P L D 1966 Dacca 237 (PLP)

SIDDIKY, J.‑Of the two appellants before us, appellant No. 1 (Annada Charan Dey) .is the father and appellant No. 2 (Chitta Ranjan De) is his son. They along with three others, namely, Barada Charan Dey, Abdul Hashem Sikder alias Haji Abdul Hashem Sikder and Jalaluddin Bepari, were prosecuted on a charge of criminal conspiracy under section 120‑B of the Pakistan Penal Code as well as under Regulation 58 of the Martial Law Regula tions. The last named three accused were acquitted by the learned Assistant Sessions Judge of Comilla. Prosecution case was that appellant No. 1 (Annada Charan Dey) had a rice Mill at Maudanga, Naogaon, in the Province of Assam in India styled as "A. C. Rice Mill". Appellant No. 1 used to reside in Algi Durgapur in the district of Comilla in Pakistan and used to manage the rice Mill through one of his several sons. He used to post one of his sons to Assam according to his own choice and bring him back to Pakistan by posting another in his place as he pleased. It is said that at the relevant time appellant No. 1 Annada's son, Bidyut Baran Dey, was put in charge of management of the "A. C. Rice Mill" in Assam whereas appellant No. 2 (Chitta Ranjan De), his second son, was staying with the father in Algi Durgapur in East Pakistan. It is alleged by the prosecution that the two appellants herein and appellant No. 1 Annada's son, Bidyut, and several other persons, of whom three were prosecuted and acquitted by the learned Assistant Sessions Judge, entered into an agreement and' conspiracy to transfer Pakistan currency to India and Indian currency to Pakistan by illegal means of issuing hundis without any general or special permission of the State Bank of Pakistan. It is said that a number of Pakistanis working in Assam used to deposit their earnings with Bidyut at Naogaon for transfer of the said money to Pakistan through illegal means and the said Bidyut used to issue a slip to the deposition with a code number which the depositor, in his turn, had to produce before appellant No. 1 (Annada Charan Dey) in Pakistan for taking delivery of the money that he deposited with his son in Assam. A letter used to be written by Bidyut from India to his father giving the same Code number for which he had issued a slip to the depositor and, upon receipt of the said letter which was a sort of confirmation of his having issued a code number, appellant No. 1 (Annada Charan Dey) here in Pakistan used to pay the amount mentioned in the code to the depositor or the person producing the slip bearing the code number issued by Bidyut. This, method of confirmation by subsequent letter was adopted as a security against any false slip bearing a code number and cheating the appellants. Similarly the appellants in Pakistan used to receive money from persons intending to transfer the same to India. It was further said that accused Barada Charan Dey, Abdul Hashem Sikder and Jalaluddin and some other absconding accused persons used to assist appellant No. 1 (Annada Charan Dey) to his illegal activities by either procuring parties for transferring money or by depositing money of their own to be transferred from one country to the other. Both Bidyut in India and appel lant Annada Ch. Dey and his son Chitta Ranjan De (appellant No.2) in Pakistan used to take a percentage of the money to be transferred as part of their remuneration for facilitating the transfer in this illegal fashion. This commission they used to call by the technical name of batta. It was further alleged by the prosecution that appellant Annada Charan Dey also transferred some of their lands to accused Abdul Hashem and Jalaluddin for a sum of Rs. 9,000 and thereafter transferred this amount or a sum equivalent to Rs. 9,000 to India by this illegal method of hundi business. P. W. 12 (Abdul Gani), an Anti‑Corruption Inspector attached to D. A.. B., Chandpur, received Exh. 17 (a letter written by appellant Chitta Ranjan De on behalf of appellant No. 1 (Annada Ch. Dey) to Didyut (the absonding accused), two slips (Exhs. 22 and 22 (1)), a photograph of appellant Annada (Exh. 1) and two unexhibited slips contained in an envelope marked Exh. 21, on 16‑2‑61 from a certain source the details of which have not been disclosed by the prosecution. On receipt of the contents of Exh. 21, P. W. 12 (Abdul Gani) got the scent of these illegal activities of the appellants and he then obtained a search warrant from a competent Magistrate and searched the house of appellant No. 1 (in which appellant No. 2 also used to live) and recovered a number of documents most of which are letters, Exh. 17‑17 (16). Some of these letters are written by Bidyut to appellant No. 2 (Chitta Ranjan De), some by Bidyut to appellant No.1 (Annada Charan Dey), some by Benoy (another son of Annada) to appellant No. 1, some by appellant Chitta Ranjan to a person called Nikhil whom he has addressed as brother, and one of which appears to have teen written by appellant Annada to Bidyut through the band of appellant Chitta Ranjan: P. W. 12 thereafter lodged a formal first information with the police and took up investigating of the case himself, and after completion of it, submitted charge‑sheet against the five accused persons three of whom, as already observed have been acquitted by the learned Assistant Sessions Judge. The defence of the appellants was that they or the accused Barada Charan Dey, Jalaluddin and Haji Abdul Hashem (since acquitted) never conspired to convert Pakistani currency into Indian currency nor did any one of them come to any such agreement for such conversion or transfer of any Pakistani currency to India nor did they transfer a sum of Rs. 9,000, representing the sale proceeds of lands of appellant Annada sold to Abdul Hashem and Jalaluddin. It was the further defence of accused Abdul Hashem and Jalaluddin that they purchased the land of appellant Annada Charan and accused Barada Charan in good faith and never knew that the sale proceeds thereof might be transferred to India. The prosecution in addition to exhibiting a number of documents upon which it relied more, for the conviction of the appellants, examined as many as 12 witnesses in support of its case. Excepting P. W. 4 (Suna Mia), no other witness could give any direct evidence with regard to the illegal hundi business carried on by the appellants. The conviction of the appellants has been based more or less on the documentary evidence produced in the case. Mr. Abdus Salam Khan, the learned Advocate appearing, for the appellants, has contended four points before us, the first of which is, that, the charge is a defective one. Mr. Salam Khan has' submitted on the first point that there has not been any actual transference of Pakistani money made by the appellants to India nor of any Indian money to Pakistan and, therefore, the charge as framed covering the entire Regulation 58 of the Martial Law Regulations is confusing and, as such, defective. Two charges were framed against the appellants. They are as follows:‑ "First:‑That you from date 27‑10‑58 ‑to date 16‑2‑61 at Algi Durgapur, P. S. Chandpur, District Comilla, without the general or special permission of the State Bank of Pakistan entered into an agreement for conversion of Pakistani currency, into a foreign currency, namely, the Indian currency, or assist directly or indirectly the transfer of Pakistani money to a foreign country, namely, India, and thereby committed an offence punishable under the Martial Law Regulation No. 58 and within the cognizance of the Court of Session; "Secondly: That you from date 27‑10‑58 to date 16‑2‑61 at the same place, agreed to or caused to be done an illegal act, to wit, the transfer of Pakistani money to a foreign country, namely, India without any proper permit and that the same illegal act was done in pursuance of the agreement and thereby committed an offence punishable under section 120B of the Pakistan Penal Code and within the cognizance of the Court of Sessions; And I hereby direct that you be tried by the said Court on the charges." It may be necessary for us to quote Regulation 58 in extenso to understand the point of defective charge as raised by Mr, Salam Khan. Martial Law Regulation 58 runs thus:‑

"No person shall take or attempt to take Pakistan currency out of Pakistan without a proper permit; nor shall, except with the general or special permission of the State Bank of Pakistan, enter into any agreement whatsoever for conversion of Pakistani currency into foreign currency or assist, directly or indirectly, the transfer of Pakistan money, securities, etc., to any foreign country. "Maximum punishment 10 years' R. L" The first charge as framed is not, in our opinion, one for taking Pakistani currency out of Pakistan without a proper permit which is relative to the first part of the Regulation; but the charge is for an agreement entered into by and between the appellants and other accused persons without any general or special permission of the State Bank of Pakistan for conversion of Pakistani currency into foreign currency or assist, directly or indirectly, the transfer of Pakistan money to any foreign country. The appellants were actually charged for having entered into an agreement for doing this illegal act of converting Pakistani currency into Indian currency as far as the first charge is concerned. We, therefore, do not see any force in the argument of Mr. Salam Khan that the first charge is defective. The second charge seems to us to have been framed speci fically under section 120‑B of the Pakistan Penal Code for .an agreement entered into by and between the accused persons to transfer Pakistan money to a foreign country, namely, India, without any proper permit and the said illegal act (the act of transferring Pakistan Money) was done pursuant to the said agreement. The transfer contemplated by Martial Law Regula tion 58 in the first part of it, in our opinion, relates to a physical transfer of the currency. In the present case the prosecution, in our view, and also as has been found by the learned Assistant Sessions Judge, has failed to establish a case of physical transfer of Pakistani currency by the appellants to a foreign country, namely, India. As such it can be said that the second charge as framed against the appellants has not been proved but it cannot be said that the charge is defective as contended by Mr. Salam Khan. We, therefore, on the point of defect of charge, do no agree with Mr. Salam Khan. The next point raised by Mr. Salam Khan, though not very strongly pressed, is with regard to misjoinder of persons. He has argued that the present appellants, Annada Charan Dey and Chitta Ranjan De, cannot be categorised with accused Barada Charan Dey, Abdul Hashem and Jalaluddin and that Jalaluddin and Abdul Hashem again belong to a different category as far as the offence they are said to have committed, is concerned. Mr. Salam Khan submitted that Abdul Hashem and Jalaluddin, who purchased some land from appellant Annada Charan and accused Barada Charan, had nothing to do with the illegal hundi business of the present appellants. Similarly Barada Charan also had nothing to do with the illegal activities of the two appellants before us. Therefore, the joint trial of all these five persons, according to him, was bad in law. It is not for any specific offence that the appellants and their co‑accused were put on trial. They were charged for conspiring to do certain illegal activities. No overt act is necessary to be proved to establish a charge of conspiracy to commit an offence. We, therefore, see no substance in this point of Mr. Salam Khan that there has been a misjoinder of persons in the present case. The third point urged by Mr. Salam Khan was that the documentary evidence produced against his clients have not been proved by competent persons. P. Ws. 3 and 5 (Abdul Hashim Dewan and Khalilur Rahman) have proved the handwritings of both the appellants and Bidyut in the case. P. W. 3 (Abdul Hashem Dewan), who is a shopkeeper of Algi Durgapur, the village to which the appellants belong and is acquainted with the appellants and other members of their family, has stated that he knows the handwritings of the appellants and of Baroda, Benoy, Bidyut and Sudhir and he identified letters, Exh. 17 and 17 (16), to be in the hand of Chitta, letters Exh. 17 (1)‑17 (5) to be in the hand of Bidyut, and letters Exh. 17 (6)‑17 (15) to be in the hand of Benoy. P. W. 5 (Khalilur‑ Rehman), who was formerly the President of Algi Durgapur Union Board and Chairman of the D. S. Board, read up to Matriculation Class in the same school in which appellant Annada Charan was a teacher. This witness is a Juror and he himself was also a teacher in several schools. He was also Annada's colleague in the school as a teacher. He seems to know every member of Annada's family and all about the business that Armada does in Pakistan and in India. He was present al the time of the search of Annada's house by the investigating officer and he is a witness to the seizure list prepared in his presence of as many as 22 items seized by the police from the house of appellant Annada Charan Dey. The relevant portion of his evidence is as follows: "I was present during the search of Annada Babu's house by the I. O. This seizure list was prepared in my presence (List Exh. 19). 1 signed on it (signature 20). Chitta was also present and signed on the seizure list. This is his signature (signature Exh. 20 (1). I was also present at the preparation of this seizure list by the I. O. (seizure list Exh. 19 (1). This signature on the seizure list is mine (signature Exh. 20 (2).. I was also present at the preparation of this seizure list by the I. O. (seizure list Exh. 19 (2). This is my signature on it (signature Exh. 20 (3). This address on envelope is in the hand of Chitta (address Exh. 21). This writing on this chit is in the hand of Chitta (writing Exh. 22). This writing on the same chit is in the hand of Benoy Bhusan (writing 22 (1) ) (then says) this writing is also of Chitta (writing Exh. 22 (1) ). This writing is also in the hand of Chitta (writing Exh. 22 (2) ). This writing is, also in the hand of Chitta (writing Exh. 22 (3) ). This writing is in the hand of Chitta (writing Exh. 22 (4) ). This letter Exh. 17 is in the hand of Chitta. This photo is of Annada Babu (photo Exh. 1). This Khata is in the hand of Chitta (Khata Exh. II). Chitta does all the works of Armada Babu." This witness has also proved the writings in the several documents of Benoy and appellant Chitta Ranjan Dey. In our opinion P. W. Khalilur Rahman is a very competent witness to prove tile handwritings of appellant Chitta and absconding accused Benoy. We, therefore, do not find any substance in this point of Mr. Salam Khan either. The next point urged by Mr. Salam Khan is that there is no direct evidence against appellant Annada Charan Dey and that the indirect evidence, namely, the post cards and the letter (Exh. 17), by themselves do not remove the possibility of his non -complicity in the offence he has been charged with in view of his age and also, in view of his sons being in charge of his business. It is submitted that appellant Annada Charan Dey is aged about 86 years. From the record we find that his age has been put as 86 years in his examination under section 342 of the Code of Criminal Procedure; but from the judgment it is found that Annada is about 65 years old. The learned Assistant Sessions Judge in awarding sentence to appellant Annada has taken into consideration the age of Annada and observed as follows:

"In view of the advanced age of the accused Annada Charan Dey who appears to me to be round about 65 I am inclined to sentence him only to 3 years' R. L" We have checked up the original of the 342 examination and it seems to us that the age of appellant Annada Charan has been put in the Form of 342 examination as 86 years by somebody other than the presiding Judge. The age given in the judgment by the learned Assistant Sessions Judge on an estimate made by himself, seems to us to be more reliable than the age put in 342 examination by somebody other than the Judge. Whether appellant Annada Charan Dey is aged 65 or 86 years, it is clear from the letters written by his son Bidyut from India to him and by his son Chitta Ranjan 'from Pakistan to Bidyut and by himself to Bidyut that all his faculties are in perfect order and that he was having a very tight control over his business not only in Pakistan but also in India including the posting and re‑posting of his sons from one place to another. This will be evident from Exhs. 17, 17 (2), 17 (3), 17 (4) and 17 (16) which we have had translated by the Court's translator and incorporate in the judgment and they are as follows,‑‑-- GOD Algi‑Durgapur "Exh. 17

29th Magh 1367, B. S. 1367 B. S. (Torn) Bidyut, My son, I receive your letters, etc. and slips. I come to learn every thing from the persons coming from there. Perhaps, you do not receive our letters, because what we write in those letters are not at all complied with. Why do you write again and again? I have already written that the paper No. 5 60/100 P of Noakhali has been sent by me. If it is in my hand, I perform the job immediately, on the other hand, you do not do like that and thereby 1 am put to difficulty. In spite of my repeated advice you do not stop it. What's the reason? There is no possibility of any more collection here. You will know it if it is received now and then. If you do not act according to my advice you will put me as well as yourself into trouble. One thing more is that you make such delay in `delivery' which has made me unreliable to others. However, now I have given paper No. 4 50/100 P to Kadir Kotwal. Send No. 3 0/100 to your Sundar Kaka and make over paper No. 1 50/100 H to your Baroda (Benoy). I have paid some portion of his former dues from here and you will pay him the balance from there. It was settled that it is you who was to pay him the entire amount. However, read and try to understand our letters carefully and then act accordingly. In that case there will be no trouble. However, I have given paper No. 50/100 P to Mati Kotwal. I could not but give him the same. All the slips you have given will go back. Have you got the `lisence' (license)? Don't worry but carry on the work properly. Things will take its own course. What can be done? No more, your second maternal aunt will, perhaps, migrate to Calcutta very soon. Her migration documents have been received. I am not keeping well. Your mother has gone to Chalitatali to attend Sradh ceremony. I could do nothing regarding Sreeman Minto's marriage. We are so so. Finis. Your Father. If Sreeman Binoy brings one woollen wrapper from Calcutta pay him the price. I will pay you afterwards from our home. (And) send it through man. Father." "Exh. 17 (2): A. C. Rice Mill. Moudanga, God is good. Nowgang, 1366 B. S. Assam 10‑12‑

59. Dear Mejda, I have been a little glad on receiving this card of yours. I derive much pleasure from letters written on, such business purpose, I had long before written to my fater about what you wrote regarding 19undi matters, but I have not received any proper reply thereto. This business is even now profitable to some extent. Please do not disclose this to any body. Please do not let any body know also how we pass. If any body wants to know, please say having business in both the countries we can deal in these things. Please state in detail the rate of bata (premium) prevailing there, inasmuch as I should strike bargain here after knowing from you the rates prevailing there. Now the rate here is Rs. 20 or 22 i.e., if Rs. 100 is paid here, Rs. 120 or 122 will be paid there. Please state the rates for those you have sent in the name of Esob Ali Gazi. Please do not accept "Up Bata" there, but receive money with "Down Bata". As for example, for a payment of Rs. 100 there, a payment of Rs. 70 or 75 will be made here. It is not profitable to pay Rs. 100 here for a sum of Rs. 125 or 130 paid there. You may, however, accept "Up Bata" if it is Rs.

35. Did you realise "Money Order fee" 7 The "Money Order fee" here is one and a half rupees. Be that as it may, I have stated all the facts. Please carry on work accordingly. Yesterday I sent a letter to my father. I have sent a card to my mother as well. Please go to Calcutta instead of coming here. Please make arrangement for purchasing some paddy land there with the income from the homestead. And here I shall do what I think necessary with the income from this place. I have no more desire to bring the income from the homestead to Assam. Although Assam is a (good) business place, but the Bengalees cannot exercise their influence or right. So neither my elder brother nor I have any desire to settle in Assam. Please do not sell any more land in the homestead because land worth much money has (already) been sold. Some land should be acquired (elsewhere) with that money. Supplicant, (Address) "Bidyut" Babu Chitta Ranjan De, Santineketan, Post. Algi Durgapur, District:‑Tippera, .E. Pak. (via Chandpur)". "Exh. 17 (3): God is good M/s. A. C. Rice Mill, 136T B. S. Moudanga, Nowgong, Assam 24‑5‑

60. Respected father, I have received no letter from you for a long time. I do not know why. I presume you have been very busy, because it is still the business season for you. (Please let me know) how the household work is running. My business season has been over. Be that as it may, an insurance for a sum of Rupees One and a half thousand will be sent to you from the under mentioned address. Please acknowledge the receipt of the insurance. It is my friend Babu Bijan Prasanna Roy Chowdhury's maternal uncle (Babu Ganesh Chandra Nag, vill: Charhamuah, P. O. Shaistagenj, District‑Sylhet, E. P.). I sent several letters to you. Having received no reply thereto I have been very sorry. Letters from you give me much pleasure. Now it is your happy time. You should not now lower your mind. You own a mill and have also been running a firm in the country worth Rs. 10/15 thousand. Few people have such fortune. On account of that we also feel very proud. You should now see to it that the business gets expanded. I now write to say that you posted me as the manager of your mill for three years, which term will expire in January next. What will you do thereafter? Please inform me whether you will post my second brother here or not. Be that as it may, on 12‑3‑60 I sent ten pounds of tea leaf of Rebati Sen. The surname of Anil De has been wrongly stated. You have shown it as Anil Sen. No more now. Wish you hail and hearty. We are so so. Finis. (Address), Srijute Annada Charan Dey, Santiniketan, P. O. Algi Durgapur, Manager Dist‑Tippera, East Pakistan A. C. Rice Mill". (via Chandpur) "Exh. 17 (4): God is good A. C. Rice Mill 1367 Mondanga, Nowgong, Assam 29‑6‑

60. Respected father, Some days back I have addressed a (post) Card to you in the capacity of an employee to the employer. Today I am writing you this (post) card as your son. Please do not mind anything. I came to learn everything in detail from Jaha Buksh Gazi. At first I write to say that price of tea‑leaves has gone up. Please purchase no more goods at this rate of price else we shall have to incur loss. Remainder 15 pounds in respect of Anil Dey and the goods in respect of Bijan Babu and others will be delivered by me at the previous rate. I shall not be able to supply any new quantity of goods at this rate. If you can purchase things by way of `less' rate, then you may do so. But the rate should be less because if the purchases are made at "up" rate we are to sustain loss. I have examined this upon calculation. There are expenditures over and above that. And for this reason goods are falling short. However, I am very sorry to learn that you have not yet delivered the 12 pounds of leaves to Isab Ali Gazi. What are the reasons? Please stock the leaves ‑of the maternal uncle of Bijan Babu. Please do not sell them without my instruction. Please give Idris Mia (of) Bhingulia half a pound of leaves. I am very sorry to learn that you are going to give up `Control' business. What are the reasons? People enlarge their business day by day, whereas you are winding up the business gradually. Please let me know what you have done with the income of these several years. It is necessary to purchase some paddy lands (near) Calcutta, with that income, thereby caking arrangement for some income in Calcutta. I am enlarging the establishment here with the income of this place. The `establishment' (expenditure) does not increase further in the native‑place; so (something) should be done in Calcutta with (the income of) that (place). Please let me know your intention in this respect. If in a year establishment does not enlarge how can we understand that there has been income accruing in our business. My intention is to acquire properties worth 25/30 thousand of rupees here with (the income of the) Mill. I do not know what is the desire of God in this respect. I shall not allow the income of the mill to be spent anywhere else. I have paid 500 to the Jamaibabu (son‑in‑law) in Calcutta. No more now. To Yours obediently, Babu Annada Charan Dey, Bidyut. Santini Ketan, P. O. Algi Durgapur, Dist: Tipperah, (Via Chandpur), E. Pakistan." "Exh. 17 (16): 24th Bhadra, 1366 B. S. Respected Nikhilda, Please accept my respect. My father has received your letter. I have not read that (illegible). Jalal Bepari has taken away that letter. Patwari‑bhiti and Mazumdar House are on the lands measured by the same nal. Some portion of the Mazumdar‑House was owned by some outsider; and Sundar Kaka also knows that Bala (premium) must have to be paid if money is to be taken unlawfully. When Mazumdar sold his house, bata had to be given. Bata is being charged even now. One and all have become. displeased with the activities of Bidyut. Father is on the horns of a dilemna. Please tell Sundar Kaka not to worry. My father does not entertain any wrong notion towards Sundar Kaka. Gopalda comes to our house at times; and we meet each other. Finis. To Minto. Sj. Nikhil Chandra Datta, 206, Netaji Colony (High land), P. O. Baranagar, 24 Parganas." From the contents of these letters it is found that the entire business, both in Pakistan and in Assam (India), was being run and controlled by appellant Arinada Charan Dey. He was get ting his letters written from the Pakistan end by his son appellant Chitta Ranjan who seems to us to be absolutely under the control of appellant Annada. . Not only that; the proof of Annada's control over the family is evident from the letter, Exh. 17 (16), written by Minto to Nikhil on the 24th of Bhadra, 1366 B. S. wherein he says: "Please tell Sundar Kaka not to worry. My father does not entertain any wrong notion towards Sundar Kaka. Even a younger brother of Annada seems to be worried about the displeasure of appellant Annada. That Minto is appellant No. 2 (Chitta Ranjan De) has been proved by P. W. 3 (Abdul Hashem Dewan) who says that Chitta's nick‑name is Minto. The letter (Exh.17 (1) written by Bidyut from Assam to Abdul Latif Sikdar, also shows that Bidyut was trying to find out as to whether he would be transferred after three years by his father from Assam for which period he was posted there as Manager of "A. C. Rice Mill". Therefore the argument of Mr. Salam Khan that the sons of appellant No. 1 (Annada Charan Dey), namely, appellant No. 2 (Chitta Ranjan) and the abscond ing accused Bidyut, were carrying on this hundi business without the knowledge of their father and behind his back, is not only untenable on the facts disclosed in the case but is also not acceptable to any reasonable mind. The point that there is no direct evidence against appellant Annada and that the post‑cards and other documents only give an indirect evidence and by themselves do not remove the possibility of Annada's non‑complicity in the hundi business, can be amply answered from the contents of the said post‑cards, and the other documents. Exh. 17 (2), letter, dated 10‑12‑59, written by Bidyut to Chitta, proves that the two brothers were trying to make their father agree to carry on the hundi business which is very profitable. In this letter Bidyut writes to Chitta not to disclose this matter to any body else and also not to allow any other person to know the manner m which they do the business. Bidyut openly writes in this letter about the rates of exchange in India and Pakistan. Thereafter if we look into Exh. 17 (3), dated 24‑5‑60, we will find that the father has already got into the business as requested by the sons and is very much in it by this time. The letter, Exh. 17 (4), dated 29‑6‑60, written by Bidyut to Annada Charan, again shows that the father is in this illegal hundi business. Last of all, Exh. 17, letter written by Annada to Bidyut on the 29th of Magh, 1366 B. S. corresponding to the 12th of February, 1961, through the band of appellant Chitta Ranjan, establishes beyond a shadow of doubt that appellant Annada was not only carrying on the hundi business but was controlling the whole business at both ends‑the business being his own. Mr. Salam Khan has strenuously argued that the letter, Exh.17, cannot involve appellant Annada Charan in any way as it was not either written by Annada or signed by him. It was written by Chitta to Bidyut though on behalf of appellant Annada but that will not, according to Mr. Salam Khan, fasten appellant Annada with the liability of having written the letter or for any thing that this letter might contain. We have very carefully gone through the letter, Exh. 17, and we have no hesita tion in holding that although this letter was written in the hand of appellant Chitta Ranjan, it was in fact written by his father Annada to Bidyut ' as will be evident from the language used in addressing Bidyut and the word "father" at the end of it. Apart from that, we have on evidence other letters written by Bidyut to appellant Annada which bear similarity to the contents of the letter, Exh.

17. If it was that the letter, Exh. 17, was written by Chitta to Bidyut without the knowledge and consent of their father and if it was, as Mr. Salam Khan wanted us to believe, that the hundi business was being carried on by the sons of appellant Annada Charan behind his back and without his knowledge, then there is no reason for appellant Chitta not to have addressed Bidyut as a brother and to have adopted the false means of writing this letter in the name of his father. We, therefore cannot agree with the submission of Mr. Salam Khan that the letter, Exh. 17, does not in any way prove the guilt of appellant No. 1 (Annada Charan Dey). Besides the internal evidence furnished by the letters themselves the circumstances that the letters, Exhs. 1 to 17 (2), were recovered from the posses sion of Annada clearly show that he was not unaware of the contents of those letters. Now coming to the contents of the letters written by Bidyut Chitta and Annada upon which the prosecution relied to prove its case against the appellants, we find first from Exh. 17 (2), dated 10‑12‑59, written by Bidyut from Assam (India) to Chitta in Pakistan, that there is a clear mention about the rates of exchange of currency. Bidyut in this letter has requested Chitta not to accept up‑discount but to receive money with down‑discount and then has explained the up and down discounts by showing in figures the amount to be accepted and to be paid at the other end on the basis of both the discounts. In this letter Bidyut also urges Chitta to buy lands in or near about Calputta out of the income derived in Pakistan. He further says in the letter that he is not intending to bring any more Pakistan money into Assam although Assam is a very good business place, for' the reasons that Bengalees in Assam were not being treated well by the Assamees and wanted to purchase lands in Calcutta out of the income derived from the business in Pakistan. The letter, Exh. 17 (3), dated 24‑5‑60, written by Bidyut to appellant No. 1 (Annada Charan Dey) speaks about an insured sum of Rs. 1,500 to be despatched to Annada at Comilla by one Ganesh Chandra Nag from village Charhamuah, P. S. Shaistaganj, District Sylhet (both places being in Pakistan). This money, as Bidyut says in this letter; is being sent by the maternal uncle of one of his friends Bijan Prasanna Roy Chowdhury and he (Bidyut) requests his father to receive the said amount. It is apparent from this, letter that appellant Annada Charan did not know either Bijri Prasanna Roy Chowdhury or Ganesh Chandra Nag of Sylhet and, therefore, there seems to be no reason for these people sending a sum of Rs. 1,500 to Annada from Sylhet to Comilla. The money travelling within Pakistan does not create any offence either for Bidyut or for Annada if looked at without reference to Exh. 17 (4), another letter written by Bidyut to Annada. In Exh. 17 (4) Bidyut has written to Annada to stock the tea leaves of the maternal uncle of Bijan Babu and has asked him not to sell those without his instructions. The tea leaves of the maternal uncle of Bijan Babu mentioned in Exh. 17 (4) is but an indirect reference to Rs. 1,500 sent by the maternal uncle of Bijan Babu to Annada as mentioned in Exh. 17 (3). The letter Exh. 17 (3) also discloses the fact of the amount of control that Annada Charan had over his business and his sons, as it is found from this letter that Bidyut was asking his father as to whether he would be kept in Assam or would be transferred elsewhere. The oblique reference to tea leaves in different quantities in most of the letters of Bidyut cannot, in' the facts and circumstances of the case, be accepted to relate to anything other than the illegal monetary transactions that they were indulging in, for the reason that there is no evidence on record to show that either Annada Charan or Bidyut was carrying on the business of tea leaves. Further more, there was no possibility of either the son in India or the father in Pakistan carrying on the business of tea leaves as the tea business is not allowed to be carried on between individuals of the two States without any import and export permit and there. is no evidence on record to prove such a fact. Then again the direction to the father by the son to deliver 12 pounds of tea leaves to Isab and pound of tea leaves to Aris has but a reference to currency in the context of the contents of all the letters that have been found from the possession of appellant Annada Charan Dey and exhibited in the case. In the letter, Exh. 17, there are certain code numbers men tioned in reference to different persons in Pakistan and also there are directions by the father to the son to send certain things referred to in the code numbers to one Sundar Kaka and to Benoy the eldest son of appellant Annada Charan. If these items referred to by Code numbers and letters 'P' and 'H' were things other than money, there could be no reason, in our opinion, for the father to write about a thing which was legal and above board in code numbers which are very significant. 'P' possibly represents Pakistan money and 'H' Indian money because on reference to these Code numbers and the letters it will appear that whenever some thing referring to the Code number is to be given to a person in Pakistan, the letter 'P' is found written after it whereas if something is to be given to any one in India letter 'H' is found written after it: Apart from that, the fact that these code numbers were referring to currencies is clear and apparent from the following sentences in Exh. 17 : "Send 0 No. 3‑H to your Sundar Kaka and make over paper No. 100 50 1‑‑H to your. Barada (Benoy). I have paid some portion of 100 his former dues from here and you will pay him the balance from there. It was settled that it is you who was to pay him the entire amount. However, read and try to understand our letters carefully and then act accordingly. In that case there will be no trouble". That Annada Charan was willingly and knowingly carrying on the hundi business is further proved from this Exh. 17 when he writes: "Don't worry but carry on the work properly. Things will take its own course". Then in another place in the same letter (Exh. 17) he has given an advice to Bidyut to stop this business in the following language: 60 "I have already written that the paper No. 5

P of Noakhali 100 has been sent by me. If it is in my hand, I perform the job immediately, on the other hand, you do not do like that and thereby I am put to difficulty. In spite of my repeated advice you do not stop it. What's the reason? There is no possibility of any more collection here. You will know it if it is received now and then. If you do not act according to my advice you will put me as well as yourself into trouble." . Nothing can be more clear to prove that appellant Annada Charan Dey was carrying on this business willingly and knowingly but was feeling a little worried about the, dangerous business he indulged in for his and his sons' safety and possibly finding the business not so very lucrative at that stage, wanted to stop it. 'We have reproduced the translations of Exh. 17, 17 (2), 17 (3), 17 (4) and 17 (16) in extenso in our judgment to show from those that both the appellants were doing this hundi business. There are several other exhibits which we have already mentioned and from all those the conclusions become irresistible that the appellants were carrying on this illegal hundi business. All these letters were written on post‑cards, except Exh. 17, 'and the post‑cards bear postal seals of India excepting Exh. 17(16) which was written on a Pakistani post-card by appellant Chitta Ranjan and was not posted for reasons unknown. This post‑card, too, was recovered from the possession of appellants Annada Charan and Chitta Ranjan from the house of Annada in Algi Durgapur in Comilla where both of them live. P. W. 12 (Abdul Gani) seized these documents in presence of witnesses and P. W. 5 (Khalilur Rahman) has witnessed the seizure list of the documents. The defence did not challenge the recovery of these documents from the house of appellant Annada Charan where appellant Chitta Ranjan also lives. Apart from these documents, we have the oral evidence of P. W. 4 (Suna Mia) which shows that the appellants were carrying on the business of conversion of Pakistani currency illegally, P. W. 3 (Abdul Hashem Dewan) has stated in his evidence that appellant Chitta Ranjan told him about the exchange business requesting the witness to send parties to them. This piece of evidence of P. W. 3 may be taken to be an admission of Chitta Ranjan. All these evidence on record go to establish clearly that the appellants were carrying on this illegal business of converting Pakistani currency. The appellants were charged for having entered into an agreement for conversion of Pakistani currency into foreign currency without special or general permission of the State Bank of Pakistan and/or to assist, directly or indirectly, the transfer of Pakistan money to a foreign country, in the present case India. Regulation 58 of the Martial Law Regulations contains the same ingredients as those of section 120B of the Pakistan Penal Code. Where the agreement is to commit an offence no overt act is required to be proved to establish a charge either under section 120B of the Penal Code or under Regulation 58 of the Martial Law Regulations. It is sufficient if the prosecution discharges its onus satisfactorily. The evidence in this case furnish reasonable grounds for believing that there has been a conspiracy between two or more persons, viz., Annada and his sons Chitta and Bidyut and others to convert Pakistani currency into Indian currency and vice versa for making illegal gain without the necessary permit required sunder the law. Once there is reason to believe the existence of such a conspiracy, anything said, done or written by any one of the conspirators becomes a fact relevant against each of the persons charged with the offence as laid down under section 10 of the Evidence Act. In the present case the letters written by Bidyut to appellant Armada Charan as also those written by Chitta Ranjan to Bidyut and the letter purported to have been written by Annada to Bidyut (Exh. 17) prove in terms of section 10 of the Evidence Act the existence of a conspiracy between the appellants and the other absconding accused. In this view of the matter, we are of opinion that the charge of conspiracy under Regulation 58 of the Martial Law Regula tions has been well proved against the appellants and the mere fact of the charge having failed against the other three accused persons will not in any away affect the charge against the present appellants. With regard to the second charge framed under section 120B of the Penal Code, we take the view that since the prosecution has not been able to establish positively the charge of transfer of Pakistani currency to a foreign country, namely, India, the appellants should not have been convicted under the second count. This will not affect the conviction of the appellants under the first count, i.e. under Regulation 58 of the Martial Law Regula tions because both Martial Law Regulation 58 and section 120‑B of the Pakistan Penal Code are more or less in the same terms. We, therefore, have come to the conclusion without any hesitation or doubt in our mind that the appellants are guilty of the offence under Martial Law Regulation 58 and, consequently, we find nothing to interfere with the order of conviction passed by the learned Assistant Sessions Judge against the two appel lants before us. It is possibly the first case, as far as we are aware, where the prosecution has been able to lay before the Court a large number of documentary evidence to establish the charge of illegal `hundi' business. From these documentary evidence it is proved that the appellants were carrying on this nefarious activity of under‑cutting the Pakistani currency by illegal means by converting the Pakistani currency into Indian currency on a very high rate of discount which for more than two years affected a portion of the Pakistani currency and under‑minded the official rate of the Pakistan money vis‑a‑vis the Indian money. The acts committed by the appellants no doubt point to their anti -State activity and we, therefore, considered the sentence pronoun ced by the learned Assistant Sessions Judge on the appellants to be inadequate, in the facts and circumstances of the case, and issued a Rule Suo Motu for enhancement of their sentences. After considering all aspects of the case, we have come to the conclusion that the conviction of both the appellants under the second charge, i. e., under section 120B of the Pakistan Penal Code, should be set aside whereas their conviction under the first charge under Regulation 58 of the h1artial Law Regulations should be maintained and we pass orders accordingly. We have given our anxious thoughts to the question of sentences in this case. Taking everything into consideration including the age of appellant No. 1 (Annada Charan Dey) and the nature of offence committed by the appellants, we enhance the sentence of appellant No. 1 from three years' rigorous imprisonment under Regulation 58 of the Martial Law Regula tions to one of R.I. for five years and that of appellant No. 2 (Chitta Ranjan De) from five year s rigorours imprisonment to one of rigorous imprisonment for eight years under the said Regulation. Appellant No. 1 (Annada Charan Dey) is directed to surrender forthwith to his bail and serve out the sentence now imposed upon him. The appeal is, accordingly, disposed of in the above terms. The Rule issued suo motu (Revision 361/64) is made absolute. SALAHUDDIN AHMED, J.‑I agree. K. B. A. Appeal dismissed. Sentence enhanced.