# MOHD. HUSSAJN UMAR KOCBRA ETC v. K. S. DALIPSINGWI & ANR., ETC - **Citation:** [1970] 1 S.C.R. 130 - **Court:** Supreme Court of India - **Decided:** 1969-03-31 - **Case number:** Criminal Appeals Nos. 139 to 144 of 1966 - **Bench:** S. M. Swu, R. S. Bachawat, K. S. Hegde - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-hussajn-umar-kocbra-etc-v-k-s-dalipsingwi-anr-etc-4722 - **Pages:** 21 ## Headnote Foreign Exchange Regulation Act 1947, s. 8-lmport of gold in contravention of ttetion whether punishable under Sea Custonu A.ct. 1878, .i:. 167(81)-Criminal conspiracy under s. 1208 1.P.C.--Ont conspiracy or several-Tests to drcide-lndian Evidence Act 1. 124, clailn of privile~ under-Wrong allowiince of plea doe.t not affect trial if it does n~t result in failure o/ justice-Criminal Procedure Code 1. 503--Commission need not he issued if sufficient particulars of wi1ness not given in applic11tionRtcalling of witness whtn irutified-Evidence Act s. 133 & 111. I14(b)- Accom[Jlice evidence-Principles relating to-Clwrges fnr con·.pir.:icy anti subst<.cnti~e offence--Concurrent running oj sentences wlten ju.stlfied. "fhe appellants along vtilh certain other accwed were tried for the oll'coce of criminal conspiracy to import and deal in gold punishable under s. 1208 of the Indian Penal Code read withs. 167(81) of the Sea Customs Act, 1878 and for suhstantive offences punishable under s. 167(81). Having been coovict~d by the trial judge and the High Court having dismissed their appeals, they came 10 this Court by s;:>ecial leave. The general questions affecting all 1he appelJants that arose for consideration were: (1) \Vas the import of g.:iid in conrravcn1ion of s. 8( I) \)f rhe Foreign E.~changc Regulation Act. 1947 puniplplices and ron.fessions of co-accused and the question whether separate punishment for conspiracy should be awarded when the accused i! a1rcady sentenced for the substantive offence, also came up for consi· deration. HELD : (i) The Sea Customs Act 1878 conlained a number of prohibitiom on imports by land or sea and by s. 19 authorised the imposition of further prohibitions and restrictions on import or cxpon hy sea or by land. One of the statu~ creatiog further prohihitions was the Foreign Exchange Regulation Act 1947. A notiftcarinn dated August 25, 1948 as amended up to date issued under s. 8( ll of this Act directed that "'except with the general or special permission of the Reserve Bank, no penon shall brln~ or send into India (a) any ~old coin. i:old bullion, gold sheets or gvld in~ot whether refined or not ...... ,. Section 2~A of the Ac1 provided that the restrictions imPosed bys. 8(1) "shall be deemed to have been imPoSCd under s. 19 of the Sea Cwtoms Act. 1878 and ..II the orovisions of th:it Act shall have l"ffect :i.cco;dingly .. " The effect of :-. 23A \\·:ts !hat the contravention of the notification under s. 8(1) attracted to it eoach :ind evcrv orovision 1... f the Sea Cu'toms Act. 1878 in force for the time being including s. 167(81). [136 F-137 A) While s. 19 of the Sea Customs Act authori~cd the imPosition of or~ ~ibirion' and restrictions on the import and export of goods by sea and land A B c D E F G H A B c D F G MOHD. HUSSAIN V. DALIPSINGHJI 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 tb~ 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 witho ## Text _Characters 0–39,664 of 59,726. This is a partial read: ask again with offset=39664 for what follows._ 130 MOHD. HUSSAJN UMAR KOCBRA ETC. v. K. S. DALIPSINGWI & ANR., ETC. March 31, 1969 (S. M. Swu, R. S. BACHAWAT AND K. S. HEGDE, JJ.) Foreign Exchange Regulation Act 1947, s. 8-lmport of gold in contravention of ttetion whether punishable under Sea Custonu A.ct. 1878, .i:. 167(81)-Criminal conspiracy under s. 1208 1.P.C.--Ont conspiracy or several-Tests to drcide-lndian Evidence Act 1. 124, clailn of privile~ under-Wrong allowiince of plea doe.t not affect trial if it does n~t result in failure o/ justice-Criminal Procedure Code 1. 503--Commission need not he issued if sufficient particulars of wi1ness not given in applic11tionRtcalling of witness whtn irutified-Evidence Act s. 133 & 111. I14(b)- Accom[Jlice evidence-Principles relating to-Clwrges fnr con·.pir.:icy anti subst<.cnti~e offence--Concurrent running oj sentences wlten ju.stlfied. "fhe appellants along vtilh certain other accwed were tried for the oll'coce of criminal conspiracy to import and deal in gold punishable under s. 1208 of the Indian Penal Code read withs. 167(81) of the Sea Customs Act, 1878 and for suhstantive offences punishable under s. 167(81). Having been coovict~d by the trial judge and the High Court having dismissed their appeals, they came 10 this Court by s;:>ecial leave. The general questions affecting all 1he appelJants that arose for consideration were: (1) \Vas the import of g.:iid in conrravcn1ion of s. 8( I) \)f rhe Foreign E.~changc Regulation Act. 1947 puniplplices and ron.fessions of co-accused and the question whether separate punishment for conspiracy should be awarded when the accused i! a1rcady sentenced for the substantive offence, also came up for consi· deration. HELD : (i) The Sea Customs Act 1878 conlained a number of prohibitiom on imports by land or sea and by s. 19 authorised the imposition of further prohibitions and restrictions on import or cxpon hy sea or by land. One of the statu~ creatiog further prohihitions was the Foreign Exchange Regulation Act 1947. A notiftcarinn dated August 25, 1948 as amended up to date issued under s. 8( ll of this Act directed that "'except with the general or special permission of the Reserve Bank, no penon shall brln~ or send into India (a) any ~old coin. i:old bullion, gold sheets or gvld in~ot whether refined or not ...... ,. Section 2~A of the Ac1 provided that the restrictions imPosed bys. 8(1) "shall be deemed to have been imPoSCd under s. 19 of the Sea Cwtoms Act. 1878 and ..II the orovisions of th:it Act shall have l"ffect :i.cco;dingly .. " The effect of :-. 23A \\·:ts !hat the contravention of the notification under s. 8(1) attracted to it eoach :ind evcrv orovision 1... f the Sea Cu'toms Act. 1878 in force for the time being including s. 167(81). [136 F-137 A) While s. 19 of the Sea Customs Act authori~cd the imPosition of or~ ~ibirion' and restrictions on the import and export of goods by sea and land A B c D E F G H A B c D F G MOHD. HUSSAIN V. DALIPSINGHJI 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 tb~ 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 follo\vs if the matter is looked at from the point of view that import or exoprt 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 censider 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. i" an agrei:ment by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. The agreement is the gist of the, offence. In order to constitute, a single general conspiracy tQ.ere mu;;t be a common design and a common intention of a11 to work in furtherance of the common design. A general conspiracy must be distinguished from a number of separate conspiracies having a similar purpose. 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) I S.C.R. 595, S. Swaminatham v. State of Madras, A.LR. 1957 S.C. 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' Fl (iii) Although the claim of privilege under s. 124 of the Evideniw, Act in respect of certain cables and addresses was wrongly allowed by lh!I : Magistrate these cables and addresses were unconnected with the present · case and did not relate to any person or persons concerned in the offe·ncia · for which the appellants were being tried. The non-disclosuro of these · documents did not therefore occasion any failure elf justice. [141 A-BJ (iv) The application for the e"amination of Pedro Fernandes on commission did not give sufficient particulars in.eluding 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 bad not been made out. [141 BJ H {v) The aptJiication for recaUing Ali as a. witness on the ground that· he was repentent fQr 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 mat~rial particular. [141 H] 132 SUPREME COURT IlEPORTS [1970] I.S.C.R. (vi) (a) The combined effect of ss. 133 and 114 Jllustration (b) of the Evidence Act is !bat though a conviction based UPon accomplice evidence is legal the Coun will no1 accept such evidence unless it is corroborated in material particulars. The corroboration must connect each accused with the crime. It may be direct or circumstantial. It is oot necessary that the corroboration should confirm all the circumstances of tho crime. It is sufficient if the corroboration is in material particulars. One accom. plice cannot corrobornte another. (142 E-F] Bhiva Dou/u Patil v. State of Maharashtra, (1963] J S.C.R. 831 and R. v. BasMr.ilk, (1916] 2 K.B. 658, referred to. (b) A participes er/mines in respect Cil the actual crime charged is an iccomp)ice. The witnw concerned may not confess his participation in the crime, but it is for the Coun to decide on a consideration of the entire evidence whether he is an accomplice. (146 A-BJ (c) If aeveral accomplices simultaneously and without prevloue concert give a consistent account of the crime implicatini the accuaed, then under s. 114 Illustration (b) of the Evidenoe Act the Court may accept the aeveral statements as oorroborating each other. But It must be established that the several statements of accomplices wero given indepea. dently and without any previous concert. (147 0-H] Haroo11 Haji Abdulla v. State of Maharashtra, 70 Bom. L.R. 540 and Blrubon/ Sahu v. The King, L.R. 76 I.A. 146, referred to. A B c D (vii) The offences under s. 167(8) of the Sea Customs Act and s. 120B(l) of lhc Indian Penal Code are separately punishable and the separate sentences given in respect of them by the Courts below wtTe 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 undcrRono a prolonged trial, a direction that their 5"ntences in resoect of all the charges E should run concurrently would be justified. [ISO D-P] 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. PonLS A. Mehta, B. M. Parikh, IQJlf!ndra Lal, I. R. Gagrat and B. R. Aganva/a, 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. Gtigrat and B. R. Agarwa/a, for the appellant (in Cr. A. No. 140 of 1966). R. Jethamalani, M. V. Rao, Janendra Lal, J. R. Gagrat and B. R. Agarwa/a, for the appellant (in Cr. As. Nos. 141 and 142 of 1966). R. Jethmalani, Janendra L.1/, J. R. Gagrat and B. R. Agarwala, for the appellant (in Cr. As. Nos. 143 and 144 of 1966). F G H ;a ' B D MOHD. HUSSAIN v. DAL!PSINGHJI (Bachawat, J.) 133 H. G. Khande/awala, A. B. Pandya, H. R. Khanna and R. N .. Sachthey, for the respondents (in all the appeals). Thi Judgment of the Court was delivered by Bachawat J, The six appellants are A-8, Mohamed Hussain Omer Kochra alias Mr. Buick alias Na7:11en, A-12, Maganlal · Naranji Patel, A-16, N. B. Mukherji, A-15, N. S. Rao, A-14, Parasuram T. Kane!, A-6, Lakshmandas Chaganlal Bhatia alias Sham. In this judgment "A" mean accused. Forty persons ·including the. appellants were jointly prosecuted for criminal conspiracy to import and deal in gold punishable under s. 120B of the Indian Penal Code read withs. 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 AbduJla of Bahrein sent gold from the Middle East. A-5 Ju'111 Castamer Casanovas and A-18 Bernardo Sas of Geneva are foreign colla- . borators. A-19 Hamad Sultan and A-37 Chunilat alias Professor Kamal alias Dwarkadas of Bombay were concerned in the smuggling of 1;old. A-20 to A-35 Mrs. Gisele Minot, B. J. Lupi, J. P. Hoffman, Jacques Minot, Geoffre Allan, M. Torrens, Mrs. Mora E Margaret, Armand Yavercowaski, Gran Powell, G. J. Flamant, · Mrs. A. Ramel, Mrs. S. B. Taylor, J. C. Catino, E. D. Gill, A. J. F G H · 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 Alidabai 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 Magan!al Naranji Patel and A-13 Mafatlal Mohanlal Parekh are bullion merchants of BomlJay. A-15 N. S. Rao, A-16, N. B. Mukherji, A-17 Timothy Miranda, A-39 D. K. Deshmukh and A-40 Jacob Miranda alias Tambaku were mechanics in the employ of the Air India International. A-36 Francis Bello was a co-conspirator. The Additional Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay, acquitted A-9, 10, 13, 39 and 40 of all the charges. He convicted A-6, 7, 8, 11, 12, 14, 15, 16, 17. 36 and 38 of criminal conspiracy and $Ubstantive offences under s. 167(81) and passed sentences of imprisonment and fine. ~II the convicted persons filed appeals in the High Court. Durmg the pendency of the appeal A-11 absconded. The High 134 SUPREME COURT REPORTS (1970) 1 S.C.R. 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 Fernahdez and other persons ~t- Bombay and other places from 1;11-19,56 to 2-2-1959 -were parties to a oontinuing criminal conspira9y to acquire possession .of, carry remove deposit 4arbour 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 withs. 167(81)_of the Sea_Cu~toms 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 November 1, 1956 some of the accused persons along with others were concerned in the illegal importation of gold. In or abo\lt 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 wpuld be sent by air from foreign countries to Bombay, Deihi, Calcut_ta and other air ports and the smuggled gold would be solo in India. A-6 Lakshmandas, A-8 'Kochra and A7 Rabiyabai. were approached for the necessary finances. Betw:;en February 3 and July 8, 1957 eleven c;miers bro~ht gold ·by air from Switzerland. Lakshmandas financed the first four transactions and his telegraphi9 address "Sub hat" was. useif for receipt ancf despatch or cables. Qn Fe!iruary 3, 1957 the first carrier i;·Qisele Minot came to BomMy, On February ;25, 1957, the ;,;~a carrier· B. J. Lupi an~ on March 9, 195? the third ca~er J,~ .. Jlotfuian came to Delhi. TQe fourth earner Jacques Mmot ~, ·-- po_Co/ombo., E:ochra and Rabiyabai financed the subsequent tr;~e~ons·.and allowed Jh\l,use of his telegraphic address "Naz- >11~-i Cables used ·to--l>e ·sent in codes known by the ''Private Dil'.tionary'', '''.the ·new Oeneva Code" and "the Beirut Code", and ''the Bahrein Code." Laxmandas ceased to be a financier but he oontinued to participate in the'disp9sal of gold. On April 8, 1957 the fifth· earner Mora Marg~ret went to-Colombo. On April 19, 1957 the sixth carrler Geoffre Allan and on May 3, 1957 the seventh ·carrier came 1o ·BOmbay. At· about thls time A-12 is said to have joined this conspiracy. On-May 21, 1957 the 8th carrier Grant Powell came to ~lhi. On June 9, 1957 the ninth L ------ - A B c D E 11 G H ~ A B c D E F G H MOHD. HUSSAIN v. DALIPSINGHJJ (Bachawat, J.) 135" carrier Mora Margaret and on June 24, 1957 the tenth carricrArmand Yavercowaski came to Bombay. On July 8, 1957 the 11th carrier Grant Powell came to Calcutta. A-37 Chunilal who was despatched to contact th~ carrier disappeared ~ith the gold. Thereafter the smuggling of gold stopped for sometune. In August 1957 Yusuf and A-38 Hassan representing Kochr:i and Rabiyabai went to Beirut and induced Al to A3 Jamal Shuhaibar and his two brothers to join the conspiracy. The scheme was that the Shuhaibar brothers would send gold from the Middle East, Koci\fa and Rabiyabai would remit the . necessary fund and that A·l 9 '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 B.ombay. On February 24, 1958 the twelveth carrier A. J. Mascardo was arrested in Delhi. Simul,aneously 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 Shu.'iaibar 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 services 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 g\)ld stopped for some time. Since October 1958 eleven consignments of gold were sent to Bombay. On February I, 1959 the Rani of Jhansi carrying the 11th consignment of gold was searched by the custom officers at the Santacruz airport Bombay and the J?old 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 accolnplices, and witnesses and exhibited 136 SUPREME COURT REPORTS • (1970) I S.C.R. numcrotis documents. Yusuf Merchant, the main witness on b&- half of the prosecution implicated all !he appellants in the crime. The courts below accepted his testimony, found that it was corroborated i11 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 (I) of the Foreign Exchange Regulation Act, 1947 punishable under~. 167(81) of the Sea Customs Act, 1878; (2) did the prosecution establish the general conspiracy laid in charge no. l; (3) did the learned magistrate wrongly allow a claim of privilege in respect of the discloi!ure 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 s. 11. Customs duties are leVlllbie 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 authori7.cd the imposition of further prohibitions and restrictions on import or export by sea or by land (s. 19). The Act alsoJ'rovided the machinery for the enforcement of prohibitions an restrictiom A B c D by means of search, seizure, confiscation and penalties. Several F other statutes contained further prohibitions and restrictions oo the import or export of goods. Section 8 of the Foreign Exchange Regulation Act, I 94 7 is one such enactment. A notification dated August 25, 1948 as amended up to date issued under s. 8 ( 1) ol this Act directed that "except with the general G or special permission of the Reserve Bank, no person shall bring or send into Indill (a) any. gold coin, geld bullion, gold sheeta 01 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 contravcnff tion of the notification under s. 8(1) attracted to it each and . every provision of the Sea Customs Act 1878 in force ·for the 1• I ... .. A B c D E F MOHD. HUSSAIN v: DALIPSINGHJI (Bachawat, J.) 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 f;Re 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 l~d, sea and air. Section 23A of the Foreign Exchange Regulation Act, 194 7 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 )Vithout 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. 'f!Je 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 tl;te Second World War traffic by air began. There is a force in the contention that the import-or· export by air is a species of import or export by land. 'J'he 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 restJiction 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, 18 7 8 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 fraudulent evasion of the duty was punishable under s. 167(81). The Sea Customs Act 1878 and the rules and notifications made G 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 CusH toms 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 U'J.Sup. Cl/69-10 138 SUPREME COURT RPPORTS [1970)\scR in Para IX of the Indian Aircraft Rules 1920 frameJ 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 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 Ad, 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 levv 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 tho Sea Customs Act, 1878, (3) a contravention of the Rules wu punishable under s. 10 of the Indian Aircraft Act, 1934 and not under s. 167(81). On behalf of the respondent our at1ention 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 WJS 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 evidence disclose4 a number of separate conspiracies and that the charge of general conspiracy was not proved. Criminal conspiracy as defined in s. 120A of the l.P.C. is an agreement by two or more persons to do or cause to be done an illegal act A c D E F G H - A 8 c D E F G H MOHD, HUSSAIN v. DALIPSINGHn (Bachawat, J.) !39 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 co~stitute a single gene~al conspiracy there must be a common design and a common. mtention of all to work in furtherance of the common des:ign. ' 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 arid 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 comrnan 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 .witJI 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('), S. Swaminatham v. State Madra${') 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 Mer. chant and Pedro Fernandes supplied the br:iin power, Murad Asharanoff remitted the funds, Lakshmandas Kochra and Rabiyabai supplied the finances, Pedro Fernadez and the Shuhai"bar brothers sent the gold from Geneva and the Middle East, carriers brought the gold hidden in jackets, mechanics Conceialed and removed gold from aircrafts and others helped in contaeling the carriers and ·disposing of t~e. g_old. Yusuf, Pedro and ·Murad and Lakshmandas were pennaneni 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 w~. extended to (I) [1967] 1 S.C.R. 595. (2) A.I .. R. 1957 .S.C. 340. (3) 11965] 2 All E.R. 448. SUPREME CO~T REPORTS [1970] l s.c .(t 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 fonned part of a single conspiracy. The settlement of account between Yusuf and Pedro at Beirut did not end the original conspiracy. There can also be no doubt that the smuggling of gold from Beirut by the Shuhaibar brothers and from Bahrein by their agent Lori were different phases of the same conspiracy. The main argument was that the despatch of gold from Geneva was the result of one conspiracy and that the despatch of gold from the Middle East was the result of another separate and unrelated conspiracy. 'The courts below held, and in our opinion rightly, that there was a single general conspiracy embracing all the activities. Pedro had a share in the profits of the smuggling from Geneva. He got also a share of Yusufs 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 p~ 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 Account8Qt 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. l71A previously issued by the customs officers to the Tcle- ·graphs 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 production 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 ol Customs, Calcutta, claiming privilege under s. 124 of the Evidence Act in respect of the the disclosure of the other B c D E F G H A B c • D E G H MOHD. HUSSAIN v. DALIPSINGH.JI (Bachawat, !.) 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. li4. 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 addres· ses 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 Jetter 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 where· abouts could not be traced. On April 18, 1962 the defence applied for the issue of a commission "to the appropriate authority or court either in Switzerland or in United Kingdom or in Pakistan for examination of Pedro Fernandez and Gimness as witnesses for the defence". Except stating that the defence undertook to pay all expenses and supply all relevant information, the application did not give any other particulars. The learned Magistrate rejected the application. He held and in our opinion rightly that the application was misconceived and proper grounds for the issue of the commission under 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 autho1'ity either in Sw~tzerlaild or in United Kingdom or in Pakistan. The application was not made in good faith and was liable to be rejected ·On thiS ground alone. 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 commenc· ed 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 repentent and wanted to say that he had given false evidence. In our opinion, no grouqd 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 IU SUPREME COUJ.T REPORTS [1970] l SC.R. a witness if it is satisfied that' he is prepared to give evidence which is materially different from what he had given at the trill. In this case there was no material upon which the Court could be so satisfied. The learned Magistrate dghtly disallowed the prayer for recalling Ali. Mr. Jetharnalani argued that the rough notes of statements given by Yusuf to the customs officers had been destroyed and tAat 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 mis-carriage 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 te5timony 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 i9 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. sec Bhiva Doulu Patil v. State of Maharashtra, (1) lt.. v. Baskerville('). In this light we shall examine the case of each appellant separately. Case of Accused No. 8 Mohamed Hu.s.<;afn Umar Kochra (Cr. A. No. 139 of 1966) B c () Yusuf Merchant deposed that Kochra and his mother-in-law A-7 Rabiyabai acted as financiers after the fourth transaction'. that Kochra's cable address "Nazneen" at 19 Erskine Road and H his telephone was used in connection with the gold smuggling acti- (1) (1963] 3 S.C.R. 831. (2) [1916) 2 K.B. 658. A B c D E F G H ' MOHD. HUSSAIN v. DALIPSINGHJI (Bachawat, J.) 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. Yusufs testimony has. been corroborated in material particulars. Kochra's mother resided at 10, Erskine Road, 4th fioor, 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 Kochra's mother. It was proved that the signature "Ismail Kader" and the address 1 g,· Erskine Road, 4th fioor, Esmail Building, Bombay-3 on Ex. Z-70 were in the handwriting of Rajabali Karmalli, another servant of Kochra's mother. Rajabali Karrnalli 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 al!d cannot be traced .. Several cables sent to Nazneen in connection with the gold smuggling have oeen exhibited. The other cables could not be traced. Kochra registered "Nazneen" because he desired to join the conspiracy and received the c!\Q.les 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.