1967 (12) TMI 58 - SC - Indian Laws

Summary

Issues Involved:
1. Admissibility of Ethyl Wong's testimony.
2. Competency of Ethyl Wong as a witness.
3. Use of photostats as evidence.
4. Identification of Laxmipat and Balchand.
5. Alleged discrimination and violation of Articles 14 and 20 of the Constitution.
6. Appropriateness of the sentences imposed.

Detailed Analysis:

1. Admissibility of Ethyl Wong's Testimony:
The appellants questioned the admissibility of Ethyl Wong's testimony on the grounds that she was an accomplice and her evidence was obtained without following proper legal procedures. They argued that she was shown photographs of the appellants before her statement was taken, which could influence her identification. Additionally, they contended that her testimony should be excluded because she was not administered an oath as per Section 5 of the Indian Oaths Act, which prohibits administering an oath to an accused person.

The court held that Ethyl Wong was a competent witness under Section 118 of the Indian Evidence Act, which allows all persons to testify unless they are incapable of understanding the questions due to reasons specified in the section. Her testimony was corroborated by other evidence, including her previous statements, the seizure of the suitcase with gold, and various documents and communications. The court rejected the argument that her testimony should be excluded, stating that she was not an accused person at the trial and thus could be administered an oath.

2. Competency of Ethyl Wong as a Witness:
The appellants argued that Ethyl Wong could not be examined as a witness because she was an accused person and Section 5 of the Indian Oaths Act bars administering an oath to an accused person in a criminal proceeding. The court clarified that Ethyl Wong was not an accused person in the trial, and under Section 132 of the Indian Evidence Act, she was bound to answer all questions and could not be prosecuted for her answers. The court emphasized that her testimony was that of an accomplice, which is admissible under Section 133 of the Evidence Act, provided it is corroborated.

3. Use of Photostats as Evidence:
The appellants challenged the use of photostats of documents, arguing that expert testimony on handwriting should be based on the originals. The court noted that the originals were suppressed by the appellants after they were returned under the orders of the Supreme Court of Hong Kong. The court held that photostats could be used as evidence if the originals were not available and the photographs were faithful reproductions. The court cited various legal precedents and concluded that the photostats were admissible and could be used to prove the contents and handwriting of the documents.

4. Identification of Laxmipat and Balchand:
The appellants argued that Ethyl Wong's identification of Laxmipat and Balchand was unreliable because she was shown their photographs before her statement was taken. The court agreed that showing photographs before identification could affect the value of the identification. However, the court found that there was ample other evidence to establish their identity, including Ethyl Wong's descriptions, her pointing out the flats, and the records of telephone calls. The court concluded that the identification was sufficiently corroborated by other evidence.

5. Alleged Discrimination and Violation of Articles 14 and 20:
The appellants contended that the trial was discriminatory and violated Articles 14 and 20 of the Constitution because Ethyl Wong was not prosecuted and was instead used as a witness. The court rejected this argument, stating that the prosecution was not bound to prosecute her if her evidence was necessary to break a smuggling ring. The court held that Section 337 of the Code of Criminal Procedure, which allows for tendering pardon to accomplices, did not offend Article 14. The court concluded that there was no breach of the Constitution in receiving Ethyl Wong's evidence.

6. Appropriateness of the Sentences Imposed:
The appellants argued that the sentences imposed were too severe and that the High Court was wrong in enhancing the sentences of Balchand and Poonamchand. The court noted the seriousness of gold smuggling and its impact on the economic structure. The court found no reason to interfere with the sentences, given the overwhelming evidence of the appellants' complicity in the smuggling conspiracy. The appeals were dismissed, and the appellants were ordered to surrender to their bail.

Conclusion:
The Supreme Court dismissed the appeals, upholding the admissibility and competency of Ethyl Wong's testimony, the use of photostats as evidence, and the identification of the appellants. The court found no violation of constitutional rights and deemed the sentences appropriate given the severity of the offense. The appellants were ordered to surrender to their bail.