Sulaiman, J.
1. This is a revision from convictions under Section 120-B Indian, Penal Code and Section 60(a) of the Excise Act.
2. The facts have been found by both the courts below and there can be no dispute about them in revision. The prosecution case was that the applicants Mohammad Yakub and Abdul Shakur, who are residents of Delhi, entered into a criminal conspiracy with the applicant Saddu Beg, and one Mohammad Ishaq, residents of Saharanpur for the supply of cocaine from Delhi to Saharanpur, in order to be sold at the latter place, There can be no doubt that the Excise Inspector received information that there was a conspiracy to sell cocaine, and arranged with one Abdul Hafiz to catch the culprits red-handed.
3. On 30th September, 1930, Abdul Hafiz gave the information that Abdul Shakur and Mohammad Yakub had arrived at Saharanpur, and were at the house of Saddu Beg. A party went out in search of the smugglers, but they were informed that Yakub and Shakur were not at the house of Saddu Beg Mohammad Yakub and Abdul Shakur were searched for in the bazar, and they were traced to the railway station, where they were found sitting together in a compartment of a railway train. Mohammad Yakub had a razai (quilt) on his knees. When asked to get down, Yakub told Shakur to throw the razai down, and Shakur tried to get hold of the razai, but he was secured. When the two men were searched, a packet containing cocaine was recovered from a fold of the razai which Yakub had, in addition to currency-notes, silver and a large quantity of small changes. The party went to the house of Saddu Beg, and there Saddu Beg and Mohammad Ishaq were found making packets of cocaine. On seeing the police, both of them ran out. They were pursued and caught. A phial containing cocaine was recovered from the pocket of Saddu Beg, and several packets were recovered from where the two man were making the packets. Mohammad Ishaq was first put on trial, but was examined as a witness against the, three applicants. Abdul Hafiz, along with other persons, is a witness for the prosecution.
4. The learned Sessions Judge rightly overruled the plea that Mohammad Ishaq's statement was not inadmissible in evidence. Section 337 Criminal, Procedure Code on which reliance was placed on behalf of the accused is obviously not applicable, because the case was not triable exclusively by the Court of Session. It is quite clear that the Magistrate was not bound to try Ishaq jointly with the other accused; and when he was not put on a joint trial with them, his evidence was not inadmissible. There is equally no force in the contention urged before the Court below that the previous sanction of the Local Government was necessary before there could be a prosecution under Section 120B Indian Penal Code. As pointed out by the learned Sessions Judge, under Section 196-A(2), Criminal Procedure Code, sanction is necessary only where the object of the conspiracy is to commit a cognizable offence not punishable with rigorous imprisonment for a term of two years or upwards. Under Section 50 of the Excise Act, any officer of the Police not below a rank prescribed by the Local Government may arrest without warrant, and the offence is therefore a cognizable one. It is also punishable with rigorous imprisonment for two years. No previous sanction of the Local Government was therefore necessary.
5. The learned Advocate for the applicants has strongly urged that there has been a misjoinder of charges and misjoinder of accused persons. His contention is that the charge of criminal conspiracy under Section 120-B should not have been combined with the charge under Section 60(a) of the Excise Act, of having been found in possession of cocaine. Mohammad Yakub and Abdul Shakur were found in possession of cocaine at the railway station. It was found in the razai which was in the possession of Mohammad Yakub. The facts that Mohammad Yakub and Abdul Shakur had return railway tickets bearing consecutive numbers, that they were travelling back in the same compartment, and that when questioned both tried to throw away the razai which contained the cocaine, go to show that they were acting jointly and in concert, and were jointly taking back the surplus cocaine to Delhi which had remained unsold.
6. Saddu Beg was found in possession of cocaine at his own house. If the charge of conspiracy were not established, then the possession of cocaine by the different accused persons on different occasions and at different places would not justify a joint trial. There is, however, the evidence of Abdul Hafiz, which has been believed by the courts below, that the three applicants and Mohammad Ishaq were together in the house of Saddu Beg, when Abdul Hafiz purchased some cocaine The evidence of Abdul Hafiz and of Mohammad Ishaq further goes to show that this was not the first occasion when the accused from Delhi brought cocaine for Saddu Beg. Indeed, there was an account between the two sets of parties, and a balance was outstanding on the former account, and the whole of the price of cocaine was not paid even on this occasion. The circumstantial evidence, coupled with the evidence of Abdul Hafiz and Mohammad Ishaq, was, in my opinion, amply sufficient to justify the Courts below in coming to the conclusion that there was an agreement between the two sets of accused persons to traffic in cocaine, and that it was in pursuance of such a mutual agreement that cocaine used to be brought from Delhi by Mohammad Yakub and Abdul Snakur and given to Saddu Beg and Mohammad Ishaq, and sold at Saharanpur.
7. The learned Advocate for the applicants has strongly contended that the mere fact that Mohammad Yakub and Abdul Shakur brought cocaine to Saharanpur and sold it to Saddu Beg and Mohammad Ishaq would not establish the fact of a conspiracy between them. It must be conceded that there is no evidence to suggest that the four persons had entered into a partnership agreeing to divide the profit after the cocaine had been disposed of by retail sales at Saharanpur. Had that been the case, there would have been no doubt as to the existence of the conspiracy. It may also be conceded that if the transaction were nothing more than a mere sale by one party to another party, that fact by itself would not be sufficient to establish a conspiracy. But the circumstantial evidence in the present case goes to show much more than mere isolated transactions of sale.
8. Apart from this it may also be pointed out that the transport of cocaine from one place to another is in itself a criminal offence, and so is its abetment. There was undoubtedly an agreement between Mohammad Yakub and Abdul Shakur, on the one hand, and Saddu Beg and Mohammad Ishaq, on the other, that the former would bring cocaine from Delhi to Saharanpur and hand it over to Saddu Beg and Mohammad Ishaq, although it was further agreed that the former would get the price and the latter may sell the same to the members of the Saharanpur public. There was, therefore, a conspiracy to commit an illegal offence of transporting cocaine from Delhi to Saharanpur. This is itself was sufficient to establish the charge of conspiracy.
9. Any defect or omission from the charge as actually framed would not be fatal unless it has occasioned a failure of justice. The accused ware all along aware of the prosecution case, and they have been in no way prejudiced.
10. When the charge of conspiracy was established, the accused could be jointly tried for offences committed in pursuance of that conspiracy.
11. The learned Advocate for Mohammad Yakub has strongly urged that the possession of cocaine at the Railway Station at the time of his return to Delhi could not be said to be an act in pursuance of the conspiracy. His argument is that after they had disposed of a part of the cocaine at Saharanpur and were returning to Delhi with the surplus in their possession, they were not acting in pursuance of the conspiracy, because the alleged conspiracy was to supply cocaine to Saharanpur, and not to take it away from Saharanpur. But the prosecution evidence establishes that the accused used to pay visits to Saddu Beg and send to him as much cocaine as he could purchase The taking of the surplus of cocaine which remained undisposed of was obviously a part of the plan as conceived by the accused persons, and cannot be treated as something quite independent and separate from it. I am therefore of opinion that the charge under Section 60(a) against Mohammad Yakub and Abdul Shakur was not wrongly joined with the charge for conspiracy.
12. It may further be pointed out that the illegality of a joint trial depends on the accusation and not on the result of a trial, and that even if the charge of conspiracy were to fail ultimately, there would be nothing illegal in convicting the accused of the offence of being found in possession of cocaine under Section 60(a).
13. The learned Sessions Judge has reduced the sentences passed on Saddu Beg, who is a previous convict, by making them run concurrently. He has been given 18 months' rigorous imprisonment and a fine of Rs. 300 under Section 120-B and 18 months rigorous imprisonment under Section 60(a). Yakub and Abdul Shakur have been given 15 months' rigorous imprisonment under Section 120B, and one year's rigorous imprisonment under Section 60(a). The fines of Rs. 200 each imposed under Section 60(a) have been set aside. No doubt Mohammad Yakub and Abdul Shakur are responsible for supplying cocaine to Saddu Beg; and in that sense they are the principal members of the conspiracy. On the other hand, it is the first occasion when they are being convicted. There is a substantial difference between a first and second conviction. I accordingly reduce the sentences of imprisonment passed on Abdul Shakur and Mohammad Yakub from 15 months' to 9 (nine) months' rigorous imprisonment each.
14. The result, therefore, is that the application of Saddu Beg is dismissed, and the convictions of Mohammad Yakub and Abdul Shakur under both the sections are upheld, but the sentences of rigorous imprisonment passed on Mohammad Yakub and Abdul Shakur are reduced to nine months' rigorous imprisonment each. The accused must surrender to their bail.