafe to do so. Looking on all the facts and circumstances of the case I think this point should have been put before the Jury, namely, whether Kalu was or was not an accomplice. The cocaine was alleged to have been found with Kalu. Kalu was the man who brought the cocaine from Calcutta. He admits that he was told by his master Moss to keep his mouth shut. And further when there was any difficulty about the box Kalu immediately made himself scarce. These facts would go to show that he had something to do with the transaction. I am not prepared to say that these facts must necessarily show that Kalu was an accomplice. But they must raise sufficient suspicion, I think, to render it necessary for the Judge to have put it to the Jury to consider whether Kalu was or was not an accomplice.
4. In the view of these circumstances it cannot be said that the Jury has been properly directed in the case. It is not necessary to deal now with the further points raised by Mr. Pugh, namely, that the charge although apparently covered two distinct offences is included in the single head of charge.
5. The conviction and sentences of the appellants must be set aside and they are ordered to be re-tried.
6. Such of the appellants as are already on bail will continue to remain on the same bail pending their re-trial.
7. I agree.