Judgement

HIDAYATULLAH, J.: - The appellants who are three brothers appeal by certificate against their conviction under S. 120-B of the Indian Penal Code and S. 167 (81) of the Sea Customs Act and the sentences of imprisonment and fine respectively imposed on them. A fourth brother had filed Criminal Appeal No 55 of 1964 but did not press it at the hearing. One other person (S. L. Daga) was also convicted with them but has not appealed. These persons were found to have entered into a criminal conspiracy among themselves and with others including one Yau Mockchi, a Chinese citizen in Hong Kong, to smuggle gold into India. The method adopted was to insert strips of gold (about 250 tolas) under the lining of the lid of a suitcase, which could be retrieved by unscrewing the metal corner supports and pulling on strings attached to the strips. The suitcases were brought into India by air stewardesses, and Ethyl Wong (P. W. 1), an anglo-chinese girl employed by Air India, was one of them. Discovery came, after gold was successfully smuggled on many occasions, when Yau Mockchi approached one Sophia Wong of the B. O. A. C., line. She was engaged to a police officer and informed her superior officers. A trap was laid. Yau Mockchi was caught with a suitcase with gold in it after he had explained to Sophia how the gold was inserted and how it could be taken out. On the search of his person and also of his place of business, visiting cards of several persons including those of Ethyl Wong and Laxmipat Choraria Crl. Appeal 50/64), photographs of Laxmipat and Balchand Choraria (Crl. Appeal No. 52/64), their addresses and telephone numbers, and other incriminating letters, accounts cables, etc., were found. Immediately thereafter raids took place in India and at Hong Kong where the other two accused who are not before us (Kundanmal Choraria and S. L. Daga) were running a firm called Global Agencies. Numerous documents (some in simple code) and account books were seized. Many of these documents were photostated. The originals were unfortunately returned under the orders of the SC of Hong Kong and have since been suppressed. On the strength of these materials the prosecution was started.

2. At the commencement of the trial Ethyl Wong was examined as the first witness and gave a graphic account of the conspiracy and the parts played by the accused and her own share in the transactions. Her testimony was clearly that of an accomplice. Although she could have been prosecuted, she was not arraigned and it is her testimony which has been the subject of a major part of the arguments before us. No effort has been spared to have it excluded. In two other appeals which we are deciding today with these appeals, the evidence of the accomplices was also questioned on the same grounds. For convenience the whole question has been considered here. In these appeals it is, however, admitted that if her evidence is received, it is sufficiently corroborated both generally and in respect of the three appellants before us. But the evidence of Ethyl Wong questioned in respect of the identification of Laxmipat and Balchand because she was shown their photographs before her statement was taken. The use of the photostats without the originals is also questioned and it is submitted that these documents should be excluded. The main argument is that Ethyl Wong could not be examined as a witness because (a) no oath could be administered to her as she was an accused person since S. 5 of the Indian Oaths Act bars such a course and (b) it was the duty of the prosecution and/or the Magistrate to have tried Ethyl Wong jointly with the appellants. The breach of the last obligation, it is submitted vitiated the trial and the action was discriminatory. In the alternative, it is submitted that even if the trial was not vitiated as a whole, Ethyl Wong s testimony must be excluded from consideration and the appeal reheard on facts here, or in the High Court. It is further submitted tha