Cuming, J - (1.)This is an appeal by five persons, Jumman Bepari, Tasaddak. Hossain alias Bachu Mia, Mahammad Kurban Hossain, Tilla Mahmud Khan and E. St. C. Moss who have been convicted by the learned Additional Sessions Judge of Dacca sitting with a jury under Section 46 of the Bengal Excise Act read with Section 120B Indian Penal Code, and sentenced to various terms of imprisonment and fine.
(2.)The case for the prosecution briefly is that the accused Moss who was a Sergeant in the Railway Police at Dacca went down to Calcutta ostensibly because his wife was ill but substantially in order to arrange for smuggling cocaine from Calcutta to Dacca and for that purpose he engaged in a conspiracy with the four other accused Bachu Mia, Kurban Hossain, Tilla Mahmud Khan and Jumman Bepari. In pursuance of this conspiracy one Kalu Mia who was a servant of the accused Moss set out for Dacca from Calcutta with a box which contained a quantity of cocaine. Bachu Mia who is one of the appellants went with him is the same train. When they arrived at a station called Tezgaon which is at a short distance from Dacca on the order of Bachu Mia, Kalu got down from the train. Their movements were observed by one Azizar Rahaman, who is an Excise Sub-Inspector. The box at Tezgaon was made over to one Jumman to be taken in a ghary. Jumman in whose possession the box was, was arrested at Tezgaon and the box was taken to the Station Master's room. There it was searched and a packet of cocaine was found in it which was placed on a table in the room. While the Excise Sub-Inspector proceeded to write the names of the witnesses a man snatched up the packet of cocaine and ran away. On these facts the accused were charged with committing an offence under Section 46 of the Bengal Excise Act read with Section 120B, I.P.C. and were convicted as stated before.
(3.)Mr. Pugh who appeals for the appellants has raised a number of objections to the charge of the learned Additional Sessions Judge to the Jury. It is unnecessary to deal with all the points which Mr. Pugh has raised because two of them are fatal to the trial. Mr. Pugh's first argument is that the Judge has not explained the law to the jury or rather that he has not set out in his charge how he has explained the law and, therefore, this Court is not in a position to say whether he has or has not correctly explained the law to the jury. In dealing with this point the learned Judge observed as follows : " Section 46, Excise Act, and Section 120B, Indian Penal Code, read and explained to the jury." This is all. Obviously it is impossible for this Court to determine from these words whether the law was or was not correctly explained. Mr. Pugh further contends that it is obvious that the law has not been properly explained because the learned Judge does not even know how to correctly draw up a charge under Section 120B and that he could not have convicted the accused of an offence under Section 46 of the Bengal Excise Act read with Section 120B, Indian Penal Code.