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PETITIONER: MOHD.  HUSSAIN UMAR KOCHRA ETC.

       Vs.

RESPONDENT: K.   S. DALIPSINGHJI & ANR., ETC.

DATE OF JUDGMENT: 31/03/1969

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. HEGDE, K.S.

CITATION:  1970 AIR   45            1969 SCR  (3) 130  1969 SCC  (3) 429  CITATOR INFO :  R          1979 SC1761  (5A)  RF         1991 SC1463  (5)

ACT: Foreign Exchange Regulation Act 1947, s. 8-Import of gold in contravention  of  section  whether  Punishable  under   Sea Customs  Act  1878, S. 167(81)criminal conspiracy  under  s. 120B I.P.C.-One conspiracy or several-Tests to decide-Indian Evidence   Act  s.  124,  claim  of  privilege   under-Wrong allowance  of  plea  does not affect trial if  it  does  not result  in  failure of justice-Criminal  Procedure  Code  s. 503--Commission need not be issued if sufficient particulars of  witness  not given in application-Recalling  of  witness when  justified-Evidence Act s. 133 & III.  114(b)Accomplice evidence-Principles relating to--Charges for conspiracy  and substantive  offence-Concurrent  running of  sentences  when justified.

HEADNOTE: The  appellants along with certain other accused were  tried for  the offence of’-criminal conspiracy to import and  deal in  gold punishable under s. 120B of the Indian  Penal  Code read  with s. 167(81) of the Sea Customs Act, 1878  and  for substantive  offences punishable under s.  167(81).   Having been convicted by the trial judge and the High Court  having dismissed their appeals, they came to this Court by  special leave.   The general questions affecting all the  appellants that  arose  for consideration were: (1) was the  import  of gold  in  contravention of s. 8(1)of  the  Foreign  Exchange Regulation Act, 1947 punishable under s. 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 one Pedro Fernandez as  a witness and (5) did he wrongly refuse to recall P.W. 50  Ali for  cross-examination  ? In connection with  cases  of  the individual  -appellants questions relating the testimony  of accomplices  and confessions of co-accused and the  question

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whether   separate  punishment  for  conspiracy  should   be -awarded  when  the  accused is already  sentenced  for  the substantive offence, also came up for consideration. HELD  : (i) The Sea Customs Act 1878 contained a  number  of prohibitions  on  imports  by  land or  sea  and  by  s.  19 authorised  the  imposition  of  further  prohibitions   and restrictions on import or export by sea or by land.  One  of the  statutes creating further prohibitions was the  Foreign Exchange  Regulation Act 1947.  A notification dated  August 25, 1948 as amended up to date issued under s. 8(1) of  this Act  directed  that  "except with  the  general  or  special permission  of  the Reserve Bank, no person shall  bring  or send into India (a) any gold coin, gold bullion, gold sheets or gold ingot whether refined or not........ Section 23A  of the  Act provided that the restrictions imposed by  s.  8(1) "shall be deemed to have been imposed under s. 19 of the Sea Customs Act, 1878 and all the, Provisions of that Act  shall have  effect accordingly. ." The effect of s. 23A  was  that the   contravention  of  the  notification  under  s.   8(1) attracted to it each and every provision of the Sea  Customs Act, 1878 in force for the time being including s.  167(81). [136 F-137 A] While s. 19 of the Sea Customs Act authorised the imposition of prohibitions and restrictions on the import and export of goods by sea and land                             131 Only, the ’aforesaid notification under s. 8 of the  Foreign Exchange  Regulation Act restricted bringing into  India  of gold  from  any place outside India by land,  sea  and  air. Section  23A of the Foreign Exchange Regulation Act  created the  fiction that the restriction had been imposed under  s. 19  of the Sea Customs Act 1878 so that -all the  provisions of  that  Act  would  be  attracted  to  a  breach  of   the notification.   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 s. 167(81) of the Sea Customs Act,  1878. [137 B-C] The same conclusion follows if the matter is looked at  from the point of view that import or export by air is a  species of import and export by land for the aircraft carrying goods lands or takes off from land. [137 E] [On  the above view the Court did not find it  necessary  to consider  whether evasion of duty in case of import  by  air became punishable under S. 167(81) of the Sea Customs Act by the  force of s. 16 of the Indian Aircraft Act 1934 and  the relevant notification issued thereunder.] [138 G] (ii)Criminal conspiracy as defined in s. 120A of the  I.P.C is an agreement by two or more persons to do or cause to  be done  ail  illegal  act or an act which is  not  illegal  by illegal  means.  The agreement 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.   A  general conspiracy  must be distinguished from a number of  separate conspiracies  having  a similar put-pose.   Where  different groups  of  persons cooperate towards  their  separate  ends without  any  privity  with  each  other,  each  combination constitutes a separate conspiracy.  The common intention  of the conspirators is then to work for the furtherance of  the common design of his group only. [138 H-139D] S.K.  Khetwani v. State of Maharashtra, [1967]  1  S.C.R. 595,  S. Swami’natham v. State of  Madras, A.I.R. 1957  S.C.

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340  and R. v. Griffiths, [1965] 2 All.  E.R. 448,  referred to. On  the facts of the present case it could not be held  that there  were a number of separate conspiracies and  that  the charge  of  a  general  conspiracy  was  not  proved.   Each conspirator  profited  from the general scheme and  each  of them played his own part in the general conspiracy. [139 F] (iii)Although  the claim of privilege under s.  124  of the Evidence Act in respect of certain cables and  addresses was  wrongly  allowed  by the Magistrate  these  cables  and addresses were 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  non- disclosure  of these documents did -not  therefore  occasion any failure of justice. [141 A-B] (iv)The application for the examination of Pedro  Fernandes on commission did not give sufficient particulars  including his address.  The learned Magistrate therefore rightly  held that proper grounds for the issue of the commission under s. 503 of the Code of Criminal Procedure had not been made out. [141 E] (v)The -application for recalling Ali as a witness on  the ground  that  he  was  repentant  for  having  given   false evidence,  was rightly disallowed as there was no  affidavit from  Ali, or any other material to show that his  testimony was incorrect in any material particular. [141 H] 132 (vi) (a) The combined effect of ss. 133 and 114 illustration (b)  of the Evidence Act 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  each  accused with  the crime. it maybe 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.   One  accomplice cannot corroborate another. [142 E-F] Bhiva  Doulu Patil v. State of Maharashtra, [1963] 3  S.C.R. 831 find R.    v.  Baskerville, [1916] 2 K.B. 658,  referred to. (b)A  participes  crimines in respect of  the  actual  crime charged  is an accomplice.  The’ witness concerned  may  not confess  his participation in the crime, but it is  for  the Court  to decide on a consideration of the  entire  evidence whether he is an accomplice. [146 A-B] (c)If   several  accomplices  simultaneously   and   without previous  concert  give a consistent account  of  the  crime implicating the accused, then under s. 114 Illustration  (b) of  the  Evidence  Act  the Court  may  accept  the  several statements  as  corroborating each other.  But  it  must  be established that the several statements of accomplices  were given  independently and without any previous concert.  [147 G-H] Haroon  Haji Abdulla v. State of Maharashtra, 70 Bom.   L.R. 540 and Bhuboni Sahu v. The King, L.R. 76 I.A. 146, referred to. (vii)The offences under s. 167(8) of the Sea Customs Act and 8.   12OB(1)  of  the  Indian  Penal  Code  are   separately punishable  and the separate sentences given in  respect  of them by the Courts below were not illegal.  However in  view of  the  fact  that the leaders of  the  conspiracy  in  the present  case had escaped punishment and the appellants  had undergone   a  prolonged  trial,  a  direction  that   their sentences   in  respect  of  all  the  charges  should   run concurrently would be justified. [150 D-F]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  139 to 144 of 1966. Appeals  by special leave from the judgment and order  dated April 18, 1966 of the Bombay High Court in Criminal  Appeals Nos. 1646, 1631, 1652, 1628 and 1626 of 1963 respectively. Porus  A. Mehta, B. M. Parikh, Janendra Lal, J.  R.   Gagrat and B. R. Agarwala, for the appellant (in Cr.  A. No. 139 of 1966). A.K. Sen, Porus A. Mehta, B. M. Parikh, M. V. Rao,  Janendra Lal, J. R. Gagrat and B. R. Agarwala, for the appellant  (in Cr. A. No. 140 of 1966). R.   Jethamalani, M. V. Rao, fanendra Lal, J. R. Gagrat and B.   R.  Agarwala, for the appellant (in Cr.  As.  Nos.  141 and 142 of 1966). R.   Jethmalani,  Janendra  Lal,  J. R.  Gagrat  and  B.  R. Agarwala,  for the appellant (in Cr.  As.  Nos. 143 and  144 of 1966).                             133 H.   G. Khandelawala, A. B. Pandya H. R. Khanna and’ R. N. Sachthey, for the respondents (in all the appeals). The Judgment of the Court was delivered by Bachawat J. The six appellants are A-8, Mohamed Hussain Omer Kochra  alias Mr. Buick alias Nazen, A-12, Maganlal  Naranji Patel,  A-16,  N.  B.  Mukherji,  A-15,  N.  S.  Rao,  A-14, Parasuram T. Kanel, A-6, Lakshmandas Chaganlal Bhatia  alias Sham.  In this judgment "A" mean accused.  Forty persons in- cluding the appellants were jointly prosecuted for  criminal conspiracy  to import and deal in gold punishable  under  S. 120B  of the Indian Penal Code read with S. 167(81)  of  the Sea   Customs  Act,  1878  and  for   substantive   offences punishable under S. 167(81). A-1  to  5,  A-18 to 35 and A-37  are  absconding  or  being foreigners  are not amenable to the processes of the  Court. A-1  Jamal Shuhaibar, A-2 George Shuhaibar and  A-3  Jawadat Shuhaibar of Beirut and A-4 Yusuf Mohamed Lori alias Abdulla of  Bahrein  sent  gold  from the  Middle  East.   A-5  Juan Castarner  Casanovas  and A-18 Bernardo 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. Gisele  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. 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  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

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criminal  conspiracy  and  substantive  offences  under   S. 167(81) and passed sentences of imprisonment and fine. All the convicted persons file d appeals in the High  Court. During the pendency of the appeal A-11 absconded.  The High 134 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 Rs. 4,000 and undergo simple imprisonment for a  day only.   The High Court dismissed the appeals of A-6, 8,  11, 12, 14, 15, 16 and 17.  The present appeals have been  filed by A-6,8, 12, 14, 15 and 16 after obtaining special leave. The  first  count charged that all the  40  accused  persons along with Mohamed Yusuf Merchant, Pedro Fernandez and other persons  at Bombay and other places from 1-11-1956  to  2-2- 1959  were  parties to a continuing criminal  conspiracy  to acquire  possession  of, carry remove deposit  harbour  keep conceal  and deal in gold and knowingly to be  concerned  in fraudulent  evasion  of duty chargeable on gold and  of  the prohibition and restriction applicable thereto and committed an  offence  punishable under s. 120-B I.P.C. read  with  s. 167(81)-  of  the Sea Customs Act, 1878.  The  other  counts charged  the  accused  persons  individually  with  offences punishable under S. 167(81). In  broad  outline  the prosecution case  is  as  follows  : Before, E November 1, 1956 some of the accused persons along with  others  were concerned in the illegal  importation  of gold.   In or about November 1956 Pedro Fernandez and  Yusuf Merchant hatched the present conspiracy to which A-11  Murad Ashamoff  was  a  party.   The  scheme  was  that  necessary finances would be arranged, remittances to foreign countries would be made through Murad, gold would be sent by air  from foreign  countries to Bombay, Delhi, Calcutta and other  air ports  and the smuggled gold would be sold in  India.   A--6 Lakshmandas, A-8 Kochra and A7 Rabiyabai were approached for the necessary finances.  Between February 3 and July 8, 1957 eleven  carriers  brought  gold  by  air  from  Switzerland. Lakshmandas  financed  the first four transactions  and  his telegraphic  address  "Subhat"  was  used  for  receipt  and despatch  of cables.  On February 3, 1957 the first  carrier Gisele  Minot  came to Bombay.  On 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 135 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. In August 1957 Yusuf and A-38 Hassan representing Kochra and Rabiyabai went to Beirut and induced Al to A3 Jamal  Shuhai- bar and his two brothers to join the conspiracy.  The scheme

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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.  Between November 7, 1957  and February 13, 1958 eleven carriers of gold sent  by Pedro  came  to Bombay.  On February 24, 1958  the  twelveth carrier  A.  J. Mascardo was arrested  in  Delhi.   Simulta- neously gold was sent from the Middle East.  On November  3, 1957  Grant  Powell  carrying gold  sent  by  the  Shuhaibar brothers came to Calcutta, but he was arrested.  In November 1957 A-4 Yusuf Mohamed Lori of Bahrein acting for  Shuhaibar brothers came to India and it was decided that gold would be hidden  in the body of Air India International planes  by  a mechanic at Beirut or Bahrein and would be removed in Bombay by  another  mechanic and that Kochra  and  Rabiyabai  would supply  funds on the guarantee of Murad.  From time to  time the  service’s of the mechanics, A-15 N. S. Rao, A-39 D.  K. Deshmukh, A-40 Jacob Miranda, A-17 Timothy Miranda and other mechanics were requisitioned.  Between December 12, 1957 and January  15,  1958, 4 or 5 consignments  of  gold  concealed inside  the belly of aircrafts were sent by Lori  to  India. From February 1958, 7 or 8 consignments of gold concealed in the rear left bathroom of the aircrafts were sent to Lori to Bombay.  Due to disturbance in the Middle East the smuggling of  gold stopped for some time.  Since October  1958  eleven consignments  of gold were sent to Bombay.  On  February  1, 1959  the  Rani of Jhansi carrying the 11th  consignment  of gold  was searched by the custom officers at  the  Santacruz airport Bombay and the gold was seized. On  February  2, 1959 the residence of  Yusuf  Merchant  was searched and many incriminating articles were seized.   From time to time Yusuf was interrogated, and his statements were recorded.   On  October  24,  1959  the  investigation   was completed.  The trial started in July 1960.  The prosecution examined  PW  2 Yusuf Merchant and  other  accomplices,  and witnesses and exhibited 136 numerous documents.  Yusuf Merchant, the main witness on be- half 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. 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 S. 8 (1 ) of the  Foreign Exchange Regulation Act, 1947 punishable  under s.  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 ? 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 . 11.  Customs  duties  are

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leviable  under S. 12 on all goods so imported or  exported. The  fraudulent evasions of duties and of  prohibitions  are punishable under S. 135. 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  (S.  18)   and authorized  the  imposition  of  further  prohibitions   and restrictions on import or export by sea or by land (s.  19). The  Act also provided the machinery for the enforcement  of prohibitions  and restrictions by means of search,  seizure, confiscation   and   penalties.   Several   other   statutes contained  further  prohibitions  and  restrictions  on  the import  or  export of goods.  Section 8 of the  Foreign  Ex- change  Regulation  Act,  1947 is  one  such  enactment.   A notification  dated  August 25, 1948 as amended up  to  date issued under S. 8(1) of this Act directed that "except  with the  general or special permission of the Reserve  Bank,  no person  shall  bring or send into India (a) any  gold  coin, gold  bullion, gold sheets of gold ingot whether refined  or not.  .  .  "  Section 23A of  the  Act  provided  that  the restrictions  imposed  by S. 8(1) "shall be deemed  to  have been  imposed under S. 19 of the Sea Customs Act,  1878  and all   the   provisions  of  that  Act  shall   have   effect accordingly.  .  ."  The  effect of  S.  23A  was  that  the contravention of the notification under S. 8(1) attracted to it  each and every provision of the Sea Customs Act 1878  in force for the                             137 time being including S. 167(81) of the Sea Customs Act  1878 which was inserted by the Amending Act XXI of 1955. It  is  to  be noticed that S. 19 of the  Sea  Customs  Act, 1878   authorized   the  imposition   of   prohibitions,-and restrictions  on  the import or export of goods by  sea  and land only.  But the notification dated the 25th August  1948 issued under S. 8(1) of the Foreign Exchange Regulation Act, 1947  restricted  the bringing into India of gold  from  any place  outside India by land, sea and air.  Section  23A  of the  Foreign  Exchange  Regulation  Act,  1947  created  the fiction that the restriction had been imposed under S. 19 of the  Sea  Customs Act, 1878, so that all the  provisions  of that Act would be attracted to a breach of the notification. 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 S. 167(81) of the Sea Customs Act, 1878. 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  be- gan.  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  s.  8(1)  of  the   Foreign   Exchange Regulation Act, 1947 was punishable under s. 167(81) of  the Sea Customs Act, 1878 and a criminal conspiracy to evade the restriction was punishable under S. 120B of the Indian Penal Code. In this connection a question arose whether customs duty was leviable  on imports and exports by air and whether a  frau-

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dulent,evasion of the duty was punishable under S.  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 punishment of  evasions of  duty.  The Land Customs Act, 1924 set up  the  machinery for  the  levy of land customs duties, and S. 9 of  the  Act applied  for the purpose of this levy several provisions  of the  Sea  Customs Act 1878 with suitable  modifications  and adaptations.  Rules 53 to 64 contained 2 Sup.  CI/69-10 138 in  Para IX of the Indian Aircraft Rules 1920  framed  under ss.  3 and 6 of the Indian Aircraft Act, 1911  provided  for the levy of air customs duties.  The duty was leviable under rules 58 and 59 on goods imported or exported by air "as  if such goods were I chargeable to duties under the Sea Customs Act  1878"  Rule 63 provided that all persons  importing  or exporting goods into and from India "shall, so far as may be observed, comply with and be bound by the provisions of  the Sea  Customs  Act, 1878," with  certain  adaptations.   ’The Indian  Aircraft Act 1934 repealed the Indian  Aircraft  Act 1911  but the Indian Aircraft Rules 1920 continued in  force in  view  of  s. 24 of the General Clauses  Act  1897.   The Indian  Aircraft Rules 1937 framed under S. 5 and 8  of  the Indian Aircraft Act 1934 preserved and continued, para IX of the  Indian Aircraft Act Rules 1920.  Until the  passing  of the  Customs Act 1962 Part IX of the Indian  Aircraft  Rules 1920  continued  to  be the basic law for the  levy  of  air customs  duties.  On behalf of the appellants it was  argued that  (1) Rules could not authorize the levy of a  tax,  (2) Rules  could  not create a new offence punishable  under  S. 167(81) of the Sea Customs Act, 1878, (3) a contravention of the Rules was punishable under S. 10 of the-Indian  Aircraft Act,  1934  and  not under S. 167(81).   On  behalf  of  the respondent  our  attention was drawn to section  16  of  the Indian Aircraft Act 1934 -which provided --               "The  Central Government 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 S.  16;  (2) section  16 was a piece of conditional legislation,  and  by force  of S. 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  S. 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 fradulent evasion  of  the restriction  imposed  by  S. 8(1) of  the  Foreign  Exchange Regulation Act 1947 was punishable under s. 167(81). As  to the second question the contention was that the  evi- dence  disclosed a number of separate conspiracies and  that the  charge of general conspiracy was not proved.   Criminal conspiracy  as  defined  in  S. 120A of  the  T.P.C.  is  an agreement  by two or more persons to do or cause to be  done an illegal act                             139

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or  an  act  which is not illegal  by  illegal  means.   The agreement  and the breach attracted to it the provisions  of S.  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 all its secrets or the means by which the common purpose  is to  be accomplished.  The evil scheme may be promoted  by  a few,  some may drop out and some may join at a later  stage, but  the  conspiracy continues until it is broken  up.   The conspiracy may develop in successive stages.  There may be a general  plan to accomplish the common design by such  means as may from time to time be found expedient.  New techniques may be invented and new means may be devised for advancement of   the  comman  plan.   A  general  conspiracy   must   be distinguished from a number of separate conspiracies  having a  similar  general  purpose.   Where  different  groups  of persons  co-operate towards their separate ends without  any privity  with  each other. each  combination  constitutes  a separate   conspiracy.    The  common   intention   of   the conspirators  then  is to work for the  furtherance  of  the common design of his group only.  The .cases illustrate  the distinction between a single general conspiracy and a number of  unrelated conspiracies.  In S. K. Khetwani v.  State  of Maharashtra(1), S. Swaminatham v. State Madras(2) the  Court found  a single general conspiracy while in R. v.  Griffiths ()  the  Court  found a number  of  unrelated  and  separate conspiracies. In  the present case, there was a single general  conspiracy to  smuggle  gold into India from  foreign  countries.   The scheme was operated by a gang of international crooks.   The net  was  spread over Bombay, Geneva,  Beirut  and  Bahrein. Yusuf Merchant and Pedro Fernandes supplied the brain power, Murad Asharanoff remitted the funds, Lakshmandas Kochra  and Rabiyabai  supplied  the finances, Pedro  Fernadez  and  the Shuhaibar brothers sent the gold from Geneva and the  Middle East, carriers brought the gold hidden in jackets, 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 (1)  [1967]  1 S.C.R. 595.                  (2)  A.I.R  1957 S.C. 340. (3) [1965] 2 All  E.R. 448. 140 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.  ’Me courts below held,  and in our opinion rightly, that there was  a  single general conspiracy embracing all the activities.  Pedro  had

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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 organization   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 own part in the general  conspiracy.   The second contention is rejected. As to the third question, we find that on or about  February 22,  1962 the prosecution took out a summons to  the  Deputy Accountant  General Telegraphs Check Office,  Calcutta,  for the  production  of  all  records  pertaining  to  15  cable addresses including ’Subhat" and "Nazneen" together with the summons  under  s.  171A previously issued  by  the  customs officers to the Telegraphs Check Office, for the  production of the cables and the receipts given by the customs officers to  the Telegraphs Check Office for the cables so  produced. Pursuant  to  the summons issued on February  22,  1962  Mr. Madhavan,  Superintendent  of the Telegraphs  Check  Office, Calcutta,   produced  in  court  the  cables,  summons   and receipts.  All the cables relating to the aforesaid 15 cable addresses, and two more addresses with which the  appellants were  concerned  were exhibited at the trial.   The  summons under  S.  171A  was a consolidated summons  issued  by  the customs officer to the Telegraphs Check Office for the  pro- duction of the cables relating to the investigations in  the present  case  and several other cases.  The receipt  was  a consolidated  receipt  for  the cables  produced  under  the summons.   Affidavits were filed by Mr. P. C. Kalla,  Senior Deputy  Accountant,  Post  and  Telegraphs  and  Mr.  S.  K. Srivastava,  an Additional Collector of  Customs,  Calcutta, claiming  privilege  under  S. 124 of the  Evidence  Act  in respect of the the disclosure of the other 141 cable  addresses mentioned in the summons and  receipts  and the cables sent to those addresses.  The learned  Magistrate upheld  this  claim  of  privilege.   In  our  opinion,  the privilege  was  not properly claimed under s.  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. 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  that the application was misconceived and proper grounds for  the

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issue of the commission under s. 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 orin   United   Kingdom  or   in   Pakistan.The application was notmade in good faith and was liable to  be rejected on this ground alone. As  to the last question, we find that  examination-in-chief of PW 50 Ali commenced on October 7, 1960 and was  concluded on  October  10, 1960.  His cross-examination  commenced  on August 21, 1961 and was concluded on September 4, 1961.   On March 6, 1962 and again on June 21, 1962 the defence applied for  recalling  Ali  for  cross-examination.   The   learned Magistrate rejected the two applications.  According to  the defence  Ali  was repentant and wanted to say  that  he  had given  false evidence.  In our opinion, no ground  was  made out for recalling Ali.  There was no affidavit from Ali  nor was there ,any other material showing that his testimony was incorrect  in  ,any  material  particular,  The  Court   has inherent power to recall, 142 a  witness  if it is satisfied that he is prepared  to  give evidence  which  is materially different from  what  he  had given at the trial.  In this case there was no material upon which  the  Court  could  be  so  satisfied.   The   learned Magistrate rightly disallowed the prayer for recalling Ali. Mr.  Jethamalani argued that the rough notes  of  statements given  by Yusuf to the customs officers had  been  destroyed and that the defence was thereby prejudiced.  This point was not  taken either in the trial court or in the  High  Court. In  our  opinion, counsel ought not to be allowed  to  raise this new point for the first time in this Court. On  the  merits, we find that the two courts  have  recorded concurrent  findings of fact.  Normally this Court does  not reappraise the evidence unless the findings are perverse  or are  vitiated  by  any  error of law or  there  is  a  grave miscarriage  of  justice.   The courts  below  accepted  the testimony of the accomplice Yusuf Merchant.  Section 133  of the Evidence Act says :-               "An  accomplice shall be a  competent  witness               against an accused person; and a conviction is               not  illegal merely because it  proceeds  upon               the    uncorroborated    testimony    of    an               accomplice." Illustration  (b) to s. 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  ss.  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,(1) R. v. Baskerville (2) . In  this light   we  shall  examine  the  case  of   each   appellant separately. Case  of Accused No. 8 Mohamed Hussain Umar Kochra (Cr.   A. No. 139 of 1966) Yusuf Merchant deposed that Kochra and his mother-in-law, A-

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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 acti- (1) [1963] 3 S.C.R. 831. (2) [1916] 2 K.B. 658. 143 vities.   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. Kochra’s  mother  resided at 10, Erskine Road,  4th  floor,. Esmail Building, Bombay-3.  Exhibit Z 70 dated February  19, 1957  is the application for the registration of  "Nazneen". This document purports to have been signed by Ismail  Kader, a  domestic servant of Kocbra’s mother.  It was proved  that the  signature  "Ismail Kader" and the address  19,  Erskine Road, 4th floor, Esmail Building, Bombay-3 on Ex.  Z-70 were in the handwriting of Rajabali Karmalli, another servant  of Kochra’s mother.  Rajabali Karmalli lived in Kochra’s garage in Napean Sea Road.  Kochra’s mother was invalid and  Kochra held  a  power--of-attorney from her for management  of  the family  property.   Rajabali  Karmalli  was  under  Kochra’s control and was his trusted servant.  Kochra had his  office in the ground floor of the building at 19, Erskine Road  and his  denial  that  he had no office there  is  false.   Both Rajabali Karmalli and Ismail Kader have now disappeared  and cannot  ’be  traced.   Several cables  sent  to  Nazneen  in connection with the gold smuggling have been exhibited.  The other  cables  could  not  be  traced.   Kochra   registered "Nazneen"  because  he desired to join  the  conspiracy  and received the cables sent to this address.  The  registration of  Nazneen  was  not procured by Yusuf  in  collusion  with Rajabali   Karmalli   or   Ismail   Kader.    Though   Yusuf surreptitiously used other addresses for the receipt of  his cables,  Nazneen  was  used  with  the  full  knowledge  and approval of Kochra. On or about August 13, 1957 Yusuf and Hassan went to  Beirut for inducing the Shuhaibar brothers to join the  conspiracy. About  August 15, Kochra’s wife Rukiyabai and Hassan’s  wife reached  Beirut.  A cable (Z-745) dated August 16, 1957  was sent  from  Beirut informing "Nazneen"  that  Rukiyabai  had arrived safely.  On a consideration of the materials on  the record  including  the  written  statements  of  Kochra  and Rukiyabai  the courts below have found that this  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 144 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.

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The carrier Grant Powell arrived in Calcutta on November  3, 1957 and was arrested.  PW 127 Chandiwala and  Jagban-dhudas 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-459  dated November 7, 1957 is the copy of the bill for this  telephone call.   Taking into account Kochra’s statement,  Ex.   Z-703 para  6 and his written statement para 72 the  courts  below rightly held that Kochra received the two telephone messages from  Ali  relating  to  matters  connected  with  the  gold smuggling.  Even after the receipt of these messages  Kochra allowed the use of Nazneen for receipt of cables from  Pedro and  acceptance of cables by Yusuf.  PW 31  Mastakar  proved that  Kochra did not send any complaint to  the  telegraphic office that Nazneen was registered or was used with-out  his authority. Mr. Mehta suggested that (a) Nazneen was used before  Kochra joined  the conspiracy and that (b) Kochra did not join  the cons-,  piracy  on  or about April 8, 1957  when  the  fifth carrier  came  -and in this connection read  to  us  several documents.  The courts below rejected this contention and we find  no reason for re-appraising the evidence.  It  may  be pointed out that by the cable Ex. Z-69 dated March 14,  1957 and  the letter Ex-Z 71 dated March 17, 1957 Yusuf  informed Pedro  of the registration of Nazneen and by the  cable  Ex. Z-77 dated March 17, 1957 Yusuf asked him to send the cables to  the new address.  The materials on the record show  that Kochra  had  then  joined the  conspiracy  and  the  address Nazneen  was used for despatch and receipt of  cables  after March 17, 1957.  Mr. Mehta commented on the fact that  Yusuf implicated Kochra for the first time in his statement  given on April 30, 1957 and that Yusuf had not referred to  Kochra in his earlier statements.  Yusuf at first wanted to shield                             145 his  friend  Kochra.   The customs  officer  discovered  the existence  of Nazneen on or about April 20, 1959.  On  being then questioned with regard to Nazneen, Yusuf was  compelled to disclose his connection with Kochra and the circumstances under which Nazneen came to be registered. The   materials  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 (Cr.  A.  No. 140 of 1966) 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

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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 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 Rs. 10 though his daily wage was Rs. 3 only.  Once, the gold was brought in a jacket usually -worn for carrying smuggled gold.  In his  statement Ex. 25-K Yusuf admitted that of the two workmen Rafique  had more  intimate  knowledge  of  the  reason  for  the  secret handling  of the gold.  The secrecy of the job, the  unusual hours,  the  special remuneration, the carriage of  gold  in jackets,  the  user of silver refinery for  the  melting  of gold, the inside knowledge of Rafique of the purpose of  the melting,  lead to the irresistible conclusion  that  Rafique was  knowingly  a party to melting of  _smuggled  gold  with intent to destroy the evidence of its foreign origin and  to evade  the  restrictions on its import.  He  was  clearly  a participes crimines in 146 respect of the offences with which Maganlal was charged  and was liable to be tried jointly with him for those  offences. As  pointed  out  by Lord Simonds in Davis  v.  Director  of Public  Prosecution(1) a participes crimines in  respect  of the  actual  crime charged is an  accomplice.   The  witness concerned may not confess to his participation in the crime, but it is for the Court to decide on a consideration of  the entire evidence whether he is an accomplice.  Rafique was an accomplice,  and his evidence cannot be used to  corroborate the evidence of Yusuf and Chandiwala, the other accomplices. There is no corroboration of the evidence of the accomplices from an independent source.  On the materials on the  record it  is  not safe to convict Maganlal of  the  offences  with which he is charged. We  may also point out that the positive case of  Yusuf  and Chandiwala  was  that Rafique melted the  gold  in  February 1958.   The books of Chandiwala shows that in February  1958 Rafique  did  not work in the refinery.  In  his  place  one Kedar  worked  there.  Chandiwala suggested that  Kedar  was another  name  of  Rafique.  This is  an  impossible  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 -old 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 (Cr.  A. No. 141  of

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1966) Mukherjee  was the engineer-in-charge of Group A base  main- tenance.    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 Bhade  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 (1)  (1954) A.C. 378,400-402. 147 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 application Z-558 dated December 13,  1958 and  Z-313  dated January 18, 1959, a cable  from  Yusuf  to Jamal;   (3)   simultaneous  statements  of  a   number   of accomplices  and (4) Ex.  Z-697 the retracted confession  of Bello.    Mr.  Khandelwala  did  not  rely  on   any   other circumstances. In Ex.  Z-209 Lori referred to Bello’s friend.  Ex. Z-226 is a letter of Bello to Yusuf referring to "our friend".  These two letters do not refer to Mukherjee by name.  There is  no corroboration  from any independent source,  that  Mukherjee was one of the co-conspirators referred to in these letters. The  two, letters cannot be regarded as a  corroboration  of Yusuf’s evidence. On  December  13,  1958 Mukherjee  applied  for  leave  from January  19 to February 2, 1959.  The leave application  Ex. Z-558  was allowed on December 14, 1958.  This  document  is innocuous  and  does not implicate Mukherjee in  the  crime. Maxie  Miranda  now says that Mukherjee asked Maxie  not  to remove  the  gold during his absence on  leave,  that  Maxie desired   to   remove  the  gold   surreptitiously   without Mukherjee’s  knowledge  and arranged for the change  in  the place   of  concealment  of  gold  in  aircrafts  and   that accordingly  Z-213, a cable dated January 18, 1959 was  sent by  Yusuf to Jamal informing the latter that a new place  of concealment  had been airmailed.  Ex.  Z-313 on the face  of it  does  not implicate Mukherjee.  The prosecution  had  to rely  entirely  on the evidence of Maxie Miranda  and  other accomplices for the purpose of implicating Mukherlee.   Ex., Z-558 and Ex, Z-313 do not connect Mukherjee with the crime. Section 114 of the Evidence Act says thus as to Illustration (b) : "A crime is committed by several persons, A, B and  C, three-of  the criminals, are captured on the spot  and  kept apart from each other.  Each gives an account of -the -crime impoliciting  D, and the accounts corroborate 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  A bdulla v. State of Maharashtra(1).  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(2).  In the present case the  Rani of Jhansi was searched on February 2, 1959.  Yusuf gave  his first state- (1) 70 Bom.  L. R. 540, 5.45. (2) L.R. 76 I.A. 146 156-57. 148

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ment on February 3, 1959.  He did not then implicate Mukher- jee.   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. On  February  11, 1959 Bello made a  confession  implicating Mukherjee.  At the trial he retracted the confession.  Under S.  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(1) page 156.  It cannot be used to support the evidence of  the other accomplices. In  our  view,  Criminal Appeal No. 141 of  1966  should  be allowed  and  Mukherjee  should  be  acquitted  of  all  the charges.               Case of Accused No. 15 N. S. Rao                  (Cr.  A. No. 142 of 1966) In this, case there is sufficient independent  corroboration of  Yusuf’s  testimony  implicating Rao.   Counsel  for  the appellant did not dispute the finding of the High Court that Rao  is  guilty  of  the offences with  which  be  had  been charged.  The High Court rightly convicted N. S. Rao.          Case of Accused No. 14 Parasuram T. Kanel                  (Cr.  A. No. 143 of 1966) Counsel  did not dispute the finding of the High Court  that there is sufficient independent corroboration of  accomplice evidence implicating Kanel.  We have perused the records and we ’find that the High Court rightly convicted Kanel of  the charges against him. Case of Accused No. 6 Lakshmandas Chbaganlal Bhatia (Cr.  A. No. 144 of 1966) The  courts below accepted the testimony of  Yusuf  Merchant implicating Lakshmandas in the conspiracy and other specific charges against him.  Lakshmandas acted as the financier  in the first four transactions and subsequently participated in the   disposal   of  gold.   Yusuf’s  testimony   has   been corroborated  in material particulars.  It is sufficient  to mention  two circumstances which connects  Lakshmandas  with the criminal conspiracy and ,other charges against him. (1) L.R. 76 I.A. 146,156. 149 Exhibit  Z-20 shows that on November 26,  1956  Lakshman-das had the telegraphic address "Subhat" registered.  The appli- cation   for   registration  of  "subhat"  was   signed   by Lakshmandas.  The address for the delivery of the cables was Lakshmandas   Chhaganlal  Bhatia,  8,  Little  Gibbs   Road, Alimanor  Building,  lst Floor, Bombay-6.   Numerous  cables with  regard  to  the smuggling of  gold  were  received  by Lakshmandas  at  the  telegraphic  address  "Subhat".    The evidence shows that the address "Subhat" was registered  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. The  third  carrier  J. P. Hoffman arrived  in  Delhi.   The contact   of  Lakshmandas  with  this  carrier  is   clearly established.   Ex.  Z64 is a cable dated March 6, 1957  from Yusuf  to  Pedro stating that he was awaiting the  party  at

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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-65  C  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 Marina Ex.  Z-65  B shows that Kanel was charged Rs. 3/8/- extra for a guest and that he left the hotel on March 10.  The passenger  manifest Ex. Z 537 shows that on March 10, 1957 Kanel and Lakshmandas travelled by some plane from Delhi to Bombay and their  tic- ket  Nos. were 194885 and 194886.  There is nothing to  show that Kanel and Lakshmandas came to Delhi for any  legitimate business.  The documentary evidence completely  corroborates Yusuf’s testimony that Kanel came to Delhi, and later he was joined by Lakshmandas and that the object of their visit was to  contact the carrier Hoffman and to receive from him  the smuggled   gold.    The  courts  below   rightly   convicted Lakshmandas of the charges against him. 150 Counsel  for the appellants pleaded for a mitigation of  the sentences.   The  courts below passed on them  sentences  of rigorous imprisonment on the charge of conspiracy and on the individual  charges  for  which  they  were  convicted   and directed  that the sentences on all the charges  except  the charge  of  criminal  conspiracy  would  run   concurrently. Counsel argued that a separate punishment on the  conspiracy charge  was not justified and referred us to  the  following passage  in  Glanville  William’s  Criminal  Law,  2nd  ed., (General Part), art. 220, page 685               "Conspiracy  is a useful feature on  which  to               seize for punishing inchoate crime; it is not,               in  general, an aggravating factor when  crime               has   been  committed.   Where  there   is   a               prosecution  for a consummated crime  and  for               conspiracy   to   commit   it,   no   separate               punishment   would  be  justifiable   on   the               conspiracy  count.   However,  the  fact  that               criminals  are  organized  professionally  for               crime  may  be  taken  into  consideration  in               determining the punishment for the crime." We find that the offence under s. 167(81) of the Sea Customs Act,  1878 was punishable with imprisonment for a  term  not exceeding  two  years or to fine or to both.  A party  to  a criminal  ,conspiracy to commit this offence was  punishable under  s.  120B  (1) of the Indian Penal Code  in  the  same manner  as  if  he  had abetted  the  offence.   A  criminal conspiracy is a separate offence, punishable separately from the main offence.  The sentences passed by the courts  below

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cannot be said to be illegal.  However, in the present case, Yusuf  and Pedro, the ring leaders of the  conspiracy,  have escaped  punishment.   There  has  been  a  prolonged  trial commencing  in  July 1960 and ending in conviction  on  Sep- tember  30,  1963.  Considering all  the  circumstances,  we think,  that  the sentences on all the  charges  should  run concurrently. In  the result, Criminal Appeal No. 140 of 1966  is  allowed and Maganlal Naranji Patel is acquitted of all the  charges. Criminal  Appeal No. 141 of 1966 is also allowed and  N.  B. Mukherjee is acquitted of all the charges. Criminal  Appeal Nos. 139 of 1966, 142 of 1966, 143 of  1966 and  144 of 1966 are allowed in part and we direct that  all the   sentences   passed   on  the   appellants   will   run concurrently.  In other respects, the appeals are dismissed. G.C.  Appeals dismissed. 151