Judgment

BACHAWAT, J.: The six appellants are A-8, Mohamed Hussain Omer Kochra alias Mr. Buick alias Naznen, A-12, Maganlal Naranji Patel, A-16, N. B. Mukherji, A-15, N. S. Rao, A-14, Parasuram T. Kanel, A-6, Lakshmandas Chaganlal Bhatia alias Sham. In this Judgment "A" means accused. Forty persons including the appellants were jointly prosecuted for criminal conspiracy to import and deal in gold punishable under Section 120B of the Indian Penal Code read with S. 167 (81) of the Sea Customs Act, 1878 and for substantive offences punishable under Section 167 (81).

2. A-1 to 5, A-18 to 35 and A-57 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 Abdulla of Bahrein sent gold from the Middle East. A-5 Juan Castarner Casanovas and A-18 Bernardo Sas of Geneva are foreign collaborators. A-19 Hamad Sultan and A-37 Chunilal alias Professor Kamal alias Dwarkadas of Bombay were concerned in the smuggling of gold. A-20 to A-35 Mrs. Gisele Minot, B. J. Lupi, J. P. Hoffman, Jacques Minot, Geoffre allan, M. Torrens, Mrs. Mora Margaret, Armand Yavercowaski, Gran Powell, G. J. Flamat, Mrs. A. Ramel, Mrs. S. B. Taylor J. C. Catino, E. D. Gill, A. J. Mascardo and A. A. Grant are foreigners and are said to have carried gold from foreign countries to India by air.

3. 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 Abidabai 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 Maganlal Naranji Patel and A-13 Mafatlal Mohanlal Parekh are bullion merchants of Bombay. 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 substantive offences under Section 167 (81) and passed sentences of imprisonment and fine.

4. All the convicted persons filed appeals in the High Court. During the pendency of the appeal A-11 absconded. The High 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.

5. The first count charged that all the 40 accused persons along with Mohamed Yusuf Merchant, Pedro Fernandez and other persons at Bombay and other places from 1st November, 1956 to 2nd February 1959 were parties to a continuing criminal conspiracy to acquire possession of, carry remove deposit harbour 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 Section 120-B, I. P. C. read with Section 167 (81) of the Sea Customs, Act, 1878. The other counts charged the accused persons individually with offences punishable under Section 167 (81).

6. 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 about November 1956 Pedro Fernandez and Yusuf Merchant hatched the present conspiracy to which A-11 Murad Ahaharnoff was a party. The scheme was that necessary finances would be arranged, remittances to foreign countries would be made through Murad, gold wou