http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: JAMATRAJ KEWALJI GOVANI

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 04/04/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SIKRI, S.M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  178            1967 SCR  (3) 415  CITATOR INFO :  R          1973 SC 799  (18)

ACT: Criminal  Procedure  Code, 1898, s.  540-witness  called  by court at instance of prosecution after defence case  closed- witness  deposing  to reasonable belief necessary  under  s. 123, Customs Act, 1962, for offence under s. 135 that  goods were  smuggled-whether  calling such witness at  that  stage permissible-whether essential for just decision in the case.

HEADNOTE: Upon a warrant issued under s. 105 of the Customs Act, 1962, the  appellants’ shop was searched and a number of  watches, clocks,  etc., were seized.  As he could not prove that  the goods  had borne the necessary customs duty,  the  appellant was  prosecuted on two counts under ss. 135(a) and 13 5  (b) of  the Customs Act, 1962.  The appellant did not  lead  any evidence in his own behalf.  He filed a written statement in which  he  claimed,  inter alia, that no  offence  had  been disclosed against him as under s. 123 of the Act the  burden would  have  been on him to prove that the goods  had  be-en customed provided the goods had been seized under the Act in the  reasonable belief that they were smuggled goods but  no witness  had  deposed to such belief.  The  day  after  this statement  was  filed,  the  prosecution  applied  for   the examination of the Customs Officer who was in charge of  the search  as  a  court witness in  the  interest  of  justice. Although this application was opposed by the appellant,  the Magistrate  ordered the examination of the officer under  s. 540 of the Code in the course of which he stated that he had seized  the watches in the reasonable belief that they  were smuggled.   The appellant was thereafter examined again  and was  given  an opportunity to lead defence evidence  but  he stated that he had nothing further to add and no evidence to lead.   The, trial court then convinced the appellant  under Sections  135(a)  and 135(b).  An appeal to the  High  Court against this conviction was dismissed. In  the appeal to this Court by special leave, the  question for  determination was whether the evidence of  the  officer was  improperly  received by the Magistrate and  whether  if excluded the conviction of the appellant could be supported.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

It was contended an behalf of the appellant that the. powers under  s.  540, however wide, must be  reconciled  with  the mandatory  requirements  of  Chapter  21  laying  down   the procedure of trial of warrant cases by Magistrates and  that as  the  trial bad gone through the various stages  and  had reached the stages of s. 258, the court could either  acquit or  convict  him;  it  was  therefore  submitted  that   the Magistrate had really allowed the prosecution to fill a  gap in  the.  case which had the effect of dispensing  with  the burden which was on the prosecution to prove the case  under ss.  135(a)  and (b) of the Custom Act and  of  placing  the burden upon the appellant to rebut the presumption that  the goods were smuggled; HELD : Dismissing the appeal, The  contention that Chapter 21 must limit the powers  under Section  540 must be rejected.  Offences under the  Code  of Criminal Procedure are 416 tried  in  different ways according to their  gravity.   The trials in the Magistrate’s courts the High Courts and Courts of  Session as well as summary trials have  their  procedure laid down from one step to another till the state is reached for  acquittal or conviction.  If the argument  advanced  on the basis of the procedure laid down in Chapter 21 was to be accepted,  there would be no room for the exercises  of  the power under s. 540 because it would always be impossible  to fit  it  into  any chapter without  doing  violence  to  the sequence established there. [419H-420B] In  the  present  case  the trial  Judge  appeared  to  have exercised  power conferred on him under the second  part  of section  540 i.e., to admit the evidence of the  officer  as essential to the just decision of the case.  As die  Section stands,  there  is no limitation on the power of  the  court arising  from the stage to which the trial may have  reached provided the court is bona fide of the opinion that for  the just  decision of the case steps authorised by  the  Section may be taken. [420D-E] It  was  obvious that a just decision in  the  present  case required  finding  whether the watches,  etc.,  seized  were smuggled  or  not.   The  circumstances  already  on  record clearly  established  that  some one must  have  seized  the watches  entertaining a belief that they were  smuggled  and this  belief  obviously was entertained by  the  Officer  in charge  of  the search.  This was not a case  in  which  the prosecution was trying to fill a gap in its case.  The court was  right  in  thinking that a just decision  of  the  case required  that  the nature and the plea  underlying  seizure should be before it on oath of the person making the seizure so  that the appellant might be required, as the  policy  of the  Customs  Act,  1962 requires,  to  prove  his  innocent possession. [423F-H] Case law discussed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  217 of 1966. Appeal  by special leave from the judgment and  order  dated September  16,  1966 of the Bombay High  Court  in  Criminal Appeal No. 1349 of 1965. R.   Jethamalani, N. H. Hingorani and K. Hingorani, for  the appellant. D. R. Prem and S. P. Nayyar, for the respondent. The judgment of the Court was delivered by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

Hidayatullah,  J. On November 16, 1964, the shop of the  ap- pellant  Govani  situated  in  Suklaji  Street,  Bombay  was searched  by the Enforcement Branch of the Reserve  Bank  of India.  Nothing incriminating from the point of view of  the Reserve  Bank  was found in the shop but a large  number  of watches,  clocks, cigarette lighters, cameras,  transistors, tape  recorders,  etc.,  were found.  The  officers  of  the Enforcement  Branch  appear  to have  informed  the  customs authorities.   The Assistant Collector of Customs  thereupon issued a warrant for the search of the premises under S. 105 of the Customs Act, 1962.  This warrant was made out in  the name  of Preventive Additional Chief Inspector R. C.  Dutta, Preventive  Inspector  P.  N.  Ramchandani  and   Preventive Officers  Ranade,  Thakur and Menon.  It was stated  in  the warrant that there were                             417 reasons to believe that prohibited and dutiable goods liable to  confiscation  and documents and things  useful  for  and relevant to the proceedings were secreted in the shop.   The officers  were accordingly charged with the duty  to  search and seize such prohibited and dutiable goods, documents  and things in the shop under S. 110 of the  Act.  The search was effected and the goods above mentioned were seized.  Some of the  watches  were returned as they were old and  given  for repairs.   The other watches were seized.   Proceedings  for the confiscation of the goods and for penalties were started by Dutta and a summons under s. 108 of the Act was issued to Govani.   He  could not prove that the goods had  borne  the necessary  customs  duties.   The  Additional  Collector  of Customs,  Bombay thereupon sanctioned his prosecution  under S. 135(b) of the Act. The trial took place before the Presidency Magistrate  (19th Court),  Bombay.  Govani was charged on two  counts,  under. 135(a) and S. 135(b) of the Customs Act, 1962.  Two witness- es were examined at the trial.  Preventive Officer, Customs, Ranade  deposed to the seizure of the goods.  As the  search was under the direction of Dutta, Ranade admitted in  cross- examination  that he was told by Dutta that information  had been  received  that  Govani had  secreted  some  contraband articles in his shop.  He admitted that Dutta decided  which of  the  watches  were to be seized and  which  were  to  be released.  Ranade, however, stated that he had asked  Govani to  produce bills regarding the watches but Govani  produced none.  He had also asked Govani to produce the account books but  Govani again did not produce any. -The  second  witness Nanvani only proved the seizure of the contraband goods  and the exhibits in the case.  He was not cross-examined. Govani did not lead any evidence in his own behalf.  He  was examined under S. 342 of the Code of Criminal Procedure  and admitted  that he had neither imported the watches nor  paid customs  duty on them.  He stated that he had purchased  the watches from certain customers, sometimes one and  sometimes two  or  three from the same customer.  He  had  no  defence evidence  to lead but filed a written statement and  claimed that  no  offence  had been disclosed  against  him  in  the prosecution  case as laid before the court.  He analysed  S. 135  of the Act and stated that the gist of the offence  was that he should have known or have had reason to believe that the contraband goods had not been customed.  He stated  that under  S. 123 of the Act, the burden would have been on  him to prove that the goods had been customed provided the goods had been seized under the Act in the reasonable belief  that they were smuggled goods but no witness had deposed to  such belief.   This  statement was filed on July 15,  1965.   The following  day, the prosecution applied for the  examination

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

of Dutta, Inspector of Customs, Bombay as a court witness in the interests of justice.                             418 This  application  was opposed by Govani.   The  Magistrate, however,  by  his  order dated July 26,  1965,  ordered  the examination of Dutta under s. 540 of the Code.  Dutta stated that he had seized the watches in the reasonable belief that they  were smuggled.  Govani was thereafter  examined  again and  was given an opportunity to lead defence evidence.   He stated  that  he had nothing further to add and  no  defence evidence  to  lead.  The Magistrate. after  considering  the arguments,  convicted Govani under ss. 135(a) and 135(b)  of the  Customs  Act  awarding him a  sentence  of  one  year’s rigorous imprisonment and a fine of Rs. 2,000/- (in default, further rigorous imprisonment for six months) on each of the two   counts.    The  watches  were  also  ordered   to   be confiscated. Govani appealed to the High Court.  His main contention  was that  the evidence of Dutta was improperly received  by  the Magistrate  and should be excluded from consideration.   The High  Court  rejected these contentions  and  accepting  the testimony of the witnesses on facts, upheld the  conviction. Govani  now  appeals to this Court by  special  leave.   The grant  of special leave is limited to the questions  whether the  evidence  of  Dutta  was  improperly  received  by  the Magistrate  and  whether,  if excluded,  the  conviction  of Govani can be supported. The question falls to be considered under s. 540 of the Code ,of  Criminal  Procedure.  That section is to  be  found  in Chapter 46 of the Code among several others which have  been appropriately  described  in the heading to the  chapter  as ’miscellaneous’.  It provides :               " s. 540 : Any Court may, at any stage of  any               inquiry, trial or other proceeding under  this               Code,  summon  any  person as  a  witness,  or               examine  any person in attendance, though  not               summoned  as  a  witness, or  recall  and  re-               examine  any person already examined; and  the               Court  shall summon and examine or recall  and               reexamine  any  such person  if  his  evidence               appears  to it essential to the just  decision               of the case." The section gives a power to the court to summon a  material witness or to examine a person present in court or to recall a witness already examined.  It confers a wide discretion on the  COURT  to  act as the exigencies  of  justice  require. Another  aspect of ’his power and complementary to it is  to be  found  in  s.  165 of  the  Indian  Evidence  Act  which provides:               "   s.  165  :  The Judge  may,  in  order  to               discover or to obtain proper proof of relevant               facts,,  ask any question he pleases,  in  any               form,  at any time, of any witness, or of  the               parties,   about   any   fact   relevant    or               irrelevant;  and may order the  production  of               any document or               419               thing;  and  neither  the  parties  nor  their               agents shall be entitled to make any objection               to  any such question or order,  nor,  without               the  leave of the Court, to  crossexamine  any               witness upon any answer given in reply to  any               such question These  two sections between them confer jurisdiction on  the Judge to act in aid of justice.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

The  Presidency Magistrate, Esplanade, in, dealing with  the petition  to call Dutta passed an order on July 26, 1965  in which  he  remarked that there was no gap or lacuna  in  the prosecution  case to fill because Dutta was named as one  of the witnesses and as the officer who had seized the watches. He  held  that the evidence of Dutta was necessary  for  the just decision of the case.  He accordingly granted leave for the examination of Dutta.  In view of the fact that he spoke in  the  language  of  the second part  of  s.  540,  it  is reasonable  to think that he exercised the powers  conferred on him under the second part although his order is not clear as  to which part he had in mind.  He, however,  ruled  that Govani would be further examined under s. 342 of the Code of Criminal  Procedure  and allowed to lead  further  evidence. This action of the Magistrate which was approved by the High Court, is challenged before us. It is submitted that the powers under s. 540, however  wide, must  be  reconciled  with  the  mandatory  requirements  of Chapter  21  laying down the procedure of trial  of  warrant cases by Magistrates.  It is pointed out that the trial  had gone   through  the  stage  of  taking  evidence   for   the prosecution  (s.  252),  framing of  the  charge  (S.  254), recording  of the plea (S. 255) and the defence (S. 256)  of the accused and as Govani did not wish to lead evidence. (S. 257), it had reached the stage of s. 258 and the court could either  acquit or convict him.  It is, therefore,  submitted that  the Magistrate had really allowed the  prosecution  to fill  a gap in the case which had the effect  of  dispensing with  the burden which was on the prosecution to  prove  the case  under  S. 135 (a) and (b) of the Customs  Act  and  of placing the burden upon Govani to rebut the presumption that the  goods  were smuggled.  This, it is said,  is  not  only unfair  but unjust and cannot be regarded as falling  within the  powers of the court, however, wide the language of  the section.   We shall consider these objections and  refer  to the rulings which were cited before us in support of them. To  begin with, we do not accept as sound the argument  that Chapter  21  must limit the powers under s.  540.   Offences under .he Code of Criminal Procedure are tried in  different ways  according to their gravity.  There are thus trials  of summons and war5 Sup.C.I./67-13 420 rant  cases  by Magistrates, trials before High  Courts  and Courts of Session and summary trials.  All these trials have their procedure laid down from one step to another till  the stage  is  reached  for acquittal  or  conviction.   If  the argument advanced on the basis of the procedure laid down in Chapter  21  is  accepted there would be  no  room  for  the exercise  of the power under S. 540 because it would  always be  impossible  to  fit it into any  chapter  without  doing violence to the sequence established there. Section  540 is intended to be wide as the repeated  use  of the word ’any’ throughout its length clearly indicates.  The section   is  in  two  parts.   The  first  part   gives   a discretionary  power but the latter part is mandatory.   The use  of  the word ’may’ in the first part and  of  the  word ’shall’  in the second firmly establishes  this  difference. Under the first part, which is permissive, the court may act in  one of three ways : (a) summon any person as a  witness, (b)  examine any person present in court although  not  sum- moned,  and  (c)  recall or  re-examine  a  witness  already examined.   The  second part is obligatory and  compels  the Court to act in these three ways or any one of them, if  the just decision of the case demands it.  As the section stands there  is  no limitation on the power of the  Court  arising

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

from the stage to which the trial may have reached, provided the  Court  is bona fide of the opinion that  for  the  just decision  of the case, the step must be taken.  It is  clear that  the requirement of just decision of the case does  not limit the action to something in the interest of the accused only.   The  action  may equally  benefit  the  prosecution. There are, however, two aspects of the matter which must  be distinctly  kept  apart, The first is that  the  prosecution cannot  be allowed to rebut the defence evidence unless  the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in. words which are  oft- quoted :               "There  is no doubt that the general  rule  is               that  where the Crown begins its case  like  a               plaintiff   in  a  civil  suit,  they   cannot               afterwards support their case by calling fresh               witnesses,  because  they are met  by  certain               evidence  that contradicts it.  They stand  or               fall  by the evidence they have  given.   They               must  close  their  case  before  the  defence               begins; but if any matter arises ex improviso,               which  no human ingenuity can foresee, on  the               part  of  a defendant in a civil  suit,  or  a               prisoner in a criminal case, there seems to me               no  reason why that matter which so  arose  ex               improviso  may  not be  answered  by  contrary               evidence  on the part of the Crown." (Reg.  v.               Frost)(1). There  is, however, the other aspect namely of the power  of the Court which is to be exercised to reach a just decision. This power (1)  4 St. Tr. (N.S.) 85 at 386. 421 is  exercisable  at  any  time  and  the  Code  of  Criminal Procedure  clearly so states.  Indeed as stated by Avory  J. in Rex v. Dora Harris(1) :               "The  cases of Reg. v. Chapman (8 C & P.  558)               and  Reg. v. Holden (8 C & P.  606)  establish               the proposition that the presiding judge at  a               criminal trial has the right to call a witness               not  called by either the prosecution  or  the               defence,  if  in his opinion  this  course  is               necessary in the interests of justice.  It  is               true  that in none of the cases has  any  rule               been  laid  down  limiting the  point  in  the               proceedings  at which the judge  may  exercise                             that right." However  the  learned  Judge points out  that  injustice  is possible unless some limitation is put upon the exercise  of that right and he adopts for that purpose the rule laid down by  Tindal,  C.J. in Reg. v. Frost(2) even  in  those  cases where  a witness is called by the Judge after the  case  for the defence is closed, and states, "that the practice should be  limited to a case where the matter  arises  eximproviso, which  no  human  ingenuity can foresee, on the  part  of  a prisoner,  otherwise  injustice would ensue" and  cites  the case of Reg. v. Haynes(3) where Bramwell B. refused to allow fresh evidence to be gone into after the close of the  whole case.   In Dora Harris’s(1) case, five persons  were  tried, two  for stealing and they pleaded guilty and  three  others for  receiving  who  pleaded  not  guilty.   The  first  two remained  in  the dock and the trial proceeded  against  the other three.  They gave evidence on their own behalf and the prosecution  case was not quite strong.  The  Recorder  then asked  one  of the other two accused to  give  evidence  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

allowed the prisoner Dora against whom the evidence went  to cross-examine  him  but did not ask Dora to  enter  the  box again to contradict the new evidence.  This was held by  the Court of Criminal Appeal to be a wrong exercise of the power of the Court.  It was an extreme example of the exercise  of the power. Mr.  Jethmalani  relies strongly upon this  case  and  cites several decisions of the High Courts in India in which  this dictum  was applied.  In particular he relies upon In re  K. V.  R. S. Mani(4 ), Shreelal Kajaria v. The State(5) and  In re  V.  Mahadevan(6).  In these cases it is laid  down  that the  powers under s. 540 of the Code of Criminal  Procedure, wide  though  they  may be, must not  be  exercised  to  the disadvantage of the accused, particularly after his  defence is over. There is nothing new in these cases.  They follow in essence the decision in Reg. v. Frost(2)   as  applied   in   Dora. Harris(1) case.      (1) [1927] 2 K.B. 587 at 594. (2) 4St. Tr. (N.S.) 85 at 386.      (3) [1859] 1 F. & F. 666.     (4)  I.L.R.  [1951]  Mad. 986.      (5) 1,L.R. [1963] Bom. 698.   (6) (1964) 2 M.L.J 581. 422 On  the  other  side reliance is placed upon  In  re  K.  K. Narayanali Nambiar(1), State v. Sheikh Mohamad Abdullah  and others,(2),  Ratnakar  Das v. The State  and  others(3)  and Ramjeet and others v.    State(4)  among others in  which  a liberal interpretation in favour of     the  court’s  powers is placed upon the section. It  is not necessary to refer to the cases cited  on  either side.  They  illustrate  the  application  of  the   general principle  spoken  to by Avory J. in the extract  from  Dora Harris(5)  case  and  the condition laid  down  in  Reg.  v. Frost(6)  Dora  Harris  and Reg.  v.  Frost  cases  involved rebuttal of the defence evidence.  In neither case was there any  unexpected  move by the prisoner and the  evidence  was therefore,  wrongly admitted.  It is difficult to limit  the power  under  our  Code to  cases  which  involve  something arising eximproviso which no human ingenuity could  foresee, in the course of the defence.  Our Code does not make this a condition  of the exercise of the power and it is not  right to  embark on judicial legislation.  Cases that go that  far are of course not quite right.  Indeed they could be decided on fact because it can always be seen whether the new matter is  strictly necessary for a just decision and not  intended to give an unfair advantage to one of the rival sides.  Even in  England where the rule in Dora Harris(5)  case  obtains, the  powers  of the Court have not been held to  be  wrongly exercised,  when fresh evidence has been let in for  a  just decision. In William Sullivan(7) rebutting evidence was held to  be  properly  called  when the  accused  put  forward  a suggestion  which could not have been foreseen and  in  John Mckenna(8) it was held that a judge had complete  discretion whether  a witness should be recalled and that the Court  of Criminal  Appeal would not interfere unless it was  made  to appear  that injustice had been caused.  In that case  (like the  one  here)  the defence had closed  the  case  and  the accused  had submitted that there was no case to go  to  the jury. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage  of  the  trial to summon a  witness  or  examine  one present  in court or to recall a witness  already  examined, and  makes  this  the  duty and  ,obligation  of  the  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

provided the just decision of the case demands it.  In other words, where the court exercises the power under the  second part, the inquiry cannot be whether the accused has  brought anything suddenly or unexpectedly but whether the ,court  is right in thinking that the new evidence is needed by it  for a just decision of the case.  If the court has acted without the  requirements of a just decision, the action is open  to criticism but (1)  A.I.R. 1942 Mad. 223. (3)  A.I.R. 1966 Orissa 102. (5)  (1927) 2 K.B. 587 at 594. (7)  (1922) 16 Cr.  App.  R. 121. (2)  [1964] 2 Cr.  L.J. 88. (4)  I.L.R. [1958] All. 52. (6)  4 St. Tr. (N.S.) 85 at 386. (8)  (1956) 40 Cr.  App.  R. 65. 423 if  the court’s action is supportable as being in aid  of  a just decision the action cannot be regarded as exceeding the jurisdiction. In  the  present case the position is this.  In 1955,  by  a notification  under the Imports and Exports  (Control)  Act, 1947, the import of watches, clocks and parts thereof except under  a  licence was completely stopped  [Notification  No. 17/1955  dated December 7, 1955 known as  Imports  (Control) Order, [1955].  Govani was found on November 16, 1964 to  be in  possession of 305 watches of foreign make.  The  warrant of  search  issued  by the Assistant  Collector  of  Customs recited :               "Whereas  there  are reasons to  believe  that               prohibited   and  dutiable  goods  liable   to               confiscation   ....  are   secreted   in......               Premises  of Shri G. K. Gowani, Shop  No.  20,               Suklaji Street, Bombay, etc." The watches (among other articles) were seized by Dutta.  He separated the old watches from the new and asked to see  any document which would show that the watches were legitimately imported.  Govani  produced no document although  a  summons under  s. 108 of the Customs Act, 1962 was served upon  him. The watches were, therefore, seized.  There was evidence  to show  that in 1963 1,300 watches were seized  from  Govani’s locker in a safe deposit vault but the prosecution then  had resulted  in acquittal.  The Magistrate and the  High  Court were  of  opinion that these circumstances might lead  to  a reasonable  belief  in the mind of the  person  seizing  the watches, that they were smuggled.  The prosecution  examined Ranade, Prevention Officer, Customs who had assisted at  the search  but failed to examine Dutta who seized  the  watches and  under  whose direction the search was  conducted.   The question  was  why  were  the watches  seized  ?  They  were obviously  not seized because they were stolen  property  or belonged  to  some  other person.  They  were  seized  after search  on  a warrant which expressed the belief  that  they were  smuggled and after affording Govani an opportunity  by notice  to explain his possession.  It is obvious  that  the just  decision of the case required a finding  whether  they were smuggled or not.  The circumstances already deposed  to by  Mukund  Ranade  and  otherwise  on  the  record  clearly established  that  someone  must  have  seized  the  watches entertaining  a belief that they were smuggled. This  belief obviously was entertained by Dutta.  This was not a case  in which  the prosecution was trying to fill a gap in the  pro- secution case.  The court was right in thinking that a  just decision of the case required that the nature of the  belief underlying  the seizure should be before it on oath  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

person making the seizure so that Govani might be  required, as  the policy of the Customs Act, 1962 requires,  to  prove his  innocent possession.  Govani had really no  defence  in view  of  the  Control Order of 1955 and  the  gap  of  time between the promulgation of the order and the 424 date  of  the seizures.  He admitted this before  and  after Dutta’s evidence.  In these circumstances it cannot be  said that the court had exceeded its jurisdiction in acting under the second part of s. 540 of the Code of Criminal Procedure. As Dutta’s evidence was rightly taken and gone into, and  as Govani  had  no  defence  beyond  taking  advantage  of  the inadvertent  omission,  the  defence  had  no  merit.    The conviction was, therefore, rightly reached. The appeal fails and is dismissed. R.K.P.S.                                              Appeal dismissed.