MOHD. HUSSAIN UMAR KOCHRA ETC. versus K. S. DALIPSINGHJI & ANR., ETC.

Citation: [1970] 1 S.C.R. 130 · Decided: 31-03-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed
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Judgment (excerpt)

130 
MOHD. HUSSAJN UMAR KOCBRA ETC. 
v. 
K. S. DALIPSINGWI & ANR., ETC. 
March 31, 1969 
(S. M. Swu, R. S. BACHAWAT AND K. S. HEGDE, JJ.) 
Foreign Exchange Regulation Act 1947, s. 8-lmport of gold in con-
travention of ttetion whether punishable under Sea Custonu A.ct. 
1878, 
.i:. 167(81)-Criminal conspiracy under s. 1208 1.P.C.--Ont conspiracy or 
several-Tests to drcide-lndian Evidence Act 1. 124, clailn of privile~ 
under-Wrong allowiince of plea doe.t not affect trial if it does n~t result 
in failure o/ justice-Criminal Procedure Code 1. 503--Commission need 
not he issued if sufficient particulars of wi1ness not given in applic11tion-
Rtcalling of witness whtn irutified-Evidence Act s. 133 & 111. I14(b)-
Accom[Jlice evidence-Principles relating to-Clwrges fnr con·.pir.:icy anti 
subst<.cnti~e offence--Concurrent running oj sentences wlten ju.stlfied. 
"fhe appellants along vtilh certain other accwed were 
tried for the 
oll'coce of criminal conspiracy to import and deal in gold punishable under 
s. 1208 of the Indian Penal Code read withs. 167(81) of the Sea Customs 
Act, 1878 and for suhstantive 
offences 
punishable 
under s. 167(81). 
Having been coovict~d by the trial judge and the High Court having dis-
missed their appeals, they came 10 this Court by s;:>ecial leave. The general 
questions affecting all 1he appelJants that arose for consideration were: (1) 
\Vas the import of g.:iid in conrravcn1ion of s. 8( I) \)f rhe Foreign E.~changc 
Regulation Act. 1947 puni<hable under s. 167(81) of the Sea Customs 
Act. 1878; (2) did th~ prosccut'.on establi~h the general conspiracy laid 
in charge No. I; (3) did the IC"arned magis1ra1c wron~lv allow a claim 
of privilege in respect of the disclosure of certain addresses nnd cables and 
if so. with what effect; (4) did he wrongly refuse to ;..,ue commission for 
the r:<amination of one Pi:dro Fc!'nanJcz as a wiln~s :ind ( .'.') did he 
wronqly refuse to recall P.\V. 50 Ali for cross.examination ? In connec-
tion with cases of the individual appellants que'\tions relating the te-"itimony 
of aCCC>plplices and ron.fessions of co-accused and the question whether 
separate punishment for conspiracy should be awarded when the accused 
i! a1rcady sentenced for the substantive offence, also came up for consi· 
deration. 
HELD : (i) The Sea Customs Act 1878 conlained a number of prohi-
bitiom on imports by land or sea and by s. 19 authorised the imposition 
of further prohibitions and 
restrictions 
on import 
or 
cxpon hy sea 
or by 
land. 
One of the 
statu~ creatiog 
further 
prohihitions 
was the Foreign Exchange Regulation Act 1947. 
A notiftcarinn dated 
August 25, 1948 as amended up to date issued under s. 8( ll of this Act 
directed that "'except with the general or special permission of the Reserve 
Bank, no penon shall brln~ or send into India (a) any ~old coin. i:old 
bullion, gold sheets or gvld 
in~ot whether refined or not ...... ,. Section 
2~A of the Ac1 provided that the restrictions imPosed bys. 8(1) "shall be 
deemed to have been imPoSCd under s. 19 of the Sea Cwtoms Act. 1878 and 
..II the orovisions of th:it Act shall have l"ffect :i.cco;dingly .. " The effect 
of :-. 23A \\·:ts !hat the contravention of the notification under s. 8(1) 
attracted to it eoach :ind evcrv orovision 1... f the Sea Cu'toms Act. 1878 in 
force for the time being including s. 167(81). [136 F-137 A) 
While s. 19 of the Sea Customs Act authori~cd the imPosition of or~ 
~ibirion' and restrictions on the import and export of goods by sea and land 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
F 
G 
MOHD. HUSSAIN V. DALIPSINGHJI 
131 
only, the aforesaid notification under s. 8 of the Foreign Exchange Regula-
tion Act restricted bringing into India of gold from any place outside, India 
by land, sea and air. 
Section 23A of the Foreign Exchange Regulation 
Act created the fiction that the restriction had been imposed under s. 19 
of the Sea Customs Act 1878 so that all the provisions of that Act would 
be attracted to a breach of the. notification. But tb~ statutory fiction did 
not cut down the wide ambit of the notification or limit its application to 
imports and exports by sea and land only. An import of gold by air without 
the permission of the Reserve Bank was a breach of the notification and 
the breach attracted to it the provisions of s. 167(81) of the Sea Customs 
Act, 1878. [137 B..C) 
The same conclusion follo\vs if the matter is looked at from the point 
of view that import or
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