GROVER - (1.) , J.: These appeals have been brought by certificate from a judgment of the Bombay High Court. Gian Mahtani the sole appellant in Cr. A. 66/68 has been convicted by the High Court of charges under section 135 (b) (ii) of the Customs Act 1962 and S. 5 of the Imports and Exports Control Act 1947. He has been sentenced to two years on each of the several charges Nos. 28 to 33 and 38 to 41, the sentences being concurrent. On charges Nos. 63 to 66 a sentence of six months' rigorous imprisonment has been imposed. It has been directed that the sentences on all the charges shall run concurrently. In Cr. A. No. 69 of 1968 the sentence of Budhoo and two others was reduced by the High Court to rigorous imprisonment for 6 months. It may be stated that Gian Mahtani had been acquitted by the Additional Chief Presidency Magistrate but Budhoo and others had been convicted and sentenced to 9 month rigorous imprisonment by him on charges Nos. 51, 52, 54, 55, 57 and 58 which related to commission of offences under the aforesaid enactments and under Section 120-B of the Indian Penal Code.
(2.) THE Assistant Collector of Customs, Preventive Department, Bombay, filed a complaint dated 10/08/1964, against 21 persons. Only 10 out of them were tried because the rest had absconded. THE accused, who were tried, were Nos. (1) Gian Mahtani, (2) Gobindram Harjani, (3) Ramchand Motwani, 7, 8, 9, (10) Budhoo, (11) Mohamed Ismail B. Bashir, (12) Nazruddin and (13) Abdul Latif. THE complaint was on chargers under S.120B, Indian Penal Code read with S. 135 of the Customs Act 1962 and S.5 of the Imports and Exports Control Act 1947. Accused Nos. 1, 2 and 3 were arraigned as the principal conspirators who were alleged to have smuggled large quantities of watches and luxury goods from Singapore to Bombay between August 1963 and 20/01/1964. Accused Nos. 7 to 13 were charged as the carriers of these goods and who had arrived by the steamship S. S. Marconi at Bombay on 20/01/1964. THE trial Magistrate acquitted accused Nos. 1 and 2. Accused No. 3 was convicted and sentenced to rigorous imprisonment for 3 years. He filed an appeal before the High Court but during the pendency of the appeal he is stated to have committed suicide and his appeal abated. Out of accused Nos. 7 to 13 only accused Nos. 10, 11 and 12 appealed to the High Court. THE State filed an appeal against the acquittal of accused Nos. 1 and 2. Accused No. 2 died during the pendency of the appeal. THE High Court allowed the appeal against accused No. 1 and dismissed the appeal of accused Nos. 10, 11 and12 although their sentences were reduced to 6 months' rigourous imprisonment. The table given below will indicate the relationship between the principal accused pers ons, the main witness, P.W. 1 Ramchand Harjani and certain other persons who figure in the case. JUDGEMENT_611_2_1971Image1.jpg According to the case for the prosecution accused Nos.1 and 2 entered into a criminal conspiracy with P.W. 1 Harjani in the first week of August 1963, the object of conspiracy being to purchase wrist watches and other luxury goods like saris, perfumes, electric cookers, etc. from Singapore and smuggle them into India at Bombay. Accused No.1 was the principal financier and his share in the profits was fixed at 75 Per Cent . Accused No.2 and Harjani were to receive 25 per cent. Accused No.3 Motwani was to be sent to Singapore as an employee of this Syndicate on a fixed salary. He was to arrange for purchasing and sending the goods from there. The modus operandi of the conspirators was that wrist watches were concealed in tins meant for provisions and electric cookers in such a way that nobody's suspicion might be aroused. Certain persons were employed as carriers. They were paid their passage to Bombay mostly in the cabin class and also the additional sum of Rs.300 to Rs.400 each. The duty which was levied on other luxury goods which were sent with them was paid by the conspirators at the docks in Bombay.
(3.) THE Customs Officers took various steps from 31/01/1964, onwards in the matter of unearthing the conspiracy. Details are not necessary. Mention may be made only of a confessional statement of A-1 which is Ext. Z 70 in which he admitted the hatching of the conspiracy and the smuggling of luxury articles pursuant thereto. He has ascribed to himself a minor part and put the blame largely on A-2 and P.W. 1 Harjani. In all 66 charges were framed. Harjani was made the principal prosecution witness. THE evidence on behalf of the prosecution consisted of the testimony of Harjani, the cables which passed between the conspirators and the confession of A-1 which was retracted at the trial as also the deposition of Jagtiani and Vaswani (Prosecution witness Nos. 2 and 10). The trial Magistrate held that there was a conspiracy to smuggle luxury goods and watches on a large scale as alleged in the complaint filed by the Assistant Collector of Customs on 10/08/1964. He was of the view that A-1 was engaged in smuggling business during the period of the conspiracy. He, however, found that A-1 was involved in a separate business of smuggling which was independent of the conspiracy and, therefore, the conspiracy charge which had been framed against him had not been proved. He acquitted A-1 of all the charges but convicted the other accused as mentioned before. The High Court considered the evidence including the cables which had pained between A-1 and the other alleged conspirators and came to the conclusion that no clear inter-connection was established between Harjani and A-1. The case of A-1 was that he was doing his own business with Atma Ram till about the middle of December, 1963 and thereafter he did business with A-3. The High Court was satisfied that the decision of the learned Magistrate was correct about A-1 doing a separate business and not being a member of the conspiracy. It, however, proceeded to examine the version given by A-1 in defence which was that he was doing business in currency. The High Court rejected this part of the case of A-1 and was of the opinion that he was doing the same kind of business as Harjani i.e. smuggling of watches and luxury goods. The approach of the High Court was as follows:;