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Petitioner: ANNADA CHARAN DEY AND ANOTHER VS Respondent: THE STATE
P L D 1966 Dacca 237
P L D 1966 Dacca 237
Before B. A. Siddiky and Salahuddin Ahmed, JJ
ANNADA CHARAN DEY AND ANOTHER‑Appellants
versus
THE STATE‑Respondent
Criminal Appeal No. 136 of. 1963 and Revision No. 361 of 1964, decided on 28th July 1964:
(a) Criminal Procedure Code (V of 1898), S. 221‑Charge Mere failure to establish allegations contained in charge‑Does not render charge itself defective.
(b) Criminal Procedure Code (V of 1898), Ss. 235 & 239 Conspiracy‑No overt act necessary to prove charge‑Persons charged with conspiracy to commit illegal activities‑Can be charged and tried jointly‑Penal Code (XLV of 1860), S. 120‑B‑Martial Law Regulation (C. M. L. A.'s) No. 58.
(c) Martial Law Regulation (C. M. L. A.'s) No. 58‑Agreement to commit offence‑No overt act need be proved‑Conspiracy proved between two or more persons to convert Pakistan currency into Indian currency and vice versa for making illegal gain without necessary permit required by law‑Any act by one conspirator becomes relevant against others‑Mere fact that charge not established against some co‑conspirators‑Does not affect charge against the rest‑Penal Code (XLV of 1860), S. 120‑B‑Evidence Act (I of 1872), S. 10.
(d) Martial Law Regulation (C. M. L. A.'s) No. 58 and Penal Code (XLV of 1860), S. 120‑B‑Provisions more or less identical.
(e) Martial Law Regulation (C. M. L. A.'s) No. 58 and Pen, al Code (XLV of 1860), S. 120‑B‑First part of Regulation relates to physical transfer of currency‑Prosecution failing to establish such transfer‑Charge under S. 120‑B cannot be sustained.
A. Salam Khan with M. A. Rab for Appellants. Md. Faziul Karim for the State.
JUDGMENT
SIDDIKY, J.‑Of the two appellants before us, appellant No. 1 (Annada Charan Dey) .is the father and appellant No. 2 (Chitta Ranjan De) is his son. They along with three others, namely, Barada Charan Dey, Abdul Hashem Sikder alias Haji Abdul Hashem Sikder and Jalaluddin Bepari, were prosecuted on a charge of criminal conspiracy under section 120‑B of the Pakistan Penal Code as well as under Regulation 58 of the Martial Law Regula tions. The last named three accused were acquitted by the learned Assistant Sessions Judge of Comilla.
Prosecution case was that appellant No. 1 (Annada Charan Dey) had a rice Mill at Maudanga, Naogaon, in the Province of Assam in India styled as "A. C. Rice Mill". Appellant No. 1 used to reside in Algi Durgapur in the district of Comilla in Pakistan and used to manage the rice Mill through one of his several sons. He used to post one of his sons to Assam according to his own choice and bring him back to Pakistan by posting another in his place as he pleased. It is said that at the relevant time appellant No. 1 Annada's son, Bidyut Baran Dey, was put in charge of management of the "A. C. Rice Mill" in Assam whereas appellant No. 2 (Chitta Ranjan De), his second son, was staying with the father in Algi Durgapur in East Pakistan. It is alleged by the prosecution that the two appellants herein and appellant No. 1 Annada's son, Bidyut, and several other persons, of whom three were prosecuted and acquitted by the learned Assistant Sessions Judge, entered into an agreement and' conspiracy to transfer Pakistan currency to India and Indian currency to Pakistan by illegal means of issuing hundis without any general or special permission of the State Bank of Pakistan. It is said that a number of Pakistanis working in Assam used to deposit their earnings with Bidyut at Naogaon for transfer of the said money to Pakistan through illegal means and the said Bidyut used to issue a slip to the deposition with a code number which the depositor, in his turn, had to produce before appellant No. 1 (Annada Charan Dey) in Pakistan for taking delivery of the money that he deposited with his son in Assam. A letter used to be written by Bidyut from India to his father giving the same Code number for which he had issued a slip to the depositor and, upon receipt of the said letter which was a sort of confirmation of his having issued a code number, appellant No. 1 (Annada Charan Dey) here in Pakistan used to pay the amount mentioned in the code to the depositor or the person producing the slip bearing the code number issued by Bidyut. This, method of confirmation by subsequent letter was adopted as a security against any false slip bearing a code number and cheating the appellants. Similarly the appellants in Pakistan used to receive money from persons intending to transfer the same to India. It was further said that accused Barada Charan Dey, Abdul Hashem Sikder and Jalaluddin and some other absconding accused persons used to assist appellant No. 1 (Annada Charan Dey) to his illegal activities by either procuring parties for transferring money or by depositing money of their own to be transferred from one country to the other. Both Bidyut in India and appel lant Annada Ch. Dey and his son Chitta Ranjan De (appellant No.2) in Pakistan used to take a percentage of the money to be transferred as part of their remuneration for facilitating the transfer in this illegal fashion. This commission they used to call by the technical name of batta. It was further alleged by the prosecution that appellant Annada Charan Dey also transferred some of their lands to accused Abdul Hashem and Jalaluddin for a sum of Rs. 9,000 and thereafter transferred this amount or a sum equivalent to Rs. 9,000 to India by this illegal method of hundi business.
P. W. 12 (Abdul Gani), an Anti‑Corruption Inspector attached to D. A.. B., Chandpur, received Exh. 17 (a letter written by appellant Chitta Ranjan De on behalf of appellant No. 1 (Annada Ch. Dey) to Didyut (the absonding accused), two slips (Exhs. 22 and 22 (1)), a photograph of appellant Annada (Exh. 1) and two unexhibited slips contained in an envelope marked Exh. 21, on 16‑2‑61 from a certain source the details of which have not been disclosed by the prosecution. On receipt of the contents of Exh. 21, P. W. 12 (Abdul Gani) got the scent of these illegal activities of the appellants and he then obtained a search warrant from a competent Magistrate and searched the house of appellant No. 1 (in which appellant No. 2 also used to live) and recovered a number of documents most of which are letters, Exh. 17‑17 (16). Some of these letters are written by Bidyut to appellant No. 2 (Chitta Ranjan De), some by Bidyut to appellant No.1 (Annada Charan Dey), some by Benoy (another son of Annada) to appellant No. 1, some by appellant Chitta Ranjan to a person called Nikhil whom he has addressed as brother, and one of which appears to have teen written by appellant Annada to Bidyut through the band of appellant Chitta Ranjan: P. W. 12 thereafter lodged a formal first information with the police and took up investigating of the case himself, and after completion of it, submitted charge‑sheet against the five accused persons three of whom, as already observed have been acquitted by the learned Assistant Sessions Judge.
The defence of the appellants was that they or the accused Barada Charan Dey, Jalaluddin and Haji Abdul Hashem (since acquitted) never conspired to convert Pakistani currency into Indian currency nor did any one of them come to any such agreement for such conversion or transfer of any Pakistani currency to India nor did they transfer a sum of Rs. 9,000, representing the sale proceeds of lands of appellant Annada sold to Abdul Hashem and Jalaluddin. It was the further defence of accused Abdul Hashem and Jalaluddin that they purchased the land of appellant Annada Charan and accused Barada Charan in good faith and never knew that the sale proceeds thereof might be transferred to India.
The prosecution in addition to exhibiting a number of documents upon which it relied more, for the conviction of the appellants, examined as many as 12 witnesses in support of its case. Excepting P. W. 4 (Suna Mia), no other witness could give any direct evidence with regard to the illegal hundi business carried on by the appellants. The conviction of the appellants has been based more or less on the documentary evidence produced in the case.
Mr. Abdus Salam Khan, the learned Advocate appearing, for the appellants, has contended four points before us, the first of which is, that, the charge is a defective one. Mr. Salam Khan has' submitted on the first point that there has not been any actual transference of Pakistani money made by the appellants to India nor of any Indian money to Pakistan and, therefore, the charge as framed covering the entire Regulation 58 of the Martial Law Regulations is confusing and, as such, defective. Two charges were framed against the appellants. They are as follows:‑
"First:‑That you from date 27‑10‑58 ‑to date 16‑2‑61 at Algi Durgapur, P. S. Chandpur, District Comilla, without the general or special permission of the State Bank of Pakistan entered into an agreement for conversion of Pakistani currency, into a foreign currency, namely, the Indian currency, or assist directly or indirectly the transfer of Pakistani money to a foreign country, namely, India, and thereby committed an offence punishable under the Martial Law Regulation No. 58 and within the cognizance of the Court of Session;
"Secondly: That you from date 27‑10‑58 to date 16‑2‑61 at the same place, agreed to or caused to be done an illegal act, to wit, the transfer of Pakistani money to a foreign country, namely, India without any proper permit and that the same illegal act was done in pursuance of the agreement and thereby committed an offence punishable under section 120B of the Pakistan Penal Code and within the cognizance of the Court of Sessions; And I hereby direct that you be tried by the said Court on the charges."
It may be necessary for us to quote Regulation 58 in extenso to understand the point of defective charge as raised by Mr, Salam Khan. Martial Law Regulation 58 runs thus:‑---
"No person shall take or attempt to take Pakistan currency out of Pakistan without a proper permit; nor shall, except with the general or special permission of the State Bank of Pakistan, enter into any agreement whatsoever for conversion of Pakistani currency into foreign currency or assist, directly or indirectly, the transfer of Pakistan money, securities, etc., to any foreign country.
"Maximum punishment 10 years' R. L"
The first charge as framed is not, in our opinion, one for taking Pakistani currency out of Pakistan without a proper permit which is relative to the first part of the Regulation; but the charge is for an agreement entered into by and between the appellants and other accused persons without any general or special permission of the State Bank of Pakistan for conversion of Pakistani currency into foreign currency or assist, directly or indirectly, the transfer of Pakistan money to any foreign country. The appellants were actually charged for having entered into an agreement for doing this illegal act of converting Pakistani currency into Indian currency as far as the first charge is concerned. We, therefore, do not see any force in the argument of Mr. Salam Khan that the first charge is defective.
The second charge seems to us to have been framed speci fically under section 120‑B of the Pakistan Penal Code for .an agreement entered into by and between the accused persons to transfer Pakistan money to a foreign country, namely, India, without any proper permit and the said illegal act (the act of transferring Pakistan Money) was done pursuant to the said agreement. The transfer contemplated by Martial Law Regula tion 58 in the first part of it, in our opinion, relates to a physical transfer of the currency. In the present case the prosecution, in our view, and also as has been found by the learned Assistant Sessions Judge, has failed to establish a case of physical transfer of Pakistani currency by the appellants to a foreign country, namely, India. As such it can be said that the second charge as framed against the appellants has not been proved but it cannot be said that the charge is defective as contended by Mr. Salam Khan. We, therefore, on the point of defect of charge, do no agree with Mr. Salam Khan.
The next point raised by Mr. Salam Khan, though not very strongly pressed, is with regard to misjoinder of persons. He has argued that the present appellants, Annada Charan Dey and Chitta Ranjan De, cannot be categorised with accused Barada Charan Dey, Abdul Hashem and Jalaluddin and that Jalaluddin and Abdul Hashem again belong to a different category as far as the offence they are said to have committed, is concerned. Mr. Salam Khan submitted that Abdul Hashem and Jalaluddin, who purchased some land from appellant Annada Charan and accused Barada Charan, had nothing to do with the illegal hundi business of the present appellants. Similarly Barada Charan also had nothing to do with the illegal activities of the two appellants before us. Therefore, the joint trial of all these five persons, according to him, was bad in law. It is not for any specific offence that the appellants and their co‑accused were put on trial. They were charged for conspiring to do certain illegal activities. No overt act is necessary to be proved to establish a charge of conspiracy to commit an offence. We, therefore, see no substance in this point of Mr. Salam Khan that there has been a misjoinder of persons in the present case.
The third point urged by Mr. Salam Khan was that the documentary evidence produced against his clients have not been proved by competent persons. P. Ws. 3 and 5 (Abdul Hashim Dewan and Khalilur Rahman) have proved the handwritings of both the appellants and Bidyut in the case. P. W. 3 (Abdul Hashem Dewan), who is a shopkeeper of Algi Durgapur, the village to which the appellants belong and is acquainted with the appellants and other members of their family, has stated that he knows the handwritings of the appellants and of Baroda, Benoy, Bidyut and Sudhir and he identified letters, Exh. 17 and 17 (16), to be in the hand of Chitta, letters Exh. 17 (1)‑17 (5) to be in the hand of Bidyut, and letters Exh. 17 (6)‑17 (15) to be in the hand of Benoy. P. W. 5 (Khalilur‑ Rehman), who was formerly the President of Algi Durgapur Union Board and Chairman of the D. S. Board, read up to Matriculation Class in the same school in which appellant Annada Charan was a teacher. This witness is a Juror and he himself was also a teacher in several schools. He was also Annada's colleague in the school as a teacher. He seems to know every member of Annada's family and all about the business that Armada does in Pakistan and in India. He was present al the time of the search of Annada's house by the investigating officer and he is a witness to the seizure list prepared in his presence of as many as 22 items seized by the police from the house of appellant Annada Charan Dey. The relevant portion of his evidence is as follows:
"I was present during the search of Annada Babu's house by the I. O. This seizure list was prepared in my presence (List Exh. 19). 1 signed on it (signature 20). Chitta was also present and signed on the seizure list. This is his signature (signature Exh. 20 (1). I was also present at the preparation of this seizure list by the I. O. (seizure list Exh. 19 (1). This signature on the seizure list is mine (signature Exh. 20 (2).. I was also present at the preparation of this seizure list by the I. O. (seizure list Exh. 19 (2). This is my signature on it (signature Exh. 20 (3). This address on envelope is in the hand of Chitta (address Exh. 21). This writing on this chit is in the hand of Chitta (writing Exh. 22). This writing on the same chit is in the hand of Benoy Bhusan (writing 22 (1) ) (then says) this writing is also of Chitta (writing Exh. 22 (1) ). This writing is also in the hand of Chitta (writing Exh. 22 (2) ). This writing is, also in the hand of Chitta (writing Exh. 22 (3) ). This writing is in the hand of Chitta (writing Exh. 22 (4) ). This letter Exh. 17 is in the hand of Chitta. This photo is of Annada Babu (photo Exh. 1). This Khata is in the hand of Chitta (Khata Exh. II). Chitta does all the works of Armada Babu."
This witness has also proved the writings in the several documents of Benoy and appellant Chitta Ranjan Dey. In our opinion P. W. Khalilur Rahman is a very competent witness to prove tile handwritings of appellant Chitta and absconding accused Benoy. We, therefore, do not find any substance in this point of Mr. Salam Khan either.
The next point urged by Mr. Salam Khan is that there is no direct evidence against appellant Annada Charan Dey and that the indirect evidence, namely, the post cards and the letter (Exh. 17), by themselves do not remove the possibility of his non -complicity in the offence he has been charged with in view of his age and also, in view of his sons being in charge of his business.
It is submitted that appellant Annada Charan Dey is aged about 86 years. From the record we find that his age has been put as 86 years in his examination under section 342 of the Code of Criminal Procedure; but from the judgment it is found that Annada is about 65 years old. The learned Assistant Sessions Judge in awarding sentence to appellant Annada has taken into consideration the age of Annada and observed as follows:---
"In view of the advanced age of the accused Annada Charan Dey who appears to me to be round about 65 I am inclined to sentence him only to 3 years' R. L"
We have checked up the original of the 342 examination and it seems to us that the age of appellant Annada Charan has been put in the Form of 342 examination as 86 years by somebody other than the presiding Judge. The age given in the judgment by the learned Assistant Sessions Judge on an estimate made by himself, seems to us to be more reliable than the age put in 342 examination by somebody other than the Judge.
Whether appellant Annada Charan Dey is aged 65 or 86 years, it is clear from the letters written by his son Bidyut from India to him and by his son Chitta Ranjan 'from Pakistan to Bidyut and by himself to Bidyut that all his faculties are in perfect order and that he was having a very tight control over his business not only in Pakistan but also in India including the posting and re‑posting of his sons from one place to another. This will be evident from Exhs. 17, 17 (2), 17 (3), 17 (4) and 17 (16) which we have had translated by the Court's translator and incorporate in the judgment and they are as follows,‑‑--
GOD Algi‑Durgapur "Exh. 17------- 29th Magh 1367, B. S. 1367 B. S. (Torn) Bidyut,
My son, I receive your letters, etc. and slips. I come to learn every thing from the persons coming from there. Perhaps, you do not receive our letters, because what we write in those letters are not at all complied with. Why do you write again and again? I have already written that the paper No. 5 60/100 P of Noakhali has been sent by me. If it is in my hand, I perform the job immediately, on the other hand, you do not do like that and thereby 1 am put to difficulty. In spite of my repeated advice you do not stop it. What's the reason? There is no possibility of any more collection here. You will know it if it is received now and then. If you do not act according to my advice you will put me as well as yourself into trouble. One thing more is that you make such delay in `delivery' which has made me unreliable to others. However, now I have given paper No. 4 50/100 P to Kadir Kotwal. Send No. 3 0/100 to your Sundar Kaka and make over paper No. 1 50/100 H to your Baroda (Benoy). I have paid some portion of his former dues from here and you will pay him the balance from there. It was settled that it is you who was to pay him the entire amount. However, read and try to understand our letters carefully and then act accordingly. In that case there will be no trouble. However, I have given paper No. 50/100 P to Mati Kotwal. I could not but give him the same. All the slips you have given will go back. Have you got the `lisence' (license)? Don't worry but carry on the work properly. Things will take its own course. What can be done? No more, your second maternal aunt will, perhaps, migrate to Calcutta very soon. Her migration documents have been received. I am not keeping well. Your mother has gone to Chalitatali to attend Sradh ceremony. I could do nothing regarding Sreeman Minto's marriage. We are so so. Finis.
Your Father.
If Sreeman Binoy brings one woollen wrapper from Calcutta pay him the price. I will pay you afterwards from our home. (And) send it through man. Father." "Exh. 17 (2): A. C. Rice Mill. Moudanga, God is good. Nowgang, 1366 B. S. Assam 10‑12‑59. Dear Mejda,
I have been a little glad on receiving this card of yours. I derive much pleasure from letters written on, such business purpose, I had long before written to my fater about what you wrote regarding 19undi matters, but I have not received any proper reply thereto. This business is even now profitable to some extent. Please do not disclose this to any body. Please do not let any body know also how we pass. If any body wants to know, please say having business in both the countries we can deal in these things. Please state in detail the rate of bata (premium) prevailing there, inasmuch as I should strike bargain here after knowing from you the rates prevailing there. Now the rate here is Rs. 20 or 22 i.e., if Rs. 100 is paid here, Rs. 120 or 122 will be paid there. Please state the rates for those you have sent in the name of Esob Ali Gazi. Please do not accept "Up Bata" there, but receive money with "Down Bata". As for example, for a payment of Rs. 100 there, a payment of Rs. 70 or 75 will be made here. It is not profitable to pay Rs. 100 here for a sum of Rs. 125 or 130 paid there. You may, however, accept "Up Bata" if it is Rs. 35. Did you realise "Money Order fee" 7 The "Money Order fee" here is one and a half rupees. Be that as it may, I have stated all the facts. Please carry on work accordingly. Yesterday I sent a letter to my father. I have sent a card to my mother as well. Please go to Calcutta instead of coming here. Please make arrangement for purchasing some paddy land there with the income from the homestead. And here I shall do what I think necessary with the income from this place. I have no more desire to bring the income from the homestead to Assam. Although Assam is a (good) business place, but the Bengalees cannot exercise their influence or right. So neither my elder brother nor I have any desire to settle in Assam. Please do not sell any more land in the homestead because land worth much money has (already) been sold. Some land should be acquired (elsewhere) with that money.
Supplicant, (Address) "Bidyut" Babu Chitta Ranjan De, Santineketan, Post. Algi Durgapur, District:‑Tippera, .E. Pak. (via Chandpur)".
"Exh. 17 (3): God is good M/s. A. C. Rice Mill, 136T B. S. Moudanga, Nowgong, Assam 24‑5‑60. Respected father,
I have received no letter from you for a long time. I do not know why. I presume you have been very busy, because it is still the business season for you. (Please let me know) how the household work is running. My business season has been over. Be that as it may, an insurance for a sum of Rupees One and a half thousand will be sent to you from the under mentioned address. Please acknowledge the receipt of the insurance. It is my friend Babu Bijan Prasanna Roy Chowdhury's maternal uncle (Babu Ganesh Chandra Nag, vill: Charhamuah, P. O. Shaistagenj, District‑Sylhet, E. P.). I sent several letters to you. Having received no reply thereto I have been very sorry. Letters from you give me much pleasure. Now it is your happy time. You should not now lower your mind. You own a mill and have also been running a firm in the country worth Rs. 10/15 thousand. Few people have such fortune. On account of that we also feel very proud. You should now see to it that the business gets expanded. I now write to say that you posted me as the manager of your mill for three years, which term will expire in January next. What will you do thereafter? Please inform me whether you will post my second brother here or not. Be that as it may, on 12‑3‑60 I sent ten pounds of tea leaf of Rebati Sen. The surname of Anil De has been wrongly stated. You have shown it as Anil Sen. No more now. Wish you hail and hearty. We are so so.
Finis. (Address), Srijute Annada Charan Dey, Santiniketan, P. O. Algi Durgapur, Manager Dist‑Tippera, East Pakistan A. C. Rice Mill". (via Chandpur)
"Exh. 17 (4): God is good A. C. Rice Mill 1367 Mondanga, Nowgong, Assam 29‑6‑60.
Respected father,
Some days back I have addressed a (post) Card to you in the capacity of an employee to the employer. Today I am writing you this (post) card as your son. Please do not mind anything. I came to learn everything in detail from Jaha Buksh Gazi. At first I write to say that price of tea‑leaves has gone up. Please purchase no…
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