1. The two accused-appellants have been convicted under section 23 of the Foreign Exchange Regulation Act. The principal accused Abdur Rashid has been sentencedtopaya fine of Rs.25,000 in default to suffer simple imprisonment for six months and the abettor Nazrul Islam has been sentenced to pay a fine of Rs. 5,000 in default to suffer simple imprisonment for three months there--under by the Sessions Judge and Ex Officio Foreign Exchange Tribunal, Khulna.
2. This is a case of alleged racketeering in Foreign Exchange started by the State Bank of Pakistan against a former Member of the National Assembly Mr. Abdur Rashid and his manager Mr. Nazrul Islam. Mr. Abdur Rashid is the proprietor of a Jute firm at Daulatpur, Khulna and Mr. Nazrul Islam is the manager of the said firm which is commonly known as `Messrs Rashid- Brothers'. Abdul Matin, the main witness in the case is a man of village Ramdhana under P. S. Biswanath, District Sylhet. His brother Abdul Musabber is a wage earner in U. K. And Pervez is an associate of Musabber. On the basis of some information, the Special Police Establishment intercepted some telegrams and cables which passed among Musabber, Rashid and Matin and in course of preliminary enquiry, it came to light that there 'was a secret understanding and conspiracy between Abdur Rashid and his Manager at apt end and Musabber and Pervez in other end. Musabber and Pervez used to collect sterlings from the Pakistani wage earner in U. K. Who were desirous of sending money to their relations in Pakistan and under instructions from them, Abdur Rashid with the active help of Nazrul Islam, used to pay specified amount in Pakistan to Musabber's brother Matin. In' other words Matin used to work as a local agent of Musabber and Pervez and used to collect money in Pakistani currency from Abdur Rashid for the purposes of distribution among the relations of those wage earners who had already paid to Musabber and Pervez in sterlings. In this way, Abdur Rashid and Nazrul Islam were engaged in an unauthorised and illegal exchange of foreign currency with Pakistani currency.
3. The specific case for the prosecution is that in September 1963 Abdur Rashid sent a sum of Rs.
4. 3,000 to Abdul Matin by insured post and in April and June 1964, he paid the sums of Rs. 30,000 and 50,000 respectively to him in his office at Daulatpur when he went there to collect the amounts on instruc--tions. All the three payments were made to Matin on the basis of a secret understanding and conspiracy. Matin on his part, distributed the first two amounts to persons residing within the District of Sylhet but he could not do so in respect of the sum of Rs, 50,000 because he was intercepted by the police at the Tejgaon Heliport and was taken to custody. The sum of Rs. 50,000 was, on search, found concealed on his body and seized then and there in presence of witnesses.
5. Matin made some statements to the police and also a confessional statement to a Magistrate, 1st Class, Dacca. The arrest of Matin brought to light many missing links and established the unholy alliance between Musabber and Rashid and the latter's manager Nazrul Islam. In course of enquiry, the police seized a number of letters, telegrams and other documents from the possession of Abdul Matin, Abdur Rashid and other persons.
6. Accused Abdur Rashid and Nazrul Islam were thereafter served with statutory notices under section 23(3) of the Foreign Exchange Regulation Act with direction to explain their position regarding those payments. The explanations submitted by them not being satisfactory, P. W.
1. M. A.
7. Ali, the Deputy Assistant Controller, State Bank of Pakistan, Dacca on 17-12-641odged a complaint against accused Abdur Rashid and Nazrul Islam charging that they clearly violated the provisions of section 5 (I)(c) of the Foreign Exchange Regulation Act and made themselves liable for the penalty provided by section 23 of the said Act.
8. The plea of the accused was one of innocence. They asserted that they had never any connection either with Musabber and Pervez in U. K. Or with the former's brother Matin in Sylhet. It was contended that as an M. N. A. Mr. Rashid belonged to the opposition group and was threatened by the leader of the House when he opposed a Bill introduced for the amendment of the Constitution and the present case was started for political victimization. All the incriminating papers were created by the authorities for the purpose of securing a conviction and the arrest of Matin was just a fake affair to give a start to the plot which had already been hatched up.
9. The prosecution examined 34 witnesses and the defence examined none in the case. As many as 62 exhibits were produced before the Tribunal. The learned Sessions Judge and Ex Officio Foreign Exchange Tribunal, Khulna, consider--ing the evidence and materials on record, convicted and sentenced the accused-appellants as stated above. Being aggrieved thereby they have preferred the present appeal before this Court.
10. Mr. Abdus Salam, Khan, learned Advocate for the appellants has taken me through the judgment and depositions and contended that the prosecution case has not been proved by the evidence on record; that the evidence of P. W. 2 Abdul Matin is inadmissible and cannot be taken into consideration; that regarding payment of Rs. 50,000 to Matin by accused Abdur Rashid, the only direct evidence is the evidence of P. W. 2 Abdul Matin and he being an accused, his evidence is not admissible and there being no other evidence on record at all, the payment in question has not been proved beyond reasonable doubt; that the writings of the letters Exhs. 37, 38, 48 and 49 having not been proved, no reliance can be placed on them and that the seizure of the above exhibits from "Rashid Brothers" having not been established, the accused are entitled to benefit of doubt. He has also submitted that the prosecution has miserably failed to make out any case whatsoever against the accused Nazrul Islam.
11. P. W. 2 Abdul Matin is the only witness who gave direct evidence in the case. The fate of the case depends upon the admissibility of his evidence. On the question of admissibility of his evidence the learned Advocate for the appellants, by refer--ring to two decisions, one reported in 4 Cr. L J 145 and the other reported in 36 Cr. L J 937, has however, slightly amended hip original stand and frankly submitted that Abdul Matin might be examined in the case as a witness but his evidence would be of little weight.
12. It has been alleged that accused Abdur Rashid and Nazrul Islam at this end and Musabber and Pervez at the other end, hatched up a plan and made a conspiracy to earn sterlings from the Pakistani wage earners in U. K. At the cost of Pakistani Foreign Exchange and in working out the plan, Musabber and Per a used to collect sterling froth the Pakistani wage earners to U. K. Who were desirous sending money to their relations in Pakistan and under instructions from them, accused Abdur Rashid and Nazrul Islam used to pay specified amount in Pakistan to Musabber's brother Abdul Matin (P. W. 2) and Abdul Matin used to work as the local agent of Musabber and Pervez and used to collect the money in Pakistani currency from Abdur Rashid for the purpose of distribution among the relations of those wage earners who had already paid to Musabber and Pervez in sterlings. The arrest of Matin who made a confessional statement in due course, brought to light many missing links and established the unholly alliance between Musabber and Rashid and the latter's Manager Nazrul Islam.
13. It transpires from the above allegations that Abdul Matin was an active participator in the conspiracy and he played an important role in the alleged racketeering in foreign exchange.
14. Without him, the plan hatched up by Musabber, Pervez, Rashid and Nazrul could not have been materialised and as such, he was the pivot in the case which was brought to light on his arrest.
15. P. W. 6 B. H. Rizvi an Inspector of Police, Special Police Establishment, State Bank Branch, Dacca has stated that on a secret information he went to Tejgaon Heliport, Dacca on 16-6-64 and attended Khulna Dacca Heliport service. As soon as P. W. 2 Abdul Matin landed from the helicopter he searched his person and recovered Rs. 50,000 in G. C. Notes from him. He seized the said amount and other belongings of Abdul Matin under the seizure list Exh. 8 and also arrested him then and there. He produced Abdul Matin with the seized money and other alamats before the Sessions Judge and Ex Officio Foreign Exchange Tribunal, Dacca on the same evening with a report Exh. 16 praying for permission to investigate the case and remanding the accused Abdul Matin to police custody up to certain period, in order to obtain from him the missing links and the learned Judge allowed the police officer to keep the accused in custody till 24-6-64. Abdul Matin then made certain statements to him and in pursuance thereof, be forwarded Matin to P. W. 22 S. T. Ali, an Inspector of Special Police Establishment, State Bank Branch, Sylhet. After some days accused Matin was again brought back under custody from Sylhet to Dacca and the witness produced him before a Magistrate, 1st Class, Dacca for recording his confession on 20-6-64. Accused Matin made a confessional statement and his judicial statement was duly recorded by the said Magistrate.
16. P. W. 22 has stated that he received Matin under custody at Sylhet on 17-6-64 and in pursuance of the statements made by him, the witness went to the house of Abdul Matin at Ramdhan P. S. Biswa nath and recovered and seized there from a number of documents- (marked as exhibits in the case) at the pointing out of accused Matin under seizure list Exh.
28. Accused Abdul Matin was in his custody for 16/ 17 hours and then sent back to Dacca under police escort.
17. P. W. 32 M. A. Salam, an Inspector of Special Police Establishment, State Bank Branch, Dacca hag stated that he submitted a petition Exh. 56 on 17-6-64 before the District Judge and Ex Officio Foreign Exchange Tribunal, Khulna for permission to investigate the case and also to arrest the other accused persons and the learned Judge accorded permission to do so.
18. P. W. 2 Abdul Matin has stated in his deposition that he was arrested by the police on 16-6-64 at Tejgaon Heliport with an amount of Rs. 50,000. The police seized the said amount and his other personal belongings together with a railway ticket. He was in police custody for a number of days and during those days' the police took him to different places under police escort. P. W. 6 produced him before a Magistrate. 1st Class, Dacca for recording his concession and lie made a confessional statement to the Magistrate on 20-6-64. After recording of the confessional statement, he was sent to jail hajat and passed two days in the hajat. He was then bailed out by a Magistrate at Dacca and went to his bari in Sylhet. He stated that he admitted his guilt with the hope of getting acquittal in the case.
19. P. W. 6 in the report Exh. 16 deseribed him as an accused in the case. The Sessions Judge and Ex Officio Foreign Exchange Tribunal Dacca in his order for remand dated 16-6-64 treated him as an accused P. W. 32 described him as an accused No. 1 in the case in his petition Exh. 56 before the Sessions Judge and Ex Officio Foreign Exchange Tribunal, Khulna: The police produced him as an accused before a Magistrate, 1st Class, Dacca for recording his confession and he made a confessional statement accordingly. He was there after baild out as an accused by a Magistrate.
20. But in spite of all these facts, P. W.
1. M. A. Ali, an officer of the State Bank of Pakistan, Dacca did not name Matin as an accused in the formal complaint Exh. 2 dated 17-12-64. The facts and circum-- stances of the case, as indicated above, revealed that Abdul Matin was one of the main accused in the case but the prosecution purposely omitted to name him as an accused and produced him in the Court as a witness. Hence the question has arisen 6whether the evidence of Abdul Matin is admissible in law.
21. The facts and evidence discussed above show that P. W. 2 Abdul Matin was an accused in the case to all intents and purposes, The police arrested him and treated him as an accused from the very beginning. He was produced before the Tribunal at Dacca with a prayer for remand and kept in police custody for long days under an order of the Court. He was taken here and there under police escort and thereafter produced before a Magistrate, 1st Class, Dacca as an accused for recording his confession. After recording of the confessional statement he was released on bail by a Magistrate Ist Class, Dacca.
22. There is no evidence in the case that Matin was thereafter discharged from the bail bond by the Magistrate or the Tribunal. In the circumstances, he cannot be termed as a mere suspect. Abdul Matin having been thrice produced before the Court as an accused and three judicial orders having been passed in the relation thereto and there being nothing to show that he was discharged from the bail bond, lie does not cease to be at accused and remains an accused in the eye of law.
23. In theinstant case, in spite of sufficient materials collected against Abdul Matin during the investigation, the prosecution deliberately omitted his name from (lie formal complaint and presented him straight in Court as a witness without taking resort to section 337 or 494. Cr. P. C. The police having discovered sufficient evidence against him, in accordance with the provisions of sections 170 and 173, Cr. P. C., the prosecution ought to have sent him before the Court as an accused. Abdul Matin thus remains an accused in the eye of law, irrespective of the illegal action of the prosecution.
24. All the incidents of his being an accused having been present in the case, the mere omission to mention his name in the formal complaint will not take Matin out of the category of an accused. P.
25. W. 2 Abdul Matin, as pointed out above, is thus an accused in the case. An accused is always an accused until he ceases to be an accused in accordance with law He cannot, therefore, give evidence as a witness because he cannot be administered oath. An accused cannot be given oath or examined as a witness to a case unless recourse to section 337 or 494, Cr. P. C. Is taken by the prosecution and he is dis--charged.
26. The Criminal Procedure Code gives certain powers under which the evidence of an accused can be made available. He can be granted a conditional pardon by the Magistrate under section 337, Cr. P. C. Or the Public Prosecutor with the consent of the Magistrate can withdraw, the charge against him under, section 494, Cr. P. C. The prosecution can exercise these powers when they consider that the evidence of an accused is necessary in a case and he should be examined as an accomplice under section 133 of the Evidence Act. Where section 337, Cr. P. C. Is applicable, the better course is to proceed under that section. In a fit case, however, the Court may allow the prosecution against a person to be withdrawn under section 494, Cr. P. C. For the purpose of obtaining his evidence against the co-accused except in cases where section 337 may be availed of to this case, the prosecution took no steps whatsoever under section 337 or 494, Cr. P.C. Although Abdul Matin was out and out an accused in the case, he was not discharged by the Magistrate or the Tribunal on the prayer of the prosecution either under section 337 or 494, Cr. P. C. Hence the position of Abdul Matin as one under accusation of an offence was in no way changed when he appeared before the Tribunal as a witness and could not be altered until he had been discharged.
27. So he cannot be put on his oath or examined as witness in the case in which he was actually an accused.
28. Save and except the procedures laid down in sections 337 and 494, Cr. P. C., there is no other provision in law to make the statement of an accused admissible in evidence. I section 337 was not applicable to the facts of the case, section 494 could very well be availed of. The prosecution could easily take the aid of the provisions of law to secure a discharge order against accused Abdul Matin for the purpose of examining him as an accomplice under section 133 of the Evidence Act.
29. The prosecution having failed to avail of the provisions of section 337 or 494, Cr. P. C., I think, in view of the provisions of section 5-A of the. Oaths Act. 1873, the statement of P. W. 2 Abdul Matin, in the circumstances of the case, is not admissible in evidence. The administration of an oath to an accused person is opposed to public policy and any infringement o F the provision prohibiting the Court from putting hint under oath is an illegality which cannot he cured on any principle of consent, waiver or estoppel. Such administration of oath to an accused is an express statutory illegality and if oath is illegally administered to an accused, the statement made by him cannot be used as evidence. In this connection the cases reported in PLD 1956 SC (Pak.) 420 and PLD 1958 Lah. 1042 may be referred to.
30. The case of Haribar Singh v. The Emperor (40 CW NH 76) and retied on by the learned Advocate for the State Bank has no application here. The facts of that case are distinguishable. In that case, the Public Prosecutor petitioned for leave to withdraw the charges against Nalini under section 494, Cr.
31. P. C. And the prayer yeas allowed. Nalini was discharged and then examined in the case. Similarly Guranga was also tendered pardon has the Magistrate under section 337, Cr. P. C. And he was discharged and examined as, in approver. The point decided in that case and the point raised here are not exactly the same and so that case has no bearing on the question involved in the present case.
32. The facts of the case reported in Bums Singh v. Emperor (4 Cr. J L 145) are also distinguishable. In that case the local Government directed a conditional pardon to Mohendra Bind by an executive Order in relation to certain offence. In the meantime, he was again reported an accused with a number of other men in a case under section 401, P. P. C. The Public Prosecutor applied in accordance with the Government order of the withdrawal of the prosecution of Mohendra Bind under section 494, Cr. P. C. The Deputy Commissioner who took up the case for trial allowed the charge to be withdrawn against him and discharged the accused. But he omitted to record the order of discharge when the Public Prosecutor withdrew the charge. A question arose in that case as to the legality of the discharge order. A Division Bench of Calcutta High Court held that the tender of paradon was illegal and the man was neither formally acquitted nor discharged. The Court also found that the Magistrate omitted to record the order of discharge when the Public Prosecutor with--drew the charge and the accused remained in custody, not--withstanding the withdrawal of the charge, pending the trial of the other accused and hence there being no legal dis--charge Mohendra could not he examined ors an approver. The said Belich considering a number of decisions observed as follows: - "The Magistrate again ought not to have taken any part in tyre tendering of pardon by the local Government, because in his capacity as a Magistrate he had no jurisdiction to tender pardon in a case under section 401, I. P. C.There is then the further irregularity that the Magistrate omitted to record an order of discharge when the Public Prosecutor withdrew the charge. It appears from the affidavit of one Nadir Hossain submitted to us on behalf of the Crown that Mohendra Bind was not enlarged after the withdrawal under section 494, of the case against him, but he was kept in custody notwithstanding the withdrawal of t1w charge pending the trial of the other case, in which aim) he was to be examined as an approver. In Reg. v. Hamanta it has been held that the evidence given by a person to whom pardon has not been lawfully granted is not relevant, that person not having been acquitted, discharged or convicted. In Emperor of India v. Asghar All the evidence of an accomplice to whom pardon had been irregularly tendered was held to be irrelevant and inadmissible. The learned Judge in the latter case relied on Reg. v. Ilamantu and Reg. v. Remedios observing "after the offer to him (tile accomplice) of a pardon, he was, under the provisions of section 347, detained in custody, pending the termination of the trial, and his position as one under accusation of an offence was in no way changed when he appeared before the Judge, and could not be altered until he had been discharged, acquitted or convicted, and with reference to the express provisions of section 345, being an accused person so long as he was in that position, he could not be put on his oath or examined as a witness in the case in which he was accused."
33. Judging by these authorities the evidence 'of Mohendra Bind would appear to be wholly inadmissible against the other persons accused in the case. In any view of the case the tender of pardon was illegal and the man was neither formally acquitted nor discharged. He continued to be as before in the clutches of law, and to all intents and purposes an accused."
34. The observations quoted above indicate that an accused not legally discharged or lawfully tendered pardon either under section 337 or 494, Cr. P. C., continues to be as before in the clutches of law and to all intents and purposes an accused. He G cannot be administered oath, or examined as a witness in the case and his evidence is wholly inadmissible against the other accused persons.
35. The same Bench, however, following some other old decisions, further observed in the case as follows:-- "Though not legally tendered pardon, discharged or acquitted, the proceedings show that he was not tried along with the other persons accused with him. He could thus be tendered as a witness and examined on oath. In Queen Empress v. Mona Puna, Jardine, J. Held that the evidence of an accomplice illegally discharged by the police was admis--sible. In Empress v. Durant, Gandu, J.
36. Allowed an accomp--lice, who was being separately tried, to be called as a witness for the same offence. Such a view is in accordance with the rule in England, and it seems to us that Mohendra Bind having ceased to he tried along with the other persons, though net formally discharged, might if the authorities cited be correct in applying the English law in this country, be examined as a witness on oath. If we eliminate from our con--sideration the irregular proceedings that ended in the examina--tion of Mohendra Bind as witness, if we suppose that he con--tinued to be one of the accused, though for the purpose of being examined as a witness against whom the prosecution was withdrawn, with the possibility of its being revived at any time, he might, under the above authorities be a competent witness. Neither the tender of conditional pardon by the local Government even if it was actually tendered, nor a conditional pardon tendered by the Magistrate could be efficacious in the matter. The withdrawal of the prosecution may be the only ground for holding that Mahendra Bind might he examined as a witness on oath against the appellants, but it is doubtful, having regard to the circumstances under which the withdrawal was made, leaving the witness still in vinculis, whether it would so operate."
37. The passage no doubt, lends support to the view that an accused not legally discharged or tendered pardon might be examined as a competent, if he was not tried along with the order person accused with him. But in that case, the Court ultimately discharged the evidence of Mohendra as his badcharacter and strong desire to get an immunity for himself at the sacrifice of the other accused prevented the Court to place any reliance on him. One thing to be noted here is that the prosecution in that case, unlike the present one, took steps to withdraw the charge against Mohendra Bind under section 494, C r. P. C In the case of Keshab Vasudeo Kotikar v. Emperor (1) a Division Bench of Bombay High Court following the last part of the decision reported in Banu Singh v. Emperor held that section 342, Cr. P.
38. C. Applied only to a person who was on trial before a Court at the time and he could be so brought before tile Court only after process had been issued by the Magistrate against him under section 204, Cr. P. C. And the mere inclusion of his name in the complaint could not intake him an accused person for the purpose of section 342, Cr. P. C. And hence his evidence was admissible.
39. This case laid down that an accused person not sent up for trial was not strictly an accused in the case and he could be examined as a witness in the trial against the co-accused and his evidence was admissible. The Court, of course, cautioned that the evidence of such witness would be of very little weight.
40. A careful reading of the decision will show that no body, except the convict was arrested by the police in that case. A number of persons Mere involved in the misappropriation of public money.
41. The police during the investigation got some evidence against Laulkar and Limaye but did not send them up for trial and submitted charge-sheet only against the convict Kesltab and some others, although Laulkar and Limaye were named in the complaint and some materials were discovered against them. They were not arrested in the case nor released on bail by any Magistrate. The question of recording any confession, from them did not arise. Thus the facts of that case were completely different from the facts of the present case.
42. In that case also the learned Chief Justice observed that the procedure adopted by the police was not justified and the learned Magistrate, when noticed that two persons described as accused not sent up for trial were among the witnesses, ought to have had those two persons arrested and brought before him. The learned Judge also observed that in the circumstances of the case, the proper course for the police was to take recourse to section 337 or 494, Cr. P. C. And to examine Laulkar as an accomplice in the case. Where that improper course was adopted, the evidence of the accomplices so obtained was entitled to very little weight.
43. There are also other decisions where the question in issue was considered-vide AIR 1919 Cal. 1021, AIR 1920 Nag. 255, AIR 1925 Rang. 122 and AIR 1938 Born. 481. But in none of those cases the accused examined as a witness made a judicial confession or was produced before the Court or Tribunal thrice for passing judicial orders, as happened in the present case. In most of those cases, the person examined was not at all arrested by the police or produced before the Court and even if
(1) 36 Cr. L J 937 set up for trial, the prosecution prayed for splitting up his ease for separate trial But in the instant case, although Abdul Matin was an accused for all purposes the prosecution did not send him up for trial nor took any step for his separate trial. The present case is thus one of different nature.
44. In all the above cases, it seems the Courts proceeded on the basis that a person becomes an accused When lie is under trim and tinder examination of the Court and that unless one is sent up for trial and actually under trial and examination of the Court, he is not an accused in the case and he can be sworn in. "This definition of the word "accused" may hold good to me the purpose of section 342, Cr. P. C. Which contemplates only the accused facing trial or enquiry. But apart from section 342, there are other sections In the Code which convey the sense that a person against whom an accusation has been made but against whom no process has issued may also he an accused. The word "accused" has been mentioned in several sections of Chapter XIV of the Code of Criminal Procedure.' Sections 337, 338 and 343 of the Criminal Procedure Code also speak of the accused. The words "with a view to obtaining the evidence of . . . Tender pardon" mentioned in sections 337 and 338 are very significant.
45. Section 337, Cr. P. C. Had been amended in 1923. Before the amendment of section 337 in 1923, it was open to contend that a person could not be treated as an accused unless he was produced before the Magistrate for enquiry or trial. But after the amend--ment, it seems, a person against whom there is evidence also be--comes an accused person even during the investigation. In my opinion, in view of the provisions of Chapters XIV and XXIV of the code a person against whom there is an accusation and some evidence including a confession in the police investigation is an accused and he cannot be sworn in under the Oaths Act as found earlier.
46. The position may however, be different in a case where the person examined as a witness has just been mentioned in the corn plaint and no action has been taken against him by the police and consequently he has not been arrested or produced before the Court. But in a case where the person has beets arrested remanded and made judicial confession and was produced before the Court thrice and bailed out by a Magistrate be is un---doubtedly an accused. In each case, the question like the present one shall be decided by the attending circumstances and the facts of the case.
47. Thus considering all aspects of the matter, I am of the view that P. W. 2 Abdul Matin has been improperly and illegal --examined in the case and his statement in Court is inadmissible in evidence.
48. The evidence of Abdul Matin is, therefore, liable to be excluded from consideration. The other evidence in the case, though not sufficient to warrant conviction against the accused, cannot be reconciled or brushed aside. There are also good number of incriminating alamats and documents on records and from them a presumption against the accused can be drawn under section 24 of the Foreign Exchange Regulation Act. A conviction on presumption or suspicion is not safe. But in view of the incriminating alamats and exhibits formally brought on record, to do not think that the accused are entitled to acquittal at this stage. In the circumstances, in my opinion, in the interest of Justice, the matter should go back to the original Court for com--pliance of the legal provisions and retrial of the accused persons according to law. In the case reported in 4 Cr. L J 145, in similar circumstances, the Court directed retrial.
49. In view of the order I propose to pass in this case, I do not like to enter into discussions of the other points raised by the learned Advocate for the appellants.
50. In result, the, appeal is allowed. The order of conviction and sentence is accordingly set aside. The case is sent back on remand to the original Court for retrial in accordance with law, in the light of the observations made above.