CASE NAME	Major EG Barsay v. State of Bombay, [1962] 2 SCR 195
CITATION	1961 AIR 1762, 1962 SCR (2) 195, 1962 MADLJ(CRI) 153, 1962 (1) SCJ 231
COURT	Supreme Court of India
BENCH	Hon’ble Justice K. Subbarao and Justice Raghubar Dayal
PETITIONERS	Major EG Barsay
RESPONDENT	State of Bombay
DECIDED ON	decided on 24th April, 1961

INTRODUCTION

A collaboration of two or more people for an illegal purpose is called a conspiracy. A number of people who are directly or indirectly involved in the conduct of any illegal act or omission are subject to punishment under the Indian Penal Code, 1860’s regulations regarding the offense of criminal conspiracy. The Black Law Dictionary states Criminal conspiracy is defined as the combination or confederacy of two or more people formed with the intention of committing some illegal or criminal act through their combined efforts or some act that is lawful in and of itself but becomes illegal through the coordinated action of the conspirators, or the intention of using illegal or criminal means to commit an act that is not illegal in and of itself. It is possible to establish the existence of a criminal conspiracy using direct or indirect evidence. Since a criminal conspiracy typically begins in a covert and private context, it is nearly impossible to gather solid proof regarding the criminal conspiracy’s founding date, members, purpose, or intended course of action. Essentially, everything here is based on inference. 

The Indian Supreme Court considered the allegations of criminal conspiracy against Major Barsay and others under Section 120B of the Indian Penal Code (IPC) in the matter of Major E.G. Barsay vs. The State of Bombay. As second-in-command, Major Barsay was allegedly instrumental in an alleged plot to smuggle significant military stores from the Dehu Vehicle Depot in 1954. Along with other co-accused, he was accused of masterminding the scheme to pilfer and resell military kits for personal gain.

FACTS OF THE CASE

Col. Rao oversaw Dehu Vehicle Depot in 1944, which handled military supplies. Col. Sindhi and Brig. Wilson was his superior. First accused, Major Barsay was second in command and oversaw the stores division, while Major Nag oversaw administration. Without informing Col. Rao, accused No. 2 Kochhar was placed in control of the kit stores by Barsay, and accused No. 3 Avatar Singh was moved to help him. An ex-colonel named Saighal, accused No. 4, Devichand and Ramchand Gangwani, accused Nos. 5 and 6, and Major Barsay plotted to carry expensive military kits from Shed No. 48 to Bombay for illicit sale. In December 1954, while Col. Rao was on leave, the scheme was scheduled to be carried out. Barsay came up with a scheme to inventory kits in a different shed, which opened up a way to smuggle supplies using military trucks. With fake documents by Kochhar, he recruited Jamadar Kundanlal and Lawrence, the acting security officer, to help smuggle past the main gate. 

Despite a few obstacles, the operation’s first phase started on December 20, 1954. Ordinary stores were loaded onto a truck, and then valuables were loaded onto another vehicle. Lawrence and the accused No. 3 assisted in planning the smuggling, but they disregarded Maj. Barsay’s order to stop the scheme as they left the gate. After being transshipped, the stolen goods were waiting for accused Nos. 4, 5, and 6 at a civilian lorry close to Talegaon. When police arrived on the location, they foiled the operation, stopping any more smuggling and apprehending the conspirators.

ISSUES RAISED

• Whether the accused can be held liable under Sec. 120B of IPC for the offense of criminal conspiracy?
• Whether the accused can be held liable for an offense under s. 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act?

ARGUMENTS FROM BOTH SIDES

Arguments from the side of the appellant

• The defense contended that Lawrence was the one who “abducted” the truck containing the items, that all the defendants were innocent, and that he occasionally gave false accounts to higher-ranking officials, fabricating stories to support the conspiracy allegation. 
• The accused should have only been prosecuted by a court martial in accordance with the Army Act, and the Special Judge Poona lacked the authority to consider the offenses against which they were charged.
• A few offenses listed in section 6 of the Criminal Law (Amendment) Act, 1952, do not apply to the accused in this particular case.
• The prosecution has not been able to prove that the Central Government authorized the appellant’s prosecution under section 6(1) of the Prevention of Corruption Act. Section 6(1)(a) of the Prevention of Corruption Act states that “except in cases where a person employed in connection with Union affairs is not removable from their office without the approval of the Central Government, no court shall take cognizance of an offense punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or under subsection (2) of section 5 of this Act, alleged to have been commuted by a public servant.”

Arguments from the side of the respondent

• The counsel on the behalf of the state asked the Court to examine the evidence against Lawrence as e contented it to be a decoy and a trap witness.

JUDGMENT

The court determined that there was sufficient proof to link the initial defendant to the plot of smuggling military supplies out of a stockpile. The court determined that there was not enough evidence to prove the second accused person was a conspirator. The court determined that there was insufficient evidence to prove the third accused person’s guilt beyond a reasonable doubt. The Special Judge’s ability to consider the charge was deemed competent by the court. The court determined that accusing public employees and non-employees of engaging in a criminal conspiracy to commit specific crimes was lawful. The court determined that Lawrence’s testimony was trustworthy and supported by relevant details. The court determined that supporting evidence and approver testimony needed to be taken into account together. 

CONCLUSION

The prosecution’s successful demonstration of a conspiracy to smuggle military supplies led the Supreme Court to uphold Major Barsay and the co-accused’s conviction under Section 120B IPC. The Court determined that the evidence was adequate to establish the accused’s participation in the unlawful plan, notwithstanding the fact that it was primarily circumstantial.

The Court emphasized that as long as it can be demonstrated that all conspirators were part of a common plan, it is not required for every conspirator to carry out an overt act in order to establish a conspiracy. In this instance, the accused’s coordinated acts, the logistical setup, and the arrests made during the commission of the crime proved the presence of such a plot. 

 Under s. 52 of the Act, any person subject to the Act who commits theft of any property belonging to the Government or to any military, naval, or air force mess, band, or institution, or to any person subject to military, naval, or air force law, or dishonestly misappropriates or converts to his own use any such property, or commits criminal breach of trust in respect of any such property, or does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person shall, on conviction by court-martial, be liable to suffer im- imprisonment for a term which may extend to ten years or such less punishment as is in the act mentioned. Section 2 (xxv) says that all words and expressions used but not defined in the Army Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that Code. The section does not create new offenses but prescribes severer punishments if a court-martial tries the said offenses.

The ruling upheld the legal precept that once an agreement to perform an illegal conduct is established, members may still be held accountable even if some or all of the conspiracy’s planned actions are not carried out. Conspiracy is defined as an ongoing offense. Major Barsay’s conviction demonstrated how seriously courts take criminal conspiracies, particularly when they involve military officials tasked with protecting public resources. The ruling established a precedent for identifying the type of evidence needed to establish conspiracy and acknowledged the importance of circumstantial evidence in these situations.