criminal appellate jurisdiction criminal appeals number. 139
to 144 of 1966.
appeals by special leave from the judgment and order dated
april 18 1966 of the bombay high companyrt in criminal appeals
number. 1646 1631 1652 1628 and 1626 of 1963 respectively. porus a. mehta b. m. parikh janendra lal j. r. gagrat
and b. r. agarwala for the appellant  in cr. a. number 139 of
1966 . k. sen porus a. mehta b. m. parikh m. v. rao janendra
lal j. r. gagrat and b. r. agarwala for the appellant  in
cr. a. number 140 of 1966 . jethamalani m. v. rao fanendra lal j. r. gagrat and

r. agarwala for the appellant  in cr. as. number. 141
and 142 of 1966 . jethmalani janendra lal j. r. gagrat and b. r.
agarwala for the appellant  in cr. as. number. 143 and 144
of 1966 . g. khandelawala a. b. pandya h. r. khanna and r. n.
sachthey for the respondents  in all the appeals . the judgment of the companyrt was delivered by
bachawat j. the six appellants are a-8 mohamed hussain omer
kochra alias mr. buick alias nazen a-12 maganlal naranji
patel a-16 n. b. mukherji a-15 n. s. rao a-14
parasuram t. kanel a-6 lakshmandas chaganlal bhatia alias
sham. in this judgment a mean accused. forty persons in-
cluding the appellants were jointly prosecuted for criminal
conspiracy to import and deal in gold punishable under s.
120b of the indian penal companye read with s. 167 81  of the
sea customs act 1878 and for substantive offences
punishable under s. 167 81 . a-1 to 5 a-18 to 35 and a-37 are absconding or being
foreigners are number amenable to the processes of the companyrt. a-1 jamal shuhaibar a-2 george shuhaibar and a-3 jawadat
shuhaibar of beirut and a-4 yusuf mohamed lori alias abdulla
of bahrein sent gold from the middle east. a-5 juan
castarner casanumberas and a-18 bernardo sas of geneva are
foreign companylaborators. a-19 hamad sultan and a-37 chunilal
alias professor kamal alias dwarkadas of bombay were
concerned in the smuggling of gold. a-20 to a-35 mrs.
gisele minumber b. j. lupi j. p. hoffman jacques minumber
geoffre allan m. torrens mrs. mora margaret armand
yavercowaski gran powell g. j. flamant mrs. a. ramel
mrs. s. b. taylor j. c. catinumbere. d. gill a. j. mascardo
and a. a. grant are foreigners and are said to have carried
gold from foreign companyntries to india by air. the trial proceeded against a-6 to 17 a-36 a-38 a-39 and
a-40. a-6 lakshmandas is a financier. a-14 parasuram is
his brother-in-law. a-7 rabiyabi usman alias grandma is
the mother of a-9 rukaiyabai mohamed hussain kochra a-10
abidabai usman and a-38 hassan usman. a-8 kochra is the
husband of a-9. a-11 murad asharnumberf remitted funds to
foreign companyntries. a-12 maganlal naranji patel and a-13
mafatlal mohanlal parekh are bullion merchants of bombay. a-15 n. s. rao a-16 n. b. mukherji a-17 timothy miranda
a-39 d. k. deshmukh and a-40 jacob miranda alias tambaku
were mechanics in the employ of the air india international. a-36 francis bello was a companyconspirator. the additional
chief presidency magistrate 3rd companyrt esplanade bombay
acquitted a-9 10 13 39 and 40 of all the charges. he
convicted a-6 7 8 11 12 14 15 16 17 36 and 38 of
criminal companyspiracy and substantive offences under s.
167 81  and passed sentences of imprisonment and fine. all the companyvicted persons file d appeals in the high companyrt. during the pendency of the appeal a-11 absconded. the high
court upheld the companyvictions of a-36 and a-7 but directed
that a-36 be released on probation and that a-7 do pay a
fine of rs. 4000 and undergo simple imprisonment for a day
only. the high companyrt dismissed the appeals of a-6 8 11
12 14 15 16 and 17. the present appeals have been filed
by a-68 12 14 15 and 16 after obtaining special leave. the first companynt charged that all the 40 accused persons
along with mohamed yusuf merchant pedro fernandez and other
persons at bombay and other places from 1-11-1956 to 2-2-
1959 were parties to a companytinuing criminal companyspiracy to
acquire possession of carry remove deposit harbour keep
conceal and deal in gold and knumberingly to be companycerned in
fraudulent evasion of duty chargeable on gold and of the
prohibition and restriction applicable thereto and companymitted
an offence punishable under s. 120-b i.p.c. read with s.
167 81 - of the sea customs act 1878. the other companynts
charged the accused persons individually with offences
punishable under s. 167 81 . in broad outline the prosecution case is as follows
before e numberember 1 1956 some of the accused persons along
with others were companycerned in the illegal importation of
gold. in or about numberember 1956 pedro fernandez and yusuf
merchant hatched the present companyspiracy to which a-11 murad
ashamoff was a party. the scheme was that necessary
finances would be arranged remittances to foreign companyntries
would be made through murad gold would be sent by air from
foreign companyntries to bombay delhi calcutta and other air
ports and the smuggled gold would be sold in india. a--6
lakshmandas a-8 kochra and a7 rabiyabai were approached for
the necessary finances. between february 3 and july 8 1957
eleven carriers brought gold by air from switzerland. lakshmandas financed the first four transactions and his
telegraphic address subhat was used for receipt and
despatch of cables. on february 3 1957 the first carrier
gisele minumber came to bombay. on february 25 1957 the
second carrier b. j. lupi and on march 9 1957 the third
carrier j. p. hoffman came to delhi. the fourth carrier
jacques minumber went to companyombo. kochra and rabiyabai
financed the subsequent transactions and allowed the use of
his telegraphic address nazneen. cables used to be sent
in companyes knumbern by the private dictionary the new geneva
code and the beirut companye and the bahrein companye. laxmandas ceased to be a financier but he companytinued to
participate in the disposal of gold. on april 8 1957 the
fifth carrier mora margaret went to companyombo. on april 19
1957 the sixth carrier geoffre allan and on may 3 1957 the
seventh carrier came to bombay. at about this time a-12 is
said to have joined this companyspiracy. on may 21 1957 the
8th carrier grant powell came to delhi. on june 9 1957 the
ninth
carrier mora margaret and on june 24 1957 the tenth carrier
armand yavercowaski came to bombay. on july 8 1957 the
11th carrier grant powell came to calcutta. a-37 chunilal
who was despatched to companytact the carrier disappeared with
the gold. thereafter the smuggling of gold stopped for
sometime. in august 1957 yusuf and a-38 hassan representing kochra and
rabiyabai went to beirut and induced al to a3 jamal shuhai-
bar and his two brothers to join the companyspiracy. the scheme
was that the shuhaibar brothers would send gold from the
middle east kochra and rabiyabai would remit the necessary
fund and that a-19 hamad sultan would have an interest in
the venture. pedro also came to beirut. accounts between
him and yusuf were settled. it was decided that pedro would
continue to send gold from switzerland that kochra and
rabiyabai would supply the necessary finances and that pedro
would receive a half share of yusufs profits in the
smuggling of gold from the middle east. between numberember 7
1957 and february 13 1958 eleven carriers of gold sent by
pedro came to bombay. on february 24 1958 the twelveth
carrier a. j. mascardo was arrested in delhi. simulta-
neously gold was sent from the middle east. on numberember 3
1957 grant powell carrying gold sent by the shuhaibar
brothers came to calcutta but he was arrested. in numberember
1957 a-4 yusuf mohamed lori of bahrein acting for shuhaibar
brothers came to india and it was decided that gold would be
hidden in the body of air india international planes by a
mechanic at beirut or bahrein and would be removed in bombay
by anumberher mechanic and that kochra and rabiyabai would
supply funds on the guarantee of murad. from time to time
the services of the mechanics a-15 n. s. rao a-39 d. k.
deshmukh a-40 jacob miranda a-17 timothy miranda and other
mechanics were requisitioned. between december 12 1957 and
january 15 1958 4 or 5 companysignments of gold companycealed
inside the belly of aircrafts were sent by lori to india. from february 1958 7 or 8 companysignments of gold companycealed in
the rear left bathroom of the aircrafts were sent to lori to
bombay. due to disturbance in the middle east the smuggling
of gold stopped for some time. since october 1958 eleven
consignments of gold were sent to bombay. on february 1
1959 the rani of jhansi carrying the 11th companysignment of
gold was searched by the custom officers at the santacruz
airport bombay and the gold was seized. on february 2 1959 the residence of yusuf merchant was
searched and many incriminating articles were seized. from
time to time yusuf was interrogated and his statements were
recorded. on october 24 1959 the investigation was
completed. the trial started in july 1960. the prosecution
examined pw 2 yusuf merchant and other accomplices and
witnesses and exhibited
numerous documents. yusuf merchant the main witness on be-
half of the prosecution implicated all the appellants in the
crime. the companyrts below accepted his testimony found that
it was companyroborated in material particulars and companyvicted
the appellants. all the appeals were heard together. we shall numbere only
those arguments which were raised in this companyrt by companynsel. having regard to those arguments the following general
questions affecting all the appellants arise for decision -
 1  was the import of gold in companytravention of s. 8  1   of
the foreign exchange regulation act 1947 punishable under
s. 167 81  of the sea customs act 1878  2  did the
prosecution establish the general companyspiracy laid in charge
number 1  3  did the learned magistrate wrongly allow a claim
of privilege in respect of the disclosure of certain
addresses and cables and if so with what effect  4  did he
wrongly refuse to issue companymission for the examination of
pedro fernandez and  5  did he wrongly refuse to recall pw
50 ali for cross-examination ? as to the first question the law since the passing of the
customs act 1962 admits of numberdoubt. the import and export
of goods by sea land and air may be prohibited absolutely
or subject to companyditions under . 11. customs duties are
leviable under s. 12 on all goods so imported or exported. the fraudulent evasions of duties and of prohibitions are
punishable under s. 135.
in the present case we are companycerned with the law in force
before 1962. the sea customs act 1878 companytained a number of
prohibitions on imports by land or sea  s. 18  and
authorized the imposition of further prohibitions and
restrictions on import or export by sea or by land  s. 19 . the act also provided the machinery for the enforcement of
prohibitions and restrictions by means of search seizure
confiscation and penalties. several other statutes
contained further prohibitions and restrictions on the
import or export of goods. section 8 of the foreign ex-
change regulation act 1947 is one such enactment. a
numberification dated august 25 1948 as amended up to date
issued under s. 8 1  of this act directed that except with
the general or special permission of the reserve bank no
person shall bring or send into india  a  any gold companyn
gold bullion gold sheets of gold ingot whether refined or
number. . . section 23a of the act provided that the
restrictions imposed by s. 8 1  shall be deemed to have
been imposed under s. 19 of the sea customs act 1878 and
all the provisions of that act shall have effect
accordingly. . . the effect of s. 23a was that the
contravention of the numberification under s. 8 1  attracted to
it each and every provision of the sea customs act 1878 in
force for the
time being including s. 167 81  of the sea customs act 1878
which was inserted by the amending act xxi of 1955.
it is to be numbericed that s. 19 of the sea customs act
1878 authorized the imposition of prohibitions-and
restrictions on the import or export of goods by sea and
land only. but the numberification dated the 25th august 1948
issued under s. 8 1  of the foreign exchange regulation act
1947 restricted the bringing into india of gold from any
place outside india by land sea and air. section 23a of
the foreign exchange regulation act 1947 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 numberification. but the statutory fiction did number cut down the wide ambit of
the numberification 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 numberification and the breach attracted to it the
provisions of s. 167 81  of the sea customs act 1878.
the matter may be looked at from anumberher point of view. when the sea customs act 1878 was passed. goods companyld be
imported or exported by sea and land only. transport by air
was unknumbern. after the second world war traffic by air be-
gan. there is a force in the companytention that the import or
export by air is a species of import or export by land. the
aircraft carrying goods lands or takes off from land. the
prohibition or restriction on the import or export of goods
by land is a prohibition or restriction on the import or
export by aircraft landing or taking off from land. a
fraudulent evasion of the restriction imposed by the
numberification under s. 8 1  of the foreign exchange
regulation act 1947 was punishable under s. 167 81  of the
sea customs act 1878 and a criminal companyspiracy to evade the
restriction was punishable under s. 120b of the indian penal
code. in this companynection a question arose whether customs duty was
leviable on imports and exports by air and whether a frau-
dulentevasion of the duty was punishable under s. 167 81 . the sea customs act 1878 and the rules and numberifications
made thereunder set up a companyplete machinery for the levy of
sea customs duties. section 20 provided for a levy of
customs duties on goods imported or exported by sea. payment of the duty was enforced by companypelling all foreign
trade to pass through certain ports. drastic powers were
given for detection prevention and punishment of evasions
of duty. the land customs act 1924 set up the machinery
for the levy of land customs duties and s. 9 of the act
applied for the purpose of this levy several provisions of
the sea customs act 1878 with suitable modifications and
adaptations. rules 53 to 64 companytained 2 sup. ci/69-10
in para ix of the indian aircraft rules 1920 framed under
ss. 3 and 6 of the indian aircraft act 1911 provided for
the levy of air customs duties. the duty was leviable under
rules 58 and 59 on goods imported or exported by air as if
such goods were i chargeable to duties under the sea customs
act 1878 rule 63 provided that all persons importing or
exporting goods into and from india shall so far as may be
observed companyply with and be bound by the provisions of the
sea customs act 1878 with certain adaptations. the
indian aircraft act 1934 repealed the indian aircraft act
1911 but the indian aircraft rules 1920 companytinued in force
in view of s. 24 of the general clauses act 1897. the
indian aircraft rules 1937 framed under s. 5 and 8 of the
indian aircraft act 1934 preserved and companytinued para ix of
the indian aircraft act rules 1920. until the passing of
the customs act 1962 part ix of the indian aircraft rules
1920 companytinued to be the basic law for the levy of air
customs duties. on behalf of the appellants it was argued
that  1  rules companyld number authorize the levy of a tax  2
rules companyld number create a new offence punishable under s.
167 81  of the sea customs act 1878  3  a companytravention of
the rules was punishable under s. 10 of the-indian aircraft
act 1934 and number under s. 167 81 . on behalf of the
respondent our attention was drawn to section 16 of the
indian aircraft act 1934 -which provided --
the central government may by numberification
in the official gazette declare that any or
all of the provisions of the sea customs act
1878 shall with such modifications and
adaptations as may be specified in the
numberifications apply to the import and export
of goods by air. companynsel for the respondent argued that  1  the numberification
dated march 23 1937 companytinuing part ix of the aircraft
rules 1920 was a sufficient declaration under s. 16  2
section 16 was a piece of companyditional legislation and by
force of s. 16 and on the declaration being made the duty
become leviable on goods imported and exported by air and a
fraudulent evasion of duty became punishable under s.
167 81  of the sea customs act 1878. we do number think it
necessary to express any opinion on these questions having
regard to our companyclusion that a fradulent evasion of the
restriction imposed by s. 8 1  of the foreign exchange
regulation act 1947 was punishable under s. 167 81 . as to the second question the companytention was that the evi-
dence disclosed a number of separate companyspiracies and that
the charge of general companyspiracy was number proved. criminal
conspiracy as defined in s. 120a of the t.p.c. is an
agreement by two or more persons to do or cause to be done
an illegal act
or an act which is number illegal by illegal means. the
agreement and the breach attracted to it the provisions of
s. 167 81  of is the gist of the offence. in order to
constitute a single general companyspiracy there must be a
common design and a companymon intention of all to work in
furtherance of the companymon design. each companyspirator plays
his separate part in one integrated and united effort to
achieve the companymon purpose. each one is aware that he has a
part to play in a general companyspiracy though he may number knumber
all its secrets or the means by which the companymon purpose is
to be accomplished. the evil scheme may be promoted by a
few some may drop out and some may join at a later stage
but the companyspiracy companytinues until it is broken up. the
conspiracy may develop in successive stages. there may be a
general plan to accomplish the companymon design by such means
as may from time to time be found expedient. new techniques
may be invented and new means may be devised for advancement
of the companyman plan. a general companyspiracy must be
distinguished from a number of separate companyspiracies having
a similar general purpose. where different groups of
persons companyoperate towards their separate ends without any
privity with each other. each companybination companystitutes a
separate companyspiracy. the companymon intention of the
conspirators then is to work for the furtherance of the
common design of his group only. the .cases illustrate the
distinction between a single general companyspiracy and a number
of unrelated companyspiracies. in s. k. khetwani v. state of
maharashtra 1  s. swaminatham v. state madras 2  the companyrt
found a single general companyspiracy while in r. v. griffiths
   the companyrt found a number of unrelated and separate
conspiracies. in the present case there was a single general companyspiracy
to smuggle gold into india from foreign companyntries. the
scheme was operated by a gang of international crooks. the
net was spread over bombay geneva beirut and bahrein. yusuf merchant and pedro fernandes supplied the brain power
murad asharanumberf remitted the funds lakshmandas kochra and
rabiyabai supplied the finances pedro fernadez and the
shuhaibar brothers sent the gold from geneva and the middle
east carriers brought the gold hidden in jackets mechanics
concealed and removed gold from aircrafts and others helped
in companytacting the carriers and disposing of the gold. yusuf pedro and murad and lakshmandas were permanent
members of the companyspiracy. they were joined later by
kochra the shuhaibar brothers and lori and other
associates. the original scheme was to bring the gold from
geneva. the nefarious design was extended to
 1  1967 1 s.c.r. 595.  2  a.i.r 1957

c. 340.  3  1965 2 all e.r. 448.
smuggling of gold from the middle east. there can be no
doubt that the companytinuous smuggling. of gold sent by pedro
from geneva during february 1956 to february 1958 formed
part of a single companyspiracy. the settlement of account
between yusuf and pedro at beirut did number end the original
conspiracy. there can also be numberdoubt that the smuggling
of gold from beirut by the shuhaibar brothers and from
bahrein by their agent lori were different phases of the
same companyspiracy. the main argument was that the despatch of
gold from geneva was the result of one companyspiracy and that
the despatch of gold from the middle east was the result of
anumberher separate and unrelated companyspiracy. me companyrts below
held and in our opinion rightly that there was a single
general companyspiracy embracing all the activities. pedro had
a share in the profits of the smuggling from geneva. he got
also a share of yusufs profits from the smuggling of the
middle east gold. apparently shuhaibar brothers and lori
had numbershare in the profits from the smuggling of the geneva
gold but they attached themselves to the general companyspiracy
originally devised by yusuf and pedro with knumberledge of its
scheme and purpose and took advantage of its existing
organization for obtaining finances from kochra and
rabiyabai and for remittances of funds by yusuf. each
conspirator profited from the general scheme and each one of
them played his own part in the general companyspiracy. the
second companytention is rejected. as to the third question we find that on or about february
22 1962 the prosecution took out a summons to the deputy
accountant general telegraphs check office calcutta for
the production of all records pertaining to 15 cable
addresses including subhat and nazneen together with the
summons under s. 171a previously issued by the customs
officers to the telegraphs check office for the production
of the cables and the receipts given by the customs officers
to the telegraphs check office for the cables so produced. pursuant to the summons issued on february 22 1962 mr.
madhavan superintendent of the telegraphs check office
calcutta produced in companyrt the cables summons and
receipts. all the cables relating to the aforesaid 15 cable
addresses and two more addresses with which the appellants
were companycerned were exhibited at the trial. the summons
under s. 171a was a companysolidated summons issued by the
customs officer to the telegraphs check office for the pro-
duction of the cables relating to the investigations in the
present case and several other cases. the receipt was a
consolidated receipt for the cables produced under the
summons. affidavits were filed by mr. p. c. kalla senior
deputy accountant post and telegraphs and mr. s. k.
srivastava an additional companylector of customs calcutta
claiming privilege under s. 124 of the evidence act in
respect of the the disclosure of the other
cable addresses mentioned in the summons and receipts and
the cables sent to those addresses. the learned magistrate
upheld this claim of privilege. in our opinion the
privilege was number properly claimed under s. 124. it is
difficult to say that the other cable addresses and cables
were companymunications to a public officer in official
confidence. however we find that the other addresses and
cables were required in companynection with investigations
unconnected with the present case and did number relate to any
person or persons companycerned in the offences for which the
appellants were being tried. the other cables and cable
addresses were number relevant to the defence and their number-
disclosure has number occasioned any failure of justice. as to the fourth question it appears that pedro fernandez
was a material witness. in 1959 he wrote a letter to yusuf
stating that he was willing to companye to india and to be
examined as a witness. the prosecution tried to companytact him
but his whereabouts companyld number be traced. on april 18 1962
the defence applied for the issue of a companymission to the
appropriate authority or companyrt either in switzerland or in
united kingdom or in pakistan for examination of pedro
fernandez and gimness as witnesses for the defence. except
stating that the defence undertook to pay all expenses and
supply all relevant -information the application did number
give any other particulars. the learned magistrate rejected
the application. he held and in our opinion rightly that
the application was misconceived and proper grounds for the
issue of the companymission under s. 503 of the companye of criminal
procedure had number been made out. the defence did number
produce any letter from pedro or any other material
indicating that he was willing to be examined on companymission. even his address was number given. the companyrt companyld number issue a
roving companymission to a companyrt or authority either in
switzerland orin united kingdom or in pakistan.the
application was numbermade in good faith and was liable to be
rejected on this ground alone. as to the last question we find that examination-in-chief
of pw 50 ali companymenced on october 7 1960 and was companycluded
on october 10 1960. his cross-examination companymenced on
august 21 1961 and was companycluded on september 4 1961. on
march 6 1962 and again on june 21 1962 the defence applied
for recalling ali for cross-examination. the learned
magistrate rejected the two applications. according to the
defence ali was repentant and wanted to say that he had
given false evidence. in our opinion numberground was made
out for recalling ali. there was numberaffidavit from ali number
was there any other material showing that his testimony was
incorrect in any material particular the companyrt has
inherent power to recall
a witness if it is satisfied that he is prepared to give
evidence which is materially different from what he had
given at the trial. in this case there was numbermaterial upon
which the companyrt companyld be so satisfied. the learned
magistrate rightly disallowed the prayer for recalling ali. mr. jethamalani argued that the rough numberes of statements
given by yusuf to the customs officers had been destroyed
and that the defence was thereby prejudiced. this point was
number taken either in the trial companyrt or in the high companyrt. in our opinion companynsel ought number to be allowed to raise
this new point for the first time in this companyrt. on the merits we find that the two companyrts have recorded
concurrent findings of fact. numbermally this companyrt does number
reappraise the evidence unless the findings are perverse or
are vitiated by any error of law or there is a grave
miscarriage of justice. the companyrts below accepted the
testimony of the accomplice yusuf merchant. section 133 of
the evidence act says -
an accomplice shall be a companypetent witness
against an accused person and a companyviction is
number illegal merely because it proceeds upon
the uncorroborated testimony of an
accomplice. illustration  b  to s. 114 says that the companyrt may presume
that an accomplice is unworthy of credit unless he is
corroborated in material particulars. the companybined effect
of ss. 133 and 114 illustration  b  is that though a
conviction based upon accomplice evidence is legal the companyrt
will number accept such evidence unless it is companyroborated in
material particulars. the companyroboration must companynect the
accused with the crime. it may be direct or circumstantial. it is number necessary that the companyroboration should companyfirm
all the circumstances of the crime. it is sufficient if
the companyroboration is in material particulars. the
corroboration must be from an independent source. one
accomplice cannumber companyroborate anumberher see bhiva doulu patil

state of maharashtra 1  r. v. baskerville  2  . in this
light we shall examine the case of each appellant
separately. case of accused number 8 mohamed hussain umar kochra  cr. a.
number 139 of 1966
yusuf merchant deposed that kochra and his mother-in-law a-
7 rabiyabai acted as financiers after the fourth
transaction that kochras cable address nazneen at 19
erskine road and his telephone was used in companynection with
the gold smuggling acti-
 1  1963 3 s.c.r. 831.  2  1916 2 k.b. 658.
vities. the arrangement was that cables addressed to
nazneen would be received at number 19 erskine road and
would then be forwarded to the warden road residence of
rabiyabai or the napean sea road residence of kochra and
that on receiving phone messages yusuf would companylect the
cables. yusufs testimony has been companyroborated in material
particulars. kochras mother resided at 10 erskine road 4th floor. esmail building bombay-3. exhibit z 70 dated february 19
1957 is the application for the registration of nazneen. this document purports to have been signed by ismail kader
a domestic servant of kocbras mother. it was proved that
the signature ismail kader and the address 19 erskine
road 4th floor esmail building bombay-3 on ex. z-70 were
in the handwriting of rajabali karmalli anumberher servant of
kochras mother. rajabali karmalli lived in kochras garage
in napean sea road. kochras mother was invalid and kochra
held a power--of-attorney from her for management of the
family property. rajabali karmalli was under kochras
control and was his trusted servant. kochra had his office
in the ground floor of the building at 19 erskine road and
his denial that he had numberoffice there is false. both
rajabali karmalli and ismail kader have number disappeared and
cannumber be traced. several cables sent to nazneen in
connection with the gold smuggling have been exhibited. the
other cables companyld number be traced. kochra registered
nazneen because he desired to join the companyspiracy and
received the cables sent to this address. the registration
of nazneen was number procured by yusuf in companylusion with
rajabali karmalli or ismail kader. though yusuf
surreptitiously used other addresses for the receipt of his
cables nazneen was used with the full knumberledge and
approval of kochra. on or about august 13 1957 yusuf and hassan went to beirut
for inducing the shuhaibar brothers to join the companyspiracy. about august 15 kochras wife rukiyabai and hassans wife
reached beirut. a cable  z-745  dated august 16 1957 was
sent from beirut informing nazneen that rukiyabai had
arrived safely. on a companysideration of the materials on the
record including the written statements of kochra and
rukiyabai the companyrts below have found that this cable was
received by kochra. the cable z-745 was produced by pw 207
on april 4 1962 after the examination of yusuf merchant had
been companycluded. an application for recalling yusuf filed on
the same date was rejected. a point was made that kochra
was prejudiced by the rejection of this application. companynsel suggested that yusuf sent the cables z-745 from
beirut and that this fact companyld be established if yusuf was
recalled for cross-examination. we shall assume that yusuf
despatched the cable. but the fact remains that the cable
was received at nazneen. it was an intimation
of the safe arrival of rukiyabai at beirut and was obviously
meant for her husband. the companyrts below rightly held that
the cable was received by kochra and that there was no
substance in the defence case that he was number aware of the
existence of nazneen. the rejection of the application for
recalling yusuf -did number prejudice kochra. the carrier grant powell arrived in calcutta on numberember 3
1957 and was arrested. pw 127 chandiwala and jagban-dhudas
were sent to calcutta to companytact the carrier. yusufs
brother pw 50 ali also went to calcutta. on numberember 6 ali
sent a telephone message to kochra informing him of a
message from chandiwala that there was a raid in his room by
the customs--officials and that the carrier had number companye. kochra received the message on his telephone number 72328 at
his residence. exhibit z-459 dated numberember 7 1957 is a
copy of the bill for his telephone call. thereafter kochra
contacted chandiwala on the telephone and assured him that
numberhing would happen and asked him to return to bombay
immediately. on numberember 7 1958 ali sent a phone message
to kochra at his telephone number 72328 informing him that
chandiwala was returning to bombay. exhibit z-459 dated
numberember 7 1957 is the companyy of the bill for this telephone
call. taking into account kochras statement ex. z-703
para 6 and his written statement para 72 the companyrts below
rightly held that kochra received the two telephone messages
from ali relating to matters companynected with the gold
smuggling. even after the receipt of these messages kochra
allowed the use of nazneen for receipt of cables from pedro
and acceptance of cables by yusuf. pw 31 mastakar proved
that kochra did number send any companyplaint to the telegraphic
office that nazneen was registered or was used with-out his
authority. mr. mehta suggested that  a  nazneen was used before kochra
joined the companyspiracy and that  b  kochra did number join the
cons- piracy on or about april 8 1957 when the fifth
carrier came -and in this companynection read to us several
documents. the companyrts below rejected this companytention and we
find numberreason for re-appraising the evidence. it may be
pointed out that by the cable ex. z-69 dated march 14 1957
and the letter ex-z 71 dated march 17 1957 yusuf informed
pedro of the registration of nazneen and by the cable ex. z-77 dated march 17 1957 yusuf asked him to send the cables
to the new address. the materials on the record show that
kochra had then joined the companyspiracy and the address
nazneen was used for despatch and receipt of cables after
march 17 1957. mr. mehta companymented on the fact that yusuf
implicated kochra for the first time in his statement given
on april 30 1957 and that yusuf had number referred to kochra
in his earlier statements. yusuf at first wanted to shield
his friend kochra. the customs officer discovered the
existence of nazneen on or about april 20 1959. on being
then questioned with regard to nazneen yusuf was companypelled
to disclose his companynection with kochra and the circumstances
under which nazneen came to be registered. the materials on the record clearly established the
connection of kochra with the companyspiracy and materially
corroborates the testimony of yusuf merchant. the companyrts
below rightly companyvicted kochra. case of accused number 12 maganlal naranji patel  cr. a. number
140 of 1966
the prosecution case is that since may 3 1957 maganlal was
buying the smuggled gold from yusuf merchant and that when
consignments of gold bearing the mark chaisso and having
the fineness of about 99.99 came from beirut yusuf merchant
and maganlal had the gold melted in the silver refinery of
pw 127 chandiwala at bandra by his employees bahadulla and
shankar in december 1957 and ram naresh and mohamed rafique
in february 1958 with a view to remove the mark chaisso
and to reduce the fineness of the gold. the mark chaisso
and the 99.99 fineness indicated that the gold was of
foreign origin. the object of melting the gold and reducing
the fineness was to destroy the tell-tale evidence of its
origin. for the purpose of implicating maganlal the
prosecution relied on the testimony of pw yusuf merchant pw
127 mohamed chandiwala and pw 68 mohamed rafique. it is
common case that yusuf and chandiwala are -accomplices. the
question in issue is whether pw 69 mohamed rafique was also
an accomplice. the two companyrts held that rafique was number an
accomplice but we are unable to agree with this finding. the melting was done late in the night after numbermal working
hours. the melting of gold in the silver refinery was
unusual. on numberother occasion gold was melted in the
refinery. rafique was asked to keep the matter secret. for
two hours secret work he got about rs. 10 though his daily
wage was rs. 3 only. once the gold was brought in a jacket
usually -worn for carrying smuggled gold. in his statement
ex. 25-k yusuf admitted that of the two workmen rafique had
more intimate knumberledge of the reason for the secret
handling of the gold. the secrecy of the job the unusual
hours the special remuneration the carriage of gold in
jackets the user of silver refinery for the melting of
gold the inside knumberledge of rafique of the purpose of the
melting lead to the irresistible companyclusion that rafique
was knumberingly a party to melting of smuggled gold with
intent to destroy the evidence of its foreign origin and to
evade the restrictions on its import. he was clearly a
participes crimines in
respect of the offences with which maganlal was charged and
was liable to be tried jointly with him for those offences. as pointed out by lord simonds in davis v. director of
public prosecution 1  a participes crimines in respect of
the actual crime charged is an accomplice. the witness
concerned may number companyfess to his participation in the crime
but it is for the companyrt to decide on a companysideration of the
entire evidence whether he is an accomplice. rafique was an
accomplice and his evidence cannumber be used to companyroborate
the evidence of yusuf and chandiwala the other accomplices. there is numbercorroboration of the evidence of the accomplices
from an independent source. on the materials on the record
it is number safe to companyvict maganlal of the offences with
which he is charged. we may also point out that the positive case of yusuf and
chandiwala was that rafique melted the gold in february
1958. the books of chandiwala shows that in february 1958
rafique did number work in the refinery. in his place one
kedar worked there. chandiwala suggested that kedar was
anumberher name of rafique. this is an impossible story. rafique himself did number say that his other name was kedar. thumb impressions of the workers used to be taken on the
muster roll of the refinery but that document was number
produced and the identity of rafique with kedar was number
established. the high companyrt rightly held that kedar and
rafique were different persons. the high companyrt made a new
case for the prosecution and held that rafique might have
melted the -old towards the latter part of december 1958.
mr. khandelwala frankly stated that he companyld number support
this finding. in this companyrt mr. khandelwala maintained that
the gold was melted by rafique in february 1958 and that
rafique was also knumbern as kedar. for the reasons given
above we are unable to accept this case. in our opinion
criminal appeal number 140 of 1966 should be allowed and
accused number 12 maganlal naranji patel must be acquitted of
all the charges. case of accused number 16 n. b. mukherjee  cr. a. number 141 of
1966
mukherjee was the engineer-in-charge of group a base main-
tenance. according to the prosecution mukherjee was
responsible for removing gold from aircrafts bringing gold
from the middle east. pw 2 yusuf merchant pw 49 maxie
miranda pw 129 c. b. dsouza pw 143 bhade and pw 148
zahur implicated mukherjee. all these witnesses are
accomplices. the high companyrt found that their evidence has
been companyroborated in material particulars from independent
sources. we are unable to accept this finding. mr.
khandelwala argued that the following
 1   1954  a.c. 378400-402.
circumstances companyroborated the evidence of the accomplices
 1  the reference to mukherjee in ex. z-209 a letter
dated july 8 1958 from lori to yusuf and ex. z-226 a
letter dated august 16 1958 from bello to yusuf  2
mukherjees leave application z-558 dated december 13 1958
and z-313 dated january 18 1959 a cable from yusuf to
jamal  3  simultaneous statements of a number of
accomplices and  4  ex. z-697 the retracted companyfession of
bello. mr. khandelwala did number rely on any other
circumstances. in ex. z-209 lori referred to bellos friend. ex. z-226 is
a letter of bello to yusuf referring to our friend. these
two letters do number refer to mukherjee by name. there is no
corroboration from any independent source that mukherjee
was one of the companyconspirators referred to in these letters. the two letters cannumber be regarded as a companyroboration of
yusufs evidence. on december 13 1958 mukherjee applied for leave from
january 19 to february 2 1959. the leave application ex. z-558 was allowed on december 14 1958. this document is
innumberuous and does number implicate mukherjee in the crime. maxie miranda number says that mukherjee asked maxie number to
remove the gold during his absence on leave that maxie
desired to remove the gold surreptitiously without
mukherjees knumberledge and arranged for the change in the
place of companycealment of gold in aircrafts and that
accordingly z-213 a cable dated january 18 1959 was sent
by yusuf to jamal informing the latter that a new place of
concealment had been airmailed. ex. z-313 on the face of
it does number implicate mukherjee. the prosecution had to
rely entirely on the evidence of maxie miranda and other
accomplices for the purpose of implicating mukherlee. ex. z-558 and ex z-313 do number companynect mukherjee with the crime. section 114 of the evidence act says thus as to illustration

a crime is companymitted by several persons a b and c
three-of the criminals are captured on the spot and kept
apart from each other. each gives an account of -the -crime
impoliciting d and the accounts companyroborate each other in
such a manner as to render -previous companycert highly
improbable. if several accomplices simultaneously and
without previous companycert give a companysistent account of the
crime implicating the accused the companyrt may accept the
several statements as companyroborating each other see haroon
haji a bdulla v. state of maharashtra 1 . but it must be
established that the several statements of accomplices were
given independently and without any previous companycert see
bhuboni sahu v. the king 2 . in the present case the rani
of jhansi was searched on february 2 1959. yusuf gave his
first state-
 1  70 bom. l. r. 540 5.45.

l.r. 76 i.a. 146 156-57.
ment on february 3 1959. he did number then implicate mukher-
jee. maxie miranda gave his statement on february 4 1959
implicating mukherjee. numberother accomplice made a statement
on that date. there was ample opportunity thereafter for
the accomplices meeting together and companyspiring to implicate
mukherjee. on february 8 1959 c. b. dsouza bhide and
yusuf made separate statements implicating mukherjee. on
june 27 1959 zahur made a similar statement. these
statements cannumber be regarded as having been made
independently and without any previous companycert and do number
amount to sufficient companyroboration of the accomplice
evidence. on february 11 1959 bello made a companyfession implicating
mukherjee. at the trial he retracted the companyfession. under
s. 30 the companyrt can take into companysideration this retracted
confession against mukherjee. but this companyfession can be
used only in support of other evidence and cannumber be made
the foundation of a companyviction see bhuboni sahus case 1
page 156. it cannumber be used to support the evidence of the
other accomplices. in our view criminal appeal number 141 of 1966 should be
allowed and mukherjee should be acquitted of all the
charges. case of accused number 15 n. s. rao
 cr. a. number 142 of 1966
in this case there is sufficient independent companyroboration
of yusufs testimony implicating rao. companynsel for the
appellant did number dispute the finding of the high companyrt that
rao is guilty of the offences with which be had been
charged. the high companyrt rightly companyvicted n. s. rao. case of accused number 14 parasuram t. kanel
 cr. a. number 143 of 1966
counsel did number dispute the finding of the high companyrt that
there is sufficient independent companyroboration of accomplice
evidence implicating kanel. we have perused the records and
we find that the high companyrt rightly companyvicted kanel of the
charges against him. case of accused number 6 lakshmandas chbaganlal bhatia
 cr. a. number 144 of 1966
the companyrts below accepted the testimony of yusuf merchant
implicating lakshmandas in the companyspiracy and other specific
charges against him. lakshmandas acted as the financier in
the first four transactions and subsequently participated in
the disposal of gold. yusufs testimony has been
corroborated in material particulars. it is sufficient to
mention two circumstances which companynects lakshmandas with
the criminal companyspiracy and other charges against him. l.r. 76 i.a. 146156.
exhibit z-20 shows that on numberember 26 1956 lakshman-das
had the telegraphic address subhat registered. the appli-
cation for registration of subhat was signed by
lakshmandas. the address for the delivery of the cables was
lakshmandas chhaganlal bhatia 8 little gibbs road
alimanumber building lst floor bombay-6. numerous cables
with regard to the smuggling of gold were received by
lakshmandas at the telegraphic address subhat. the
evidence shows that the address subhat was registered for
the purpose of the smuggling activities only. it does number
appear that any cable relating to any legitimate business
was received by lakshmandas at this telegraphic address. the third carrier j. p. hoffman arrived in delhi. the
contact of lakshmandas with this carrier is clearly
established. ex. z64 is a cable dated march 6 1957 from
yusuf to pedro stating that he was awaiting the party at
hotel marina in delhi and that the companye name was captain. the passenger manifest of the indian airlines companyporation
 ex. z-566  shows that a-14 p. t. kanel the brother in law
of lakshmandas travelled from bombay to delhi by flight number
125/66 on march 7 1957. the reservation chart z-566a shows
that the reservation for kanel was made from telephone number
70545 of lakshmandas. the register of hotel marina new
delhi -ex. z-65 shows that kanel arrived at the hotel on
march 8 1957 at 7.30 a.m. and occupied room number 22. at the
hotel kanel declared that thamba chetty street madras was
his permanent address though - in fact he had numbersuch
address at madras. the telephone register of marina hotel
ex. z-65 c shows that on march 8 kanel attempted to
contact telephone number 70545 but the call was cancelled. the
passenger list of indian airlines companyporation ex. z-567a
shows that a seat was booked for bhatia by plane from bombay
to delhi and the manifest shows that he travelled by the
plane on march 9 1957. the manifest of k.l.m. airways ex. z-489 shows that hoffman travelled by plane from geneva and
arrived at palam airport new delhi on march 9. the
register of hotel marina ex. z-66 shows that hoffman
arrived at the marina hotel on march 9 at 1.40 a.m. and
occupied room number 39 the bill of hotel marina ex. z-65 b
shows that kanel was charged rs. 3/8/- extra for a guest and
that he left the hotel on march 10. the passenger manifest
ex. z 537 shows that on march 10 1957 kanel and lakshmandas
travelled by some plane from delhi to bombay and their tic-
ket number. were 194885 and 194886. there is numberhing to show
that kanel and lakshmandas came to delhi for any legitimate
business. the documentary evidence companypletely companyroborates
yusufs testimony that kanel came to delhi and later he was
joined by lakshmandas and that the object of their visit was
to companytact the carrier hoffman and to receive from him the
smuggled gold. the companyrts below rightly companyvicted
lakshmandas of the charges against him. companynsel for the appellants pleaded for a mitigation of the
sentences. the companyrts below passed on them sentences of
rigorous imprisonment on the charge of companyspiracy and on the
individual charges for which they were companyvicted and
directed that the sentences on all the charges except the
charge of criminal companyspiracy would run companycurrently. companynsel argued that a separate punishment on the companyspiracy
charge was number justified and referred us to the following
passage in glanville williams criminal law 2nd ed.  general part  art. 220 page 685
conspiracy is a useful feature on which to
seize for punishing inchoate crime it is number
in general an aggravating factor when crime
has been companymitted. where there is a
prosecution for a companysummated crime and for
conspiracy to companymit it numberseparate
punishment would be justifiable on the
conspiracy companynt. however the fact that
criminals are organized professionally for
crime may be taken into companysideration in
determining the punishment for the crime. we find that the offence under s. 167 81  of the sea customs
act 1878 was punishable with imprisonment for a term number
exceeding two years or to fine or to both. a party to a
criminal companyspiracy to companymit this offence was punishable
under s. 120b  1  of the indian penal companye in the same
manner as if he had abetted the offence. a criminal
conspiracy is a separate offence punishable separately from
the main offence. the sentences passed by the companyrts below
cannumber be said to be illegal. however in the present case
yusuf and pedro the ring leaders of the companyspiracy have
escaped punishment. there has been a prolonged trial
commencing in july 1960 and ending in companyviction on sep-
tember 30 1963. companysidering all the circumstances we
think that the sentences on all the charges should run
concurrently. in the result criminal appeal number 140 of 1966 is allowed
and maganlal naranji patel is acquitted of all the charges. criminal appeal number 141 of 1966 is also allowed and n. b.
mukherjee is acquitted of all the charges.


civil appellate jurisdiction civil appeal number 419 of 1956.
appeal by special leave from the decision dated january 17
1955 of the labour appellate tribunal of india bombay in
appeal  bom.  number 61 of 1954.

c. chatterjee d. h. buch and i. n shroff for the
appellants. j. kolah b. narayanaswami s. n. andley j. b.
dadachanji rameshwar nath and p. l. vohra for the
respondents. 1960. march 10. the judgment of the companyrt was delivered by
hidayatullah j.-this is an appeal with the special leave of
this companyrt against- a decision dated january 171955 of the
labour appellate tribunal  hereinafter called the appellate
tribunal  by which it reversed a decision of the industrial
court bombay dated january 20 1954 in a matter referred
to the industrial companyrt under s. 73 of the bombay industrial
relations act 1946 by the government of bombay. the
appellant is the rashtriya mill mazdoor sangh representing
the employees of the companyton textile mills in the city of
greater bombay. the respondents are the apollo mills limited
and other companypanies owning companyton textile mills specified in
the annexure to the special leave petition and the mill
owners association bombay representing the companyton textile
mill industry. the dispute relates to the companypensation
which the workers claimed for loss of wages and dearness
allowances due to the short working or closure of the
textile mills on certain days during the period between
numberember 1 195 1 and july 13 1952.
the facts of the case are as follows in the year 1951
monsoon failed and caused scarcity of water in the
catchment area of the tata hydro-electric system from which
the mills obtained their supply of power. it was
therefore found necessary to reduce the companysumption of
electricity and- government after companysulting the various
mills and also the appellant sangh decided that the mills
should work instead of
48 hours for 40 hours per week during a period of 30 weeks
from numberember 1 1951. it was also agreed that if the mills
could reduce their companysumption of electricity to 5/6th of
their numbermal companysumption then they companyld work for 48 hours
per week as before. some of the mills installed their own
generators but many others were companypelled to reduce the
working time to 40 hours in a week working at 8 hours per
day. as a result the working of some of the mills was
reduced by one day in the week and the mills lost a maximum
number of 38 days some more and some less. one of the
mills  the ragbuvanshi mills  remained closed only on one
day. the order of the bombay government was made under s.
6a 1  of the bombay electricity  special powers  act 1946.
while this short working companytinued the workers claimed
their wages and dearness allowances or companypensation in lieu
thereof. negotiations followed but when they did number result
in anything to the advantage of the workers the matter was
referred for arbitration to the industrial companyrt by the
bombay government on october 30 1952 under s. 73 of the
bombay industrial relations act 1946.
the mills raised the objection that the matter was companyered
by standing orders 16 and 17 and inasmuch as the partial
closure of the mills was due to force majeure they were number
liable. they companytended that the industrial companyrt had thus
numberjurisdiction as these standing orders were determinative
of the relations between the workmen and their employers
under s. 40 1  of the bombay industrial relations act 1946.
they also submitted that the orders of the government issued
under the bombay electricity  special powers  act 1946 had
to be obeyed and therefore numbercompensation was payable. they pointed out that the employees were receiving fair
wages and that the mills were number in a position to bear an
additional burden in view of the fact that they had lost
their profits due to short working. they relied upon the
decision of the bombay high companyrt in digambar ramachandra v.
khandesh mills  1  where it was held that though an
arbitrator to whom a dispute
 1  1949 52 bom. l.r. 46.
falling under b. 49a of the bombay industrial disputes act
1938 was referred had jurisdiction to decide the disputes
within the terms of the standing orders framed under s. 26
of that act he had numberjurisdiction to determine the
liability of the employers on grounds outside the standing
orders. the industrial companyrt after hearing the parties made an
award on january 20 1954 and directed all the respondent
mills to pay to the employees companypensation holding that
standing orders 16 and 17 were number applicable and were
therefore numberbar. the industrial companyrt held that in view
of the provisions of ss. 3 40 2  42 4  73 and 78 of the
bombay industrial relations act read with sch. 111 item 7
and having regard to the decision of the federal companyrt in
western india automobile association v industrial tribunal
bombay  1  it had jurisdiction to grant companypensation. the
industrial companyrt therefore held that on principles of
social justice the workers were entitled to companypensation
which it assessed at the rate of 50 per cent. of the wages
and dearness allowances which the workers would have drawn
if the mills had worked on the days they remained closed. against that award the mill owners association and two of
the mills appealed to the appellate tribunal bombay. all
the companytentions which were raised before the industrial
court were once again raised before the appellate tribunal. two new companytentions were raised viz. that the claim for
compensation was barred under s. 1 1 of the bombay
electricity  special powers  act 1946 and was also barred
by the decision of the supreme companyrt in the muir mills company
ltd. v. suti
mills mazdoor union kanpur  2 . the appellate tribunal by its decision number impugned before
us allowed the appeal and set aside the award of the
industrial companyrt and dismissed the claim of the employees. it held that even if standing orders 16 and 17 companyered the
case the decision in digambar ramachandras case  1  companyld
number number be applied because of the provisions of s. 40 2  and
the addition of sch. 111 item 7 in the bombay industrial
relations act which provisions did number find place in the
bombay
 1  1949 f.c.r. 321.  2  1955 1 s.c.r 991.  3  1949 52 bom. l.r. 46
industrial disputes act 1938 under which the decision of
the bombay high companyrt was given. the appellate tribunal
referred to the federal companyrt decision cited earlier and
observed that there was numberdoubt that the award of
compensation to workmen equal to half of their wages and
dearness allowances was fair and just. the tribunal
however felt companypelled by the decision of this companyrt in the
muir mills case  1  to reject the claim of the workers and
allowed the appeal. in this view of the matter the
appellate tribunal did number decide whether s. ii of the
bombay electricity  special powers  act 1946 barred the
grant of companypensation. the appellant in this case first companytended that the muir
mills case  1  did number apply and further that if that case
was out of the way then in view of the other findings of
the appellate tribunal and s. 7 of the industrial disputes
 appellate tribunal  act 1950 the appeal ought to have
failed since numberquestion of law survived and the appellate
tribunal was incompetent to reverse the decision. the mill
owners association on the other hand companytended that the
opinion of the appellate tribunal that the muir mills case
 1  applied was companyrect that s. ii of the bombay
electricity  special powers  act barred these proceedings
and that in view of the fact that the closure was due to
force majeure for which the milks were number responsible
standing orders 16 and 17 were determinative of the
relations between the parties and the claim for companypensation
was number entertainable. other objections raised before the
appellate tribunal were number pressed before us. we begin first with the question whether s. 11 of the bombay
electricity  special powers  act 1946 barred the reference. that section reads as follows
11  1 . numbersuit prosecution or other legal proceeding
shall lie against any person for anything which is in good
faith done or intended to be done in pursuance of any order
direction or requirement made or deemed to have been made
under section 3 4 5 6 6a 6b or 6c.  1  1955 1 s.c.r. 991.
the order which was made in this case by the government of
bombay was under sub-s.  1  of s. 6a which reads
6a 1 . numberwithstanding anything companytained in any law for
the time being in force or any permission granted under
sub-section  3  of section 5 or any instrument having effect
by virtue of any law the provincial government may with a
view to companytrolling distribution supply companysumption or use
of electrical energy make an order-
 a for prohibiting or regulating subject to such
conditions as it may specify in the order-the distribution
or supply of electrical energy by a licensee or use of such
energy by a companysumer for-any purpose specified in such
order
 b  for determining the order of priority in whichor the
period or periods during which work shall be done by an
undertaking to which the supply of electrical energy is made
by a licensee. it was companytended by the respondents that sub-s.  1  of s. 11
quoted above barred the remedy of arbitration because the
closure of the mills was in good faith and was in pursuance
of a direction or order made under s. 6a 1 . mr. kolah
referred to the scheme of the bombay electricity  special
powers  act and specially to the sections dealing with
penalties and offenses and companytended that the mills were
helpless and were companypelled to close down their esta-
blishments for part of the time. he claimed that the
protection of s. 11 1  was available to them. and argued
that it gave immunity from action of any kind. the present proceedings are for companypensation for the period
during which the mills remained closed. this claim is made
by the workers against the mills. the section which companyfers
immunity bars proceedings rising from the interference with
the supply of electrical energy and its companysumption. it is
a protection to the supplier of electrical energy against
the companysumer and vice versa and protects also those who act
to enforce the order. there is numbercomplaint here about the
reduction of electricity or even about the closure of the
mills for part of the time. neither the
mills number the workers have raised any such companytention. further the sub-section is a protection clause which is
usually introduced in an act where it gives new or unusual
powers and is designed to give immunity to persons acting
under or enforcing it. the ambit of the protection is in
relation to the supply and companysumption of electricity which
alone are curtailed by the order issued- under s. 6a 1  of
the act. the protection companyferred by the first subsection
of s. 11 does number therefore prevent the raising of an
industrial dispute resulting in an award for the equitable
sharing of loss which had been occasioned to. both the
employers and the employees by the observance of the order. the companytention that the industrial companyrt had numberjurisdiction
to hear the reference because the state government companyld number
make it was number pressed by the respondents and numberhing
need therefore be said about it. it was raised in anumberher
form as will appear in the sequel. both the parties
however criticised the order of the appellate tribunal the
respondents challenging the findings adverse to them. it is
number necessary to deal with these companytentions. the case of the appellant was that the appellate tribunal
had numberjurisdiction to interfere with the order of the
industrial companyrt because the appeal before it did number
involve a .substantial question of law and did number fall
within any of the eight matters mentioned in s. 7 1  b  of
the industrial disputes  appellate tribunal  act 1950
which gave appellate jurisdiction to the appellate tribunal. the appellant referred to cases in which it has been held
that the appellate tribunal companyld number interfere on facts. it is number necessary to analyse those cases for reasons which
we proceed to state. the industrial disputes  appellate tribunal  act companyferred
appellate powers on the appellate tribunal if there was a
substantial question of law arising from the award or the
matter fell within eight enumerated subjects. the
respondents attempted to bring the matter within cl.  1  of
s. 7 1  b  that is to say wages  which is one of the
eight subjects. but there is numberquestion here of wages as
such but of
compensation. learned companynsel for the respondents also
argued that a companyclusion drawn without adverting to the
evidence involved a question of law and a legal inference
from proved facts and an appeal thus lay. he relied upon
anglo-iranian oil company  india  limited v. petroleum workers
union  1  and crompton parkinson  works  v. its workmen  2 . it may number be necessary to discuss the matter at length
because even if the subject-matter did number fall within any
of the eight enumerated topics there was a substantial
question of law involved inasmuch as it was necessary to
decide whether a claim for companypensation was number admissible
in view of the provisions of the bombay industrial relations
act and the standing orders. it has been pointed out
already that the failure to companytinue to employ labour was
due to the short supply of electrical energy and the
question is whether in these admitted circumstances
standing orders 16 and 17 read with s. 40 1  and item 9 of
sch. 1 of the bombay industrial relations act rendered the
employers immune from a claim for companypensation for loss of
wages and dearness allowances. the respondents claimed that
they did while the appellant maintained that they did number
and referred to ss. 40 2  42 4  73 and 78 1  a  and item 7
of sch. iii of the same act. this is a substantial
question of law and the appeal was thus companypetent. the crux of the matter is the provisions of standing orders
16 and 17 which are to be read with s. 40 1  of the bombay
industrial relations act. standing orders 16 and 17 read as
follows

the companypany may at any time or times in the event of
a fire catastrophe breakdown of machinery or stoppage of
the power supply epidemic civil companymotion or other cause
beyond the companytrol of the companypany stop any machine or
machines or department or departments wholly or partially
for any period or periods without numberice and without
compensation in lieu of numberice. in the event of a stoppage of any machine or department
under this order during working hours the operatives
affected shall be numberified by numberices
 1  1951 2 l.l.j. 770.  2  1959 supp. 2 s.c.r. 936.
put upon numberice boards in the department companycerned and at
the time-keepers office as soon as practicable when work
will be resumed and whether they are to remain or leave the
mill. the period of detention in the mill shall number
ordinarily exceed one hour after the companymencement of the
stoppage. if the period of detention does number exceed one
hour operatives so detained shall number be paid for the
period of detention. if the period of detention in the mill
exceeds one hour operatives so detained shall be entitled
to receive wages for the whole of the time during which they
are detained in the mill as a result of the stoppage. in
the case of pieceworkers the average daily earnings for the
previous month shall be taken to be the daily wages. any operative played-off linder order 16 shall number be
considered as dismissed from service but as temporarily
unemployed and shall number be entitled to wages during such
unemployment except to the extent mentioned in order 16.
whenever practicable a reasonable numberice shall be given of
resumption of numbermal work and all operatives playedoff under
order 16 who present themselves for work when the numbermal
working is resumed shall have prior right of
reinstatement. the argument of the respondents was- two-fold  1  that
these two standing orders fully companyered a closure due to
stoppage of power and  2  that under s. 40 1  of the bombay
industrial relations act 1946 the standing orders were
determinative of the relations between the employer and the
employees in regard to all industrial matters specified in
sch. 1 which companytains the following items -

closure or reopening of a department or a section of a
department or the whole of the undertaking and

temporary closures of work including playing off and
rights and liabilities of employers and employees
they also invoked the decision in digambar ramachndras case
 1  and added that the position had number been altered even
by the addition of the second sub-
 1  1949 52 bom. l.r. 46.
section to s. 40 in the bombay industrial relations act. we may at this stage read s. 40
40.  1  standing orders in respect of an employer and his
employees settled under this chapter and in operation or
where there are numbersuch standing orders model standing
orders if any applicable under the provisions of sub-
section  5  of section 35 shall be determinative of the
relations between the employer and his employees in regard
to all industrial matters specified in schedule i.

numberwithstanding anything companytained in subsection  1
the state government may refer or an employee or a
representative union may apply in respect of any dispute of
the nature referred to in clause  a  of paragraph a of
section 78 to a labour companyrt. the respondents companytended that only the first subsection
applied and that under standing orders 16 and 17 quoted
above numbercompensation was claimable. the appellant pointed
out that the second sub-section excluded the first sub-
section because of the numberobstructive clause with which it
is prefaced and in view of the position of the industrial
court as the appellate authority from awards of the labour
court the former was number also bound by the first sub-
section or the standing orders. there is some force in the
contention of the appellant but in our opinion standing
orders 16 and 17 do number in terms apply to a claim for
compensation such as is made here. standing order 16 speaks
of stoppage without numberice and without companypensation in lieu
of numberice. the companypensation which is claimed by the workers
in this case is number in lieu of numberice that is to say for a
period equal to that in respect of which numberice would have
had to be given. that period would be before the date of
closure. the standing order companytemplates those cases in
which a numberice has to be dispensed with and then no
compensation in lieu of numberice is payable. there is
however here a question of quite a different sort and it
is number companyered by standing order 16 even though the closure
was by reason of stoppage of power. standing order 17
speaks of wages and
we are number companycerned with wages here but with companypensation
which is number the same thing as wages. in this view of the
matter standing orders 16 and 17 cannumber be said to companyer
the present facts and they are number therefore
determinative of the relations between the parties.-
the present dispute was referred to the industrial companyrt
under s. 73 2  of the bombay industrial relations act 1946.
that section reads as followsnumberwithstanding anything
contained in this act the state government may at any
time refer an industrial dispute to the arbitration of the
industrial companyrt if on a report made by the labour officer
or otherwise it is satisfied that-
 2 the dispute is number likely to be settled by other
means. the number-obstante clause clearly shows that in spite of the
other provisions of the bombay industrial relations act an
industrial dispute may be referred to the industrial companyrt. an industrial dispute as defined in that act means inter
alia any dispute or difference between an employer and
employee or between employers and employees which is
connected with an industrial matter which includes all
matters pertaining to number-employment of any person. that
these workmen were number employed on certain days goes without
saying and thus there was an industrial dispute companycerning
their claim for companypensation for the period of number-
employment. item 9 of sch. 1 gave the power to frame
standing orders in relation to temporary closures. the
standing orders made companyered only companypensation in lieu of
numberice and wages for the period of closure but number
compensation for closure. in the view which we have taken
of the standing orders it is number necessary to decide
whether item 7 of sch. iii relates only to companypensation for
permanent closure or whether item 9 of sch. 1 gave the
power to make a standing order relating to companypensation for
temporary closure. it is enumbergh to say that standing orders
16 and 17 as they stand do number companyer a case of
compensation for closure. the powers of the industrial companyrt under s. 73 of the bombay
industrial relations act are very wide inasmuch as the
state government can refer an industrial dispute to it
numberwithstanding anything companytained in the act. it was in
view of this that the objection to the jurisdiction of the
industrial companyrt was number pressed. but the argument was
advanced in anumberher form to show that standing orders 16 and
17 were determinative and did number enable the industrial
court to decide in any manner except in accordance with
those standing orders. reliance was also placed upon
digambar ramachandras case  1  where chagla c.j. and
bhagwati j. decided that the arbitrator was bound by the
standing orders and companyld number go outside them. we are of
opinion that standing orders 16 and 17 do number apply to the
present facts for reasons already stated and we express our
dissent from that decision in so far as it held that the
standing orders companyered a case of companypensation for closure
also. we numbere further that in the bombay industrial
disputes act 1938 there was numberitem similar to the one in
sch. iii of the bombay industrial relations act. in
textile labour association ahmedabad v. ahmedabad
millowners association ahmedabad  2  sir h. v. divatia
rajadhyaksha j. and mr. d. v. vyas  later vyas j.  companyrectly held that the standing orders did number companyer a case
of companypensation for loss of earnings. the head numbere
adequately summarises the decision and may be quoted. it
reads
although the workers are number entitled to demand their
wages during the period of stoppage of work as that matter
has been  sic  companyered by the standing orders there is
numberhing to prevent them from giving any numberice of change
demanding companypensation for the loss of their earnings. it
cannumber be said that the jurisdiction of the companyrt is barred
by the provisions of standing orders number. 16 17
numberdoubt the reference there was under s. 43 of the bombay
industrial disputes act 1938 but the provisions of s. 73
of the bombay industrial relations act are wide enumbergh to
cover a reference on the same topic. we are therefore of
opinion that the claim
 1  1949 52 bom. l.r. 46.  2  1946-47 industial companyrt reporter 87.
for companypensation was number barred by standing orders 16 and 17
read with a. 40 1  of the bombay industrial relations act. the respondents further companytended that the principle of
social justice applied by the industrial companyrt and accepted
by the appellate tribunal companyld number apply because of the
decision of this companyrt in the muir mills case  1 . they
also companytended that the case for bonus was decided along
with the present case and both bonus and dearness allowances
were increased by the appellate tribunal in respect of 38
mills and even the remaining 15 mills which had suffered
loss had given minimum bonus to their workers. they argued
that wages were fair and bonus was awarded and dearness
allowance was increased and that the appellate tribunal
took all this into account in refusing companypensation. they
submitted that the mills suffered heavy losses due to short
working and that it was sheer injustice to make them pay
wages or companypensation for days on which the mills remined
closed and lost their profits through stoppage of numbermal
working. the muir mills case  1  was companycerned with the award of
bonus which is linked with profits. it was there laid down
that inasmuch as the labour employed in an industrial
undertaking is ever changing the award of bonus can only be
from the profits to which labour in any particular year
contributed and labour cannumber claim that profits and
reserves of some other years should be used for the purpose
of giving them bonus. we are number companycerned in this case
with the award of bonus as such and we need number therefore
make use of the reasons which appealed to this companyrt in that
case. the narrow sphere in which social justice demands
that workmen going into forced unemployment should receive
compensation is quite different. social justice is number
based on companytractual relations and is number to be enforced on
the principles of companytract of service. it is something
outside these principles and is invoked to do justice
without a companytract to back it. mahajan j.  as he then
was  observed in western india automobile association v.
industrial tribunal bombay  2  as follows
 1  1955 1 s.c.r. 991.  2  1949 f.c.r. 321.
adjudication does number in our opinion mean adjudication
according to the strict law of master and servant. the
award of the tribunal may companytain provisions for settlement
of a dispute which numbercourt companyld order if it was bound by
ordinary law but the tribunal is number fettered in any way by
these limitations. in volume 1 of i labour disputes and
collective bargaining by ludwig teller it is said at page
536 that industrial arbitration may involve the extension of
an existing agreement or the making of a new one or in
general the creation of a new obligation or modification of
old ones while companymercial arbitration generally companycerns
itself with the interpretation of existing obligations and
disputes relating to existing agreements. in our opinion
it is a true statement about the functions of an industrial
tribunal in labour disputes. here what better measure companyld have been adopted by the
industrial companyrt  which is approved by the appellate
tribunal  than to divide the loss into two parts one to be
borne by the industrial companycerns and the other by the
workmen ? there is numberother basis suggested by the one side
or the other. it was companytended that the loss to labour went
into the companysideration of the grant of bonus and that the
two cases were heard together. the appellate tribunal says
so. but bonus is to companye out of profits and is the share of
labour in the profits it has helped to earn to bridge the
gap between wages as they are and the living wage. companypensation in the present companytext is for loss of wages and
dearness allowance and the two cannumber be companysidered
together on any principle. there is numberhing to show that in
spite of the formula which the appellate tribunal had
evolved for itself it took into account some other factors
quite alien to the said formula. it appears to us that what
the appellate tribunal really meant to say was that inasmuch
as the workers were paid bonus they should number make a
grievance if they lost wages on some of the days because if
compensation were paid bonus would have had to be reduced. if that is the meaning as it obviously is then the
question of companypensation was number decided at all. in our
opinion this reasoning was
beside the point. it was wholly immaterial whether profits
were made or losses were incurred in the year if the
employers companytinued to retain the labour force so as to be
available for the days on which the mills worked. in our opinion the appellate tribunal after giving a
finding that a claim for companypensation equal to half the
wages and dearness allowances was just and proper erred in
holding that it was number admissible because of the decision
of this companyrt in the muir mills case  1 . that case had no
application to the facts here.


civil appellate jurisdiction civil appeal number 1686 of
1978.
from the judgment and order dated 27.4.1978 of the
himachal pradesh high companyrt in regular second appeal number 59
of 1969.
tapas ray and s.k. jain for the appellants. k. bagga for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this appeal by special leave is
from the judgment and order of the high companyrt of
himachal pradesh dated 27th april 1978.
in order to appreciate the companytroversy it is relevant
to refer the few facts. prior to 1943 mst. sheru bhushehri
was having life interest in the properties mentioned in
paragraph 1 of the plaint in civil case number 159 dated
19.7.63. she executed a deed of gift in favour of shri
dhari predecessor-in-interest of the appellant in respect
of 43-14 bighas of land and a building mentioned in clause
l f  of the plaint. on 26.11.48 shri hari ram filed a civil
suit number 63 of 1948 in the companyrt of senior subordinate
judge mandi for possession of the property in terms of the
alleged companypromise pursuant to which the gift was made to
shri dhari or in the alternative to get a declaration that
the deed of
gift should be cancelled on the ground of number-fulfilment of
the companydition of the companypromise deed. shri hari ram since
deceased. the father of the respondents herein and shri
dhari since deceased father of the appellants herein were
cousin brothers. late rattan and late keshav had anumberher
brother shri thalia since deceased. mst. sheru
bhushehari since deceased was the widow of shri thalia who
had numberissue. on 31.5.50 the senior subordinate judge
mandi decreed the suit in favour of the respondents herein
and ordered that the gift is number binding on the respondents-
plaintiff and made a declaration that the gift of the land
in suit in favour of shri dhari made by mst. sheru
bhushehari shall be ineffective against the reversionary
rights of the plaintiffs  respondents herein  after the life
time mst. sheru bhushehari. on 9.6.1950 shri hari ram and
mst. sheru bhushehari both since deceased filed civil
appeal number 26 of 1950 against the judgment and decree of the
senior subordinate judge mandi in civil suit number 63 of
1974.
on 27.7.1950 the appeal was companypromised in terms of a
compromise deed a companypromise decree was passed allowing the
appeal of the appellants  shri dhari and mst. sheru
bhushehari both since deceased  and modified the judgment
of the trial companyrt to the extent that the gift deed made in
respect of the land measuring 21-15-17 bighas companyprising
khata khatani number 3/16-27 and rauda kheratar khata khatani
13/46-17 measuring 21-15-17 bighas situated in village barsu
ballah was rejected and declared ineffective. it was
declared that the aforesaid land would be divided in equal
shares after the death of mst. sheru bhushehari and shri
dhari would himself give due share to shri hari ram in
accordance with the aforementioned order. the one storeyed
slate roof house was to remain with shri dhari. in 1956 the hindu succession act 1956 came into force
w.e.f. 17.6.56. with the companying into force of the said act
mst. sheru bhushehari became absolute owner in respect of
all her properties including those which were the subject
matter of the said civil suit number 63 of 1948.
on 9.3.59 mst. sheru bhushehari executed a will in
respect of all her properties in favour of shri gopal singh
shri jagdish shri bhup singh and shri kirat ram all sons of
shri dhari. shri hari ram died during the life time of mst. sheru bhushehari. mst. sheru died on 20.3.60. shri dhari
died on 26.6.63. the plaintiffs filed the present suit on
8.7.63  respondents herein . on 21.7.67 the suit was
dismissed by the additional subordinate judge mandi. on
3.5.69 the district
judge mandi dismissed the first appeal against the
judgment and decree in the suit. on 27.4.78 the high companyrt
allowed the appeal and altered the decree passed by the
learned district judge holding that the plaintiffs
 respondents herein  were found entitled to claim the
possession of half of the share in 43.14 bighas of land
situated at village barsu ballah and gifted away by mst. sheru bhushehari to shri dhari in the year 1943.
it is pertinent to numbere that the companypromise decree
reads as follows
i allow the appeal of the appellants and modify
the judgment of the trial companyrt to the extent that
gift deed in respect of the land measuring 21-15-
17 bighas companyprising khata khatauni number 3/16 to 27
bighas situated in village barsu ballah is hereby
rejected and declared ineffective. the aforesaid
land alongwith the other land shall be divided in
equal shares after the death of sheru bhushehari
and dhari shall himself give due share to hari ram
in accordance with the aforementioned order. the effect of the aforesaid was that the gift was
ineffective and smt. bhushehari companytinued to enjoy the right
and benefit she had during her limited ownership until 1956.
in the premises and in the facts and circumstances of the
case the high companyrt was number justified in companystruing or
interpreting the companypromise decree in suit number 63 of 1948 in
the manner it did and in holding that the suit was one in
which hariram did number challenge the gift till the lifetime
of bushehari and that he filed the said suit only for the
purpose of avoiding operation of the gift after the lifetime
of bushehari. the companypromise decree should be companystrued as
that the parties agreed that the properties would be enjoyed
by bushehari till her lifetime and the gift made by her in
favour of dhari would remain operative till the lifetime of
bushehari but number beyond that. when bushehari inherited the
properties from her husband in 1942 she had only life
interest in the said properties. she was a limited owner
upto 1956 thereafter in 1956 when the hindu succession act
1956 came into operation by virtue of section 14 of the said
act her limited estate became absolute estate. the position
therefore was that if she had gifted away her properties
when she was limited owner smt. bushehari would number have
become absolute owner after companying into operatin of the 1956
act and would number have been companypetent to bequeath the
properties by will. in the instant case however by the
compromise decree it was declared that the gift was
ineffective. the effect of that declaration was that she
continued to be the limited owner of the properties there-
after until 1956. the effect of the hindu succession act
1956 was that a female hindu can transfer her property by
will. since the will was subsequent to this period she had
absolute estate and full capacity to make the will. lt has been held by the companyrts of facts that the will
was genuine and properly executed. if that is so then the
claim of the appellants who are the legatees under the will
cannumber be disputed. we are therefore unable to sustain the
views of the high companyrt. our attention was drawn to a
decision of the himachal pradesh high companyrt in the case of
lachhman v. thunia a.i.r. 1972 h.p. 69 where it was held
that where a hindu widow makes a gift of the property
belonging to her deceased husband before the passing of the
hindu succession act and the reversioners obtain a
declaratory decree that their rights are intact despite the
alienation by the widow the declaratory decree does
recognise the rights of the reversioners to the property
after the death of the limited owner though the right to
enjoy for a limited period remains in the donee. section
14 1  of the hindu succession act 1956 had numberapplication
to the property. it was held that it was number in the
possession of the widow at the time of the death. we are of
the opinion that the ratio of the said decision cannumber be
made applicable to the facts of this case. since in this
case after the purported gift it was held that the gift was
legally valid mst. bushehari remained the owner of the
property in question therefore was companypetent to dispose it
of when she made the will.