minal Appeals Nos
50 52 of 1964
Appeals from the judgment and order dated January 17 24 1964 of the Bombay High Court in Criminal Appeals Nos
961 to 963 of 1962
A K Sen R Jethmalani Jethmalani Kumar M Mehta B Parthasarathy and J B Dadachanji for the appellants in Cr A No 50 of 1964
R Jethmalani Kumar M Mehta Jethmalani and J B Dada chanji for the appellants in Cr
51 and 52 of 1964
K G Khandalawala H R Khanna B A Panda R H Dhebar and section P Nayar for the respondent in all the appeals
The Judgment of the Court was delivered by Hidayatullah J
The appellants who are three brothers appeal by certificate against their conviction under section 120 B of the Indian Penal Code and section 16781 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 section 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 627 unscrewing the metal comer supports and pulling on strings attached to the strips
The suitcases were brought into India by air stewardnesses and Ethyl Wong PW 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 Mockch approached one Sophia Wong of the BOAC line
She was en gaged to a police officer and informed her superior officers
A trap was laid
Yau Mockchi was caught with a suit case 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 5064 photographs of Laxmipat and Balchand Choraria Crl
Appeal No 5264 their addresses and telephone num bers 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 section 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 Supreme Court of Hong Kong and have since been suppressed
On the strength of these materials the prosecution was started
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 is 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 section 5 of the Indian Oaths Act bars such a course and b it was the duty of the prosecution andor the Magistrate to have tried Ethyl Wong jointly with the appellants
L2SupCI68 10 628 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 that in any event Ethyl Wong s evidence was so discrepant as to be worthless
In the appeal of Balchand an additional point is urged and it is that the incriminating documents against him were compared with a letter Z 217 purported to be written by him but not proved to be so written
Since the appeals were argued mainly on law we need not trouble ourselves with the facts
Ethyl Wong admittedly carried gold for Yau Mockchi on several occasions
She admitted this in court and her evidence receives ample corroboration as to the mode employed from the statement of Sophia Wong and the seizure of the suitcase when Yau Mockchi had explained how the gold was secreted
We may say at once that if Ethyl Wong s evidence is not to be excluded from consideration for any reason then we see no reason not to believe her
Apart from the fact that the High Court and the court below have concurrently believed it already we find ample corroboration for it from her own previous statements made without warning her pointing out the flats where she delivered gold her cable written in code to inform the parties in Hong Kong after successful smuggling her visiting card in the possession of Yau Mockchi the passenger manifests showing her trips the entries in the hotel registers and the telephone calls made by her to the flat of the accused and so on and so forth
No doubt there are some discrepancies in her account and she corrected her first version on points on which she had made mistakes
But this is explained by the fact that when she was first accosted she was unprepared and shocked by the discovery
The corrections were made by her after reviewing in her mind her past trips and without any prompting by the customs authorities
Both statements were voluntary and without any collusion on the part of the customs officials
On the whole her testimony impressed us and as it has been accepted by the High Court and the Magistrate we shall not go into it for the third time
We shall accordingly address ourselves to the objections to its admissibility and the propriety of examining a self confessed criminal as a witness against her former associates
The argument is that section 5 of the Indian Oaths Act prohibits the administering of oath or affirmation to an accused person in a criminal proceeding and Ethyl Wong by her own statements made earlier to the customs officials and later in court showed herself to be the unknown carrier shown at No 12 of the complaint
It is therefore contended that she could not be examined 629 as a witness
Next it is submitted that as the provisions relating to tender of pardon to accomplices contained in Chapter XXIV of the Code do not apply to offences under section 120 B First Part of the Indian Penal Code and section 16881 of the Sea Customs Act the only two ways in which Ethyl Wong s testimony could have been obtained was either to take her plea of guilty and convict and sentence her or to withdraw the prosecution against her under section 494 Indian Penal Code
Not to send up a person for trial with the sole object of taking accomplice evidence is said to be illegal
Further it is argued that under section 351 read with section 91 of the Code it was the duty of the Court to have detained Ethyl Wong and included her in the array of accused before it
We shall now consider these arguments
The offences were non cognizable and were not investigated by the police
The investigation was by customs officers under the Sea Customs Act and not by the police under Chapter XIV of the Code
Therefore no question of the application of sections 169 and 170 arose
Ethyl Wong s statements were obtained under section 171 A of the Sea Customs Act
The persons were placed for trial on the complaint of the Assistant Collector of Customs under the authority of the Chief Customs Officer Bombay
Although the Magistrate was taking cognizance of offences and not of offenders it was no part of his duty to find offenders in view of the bar of section 187A if the complaint did not name a particular offender
All that the Magistrate could do was lo take a bond from Ethyl Wong for her appearance in court if required
At the time of Ethyl Wong s examination the appellants had raised the question that she should also be tried
The Magistrate said that he would later consider the matter
Then it appears to have been forgotten
Nor did the appellants raise the question again
Apparently they only wanted that Ethyl Wong should be tried jointly with them so that her testimony might not be available against them but were not interested in her separate trial
In so far as the customs authorities are concerned it is clear that they had some reason to think that Ethyl Wong might be one of the carriers as her visiting card was found with 26 other such cards in Yau Mockchi s possession
But it was not certain that she was one of the carriers until she was questioned or there was some other evidence against her
The complaint was filed in court on April 6 1960 and the case was to commence on January 2 1961
On December 27 1960 Ethyl Won landed at the Bombay Air Terminal
Two customs officers were waiting for her and questioned her
It was then that Ethyl Wong made her first statement exhibit 1 admitting her own share in the smuggling racket set up by Yau Mockchi
On December 29 1960 she gave a second statement exhibit 2 and corrected certain inaccuracies in 630 her first statement
On January 2  1961 she was examined as the first prosecution witness
Now there can be no doubt that Ethyl Wong was a competent witness
Under section 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section
Under section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding among others upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind
The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer
In other words if the customs authorities treated Ethyl Wong as a witness and produced her in court Ethyl Wong was bound to answer all questions and could not be prosecuted for her answers
Mr Jethmalani s argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks section 132 proviso
In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection
The protection is further fortified by article 203 which says that no person accused of any offence shall be compelled to be a witness against himself
This article protects a person who is accused of an offence and not those questioned as witnesses
A person who voluntarily answer questions from the witness box waives the privilege which is against being compelled to be a witness against himself because he is then not a witness against himself but against others
Section 132 of the Indian Evidence Act sufficiently protects him since his testimony does not go against himself
In this respect the witness is in no worse position than the accused who volunteers to give evidence on his own behalf or on behalf of a coaccused
There too the accused waives the privilege conferred on him by the article since he is subjected to cross examination and may be asked questions incriminating him
The evidence of Ethyl Wong cannot therefore be ruled out as that of an incompetent witness
Since Ethyl Wong was a self confessed criminal in conspiracy with others who were being tried her evidence was accomplice evidence
The word accomplice is ordinarily used in connection with the law of evidence and rarely under the substantive law of crimes
Accomplice evidence denotes evidence of a participant in crime with others
Section 133 of the Evidence Act makes the accomplice a competent witness against an accused person
Therefore Ethyl Wong s testimony was again that of a competent witness
It has been 631 subjected to scrutiny and the usual checks for corroboration and was therefore received with due caution
The short question that remains is whether she could be administered an oath in view of the prohibition in section 5 of the Indian Oaths Act
We have already shown above that Ethyl Wong was not an saccused person at the trial
Now the Indian Oath Act provides 5
Oath or affirmation shall be made by the following persons  a all witnesses that is to say all persons who may lawfully be examined or give or be required to give evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence Nothing herein contained shall render it lawful to administer in a criminal proceeding an oath or affirmation to the accused person unless he is examined as a witness for the defence 
Mr Jethmalani in interpreting the exclusionary clause argues that every person against whom there is an accusation whether there be a prosecution pending against him or not is an accused person more so a person against whom an investigation is going on or has been made
In this connection he has referred to those sections of the Code of Criminal Procedure where the word accused  occurs and has attempted to establish that sometimes the word is employed to denote a person on trial and sometimes a person against whom there is an accusation but who is not yet put on his trail
He has also referred to the expression in a criminal proceeding  which he says are words of sufficient amplitude to take in a person against whom an investigation is to be made or has been made on an accusation
In either case he submits the case of Ethyl Wong must fall within the exclusionary clause
There is no need to refer to the sections of the Code of Criminal Procedure because it may safely be assumed that the word accused  bears these different meanings according to the context
That does not solve the problem of interpretation of the same word in the Code for there it may have been used in one of the two senses or both
The historical reason behind the prohibition in the Indian Oaths Act and section 342 of the Code need not be gone into either
It is well known that formerly a person on his trial could not give evidence
At Common Law the parties to a civil action were not allowed to give evidence because of their personal 632 interest and in criminal trials the private prosecutor could give evidence because he represented the Crown but not the accused
The Common Law of England was altered by statutory enactments between 1843 and 1898 and finally by the Criminal Evidence Act 1898 the accused was allowed to give evidence
The discomfiture of the first person to give evidence on his own account while under cross examination is also well known
He was literally convicted out of his own mouth by the cross examination by the Attorney General
In India the right was first conferred by the Code of Criminal Procedure Amendment Act XXVI of 195 5
This Amending Act added section 342A to the Code 342
Accused person to be competent witness
Any person accused of an offence before a Cri minal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial  Provided that and added the words unless he is examined as a witness for the defence to the exclusionary clause in section 5 of the Indian Oaths Act
Yet the provisions of section 343 of the Code continues that except as provided in sections 337 and 338 of the Code no influence by means of any promise or threat or otherwise shall be used on an accused person to induce him to disclose or withhold any matter within his knowledge
The section prohibits influence in two ways in the making of the disclosure and in the withholding of the disclosure
In other words the prosecuting agency has to be neutral unless it seeks to prosecute the person himself
If they do not prosecute a particular person and tender him as a witness the bar of the Indian Oaths Act ceases because the person is hot an accused person in a criminal proceeding
The interrelation of section 3424 of the Code and section 5 of the Indian Oaths Act which both prohibited the giving of oath or affirmation to an accused on
trial is fully evidenced by the simultaneous amendment of the Code in 1955 by which the right to give evidence on oath is conferred on the accused and provisions in pari materia are made in section 5 of the Oaths Act
The only prohibition against the use of accomplice testimony exists in the rule of caution about corroboration and the interdiction of influence in any form by section 343 of the Code
If any influence by way of promise of pardon has to be made the provisions of sections 337 and 338 or of the Criminal Law Amendment Act have to be observed
That however applies to special kinds of cases of which the present is not one
They are 633 concerned with offences triable exclusively by the High Court or the Court of Session or offences punishable with imprisonment which may extend to seven years and certain offences specially named for which special provision has been made in the Criminal Law Amendment Act
In other words we are not concerned with the provisions for tender of a pardon found in the Code or the Criminal Law Amendment Act
The position that emerges is this  No pardon could be ten dered to Ethyl Wong because the pertinent provisions did not apply
Nor could she be prevented from making a disclosure if she was so minded
The prosecution was not bound to prosecute her if they thought that her evidence was necessary to break a smugglers  ring
Ethyl Wong was protected by section 132 proviso of the Indian Evidence Act even if she gave evidence incriminating herself
She was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence
The expression criminal proceeding  in the exclusionary clause of section 5 of the Indian Oaths Act cannot be used to widen the meaning of the word accused
The same expression is used in the proviso to section 132 of the Indian Evidence Act and there it means a criminal trial and not investigation
The same meaning must be given to the exclusionary clause of section 5 of the Indian Oaths Act to make it conform to the provisions in pari materia to be found in sections 342 342A of the Code and section 132 of the Indian Evidence Act
The expression is also not rendered superfluous because if given the meaning accepted by us it limits the operation of the exclusionary clause to criminal prosecution  as opposed to investigations and civil proceedings
It is to be noticed that although the English Criminal Evidence Act 1898 which omitting the immaterial words provides that Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings was not interpreted as conferring a right on the prisoner of giving evidence on his own behalf before the grand jury or in other words it received a limited meaning see Queen vs Rhodes1
Before we leave this subject we may refer to certain rulings to which our attention was drawn
Mr Jethmalini has referred to Karim Buksh vs QE 2  Da vs Sivan Chetty3 Parameshwarlal vs Emperor 4  Emperor vs Johrit 3 Albert vs State of Kerala6 These cases arose in connection with section 211 of the Indian Penal Code
The expression causes to be instituted criminal proceedings was held to include the making of a report to the police or to such officer whose duty it is to forward the report for action 1 3 ILR 5 AIR 1931 All 269
2 ILR 4 ILR 4 Patna 472
6 AIR 1966 Kerala1
634 by the police
It is argued that in section 5 of the Indian Oaths Act the words criminal proceedings  must receive wide interpretation
Mr Jethmalini also relied upon Karam Ilahi vs Emperor1 where a Division Bench of the Lahore High Court has held that since according to the Criminal Procedure Code a person becomes an accused person as soon as he has been arrested by the police for an offence the word accused  in section 5 of the Indian Oaths Act must also receive a similar meaning
We have already shown that the exclusionary clause in section 5 is to be interpreted as a whole and criminal proceedings  means a criminal inquiry or a trial before a court and the accused  means a person actually arraigned that is put on a trial
In fact this meaning finds support even from the Lahore ease on which Mr Jethmalini relies
The scheme of the two provisions being different it is impossible to use the meaning given in respect of section 211 of the Indian Penal Code in aid of the construction of similar words in section 5 of the Indian Oaths Act
On the side of the State many cases were cited from the High Courts in India in which the examination of one of the suspects as a witness was not held to be illegal and accomplice evidence was received subject to safeguards as admissible evidence in the case
In those cases section 342 of the Code and section 5 of the Indian Oaths Act were considered and the word accused  as used in those sections was held to denote a person actually on trial before a court and not a person who could have been so tried
The witness was of course treated as an accomplice
The evidence of such an accomplice was received with necessary caution in those cases
These cases have all been mentioned in In re Kandaswami Gounder2 and it is not necessary to refer to them in detail here
The leading cases are Queen Emperor vs Mona Puna3 Banu Singh vs Emperor4 Keshav Vasudeo Kortikar vs Emperor5   Empress vs Durant6 Akhoy Kumar Mookerjee vs Emperor7 A V Joseph vs Emperor Amdumiyan and others vs Crown8 Galagher vs Emperor10 and Emperor vs Har Prasad Bhargava11
In these cases and several others cited and relied upon in them it has been consistently held that the evidence of an accomplice may be read although he could have been tried jointly with the accused
In some of these cases the evidence was re ceived although the procedure of section 337 Criminal Procedure Code was applicable but was not followed
It is not necessary to deal with this question any further because the consensus of opinion 1 ATR 2 ATR 3 ILR 4 ILR 5 ILR 6 ILR 7 ILR 8 ILR 3 Rang
9 ILR 10 ILR II ILR 45 All
635 in India is that the competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case
Section 5 of the Indian Oaths Act and section 342 of the Code of Criminal Procedure do not stand in the way of such a procedure
It is however necessary to say that where section 337 or 338 of the Code apply it is always proper to invoke those sections and follow the procedure there laid down
Where these sections do not apply there is the procedure of withdrawal of the case against an accomplice
The observations of Cockburn CJ and Black burn and Mellor JJ
in Charlotte Winsor vs Queen1 must always be borne in mind
Cockburn CJ observed No doubt that state of things which the resolution of the judges as reported to have been made in Lord Hold s time was intended to prevent occurred it did place the prisoner under this disadvantage whereas upon the first trial that most important evidence could not be given against her it was given against her upon the second so that the discharge of the jury was productive to her of that disadvantage
I equally feel the force of the objection that the fellow prisoner was allowed to give evidence without having been first acquitted or convicted and sentenced
I think it much to be lamented
 To keep the sword hanging over the head of an accomplice and to examine him as a witness is to encourage perjury
Perhaps it will be possible to enlarge section 337 to take in certain special laws dealing with customs foreign exchange etc
where accomplice testimony will always be useful and witnesses will come forward because of the conditional pardon offered to them
We are therefore of the opinion that Ethyl Wong s evidence was admissible
The case was one under section 120 B of the Indian Penal Code
As the existence o f a conspiracy is proved beyond a shadow of doubt section 10 of the Indian Evidence Act is attracted
That section provides  10
Things said or done by conspirator in reference to common design
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said done or written by any one of such persons in reference to their common intention after the time when such intention 1 636 was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it
 The conspiracy was headed by Yau Mockchi who in a sense was the brain behind the whole racket
The discovery with him of the visiting card and photograph of Laxmipat and the photograph and addresses of Balchand was an incriminating circumstance as Ethyl Wong was connected with Yau Mockchi on the one hand and these brothers at the other
Further letters and writings of all the brothers were seized which were related to the conspiracy
Unfortunately the originals were not available at the trial but only photostats of the letters
The photostats have been proved to our satisfaction to be genuine photographs of the letters
The copies were made through the Indian Embassy and bore the certificate
The use of the photostats without the originals was questioned before us but not in the High Court
Since it was a pure question of law we allowed it to be raised
It is submitted that expert testimony as to handwriting can only be based upon the examination of the originals and not photographs
It is pointed out that there is nothing in the Evidence Act which makes a photograph of a disputed writing the basis of conviction
Nor it is submitted expert testimony can be invited about it
Reliance is placed on M Cullough vs Munn1 and Phipson on Evidence 10th Edition p 146
In our opinion this submission cannot be accepted
Apart from the fact that this was not argued in the High Court and the handwriting was admitted there the law as propounded is not sound
The originals were suppressed by the appellants after they were returned
The order of the Supreme Court of Hong Kong has not been produced before us and we do not know why the original documents were returned
Adequate precaution against the suppression of these documents apparently was not taken
This was perhaps necessary because the offence was a part of an international smuggling racket in which offenders had to be tried in two different countries and both countries needed the documents as evidence
If the photostats were not available this prosecution would have been greatly jeopardised
Even if the originals be not forthcoming opinions as to handwriting can be formed from the photographs
It is common knowledge that experts themselves base their opinion on enlarged photographs
The photos were facsimiles of the writings and could be compared with the enlargements of the admitted comparative 1 637 material
In Phipson 10th Edn paragraphs 316317 the rules as to identification of handwriting is stated from the Criminal Procedures Act 1865 as follows   Comparison of a disputed writing with any writing proved to be satisfaction of the judges to be genuine shall be permitted to be made by witnesses etc  para 316 In dealing with the scope of the rule Phipson observes Under the above Act both the disputed and the genuine writings must be produced in court and the former if lost cannot be compared either from memory or from a photographic copy with the latter and the latter must also be duly proved therein para 317
Phipson himself in paragraph 316 observes that the production of real  evidence is not now compulsory
For the first part of the proposition in paragraph 317 reference is made to M Cullough vs Munn1
That was an action for libel contained in a letter alleged to have been written by the defendant
The original was lost but a photographic copy of the letter was available and the envelope had been preserved
The photograph was seen by the jury but the Judge ruled that the photograph was evidence of the contents of the letter but not of the handwriting and could not be compared with other admitted writings
The jury gave a verdict for the plaintiff which was set aside by the Divisional Court and a new trial was ordered
At the second trial the photograph was not tendered but a plain copy  was put in
The trial resulted in a verdict for the defendant
The Divisional Court refused to set aside the verdict
The plaintiff then relied upon Lucas vs Williams 2  claiming that the photograph was evidence
The Lord Chancellor and Holmes LJ observed The plaintiff would have been justified in putting in the photograph as evidence of the contents of the libel and apparently it was the only legal evidence by way of copy of its contents and I think they might also on the authority of the decision in Brookes vs Tichborne  have used it for purposes of calling attention to peculiarities of spelling and use of capital letters and punctuation
 At the first trial Lord Chief Baron ruled with which Wright Jagreed in the King s Bench 1 2 638 lm15 that upon the loss of the original letter the photograph was admissible to prove the contents of that letter but that it could not be used for purposes of comparison with genuine documents
 The above observations have received adverse comments from Wigmore 3rd Edition Vol
III paragraph 797
The earlier cases probably took into account the possibility of trick photography and the changes likely by adjustment of the apparatus
Wigmore rightly points out that unless we are prepared to go to the length of maintaining that exact reproduction of the handwriting by photography is in the nature of things impossible the photograph must be admissible in proof
Wigmore then observes The state of the modern photographic art has long outlawed the judicial doubts above quoted
All that can be said is that a photograph of a writing may be made to falsify like other photographs and like other kinds of testimony and that a qualified witness affirmation of its exactness suffices to remove this danger as much as any such testimonial danger can be removed
Ac cordingly it is generally conceded that a photographic copy of handwriting may be used instead of the original so far as the accuracy of the medium is concerned
 In the footnotes to the above passage many cases are cited from various countries and in regard to the Irish case just cited by us the author observes that it raised a doubt which was perversely unnecessary
On the whole we think that if the court is satisfied that there is no trick photography and the photograph is above suspicion the photograph can be received in evidence
It is of course always admissible to prove the contents of the document but subject to the safeguards indicated to prove the authorship
This is all the more so in India under section 10 of the Evidence Act to prove participation in a conspiracy
Detection and proof of crime will be rendered not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals Many conspiracies will then remain unproved because one of the usual methods is to intercept a letter take its photograph and then to send it on and wait for the reply
But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not faked or false
In the present case no such suggestion exists and the originals having been suppressed by the accused were not available
The evidence of photographs as to the contents and as to handwriting was receivable
639 Regarding the specimen writing in the letter Z 217 with which the impugned writings were compared we think the letter must be treated as genuine for the purpose of comparison of handwriting
The letter was written on June 1 1960 from Bombay to one Begraj Choraria at Bidsedar
It was admittedly recovered
from Balchand appellant s ancestral house
It was addressed to Dadaji Sahib and it contains numerous references to domestic matters which are usually written in such letters
Corroboration of some of the things said there was available from other sources
It is impossible to think that such a letter could have been forged and planted at Bidsedar in the ancestral home
The letters in BC series 1 45 were rightly compared with it to determine Balchand s handwriting
The next question is whether Ethyl Wong s identification of Laxmipat and Balchand whose photographs were shown to her at the Air Terminal at Bombay should be accepted
Reference in this connection has been made to English cases in which it has been laid down that the showing of a large number of photographs to a witness and asking him to pick out that of the suspect is a proper procedure but showing a photograph and asking the witness whether it is of the offender is improper
We need not refer to these cases because we entirely agree with the proposition
There can be no doubt that if the intention is to rely on the identification of the suspect by a witness his ability to identify should be tested without showing him the suspect or his photograph or furnishing him the data for identification
Showing a photograph prior to the identification makes the identification worthless
If the prosecution had to rely on the identification by Ethyl Wong to fix the identity of the suspects the fact that  photographs were shown would have materially affected the value of identification
But the prosecution was not required to rely on Ethyl Wong s identification
It had other evidence on this point
Further before Ethyl Wong had seen the photographs she had given the names and description of the suspects
In addition to identifying the suspects from the photograph Ethyl Wong had shown the flat in Bombay and the record of telephone calls at her hotel showed that she was in touch with the suspect in Bombay
Again she spoke of the suspect at Calcutta and gave a description of the visiting card without having seen it
This visiting card is blue in colour and has the device in the left hand corner of a heart with a Swastika as an inset in the heart
When she pointed out the flat she was accompanied by a customs officer who did not even know what it was all about
It is also significant that Balchand s photograph was demanded from Hong Kong
It was also said that if the photograph was not available address and telephone number would do In Yau Mockchi s possession photographs addresses and visiting cards were found
There are other letters which speak of certain goods 640 to be brought and the account books show that they were sent from Hong Kong
One significant article is a Rolex watch which was asked for and was bought in Hong Kong
The letters themselves and the account of gold purchased etc
and the commission paid speak volumes
Gold was described as lali  and its fineness and price were mentioned
To refer to gold as lali  in the letters was to employ a childish code which is easily broken when one sees the weight of lali  in tolas the price and the fineness
The internal evidence of the letters furnishes all necessary clues to the identity and inter relation of the several conspirators
No wonder the identity of the writers and recipients of the letters was not specially challenged in the High Court
Mr Jethmalini attempted to argue several questions of fact but in view of the practice of this Court and the concurrent findings of the High Court and the Magistrate we have not attempted to go into the evidence
In fact we can only say that there is such overwhelming evidence of the complicity of the appellants that when the points of law fail there is very little to be said in their favour
The last contention that there has been discrimination and violation of articles 14 and 20 is without substance
Reliance was placed on section G Jaisinghani vs Union of India and others1 that the absence of arbitrary power is the first essential of the rule of law and here there is room for selecting one out of several accused to lead accomplice evidence
Reference was made to other cases of this Court where unrestrained power of selection without guidelines was held to offend article 14
But the case of the accomplice evidence is different
Section 337 of the Code of Criminal Procedure has already been held not to offend article 14 and the matter of taking accomplice evidence outside section 337 by using section 494 or otherwise is not very different
We do not hold that there was any breach of the Constitution in receiving Ethyl Wong s evidence To hold otherwise would shut out accomplice evidence completely
There is thus no force in the appeals
Mr Jethmalini argued that the High Court was wrong in enhancing the sentences of Balchand and Poonamchand appellants and the sentence of Laxmipat which is the maximum permissible under law was also too severe
Gold smuggling has become one of the major difficulties in maintaining our economic structure
The case evidences an international ring of smugglers
In view of this we see no reason to interfere
The appeals will stand dismissed
Appellants to surrender to their bail
RKPS 1  Appeals dismissed


Summary:
The three appellants were convicted under section 120B IPC and section 16781 of the Sea Customs Act for having entered into a criminal conspiracy among themselves and with a Chinese citizen in Hong Cong to smuggle gold into India with the help of E an Airlines stewardess
E gave evidence at the trial as a witness for the prosecution
Her testimony was clearly that of an accomplice and although she could have been prosecuted she was not arraigned
It was contended inter alia on behalf of the appellants i that it was the duty of the prosecution andor the Magistrate to have tried E jointly with the appellants and the breach of this obligation vitiated the trial in the alternative E s testimony must be excluded from consideration and the appeal re heard on the facts ii that no oath could be adminis tered to E as she was an accused person in a criminal proceeding  within the meaning of section 5 of the Indian Oaths Act as shown by her own statements made to the Customs officials and in Court she could not therefore be examined as a witness furthermore the provisions relating to tender of pardon to accomplices contained in Chapter XIV of the Criminal Procedure Code do not apply to offences under section 120B first Part IPC and section 168 81 of the Sea Customs Act the only ways in which E s testimony could have been obtained was either to take her plea of guilty and convict and sentence her or withdraw the prosecution against her under section 494 Cr P C Not to send up a person for trial with the sole object of taking accomplice evidence is illegal
Furthermore under section 351 read with section 91 of the Code it was the duty of the Court to
have detained E and included her in the array of accused before it iii the evidence of E in respect of the identification of two of the appellants was inadmissible because she had been shown heir photographs before her statements were taken iv the photostats of certain document s without the production of the originals were wrongly admitted and should have been excluded and v selection of E as once out of several accused is discriminatory
HELD  dismissing the appeal i The offences were non cognizable and were investigated by Customs officers under the Sea Customs Act and not by the Police under Chapter XIV of the Code
Therefore no question of the application of sections 169 and 170 arose
The accused were placed on trial on the complaint of the 625 Assistant Collector of Customs under the authority of the Chief Customs Officer Bombay
Although the Magistrate was taking cognizance of offences and not of offenders it was no part of his duty to find offenders in view of the bar of section 187A if the complaint did not name a particular offender
All that the Magistrate could do was to take a bond from E for her appearance in court if required
629 C E Under section 118 of the Evidence Act all persons are competent to testify unles the court considers that they are prevented from under standing the questions put to them for reasons indicated in that section
Under section 132 a witness is not excused from answering any relevant question upon the ground that the answer will incriminate him or expose him to a penalty of forfeiture of any kind and when compelled to answer such question is protected against arrest or prosecution by the safeguard in the proviso to section 132 as well as in Art 203
The evidence of E could not therefore be ruled out as that of an incompetent witness
Since E was a self confessed criminal in conspiracy with others who were being tried her evidence was accomplice evidence
section 133 of the Evidence Act makes the accomplice a competent witness against an accused person
For this reason also E s testimony was that of a competent witness
630 B H ii The competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case
Section 5 of the Indian Oaths Act and section 342 of the Code of Criminal Procedure do not stand in the way of such a procedure
If any accomplice is not prosecuted but is tendered as a witness the bar of the Indian Oaths Act ceases because the person is not an accused person in a criminal proceeding
The interrelation of section 3424 of the Code and section 5 of the Indian Oaths Act
both of which prohibited the giving of oath or affirmation to an accused on trial is fully evidenced by the simultaneous amendment of the Code in 1955 by which the right to give evidence on oath is conferred on the accused and provisions in pari materia are made in section 5 of the Oaths Act
The only prohibition against the use of accomplice testimony exists in the rule of caution about corroboration and the interdiction of influence in any form by section 343 of the Code
If any influence by way of promise of pardon has to be made the provisions of sections 337 and 338 or of the Criminal Law Amendment Act have to be observed
That however applies to special kinds of cases of which the present was not one
632 F H The expression criminal proceeding  in the exclusionary clause of section 5 of the Indian Oaths Act cannot be used to widen the meaning of he word accused 
The same expression is used in
the proviso to section 132 of the Indian Evidence Act and there it means a criminal trial and not investigation
The same meaning must be given to the exclusionary clause of section 5 of the Indian Oaths Act to make it conform to the provisions in pari materia to be found in sections 342 342A of the Code and section 132 of the Indian Evidence Act
The expression is also not rendered superfluous because given this meaning it limits the operation
of the exclusionary clause to criminal Prosecutions as opposed to investigations had civil proceedings
633 D F iii If the court is satisfied that there is no trick photography and the photograph is above suspicion the photograph can be received in evidence
It is of course always admissible to prove the contents of the document but subject to the safeguards indicated to prove the authorship
This is all the more so in India under section 10 of the Evidence Act 626 to prove participation in a conspiracy
Detection and proof of crime will be rendered not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals
But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photo graphic reproduction is faithful and not faked or false
In the present case no such suggestion exists and the originals having been suppressed by the accused were not available
The evidence of photographs as to the contents and as to handwriting was receivable
638 F H iv If the prosecution had to rely only on the identification by E to fix the identity of the suspects the fact that their photographs were shown to her would have materially affected the value of identification
How ever there was considerable other evidence of identification and the prosecution was not required to rely only on this identification
v Section 337 Cr
PC has been held not to offend article 14 and the matter of taking accomplice evidence outside section 337 by using section 494 or otherwise is not very different
It cannot be held that there was any breach of the Constitution in selecting E out of several accused to give evidence
640 F Case law discussed