TMI Blog1969 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... r remittances of funds by Yusuf. Each conspirator profited from the general scheme and each one of them played his own part in the general conspiracy. The privilege was not properly claimed under Section 124. It is difficult to say that the other cable addresses and cables were communications to a public officer in official confidence. However, we find that the other addresses and cables were required in connection with investigations unconnected with the present case and did not relate to any person or persons concerned in the offences for which the appellants were being tried. The other cables and cable addresses were not relevant to the defence, and their non-disclosure has not occasioned any failure of justice. The defence did not produce any letter from Pedro or any other material indicating that he was willing to be examined on commission. Even his address was not given. The Court could not issue a roving commission to a Court or authority either in Switzerland or in United Kingdom or in Pakistan. The application was not made in good faith and was liable to be rejected on this ground alone. There was no affidavit from Ali nor was there any other material showing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is brother-in-law. A-7, Rabiyabi Usman alias Grandma is the mother of A-9 Rukaiyabai Mohamed Hussain Kochra, A-10 Abidabai Usman and A-38 Hassan Usman. A-8 Kochra is the husband of A-9. A-11 Murad Asharnoff remitted funds to foreign countries. A-12 Maganlal Naranji Patel and A-13 Mafatlal Mohanlal Parekh are bullion merchants of Bombay. A-15 N.S. Rao, A-16, N.B. Mukherji, A-17 Timothy Miranda, A-39 D.K. Deshmukh and A-40 Jacob Miranda alias Tambaku were mechanics in the employ of the Air India International. A-36 Francis Bello was a co-conspirator. The Additional Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay, acquitted A-9, 10, 13, 39 and 40 of all the charges. He convicted A-6, 7, 8, 11, 12, 14, 15, 16, 17, 36 and 38 of criminal conspiracy and substantive offences under Section 167(81) and passed sentences of imprisonment and fine. 4.All the convicted persons filed appeals in the High Court. During the pendency of the appeal A-11 absconded. The High Court upheld the convictions of A-36 and A-7 but directed that A-36 be released on probation and that A-7 do pay a fine of ₹ 4,000 and undergo simple imprisonment for a day only. The High Court dismissed the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on May 3, 1957 the seventh carrier came to Bombay. At about this time A-12 is said to have joined this conspiracy. On May 21, 1957 the 8th carrier Grant Powell came to Delhi. On June 9, 1957 the ninth carrier Mora Margaret and on June 24, 1957 the tenth carrier Armand Yavercowaski came to Bombay. On July 8, 1957 the 11th carrier Grant Powell came to Calcutta. A-37 Chunilal who was despatched to contact the carrier disappeared with the gold. Thereafter the smuggling of gold stopped for sometime. 7.In August, 1957 Yusuf and A-38 Hassan representing Kochra and Rabiyabai went to Beirut and induced A1 to A3 Jamal Shuhaibar and his two brothers to join the conspiracy. The scheme was that the Shuhaibar brothers would send gold from the Middle East, Kochra and Rabiyabai would remit the necessary fund and that A-19 Hamad Sultan would have an interest in the venture. Pedro also came to Beirut. Accounts between him and Yusuf were settled. It was decided that Pedro would continue to send gold from Switzerland, that Kochra and Rabiyabai would supply the necessary finances and that Pedro would receive a half share of Yusuf's profits in the smuggling of gold from the Middle East. Betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation Act, 1947 punishable under Section 167(81) of the Sea Customs Act, 1878; (2) did the prosecution establish the general conspiracy laid in charge No. 1; (3) did the learned Magistrate wrongly allow a claim of privilege in respect of the disclosure of certain addresses and cables and if so, with what effect; (4) did he wrongly refuse to issue commission for the examination of Pedro Fernandez; and (5) did he wrongly refuse to recall PW 50 Ali for cross-examination? 10.As to the first question, the law since the passing of the Customs Act, 1962 admits of no doubt. The import and export of goods by sea, land and air may be prohibited absolutely or subject to conditions under Section 11. Customs duties are leviable under Section 12 on all goods so imported or exported. The fraudulent evasions of duties and of prohibitions are punishable under Section 135. 11.In the present case we are concerned with the law in force before 1962. The Sea Customs Act, 1878 contained a number of prohibitions on imports by land or sea (Section 18) and authorised the imposition of further prohibitions and restrictions on import or export by sea or by land (Section 19). The Act also provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention that the import or export by air is a species of import or export by land. The aircraft carrying goods lands or takes off from land. The prohibition or restriction on the import or export of goods by land is a prohibition or restriction on the import or export by aircraft, landing or taking off from land. A fraudulent evasion of the restriction imposed by the notification under Section 8(1) of the Foreign Exchange Regulation Act, 1947 was punishable under Section 167(81) of the Sea Customs Act, 1878 and a criminal conspiracy to evade the restriction was punishable under Section 120B of the Indian Penal Code. 14.In this connection a question arose whether Customs duty was leviable on imports and exports by air and whether a fraudulent evasion of the duty was punishable under Section 167(81). The Sea Customs Act, 1878 and the rules and notifications made thereunder set up a complete machinery for the levy of Sea Customs duties. Section 20 provided for a levy of Customs duties on goods imported or exported by sea. Payment of the duty was enforced by compelling all foreign trade to pass through certain ports. Drastic powers were given for detection, prevention and pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by air, and a fraudulent evasion of duty became punishable under Section 167(81) of the Sea Customs Act, 1878. We do not think it necessary to express any opinion on these questions having regard to our conclusion that a fraudulent evasion of the restriction imposed by Section 8(1) of the Foreign Exchange Regulation Act, 1947 was punishable under Section 167(81). 15.As to the second question the contention was that the evidence disclosed a number of separate conspiracies and that the charge of general conspiracy was not proved. Criminal conspiracy as defined in Section 120A of the I.P.C. is an agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. The agreement and the breach attracted to it the provisions of Section 167(81) of is the gist of the offence. In order to constitute a single general conspiracy there must be a common design and a common intention of all to work in furtherance of the common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of account between Yusuf and Pedro at Beirut did not end the original conspiracy. There can also be no doubt that the smuggling of gold from Beirut by the Shuhaibar brothers and from Bahrein by their agent Lori were different phases of the same conspiracy. The main argument was that the despatch of gold from Geneva was the result of one conspiracy and that the despatch of gold from the Middle East was the result of another separate and unrelated conspiracy. The Courts below held, and in our opinion rightly, that there was a single general conspiracy embracing all the activities. Pedro had a share in the profits of the smuggling from Geneva. He got also a share of Yusuf's profits from the smuggling of the Middle East gold. Apparently Shuhaibar brothers and Lori had no share in the profits from the smuggling of the Geneva gold but they attached themselves to the general conspiracy originally devised by Yusuf and Pedro with knowledge of its scheme and purpose and took advantage of its existing organisation for obtaining finances from Kochra and Rabiyabai and for remittances of funds by Yusuf. Each conspirator profited from the general scheme and each one of them played his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India and to be examined as a witness. The prosecution tried to contact him but his whereabouts could not be traced. On April 18, 1962 the defence applied for the issue of a commission to the appropriate authority or Court either in Switzerland or in United Kingdom or in Pakistan for examination of Pedro Fernandez and Gimness as witnesses for the defence . Except stating that the defence undertook to pay all expenses and supply all relevant information, the application did not give any other particulars. The learned Magistrate rejected the application. He held and in our opinion rightly that the application was misconceived and proper grounds for the issue of the commission under Section 503 of the Code of Criminal Procedure had not been made out. The defence did not produce any letter from Pedro or any other material indicating that he was willing to be examined on commission. Even his address was not given. The Court could not issue a roving commission to a Court or authority either in Switzerland or in United Kingdom or in Pakistan. The application was not made in good faith and was liable to be rejected on this ground alone. 19.As to the last question, we find that exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another, see Bhiva Doulu Patil v. State of Maharashtra - (1963) 3 S.C.R. 831, R. v. Baskeville - (1916) 2 K.B. 658. In this light we shall examine the case of each appellant separately. Case of Accused No. 8 Mohamed Hussain Umar Kochra (Criminal Appeal No. 139 of 1966) 22.Yusuf Merchant deposed that Kochra and his mother-in-law, A-7 Rabiyabai acted as financiers after the fourth transaction, that Kochra's cable address Nazneen at 19 Erskine Road and his telephone was used in connection with the gold smuggling activities. The arrangement was that cables addressed to Nazneen would be received at No. 19, Erskine Road and would then be forwarded to the Warden Road residence of Rabiyabai or the Napean Sea Road residence of Kochra and that on receiving phone messages Yusuf would collect the cables. Yusuf's testimony has been corroborated in material particulars. 23.Kochra's mother resided at 10, Erskine Road, 4th floor, Esmail Building, Bombay-3. Exhibit Z 70 dated February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the safe arrival of Rukiyabai at Beirut and was obviously meant for her husband. The Courts below rightly held that the cable was received by Kochra, and that there was no substance in the defence case that he was not aware of the existence of Nazneen. The rejection of the application for recalling Yusuf did not prejudice Kochra. 25.The carrier Grant Powell arrived in Calcutta on November 3, 1957 and was arrested. PW 127 Chandiwala and Jagbandhudas were sent to Calcutta to contact the carrier. Yusuf's brother PW 50 Ali also went to Calcutta. On November 6, Ali sent a telephone message to Kochra informing him of a message from Chandiwala that there was a raid in his room by the Customs officials and that the carrier had not come. Kochra received the message on his telephone No. 72328 at his residence. Exhibit Z-459 dated November 7, 1957 is a copy of the bill for his telephone call. Thereafter Kochra contacted Chandiwala on the telephone and assured him that nothing would happen and asked him to return to Bombay immediately. On November 7, 1958 Ali sent a phone message to Kochra at his telephone No. 72328 informing him that Chandiwala was returning to Bombay. Exhibit Z ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Merchant and Maganlal had the gold melted in the silver refinery of PW 127 Chandiwala at Bandra by his employees Bahadulla and Shankar in December, 1957 and Ram Naresh and Mohamed Rafique in February, 1958 with a view to remove the mark chaisso and to reduce the fineness of the gold. The mark chaisso and the 99.99 fineness indicated that the gold was of foreign origin. The object of melting the gold and reducing the fineness was to destroy the tell-tale evidence of its origin. For the purpose of implicating Maganlal the prosecution relied on the testimony of PW 2 Yusuf Merchant, PW 127 Mohamed Chandiwala and PW 68 Mohamed Rafique. It is common case that Yusuf and Chandiwala are accomplices. The question in issue is whether PW 69 Mohamed Rafique was also an accomplice. The two Courts held that Rafique was not an accomplice but we are unable to agree with this finding. The melting was done late in the night after normal working hours. The melting of gold in the silver refinery was unusual. On no other occasion gold was melted in the refinery. Rafique was asked to keep the matter secret. For two hours' secret work, he got about ₹ 10 though his daily wage was ₹ 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khandelwala maintained that the gold was melted by Rafique in February, 1958 and that Rafique was also known as Kedar. For the reasons given above, we are unable to accept this case. In our opinion, Criminal Appeal No. 140 of 1966 should be allowed and accused No. 12 Maganlal Naranji Patel must be acquitted of all the charges. Case of Accused No. 16 N.B. Mukherjee (Criminal Appeal No. 141 of 1966) 30.Mukherjee was the Engineer-in-charge of Group A base maintenance. According to the prosecution Mukherjee was responsible for removing gold from aircrafts bringing gold from the Middle East. PW 2 Yusuf Merchant, PW 49, Maxie Miranda, PW 129 C.B.D'Souza, PW 143 Bhide and PW 148 Zahur, implicated Mukherjee. All these witnesses are accomplices. The High Court found that their evidence has been corroborated in material particulars from independent sources. We are unable to accept this finding. Mr. Khandelwala argued that the following circumstances corroborated the evidence of the accomplices :- (1) the reference to Mukherjee in Ex. Z-209, a letter dated July 8, 1958 from Lori to Yusuf, and Ex. Z-226, a letter dated August 16, 1958 from Bello to Yusuf; (2) Mukherjee's leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case the Rani of Jhansi was searched on February 2, 1959. Yusuf gave the first statement on February 3, 1959. He did not then implicate Mukherjee. Maxie Miranda gave his statement on February 4, 1959 implicating Mukherjee. No other accomplice made a statement on that date. There was ample opportunity thereafter for the accomplices meeting together and conspiring to implicate Mukherjee. On February 8, 1959 C.B. D'Souza, Bhide and Yusuf made separate statements implicating Mukherjee. On June 27, 1959 Zahur made a similar statement. These statements cannot be regarded as having been made independently and without any previous concert and do not amount to sufficient corroboration of the accomplice evidence. 34.On February 11, 1959 Bello made a confession implicating Mukherjee. At the trial he retracted the confession. Under Section 30 the Court can take into consideration this retracted confession against Mukherjee. But this confession can be used only in support of other evidence and cannot be made the foundation of a conviction, see Bhuboni Sahu's case (L.R. 76 I.A. 146, 156) page 156. It cannot be used to support the evidence of the other accomplices. 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration (Ex. Z-566) shows that A-14 P.T. Kanel the brother in law of Lakshmandas travelled from Bombay to Delhi by flight No. 125/66 on March 7, 1957. The reservation chart Z-566A shows that the reservation for Kanel was made from telephone No. 70545 of Lakshmandas. The register of Hotel Marina, New Delhi, Ex. Z-65 shows that Kanel arrived at the hotel on March 8, 1957 at 7.30 A.M. and occupied Room No. 22. At the hotel Kanel declared that Thamba Chetty Street, Madras, was his permanent address, though in fact he had no such address at Madras. The telephone register of Marina Hotel Ex. Z-65C shows that on March 8, Kanel attempted to contact telephone No. 70545 but the call was cancelled. The passenger list of Indian Airlines Corporation Ex. Z-567A shows that a seat was booked for Bhatia by plane from Bombay to Delhi and the manifest shows that he travelled by the plane on March 9, 1957. The manifest of K.L.M. Airways Ex. Z-489 shows that Hoffman travelled by plane from Geneva and arrived at Palam Airport, New Delhi, on March 9. The register of Hotel Marina Ex. Z-66 shows that Hoffman arrived at the Marina Hotel on March 9, at 1.40 A.M. and occupied Room No. 39. The bill of Hotel M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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