1969 (3) TMI 30 - SC - Customs

Court clarifies gold smuggling charges, convicts based on evidence, sentences to run concurrently.

MOHD. HUSSAIN UMAR KOCHRA Versus KS. DALIPSINGHJI

MOHD. HUSSAIN UMAR KOCHRA Versus KS. DALIPSINGHJI - 1999 (110) E.L.T. 347 (SC), 1970 AIR 45, 1969 (3) SCR 130, 1969 (3) SCC 429 Issues Involved:1. Whether the import of gold in contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1947 was punishable under Section 167(81) of the Sea Customs Act, 1878.2. Whether the prosecution established the general conspiracy laid in charge No. 1.3. Whether the learned Magistrate wrongly allowed a claim of privilege in respect of the disclosure of certain addresses and cables and if so, with what effect.4. Whether the Magistrate wrongly refused to issue a commission for the examination of Pedro Fernandez.5. Whether the Magistrate wrongly refused to recall PW 50 Ali for cross-examination.Detailed Analysis:1. Punishability under Section 167(81) of the Sea Customs Act, 1878:The court clarified that the import of gold in contravention of Section 8(1) of the Foreign Exchange Regulation Act, 1947, was indeed punishable under Section 167(81) of the Sea Customs Act, 1878. The notification dated August 25, 1948, under Section 8(1) restricted the bringing of gold into India without the Reserve Bank's permission. Section 23A of the Act created a fiction that the restriction was imposed under Section 19 of the Sea Customs Act, 1878, thus attracting all provisions of the Sea Customs Act, including Section 167(81). The court also noted that the statutory fiction did not limit the application of the notification to imports by sea and land only, thus covering imports by air as well.2. Establishment of General Conspiracy:The court found that there was a single general conspiracy to smuggle gold into India from foreign countries. The scheme involved multiple individuals and phases but was part of a unified effort to achieve a common illegal purpose. The court distinguished this from separate conspiracies, emphasizing that the continuous smuggling activities from Geneva and the Middle East were different phases of the same conspiracy. The court rejected the argument that there were separate conspiracies for gold smuggling from Geneva and the Middle East.3. Claim of Privilege on Disclosure of Addresses and Cables:The court found that the privilege claimed under Section 124 of the Evidence Act was not properly invoked. The other cable addresses and cables were not communications to a public officer in official confidence. However, since these addresses and cables were related to investigations unconnected with the present case and did not concern any of the accused, their non-disclosure did not result in a failure of justice.4. Refusal to Issue Commission for Examination of Pedro Fernandez:The court upheld the Magistrate's decision to reject the application for issuing a commission to examine Pedro Fernandez. The application lacked proper grounds and did not provide sufficient particulars, such as Pedro's willingness to be examined or his address. The court concluded that the application was not made in good faith and was rightly rejected.5. Refusal to Recall PW 50 Ali for Cross-examination:The court found no grounds for recalling PW 50 Ali for cross-examination. The defense's claim that Ali was repentant and wanted to admit to giving false evidence was unsupported by any affidavit or material. The court noted that it has the inherent power to recall a witness if satisfied that the witness's testimony would be materially different, but no such satisfaction was reached in this case.Individual Cases:Accused No. 8 Mohamed Hussain Umar Kochra:The court found sufficient corroboration of Yusuf Merchant's testimony implicating Kochra. Evidence showed that Kochra's telegraphic address 'Nazneen' was used for receiving cables related to gold smuggling. The court upheld Kochra's conviction.Accused No. 12 Maganlal Naranji Patel:The court found that PW 69 Mohamed Rafique, who testified against Maganlal, was an accomplice. Since Rafique's evidence could not be used to corroborate the testimonies of other accomplices, and there was no independent corroboration, the court acquitted Maganlal of all charges.Accused No. 16 N.B. Mukherjee:The court found no independent corroboration of the accomplice testimonies implicating Mukherjee. The letters and documents presented did not sufficiently connect Mukherjee to the crime. The court acquitted Mukherjee of all charges.Accused No. 15 N.S. Rao:The court found sufficient independent corroboration of Yusuf's testimony implicating Rao. The court upheld Rao's conviction.Accused No. 14 Parasuram T. Kanel:The court found sufficient independent corroboration of the accomplice evidence implicating Kanel. The court upheld Kanel's conviction.Accused No. 6 Lakshmandas Chhaganlal Bhatia:The court found sufficient corroboration of Yusuf's testimony implicating Lakshmandas. Evidence showed that Lakshmandas registered the telegraphic address 'Subhat' for smuggling activities. The court upheld Lakshmandas's conviction.Sentencing:The court noted that while the sentences passed by the lower courts were legal, considering the prolonged trial and the fact that the ringleaders escaped punishment, it directed that all sentences should run concurrently.Conclusion:Criminal Appeal Nos. 140 of 1966 and 141 of 1966 were allowed, acquitting Maganlal Naranji Patel and N.B. Mukherjee of all charges. Criminal Appeal Nos. 139, 142, 143, and 144 of 1966 were allowed in part, directing that all sentences run concurrently while dismissing the appeals in other respects.