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TMI Blog1969 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ernardo Sas of Geneva are foreign collaborators. A-19 Hamad Sultan and A-37 Chunilal alias Professor Kamal alias Dwarkadas of Bombay were concerned in the smuggling of gold. A-20 to A-35 Mrs. Giscle Minot, B.J. Lupi, J.P. Hoffman, Jacques Minot, Geoffre Allan, M. Torrens, Mrs. Mora Margaret, Armand Yavercowaski, Gran Powell, G.J. Flamant, Mrs. A. Ramel, Mrs. S.B. Taylor, J.C. Catino, E.D. Gill, A.J. Mascardo and A.A. Grant are foreigners and are said to have carried gold from foreign countries to India by air. 3.The trial proceeded against A-6 to 17, A-36, A-38, A-39 and A-40. A-6 Lakshmandas is a financier. A-14 Parasuram is his 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 Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February 25, 1957, the second carrier B.J. Lupi and on March 9, 1957 the third carrier J.P. Hoffman came to Delhi. The fourth carrier Jacques Minot went to Colombo. Kochra and Rabiyabai financed the subsequent transactions and allowed the use of his telegraphic address "Nazneen". Cables used to be sent in codes known by the "Private Dictionary", "the new Geneva Code" and "the Beirut Code", and "the Bahrein Code." Laxmandas ceased to be a financier but he continued to participate in the disposal of gold. On April 8, 1957 the fifth carrier Mora Margaret went to Colombo. On April 19, 1957 the sixth carrier Geoffre Allan 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 Rabiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other accomplices, and witnesses and exhibited numerous documents. Yusuf Merchant, the main witness on behalf of the prosecution implicated all the appellants in the crime. The Courts below accepted his testimony, found that it was corroborated in material particulars, and convicted the appellants. 9.All the appeals were heard together. We shall note only those arguments which were raised in this Court by Counsel. Having regard to those arguments the following general questions affecting all the appellants arise for decision :- (1) was the import of gold in contravention of Section 8(1) of the Foreign Exchange 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. But the statutory fiction did not cut down the wide ambit of the notification or limit its application to imports and exports by sea and land only. An import of gold by air without the permission of the Reserve Bank was a breach of the notification, and the breach attracted to it the provisions of Section 167(81) of the Sea Customs Act, 1878. 13.The matter may be looked at from another point of view. When the Sea Customs Act, 1878 was passed, goods could be imported or exported by sea and land only. Transport by air was unknown. After the Second World War traffic by air began. There is a force in 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment may, by notification in the Official Gazette declare that any or all of the provisions of the Sea Customs Act, 1878, shall, with such modifications and adaptations as may be specified in the notifications, apply to the import and export of goods by air." Counsel for the respondent argued that (1) the notification dated March 23, 1937 continuing Part IX of the Aircraft Rules, 1920 was a sufficient declaration under Section 16; (2) Section 16 was a piece of conditional legislation, and by force of Section 16 and on the declaration being made the duty become leviable on goods imported and exported 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kets, mechanics concealed and removed gold from aircrafts and others helped in contacting the carriers and disposing of the gold. Yusuf, Pedro and Murad and Lakshmandas were permanent members of the conspiracy. They were joined later by Kochra, the Shuhaibar brothers and Lori and other associates. The original scheme was to bring the gold from Geneva. The nefarious design was extended to smuggling of gold from the Middle East. There can be no doubt that the continuous smuggling of gold sent by Pedro from Geneva during February, 1956 to February, 1958 formed part of a single conspiracy. The settlement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unications 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. 18.As to the fourth question it appears that Pedro Fernandez was a material witness. In 1959 he wrote a letter to Yusuf stating that he was willing to come 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds upon the uncorroborated testimony of an accomplice." Illustration (b) to Section 114 says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The combined effect of Sections 133 and 114 Illustration (b) is that though a conviction based upon accomplice evidence is legal the Court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that the corroboration should confirm all 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable was received by Kochra. The cable Z-745 was produced by PW 207 on April 4, 1962 after the examination of Yusuf Merchant had been concluded. An application for recalling Yusuf filed on the same date was rejected. A point was made that Kochra was prejudiced by the rejection of this application. Counsel suggested that Yusuf sent the cables Z-745 from Beirut and that this fact could be established if Yusuf was recalled for cross-examination. We shall assume that Yusuf despatched the cable. But the fact remains that the cable was received at "Nazneen". It was an intimation 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 informin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances under which Nazneen came to be registered. 27.The material on the record clearly established the connection of Kochra with the conspiracy and materially corroborates the testimony of Yusuf Merchant. The Courts below rightly convicted Kochra. Case of Accused No. 12 Maganlal Naranji Patel (Criminal Appeal No. 140 of 1966) 28.The prosecution case is that since May 3, 1957 Maganlal was buying the smuggled gold from Yusuf Merchant and that when consignments of gold bearing the mark "chaisso" and having the fineness of about 99.99 came from Beirut, Yusuf 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 Mohame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le story. Rafique himself did not say that his other name was Kedar. Thumb impressions of the workers used to be taken on the muster roll of the refinery but that document was not produced and the identity of Rafique with Kedar was not established. The High Court rightly held that Kedar and Rafique were different persons. The High Court made a new case for the prosecution and held that Rafique might have melted the gold towards the latter part of December, 1958. Mr. Khandelwala frankly stated that he could not support this finding. In this Court Mr. 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te each other in such a manner as to render previous concert highly improbable." If several accomplices simultaneously and without previous concert give a consistent account of the crime implicating the accused the Court may accept the several statements as corroborating each other, see Haroon Haji Abdulla v. State of Maharashtra - 70 Bom. L.R. 540, 545. But it must be established that the several statements of accomplices were given independently and without any previous concert, see Bhuboni Sahu v. The King - L.R. 76 I.A. 146, 156-157. 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 concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered for the purpose of the smuggling activities only. It does not appear that any cable relating to any legitimate business was received by Lakshmandas at this telegraphic address. 40.The third carrier J.P. Hoffman arrived in Delhi. The contact of Lakshmandas with this carrier is clearly established. Ex. Z-64 is a cable dated March 6, 1957 from Yusuf to Pedro stating that he was awaiting the party at Hotel Marina in Delhi and that the code name was captain. The passenger manifest of the Indian Airlines Corporation (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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