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Criminal Revision Cases Nos. 5, 6, 7, 12, 13, 14, 15 19 and 30 of 1951, decided on 18th April 1951.
, S. 196‑A‑Cons piracy to commit criminal breach of trust punishable under S. 406, P. P. C. involving the commission as modus operandi of offences under Ss. 7 and 8 of Act XXIV of 1946 viz., failure to keep stock‑book by the licensee, and of falsification of accounts, punishable under S. 477‑A, P. P. C.‑Only latter offence non cognisable‑Sanction unnecessary.
It is true that one of the objects, namely, falsification of accounts is a non‑cognisable offence and of course if a charge was framed in respect only of "falsification of account", and on no other offence, provisions of section 196‑A would be attracted. But in this case the accused is charged of having committed various offences in course of committing breach of trust. It will be noticed from the charge that the object was to commit criminal breach of trust and in order to commit such an offence, the modus operandi of the accused was such as to bring him within the mischief of the other provisions of Pakistan Penal Code. So, it cannot be said that the object of conspiracy to commit breach of trust cannot be separated from others for the latter were only means to an end.
The charge which the accused was called upon to meet was one of criminal breach of trust notwithstanding whatever the means may have been employed to effect that object. If criminal breach of trust is carried out by other means indicated in the charge, it does not follow that the provisions of section 196‑A would apply. There is difference between the object of a conspiracy and the means adopted to achieve that object.
Hanumantha Rao and others v. Emperor A t R 1934 Mad. 88 ; Bishombhar Nath Tandon, Rai Sahib and others v. King Emperor A I R 1926 Oudh 161 ; Ramchandra Rango v. Emperor
A I R 1939 Bom. 129 ; Paresh Nath v. King Emperor A I R 1947 Cal. 32 ; Golam Rahman and others v. The King 83 C L J 397 ; Gokulchand Dwarikadas Morarka v. The King Emperor 52 C W N 325 (P C) ref:
, Ss. 222 (2), 234 Separate charges in same trial of conspiracy to commit criminal breach of trust under S. 120‑B, P. P. C., and breach of trust made up of various criminal acts‑‑Held, same transaction‑No misjoinder.
Besides the straight charge under section 406 of the Pakistan Penal Code, there was also a separate charge of a comprehensive nature relating to criminal conspiracy. The subsequent series of acts of misappropriation forming the subject of separate charges under section 406 of the Pakistan Penal Code were so connected together as to form the same transaction within the meaning of section 235 of the Code of Criminal Procedure.
Held that the main object of conspiracy is stated in the first charge. All subsequent acts are only done in pursuance of that conspiracy which is the main link which connects all these acts and makes them part of one transaction.
There was no misjoinder of charges offending against the provisions of the Code of Criminal Procedure nor could it be said that the plurality of charges caused bewilderment and prejudice to the petitioners.
Babulal Choukhani v. King Emperor 42 C W N 621 rel.
Ramdayal Prasad v. Syed Hasan A I R 1944 Pat. 135 inapplicable.
, S. 406‑Accused buying cloth with their own money as licensees of the Government Civil Supply Department‑As licensees bound to distribute cloth to permit‑holders according to direction of Civil Supply Depart ment‑Accused held, trustees of goods and not owners‑Criminal breach of trust.
A certain quantity of cloth was allotted to the Syndicate to be distributed to the permit‑holders according to the directions of the Civil Supplies Department. Their use could not be made in any other way except for the benefit of those consumers who were given permits for the purchase of the same and on whose behalf the firm was entrusted with the goods. The petitioners, therefore, received the cloths under certain restricted conditions and it is fallacious to argue that they possessed it as absolute owners. The petitioners were trustees of the goods and could not be regarded as owners. The stock entrusted to accused‑petitioners having been found short, they were held guilty of having committed criminal breach of trust in respect of these goods entrusted to them.
Muhammad Ismail, for Petitioners in Criminal Revisions Nos. 5 and 6 of 1951.
A. Hakim, for Petitioner in Criminal Revision No. 7 of 1951.
A. K. M. Baquer, for Petitioners in Criminal Revisions Nos. 12, 14 and 30 of 1951.
A. M. Sayem, for Petitioner in Criminal Revision No. 13 of 1951.
Dtnesh Chandra Roy, for Petitioner in Criminal Revision No. 15 of 1951.
Hamoodur Rahman, for Petitioner in Criminal Revision No 19 of 1951.
Sultanuddin Ahmed, Deputy Legal Remembrancer with S. A. Maquith Chowdhury, for the Crown.
---These are 9 Rules calling upon the District Magistrate of Tippera to show cause why the conviction of ,and sentence passed on the petitioners should not be set aside. They arise out of the same judgment and have been heard together and are now disposed of under this one judgment.
The material facts giving rise to this prosecution are these :
By a deed of partnership, a firm under the name and style of Moslem Traders Syndicate having its registered office at Brahmanbaria, was started with a view to deal with controlled cloths. The partners of this firm were Abdul Hamid alias Abu Mia, Joad Ali, Seraj Ali, Abdul Majid Khalifa, Tofail Ahmed Khan, Kafiluddin Khan, Abdul Hakim, son of Bari, Nurul Islam and Idris Bhuiya, Abdul Hakim and Nurul Islam were taken is as partners of the said firm on the score of their having already had wholesale business for cloth in their names. Idris Bhuiya had one wholesale licence and Abdul Hakim and Nurul Islam jointly had another licence. The firm was mainly organised with the efforts of Shah Bazlur Rahman who was designated as a Secretary of the firm. One of the partners Abdul Hamid alias Abu Mia was the Vice‑Chairman of the Brahinanbaria Municipality and one Parimal Sen, since deceased, who was a clerk of the said Municipality was appointed as a Manager of the partnership firm at the instance of the said Abdul Hamid. Parimal Sen was, therefore, acting as the latter's representative in the firm. Idris Bhuiya and Abdul Hakim were appointed cashier and clerk, respectively, in the said partnership firm. Three more persons, namely, Jatindra Roy, Indra Mohan Sa.ha and Joynal Abedin were also appointed as clerks of the firm. At first the firm operated its business with the help of Tippera Modern Bank, Brahman baria Branch, and when the business increased in volume and this Bank refused to advance more money, the partners made new financial arrangement with the Comilla Union Bank, Brahmanbaria Branch. This Bank agreed to advance money. On the strength of the licence standing in the name of Idris Bhuiya, Abdul Hakim and Nural Islam, the partners of the said Moslem Traders Syndicate used to take delivery of cloth in bales from Bengal Textile Association of Brahmanbaria against permits issued by the Civil Supplies Department for distributing them to the retailers. Whatever quantity of cloth the firm received had to be distributed to the retailers in accordance with the list supplied to it by the Civil Supplies Department. The price of cloth was controlled. It could not, therefore, be sold at a price higher than the controlled price. The firm would only be entitled to commission for their labour. The firm had in turn to maintain accounts for the goods received and disposed of under the direction of the Civil Supplies Department. It also had to maidtain a sale register and stock register. The daily sales were entered in cash memos, and sale register and the firm was required to issue cash memo, for every transaction so made. Taking advantage of the acute shortage of cloth, the partners and employees of the said firm with the assistance of two Civil Supplies Officers entered into a conspiracy to black‑market the cloths. This resulted in a huge shortage of the stock. To avoid detection of the shortage Abu Mia, Serajul Islam, Bazlur Rahman and P. W. 1, Idris Bhuiya, induced Jatindra, an employee of the firm, to interpolate fictitious figure in the stock register. On the basis of the fictitious figure the monthly return for August was shown and in this way they got over the difficulty temporarily. Idris Bhuiya apprehended detec tion of the crime in the near future, and became nervous of the consequences that might follow on account of their having done such a huge business in black‑marketing cloths. A false story of theft to cover the shortage was staged and a first information report was lodged on the 1st October, 1947, after 24 hours of the alleged incident of theft. The Deputy Controller of Civil Supplies became suspicious and on the 2nd October, 1947, went to inspect the firm and found that the stock register and other papers were kept in a suspicious manner. He decided to make a verification of the stock. This caused alarm to the partners and other conspirators and they decided to bring influence to bear on the Deputy Controller so that the contemplated verification might be postponed. With this object in view Bazlur Rahman and Hafiz Bhuiya went to P. W. 10 Jalal Ahmed, a friend of the Deputy Control ler, to influence the latter, but Jalal Ahmed refused to accede to their request. Parimal Sen, the Mangager and representa tive of Abu Mia, apprehending that trouble was in store, committed suicide in the early morning of the 3rd October, 1947. He left an open letter (Ex. 7) in which he disclosed the entire affair of the black‑marketing done by the members of the firm. P. W. 1, Idris Bhuiya, who was put on his trial as an accused, made a confessional statement. He pleaded guilty and was convicted and later on was examined as a witness by the prosecution. All the accused persons pleaded not guilty to their respective charges. Each one in his turn has tried to put the blame on the other with a view to avoid the responsibility and evade punishment.
Mr. Muhammad Ismail has appeared in Criminal Revi sions Nos. 5 and 6 of 1951, Mr. Abdul Hakim in Criminal Revision No. 7/51, Mr. A. K. M. Baquer in Criminal Revi sions Nos. 12/51,14/51 and 30/51 Mr. A M. Sayem in Criminal Revision No. 1351, Mr. Dinesh Chandra Roy in Criminal Revision No. 15 51, and Mr. Hamoodur Rahman in Criminal Revision No. 19/51.
Mr. Sultanuddin Ahmed, Deputy Legal Remembrancer, has appeared on behalf of the Crown.
It is strenuously contended by all the learned Advocates appearing for the petitioners that the Courts below should have found that sanction under section 196‑A was a pre requisite for a charge and conviction under section 120‑B of the Pakistan Penal Code and as no sanction was taken, the conviction and sentence are bad in law and should be set aside.
We find that this objection is taken in ground No. 1 of Criminal Revisions Nos. 5, 6 and 7 of 1951, ground No. 9 in Criminal Revisions Nos. 12, 14 and 30 of 1951, ground No. 2 in Criminal Revisions Nos. 13 and 15 of 1951, and in ground No. 6 of Criminal Revision No. 19 of 1951. We have also seen the cause shown by the learned Additional District Magistrate in connection with these rules. We have not found any difficulty in arriving at the conclusion as the point raised is in no way new or novel and has in fact been a subject of previous reported decision. It has been argued that as to the taking cognisance of the offence of criminal conspiracy punishable under section 120‑B of which the object is to commit a non cognisable offence a restriction is placed by section 196‑A, Criminal Procedure Code. It is, therefore, contended that the conspiracy charged against the petitioners is one to commit an offence under section 477‑A of the Code. This being a non co nisabl6 offence, under provisions of section 196‑A, Criminal Procedure Code, no Court could take cognisance of the offence of criminal conspiracy unless the Provincial Government had, by order in writing, consented to the initiation of the proceed ings.
This objection appears to have been taken under a complete misconception of the language of the charge framed in this case.
The question for. our consideration, therefore, now is whether the charge has specified as the object of the conspiracy and non‑cognisable offence or offences which require the con sent of the Provincial Government under section 196‑A, Criminal P C. The charge of cospiracy as framed against all the accused in the present case is to the following effect :
"That you and Muhammad Idris Bhuiya 6n or about the period between April, 1947, and October, 1947, at Brahman baria agreed to do or cause to be done illegal acts to wit, criminal breach of trust regarding controlled mill‑made cloths, entrusted to the licensees over which the partners of the firm Moslem Traders Syndicate were placed in dominion, and in that connection causing disappearance of evidence and attempting to cause such disappearance commission of contravention of Rule 15 of Bengal Cotton Cloth and yarn Control Orders, 1946, in not keeping stock book of the licensees as required by the direction of the Director of Textiles which is an offence under sections 7 and 8 of Act XXIV of 1946, falsification of accounts and fabrication of evidence and those Acts, viz., criminal breach of trust and offence under sections 7 and 8 of Act XXIV, and falsification of accounts were committed in pursuance of the agreement and thereby committed an offence punishable under section 120‑B read with 406, Indian Penal Code, and sections 7 and 8 of Act XXIV of 1946, 477‑A, Indian Penal Code, within my cognizance."
It is argued after pointing out the above charge that the charge indicates at least as one of the objects of the conspiracy the commission of the offence of "falsification of accounts". It is claimed that the later part of the above‑mentioned charge which is to the following effect, "And those acts, viz., criminal breach of trust and offence under sections 7 and 8 of Act XXIV, and falsification of accounts were committed in pursuance of the agreement and thereby committed an offence punishable under section 120‑13 read with section 406, Indian Penal Code, and sections 7 and 8 of Act XXIV of 1946, 477‑A, Indian Penal Code: within my cognizance," clearly indicates that the offence fails under section 477‑A of the Pakistan Penal Code and is non‑cognizable offence. Accordingly the charge must be understood as expressing the commission of these three kinds of offences as the objects of the conspiracy, namely :‑
(i) criminal breach of trust ;
(ii) commission or contraventions of control orders ; and
(iii) falsification of accounts.
It is, therefore, contended that the objects of the conspiracy being inseparable and one of them being to commit falsifica tion of accounts", etc., there could be no prosecution for the offence of criminal conspiracy without the sanction of the Provincial Government under section 196‑A of the Code of Criminal Procedure. It is true that one of the objects, namely, falsification of accounts is a non‑cognizable offence and of course if a charge was framed in respect only of "falsification of account", and on no other offence, provisions of sec tion 196‑A would be attracted, But in this case the accused is charged of having committed various offences in course of committing breach of trust. It will be noticed from the charge that the object was to commit criminal breach of trust and in A order to commit such an offence, the modus operandi of the accused was such as to bring him within the mischief of the other provisions of Pakistan Penal Code. So, it cannot be said that the object of conspiracy to commit breach of trust cannot be separated from others for the latter were only means to an end.
We are fortified in our view by the decisions reported in the case of Hanumantha Rao and others v Emperor A I R 1934 Mad. 88 ; Bishambhar Nath Tandon, Rai Sahib and others v. King Emperor A I R 1926 Oudh 161 ; Ramchandra Rango v. Emperor A I R 1939 Bom. 129 ; Paresh Nath v. King Emperor A I R 1947 Cal. 32, followed by a Division Bench of the Calcutta High Court in the latest decision reported in 83 C L J 397 in the case of Golam Rahman and others v. The King 83 C L J 397. In order to appreciate the decision reported in 83 C L J it will be necessary to quote the charge which was framed in that case. The charge runs as follows :‑
"That you between the 29th April, and the 17th June, 1943, at Purulia .and at other places agreed with one another and with others to do or cause to be done illegal acts, viz., to cheat the District Board of Burdwan and some of its officers by dishonestly inducing them to recommend payment to pass and deliver moneys on false bills to Gulzar I Sheikh, since deceased, which is an offence under section 420, Indian Penal Code, in connection with the test relief operations on Purulia‑Ambalgram Road section and also for that purpose to fabricate Muster Rolls and pay sheets and abstracts by making false entries therein and committing forgeries of thumb impressions and signatures therein and also to fabricate measurement books and abstracts of pay sheets, daily reports and other documents, and the aforesaid illegal act" viz., fabrication of Muster Rolls, pay sheets, abstracts, etc,. by making false entries, were done in pursuance of the said agreement and thereby committed an .offence punishable under section 120‑B, Indian Penal Code."
Comparing the above charge with the charge of conspiracy as framed in the present case and quoted above, we find that the charges in all respects in both these cases are more or less the same. A criticism has, however, been made to the effect that in the latter portion of the charge in the case reported in 83 C L J no section relating to the offence charged has been mentioned save and except the following expressions ...an offence punishable under section 120‑B, Indian Penal Code." But in the latter portion of the charge as framed in the present case apart from the fact that there is the mention of the acts, viz., criminal breach of trust and other offences it further appears that specifically the sections, i.e., section 120‑B read with section 406, Indian Penal Code, and sections 7 and 8 of Act XXIV of 1946, 477‑A, Indian Penal Code, are mentioned therein. Now, by reference to these 'two charges, it will be abundantly clear that in essence there is hardly any difference between the two charges. In the present case there is the mention in the charge of a non‑cognisable offence, namely, "falsification of accounts". In the case reported in 83 C L J the offences charged are similarly mentioned, namely, "falsifica tion of Muster Rolls, pay sheets, abstracts, etc." which are alleged to have been done in pursuance of the agree ment of conspiracy. Similarly it seems that in the case of Puresh Nath v. Emperor (supra) a case of the Division Bench of the Calcutta High Court, presided over by Blank and Ellis, JJ. there was a charge to the following effect.
"It was charged against the three petitioners that between the 20th December, 1943, and the 17th January, at Naihati, Alipore and other places, they were parties to a criminal con spiracy to cheat the complainant Ram Gopal Agarwala, and to forge documents and to use the same for the purpose of cheating and the offences of cheating, forgery and using forged documents were committed in pursuance of that conspiracy, whereby the petitioners committed offences under sections 467/ 471 and 420, read with section 120‑B, Penal Code." This charge also in no way materially differs from the charge framed in the present case, as it would appear that offences under sections 467/471 and 420 read with section 120‑B are specifi cally mentioned. In the present case the various offences read with section 12Q‑B are also mentioned. So, it is not difficult to see that there is hardly any difference in substance between this charge and the charge as framed in the present case. It cannot, therefore, be legitimately argued that the whole trial was vitiated by the failure of the prosecution to obtain sanction under section 196‑A of the Code of Criminal Procedure. In view of our observation as above, we find that the case of Gokulchand Dwarikadas Moraka v. The King Emperor 52 C W N 325 (P C), and which has been cited by the petitioners for the proposition that the whole trial was without jurisdic tion is not applicable to the facts and circumstances of the przsent'case. It also appears that the judgment of that case was delivered on the 13th January, 1948, whereas Blank and Lahiri, JJ. delivered judgment in the case of Golam Rahman and others v. The King (supra), on the 12th August, 1949. We respectfully agree with the decision of the above case reported in 83 C L J and the observations of their Lordships, namely, "There is a difference between the object of a core spiracy and the means adopted to achieve that object and if the object is not hit by section 196‑A (2) it does not matter whether that object is sought to be attained by non‑cognizable offences. Accordingly section 196‑A, Criminal P. C., does not apply in the present case and the prosecution under sec tion 120‑B, Indian Penal Code, is not invalid." It has also been argued that section 196‑A, Criminal P. C., does nor use the words "primary or essential object of the conspiracy".. It merely says "the object of conspiracy" and it depends upon what is stated to be the object of conspiracy in the charge as framed. It is, therefore, urged that the object of conspiracy being (a) disappearance of evidence, (b) contravention of Bengal Cotton Cloth and Yarn Control Order, and (c) falsi fication of accounts, and fabrication of evidence, consent of the Provincial Government would be required for prosecution. It is, no doubt, true that‑if the object of conspiracy was as mentioned above, sanction under section 196‑A, would be essential but we find that that was not the allegation in the charge as framed to which reference has already been made before. The charge which the accused was called upon to meet was one of criminal breach of trust notwithstanding whatever the means may have been employed to effect that object. If criminal breach of trust is carried out by other means indicated in the charge, it does not follow that the provisions of section 196‑A would apply. In view of the authorities to which we have referred and with which we agree for the proposition e that there is difference between the object of a conspiracy and the means adopted to achieve that object, we hold that section 196‑A (2) of the Code of Criminal Procedure does not apply to the present case and the contentions of the peti tioners fail on this point.
We may, however, mention that the sample of charge which appears in the Law of Crimes by Ratanlal uses the ex pression "to wit" in the charge as follows :‑
.(an illegal act, to wit) an act, viz., by illegal means, to wit‑and that the same act, viz., was done". This makes it abundantly clear that the object of the charge of conspiracy is the illegal act to wit‑and the means adopted to achieve the act of conspiracy is by illegal means, to wit‑. It would, no doubt, have been better if at the time of framing the charge. The specimen charge in Ratanlal's book was followed in the present case. That would have avoid ed all criticisms. But apart from that we hold that there is no illegality or error in the charge as framed simply because the words "by illegal means, to wit" have not been mentioned in so many words in the charge in the present case.
It is next contended on behalf of the petitioners that the charge as framed under section 406 of the Pakistan Penal Code was not in conformity with sections 222 (2) and 234 of the Code of Criminal Procedure, and as such the conviction and sentence are bad in law and should be set aside.
This objection is taken in ground No. 2 of Criminal Revisions‑ Nos. 12 of 1951, 14 of 1951‑ and 30 of 1951 and in ground No. 3 of Criminal Revision No. 13 of 1951 and ground No. 4 of Criminal Revision No. 15 of 1951, as also in ground No. 7 of Criminal Revision No. 19 of 1951. It‑ is contended that when use is made of section 222 (2) of the Code of Criminal Procedure in respect of criminal breach of trust it must apply to criminal breach of trust of money only and not of goods. In this connection our attention is drawn to the case of Ramdayal Prasad v. Syed Hasan A I R 1944 Pat. 135, where the head note is to the following effect "Section 222 (2) refers to criminal breach of trust of money. Where although the price of the ornaments is men tioned in the charge, the‑breach of trust is not said to be with regard to the money but with regard to the ornaments pledged separately on different dates, such a charge is not contemplated by section 234 or 222 (2)." It is also contended that the charge of criminal breach of trust as framed shows multiplicity of offences between April, 1947, and 30th September, 1947, and therefore, these offences should have been separately charged as each one was a separate offence committed on particular dates. The specific charge under section 406 of the Pakistan Penal Code which is criticised as illegal is to the following effect.
"That you in pursuance of the conspiracy on or about the period between April, 1947, and 30th September, 1947, at Brahmanbaria being entrusted with or placed in dominion over certain property to wit, mill‑made cloths, worth Rs. 3,000 and 5331 pairs of sarees,1,9231/2 pairs of dhoties, and 2,891 yds. of thans committed breach of trust of the said property by illegally disposing of the property and thereby committed an offence punishable under section 406 of the Indian Penal Code, and within my cognizance."
The charge of conspiracy as framed against all the accused in the present case is in these terms
"That you and Muhammad Idris Bhuiya on or about the period between April, 1947, and October, 1947, at Brahman baria agreed to do or cause to be done illegal acts to wit, criminal breach of trust regarding controlled mill‑made cloths entrusted to the licensees over which the partners of the firm Moslem Traders Syndicate were placed in dominion, and in that connection causing disappearance of evidence and attempting to cause such disappearance commission of contravention of Rule 15 of Bengal Cotton Cloth and Yarn Control Orders, 1946, in not keeping stock book of the licensees as required by the direction of the Director of Textiles which is an offence under sections 7 and 8 of Act XXIV of 1946 falcification of accounts and fabrication of evidence and those acts, viz., criminal breach of trust and offence under sections 7 and 8 of Act XXIV, and falsification of accounts were committed in pursuance of the agreement and thereby committed an offence punishable under section 120‑B read with 406, Indian Penal Code, and sections 7 and 8 of Act XXIV of 1946, 477‑A, Indian Penal Code, within my cognisance.
The charge in the present case mentioned above shows that each offence was set out with sufficient clearness and precision against each accused and that there is no ambiguity or obsecurity with regard to the charge the petitioners had to meet.
There is no misjoinder of charges offending against the provisions of the Code of Criminal Procedure nor it can be said that the plurality of charges caused bewilderment and prejudice to the petitioners. The above case of A I R (1944) Pat. 135 has no application to the facts of this case where besides the straight charge under section 406 of the Pakistan Penal Code, there is also' a separate charge of a comprehensive nature relating to criminal conspiracy. We find that the sub sequent series of acts of misappropriation forming the subject of separate charges under section 406 of the Pakistan Penal Code are so connected together as to. form the same transac tion within the meaning of section 235, of the Code of Criminal D Procedure. The main object of conspiracy is stated in the first charge. All subsequent acts are only done in pursuance of that conspiracy which is the main link which connects all these acts and makes them part of one transaction. In the case of Babulal Choukhani v. King Emperor 42 C W N 621 Lord Wright made the following observations :
"Then it was contended that the charge of theft was not properly framed because it alleged a multiplicity of offences between April, 1934, and the 16th January, 1935, whereas the offences did not constitute a single continuing offence ; they were separate offences committed on particular dates and should have been separately charged. Their Lordships feel that the form of the charge was most irregular and regrett able and one which should he avoided. But they cannot regard this objection as one which in the circumstances of this case should receive effect, especially because they agree with the High Court that no injustice was inflicted on the appellants. The specific offences of which they were accused were satisfactorily proved by competent evidence, corro borated in all necessary respects. There was no miscarriage of justice. In addition the irregularity was such as could be and was, cured under sections 225 and 537 by the finding that the accused had not been prejudiced. A minor point that the charge of theft was bad as not alleging that the thefts were committed in pursuance of the conspiracy and, therefore, not alleging a same transaction, is without sub stance. The specific charge was charge to be read with the conspiracy charge."
In our opinion, the charge as framed in the present case does not tend to prejudice the petitioners in any way. In this case we may refer to the following observations of their Lord ships of the Privy Council in the above case of Babulal Choukhani and what their Lordships further observed at page 627, "It is enough to say that if several persons conspire to admit offences and commit overt acts in pursuance of the conspiracy (a circumstance which makes the fact of each and all the cons pirators) these acts are committed in the course of the same transaction which embraces its conspiracy and acts done under it. The common concert and agreement which constitute conspiracy, serve to unify the acts done in pursuance of it." We do not, therefore, find any substance in the contention of the petitioners as to any defect in the framing of the charge against them.
It was further contended on behalf of the petitioners that in so far as the partners of the firm has purchased the cloth with their own money, they became the owners of the goods in question and that if they had sold the cloths in contravention of the directions of Civil Supplies Department, they could not be deemed to have committed the offence of criminal breach of trust. At best they could be called upon to answer a charge of having committed breach of conditions of the provisions of the Control Order.
In this case, it is quite evident that the cloths were allotted to the Syndicate to be distributed to the permit‑holders according to the directions of the Civil Supplies Department. Their use could not be made in any other way except for the benefit of those consumers who were given permits for the purchase of the same and on whose behalf the firm was entrusted with the goods. The petitioners, therefore, received the cloths under certain restricted conditions and it is falla cious now to argue that they possessed it as absolute owners. F Both the Courts below, in our opinion, rightly found that the petitioners were trustees of the goods and could not be regard ed as owners. On the evidence also it is abundantly clear that P. W. 16, the Deputy Controller, who verified the stock found 5331 paires of sarees, 1,923 pairs of dhoties and 2,391 yds. of thans short and consequently the petitioners were held guilty of having committed criminal breach of trust in respect o these goods entrusted to them.
Objection has also been taken as to the admissibility of the statement of Parimal Sen. It is contended that the statement being of exculpatory nature, it should not have been admitted in evidence.
There does not appear to be any substance in this conten tion as the statement which has been admitted in evidence would have materially affected Parimal Sen had he been alive to face his trial. It cannot, therefore, be said that the state ment was exculpatory. The learned Sessions judge has rightly observed that the statement had been taken into con sideration with utmost care and caution and its admissibility had been considered from the point of view of its corroboration in material particulars by independent evidence. So, the peti tioners are in no way prejudiced by the statement going in evidence.
In the result, the rules in all the nine cases are discharged. The convictions and sentences are maintained. The petitioners will now serve out the term of imprisonment imposed upon them and petitioner in Criminal Revision No. 19/51 Abdul Hamid alias Abu Mia will in addition also pay the fines required of him or, in default, undergo the term of imprison ment imposed in lieu thereof.
---‑I agree.
A. H. Rules discharged.
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