Order.- Crl.R.C. Nos. 1243 and 1244 of 1973 arise out of a common judgment rendered against the petitioners in both the cases, who were accused Nos. 1 and 2 in C.C. No. 3600 of 1973 on the file of the Court of the Chief Presidency Magistrate Egmore. Cri.R.C. No. 274 of 1974 is one filed by the Union of India represented by the Assistant Collector of Customs, Preventive Department, Madras-1, for enhancement of the sentence imposed by the Chief Presidency Magistrate against the petitioners in the above said two revision petitions, in C.C.No. 3600 of 1973. 2. For the sake of convenience, in this order, I shall refer to the petitioners in Criminal Revision Case 1243 and 1244 of 1973 as accused 1 and 2 respectively, and the petitioner in Criminal Revision Case No. 274 of 1974 as the complainant. 3. The complainant filed a private complaint against the two accused viz., B. Rangiah Chetty (accused 1) and S. Ahmed Yasin (accused 2) for offences punishable under section 135 of the Customs Act and section 85 of the Gold Control Act. The allegation against the first accused is as follows: On 9th December, 1970 at about 4-45 p.m., he was intercepted by the officers of the Customs Department at the State Transport Express Bus Stand, Esplanade, when he was about to board the bus bound for Madurai. He was taken to the Traffic Manager’s room where he was searched. The search revealed a cloth belt tied around his waist underneath his underwear which on examination was found to contain eleven bars of gold of foreign origin in two paper packets. He had no licence or permit entitling his legal possession of the contraband goods. The further case of the prosecution is that on the information furnished by this accused, the officers of the Customs House, Madras, searched a portion in the second floor of premises No. 13, Post Office Street, George Town, Madras, in the occupation of the second accused at 10-30 p.m. on the same day, and during that search, the second accused was not present in the house. The search resulted in the recovery of 25 bars of gold of foreign origin wrapped in a newspaper and kept underneath the mattress of a steel cot and the second accused had no permit or licence or any other document entitling his legal acquisition of the said contraband goods. The search resulted in the recovery of 25 bars of gold of foreign origin wrapped in a newspaper and kept underneath the mattress of a steel cot and the second accused had no permit or licence or any other document entitling his legal acquisition of the said contraband goods. The prosecution has examined five witnesses and recorded common evidence as both of them were tried together. P.W. 1 is a preventive officer attached to the Madras Customs House. He speaks about the interception and search of the first accused. It is his evidence that the first accused had three Express Bus tickets (M.O. 3 series) for travelling from Madras to Trichy with his mother and his younger brother, and that he was wearing a cloth belt(M.O. 1) from which the paper packets containing 11 gold bars of foreign origin marked as M.O. 2 series were recovered. As the first accused was not in possession of any permit or licence entitling his legal possession of the said M.O. 2 series, P.W 1 seized M.Os. 1 to 3 series under a mahazar Exhibit P-2 in a reasonable belief that they were smuggled goods. P.W. 2 and one Thiru Edward Thambi have both attested the search-list Exhibit P-1 and the mahazar Exhibit P-2. Further, it is the evidence of P.W. 1 that he took accused with the material objects recovered, to the Customs House, where accused 1 himself has written down a statement- Exhibit P. 7 in English and handed it over to P.W. 1 after having signed in. M.O. 2 series were sent to the Chemical Examiner for test, under a memo, by P.W. 5. Exhibit P-11 is the report of the Chemical Examiner. 4. On the information furnished by the first accused, P.W. 1 would say that he proceeded to premises No. 13, Post Office Street, George Town, Madras, at about 10-30 p.m. on 9th December, 1970, armed with the search warrant Exhibit P-3. It is alleged that the second accused was a tenant in respect of the second floor of the said premise;. P.W. 1 searched the portion in the occupation of the second accused in the presence of P.W. 4, the owner of the said premises, and one Radhakrishnan. The second accused was not present at the time of the search. But, one Ibrahim Shah, a cook working under the second accused, was present. P.W. 1 searched the portion in the occupation of the second accused in the presence of P.W. 4, the owner of the said premises, and one Radhakrishnan. The second accused was not present at the time of the search. But, one Ibrahim Shah, a cook working under the second accused, was present. The search made by P.W. 1 resulted in the recovery of 25 bars of gold (M.C. 4 series) with foreign markings, from underneath the mattress of an iron cot. Besides the gold bars, there were some other materials such as two transistors, a gold ring with the letter “Y” in Enamel, a rent receipt for Rs. 160 in the name of the second accused (Exhibit P. 4), an envelope containing three pass-port size photographs of the second accused (M. O. 5 series) and an application form for obtaining pass-port along with enclosures (Exhibit P. 5 series). P.W. 1 seized all these articles under Exhibit P. 6, attested by P.W. 4 and another. P.W. 3, the Senior Preventive Officer, Customs House, Madras, obtained a statement Exhibit P. 8 in Tamil from the second accused on 17th December, 1970. These M.O. 4 series were also seat by P.W. 5 to the Chemical Examiner for test, under a memo Exhibit P. 12. Exhibit P. 13 is the report of the Chemical Examiner. 5. Show cause notices under Exhibits P. 14 and P. 15 under the Customs Act and the Gold Control Act were issued to the first and second accused respective’y Exhibits P. 16 and P. 17 are the replies dated 7th August, 1971 and 20th July, 1971 sent by accused 1 and 2 respectively. Exhibit P. 18 is another reply dated 24th July, 1971 by the Authorised Consultant of accused 2. The Additional Collector of Customs passed the orders of adjudication under Exhibits P. 19 and P. 20, as per the provisions of the Customs Act and the Gold Control Act respectively, confiscating the contrabands) (M.O. 2 Servies) and M.O. 4 series, recovered from the respective accused and also imposing penalties on both of them. After obtaining sanction from the Collector of Customs as per Exhibits P-21 and P-22, this complaint has been laid against these two accused. 6. After obtaining sanction from the Collector of Customs as per Exhibits P-21 and P-22, this complaint has been laid against these two accused. 6. When questioned under section 342, Criminal Procedure Code, accused-1 practically admitted that he gave Exhihit P-7 on his own volition and that another statement given by him has not been produced by the Customs Authorities and further he pleaded that he might be excused for the crime committed by him. The second accused has denied his complicity in the crime, but would claim the gold ring, the transistors, the rent receipts and the photographs to have belonged to him. He has also stated that he has nothing to do with the gold bars (M.O. 4 series) and that he is not guilty of the offence with which he stood charged. To the charge framed against accused 1 and 2 respectively under section 135 (b) (ii) of the Customs Act read with section 8 (1) of the Foreign Exchange Regulation Act, 1947 and section 85 (ii) of the Gold Control Act, the first accused pleaded guilty; but the second accused pleaded not guilty to the charge. P.Ws. 1 to 5 were then recalled at the instance of the second accused and cross-examined. But, the second accused did not examine any defence witness on his behalf. The trial Court, after assessing the evidence, has found both of them guilty of the respective charges framed against them and convicted them thereunder and sentenced each of them to undergo rigorous imprisonment for six months on each count and directed the sentences to run concurrently. 7. Criminal Revision Case No. 1243 of 1973 is admitted only on the question of sentence, though the learned Counsel for the petitioner has raised various points in the memorandum of grounds. But, as there is a revision petition for enhancement of the sentence and show-cause notice has also been issued to him the revision-petitioner now challenges the very same conviction, as adumbrated under section 439 (6), Criminal Procedure Code. Now, Mr. Sunder, appearing for the petitioner, has vehemently argued that the entire trial is vitiated by misjoinder of parties. In Criminal Revision Case 1244 of 1973, Mr. V.T. Rangaswami, Iyengar and Mr. Now, Mr. Sunder, appearing for the petitioner, has vehemently argued that the entire trial is vitiated by misjoinder of parties. In Criminal Revision Case 1244 of 1973, Mr. V.T. Rangaswami, Iyengar and Mr. K. Ramaswami appearing for the petitioner, have raised a legal question viz., that the entire trial is vitiated by misjoinder of parties and as such the conviction passed by the trial Court should be set aside, besides the other main ground that the evidence adduced by the prosecution in this case cannot support the charge that the petitioner was in possession of the said gold bars, contravening the provisions of the Customs Act and the Gold Control Act. 8. Before going to the other points raised in the memorandum of grounds in both the revision petitions, I have to give a finding on the common legal contention raised by the Counsel appearing for both the accused viz., whether the joint trial conducted in respect of both the accused is vitiated by misjoinder of parties and as such whether the entire convictions against both the accused have to be quashed. If the accused succeed on this legal question, then there is no need to go into the other points raised by them as my observations in respect of the other points may influence the mind of the trial Judge in case of remand. 9. For a joint trial of several persons charged with different offences, the essential requirement is that all the offences should have been committed in the course of a single transaction. If the offences are not parts of the same transaction and the happening resolves itself into two or more separate ones, separate trials would be mandatory and not merely a matter of convenience. Where each offence is a completed act in itself and the original design was accomplished so far as that act was concerned before the next offence was embarked upon, there is no community or continuity. In cases of same transaction, covered under clauses (a) and (d) of section 239 of the old Code, the words “same transaction” comprise all the acts of all the persons concerned done in the course of carrying through the affair in question and the prima facie test is community and continuity of purpose. In cases of same transaction, covered under clauses (a) and (d) of section 239 of the old Code, the words “same transaction” comprise all the acts of all the persons concerned done in the course of carrying through the affair in question and the prima facie test is community and continuity of purpose. If the above test is not satisfied, then a joint trial of the accused is tantamount to an illegal one and therefore the convictions made as a result of the joint trial have to be set side and a re-trial ordered. If at all, two or more accused are to be tried together, it could be only by invoking the provisions under section 239, Criminal Procedure Code. As I have already mentioned above, to attract the said provisions, the activities of these two accused must be in the course of the same transaction. Here, the first accused was found in possession of 11 bars of gold at the Esplanade Bus Stand and was arrested at 4-45 P.M. The premises of the second accused was searched at about 10-30 p. m. and 25 bars of gold were seized therefrom. According to the prosecution, the search of the premises of the second accused was made in pursuance of the information furnished by accused-1. Besides the evidence of P. W. 1 on this aspect, there is the confessional statement of accused-1 marked as Exhibit P-7. Apart from these two pieces of evidence, there is no other material to shr,w that there was any connection or nexus between these two accused in the transsactions in question. The possession of the first accused of the gold on his person and the possession of gold by accused 2 in his premises would constitute two separate, independent and distinct offences committed by the two accused, which offences could be tried together only if it could be shown that these two offences were committed in the course of the same transaction. 10. The learned trial Magistrate himself though he tried both the accused in a single calendar case No. 3600 of 1973. has framed independent and separate charges in respect of both the accused. 10. The learned trial Magistrate himself though he tried both the accused in a single calendar case No. 3600 of 1973. has framed independent and separate charges in respect of both the accused. In framing the charges against both the accused, it seems that the Magistrate himself was of the view that the accusations made against the two accused were in respect of two different and distinct offences, and therefore he has framed a separate charge under two heads as against accused-1 for the independent possession of gold, violating the provisions of the Customs Act and the Gold Control Act, and another separate charge under two heads as against accused-2 for possession of gold in the premises in, his occupation, violating the above said provisions. This question was fully considered by the Privy Council in Babulal Choukhani v. Emperor1, where it has been held that the point of time in the proceedings at which it is to be determined whether the condition that the offences alleged had been committed in the course of the same transaction has been fulfilled or not, is at the time when the accusation is made and not when the trial is concluded and the result known. In Narayana Bhatta v. King2, a Full Bench of this Court, on a reference made by a Division Bench, while dealing with section 239 (d) has observed that no general rule can be laid down as to when different offences can be said to have been committed in the course of the same transaction but the question when it ari5es must be determined on the facts of the particular case. The view taken by the Privy Council in Babulal Choukhani v. Emperor1, has been reiterated by the Supreme Court in K. Kunhammad v. State of Madras3. As I have discussed supra, in the instant case, the trial Magistrate, at the time of framing the charges against these two persons, was of the view that the accusations made against both the accused had arisen out of two different transactions and that was why separate charges were framed against each of the accused. Mr. Srirangan, appearing on behalf of the Public Prosecutor of the Central Government, has not seriously disputed the above, fact, viz., that these two offences do not constitute a single transaction. 11. Mr. Srirangan, appearing on behalf of the Public Prosecutor of the Central Government, has not seriously disputed the above, fact, viz., that these two offences do not constitute a single transaction. 11. The next question for consideration is whether on account of the joint trial, any prejudice has been caused to the accused, so as to vitiate the entire trial. Mr. K. Ramaswami, appearing for the second accused, submits that Exhibit P-7 is a confession given by accused-1, wherein he has made certain allegations against the 2nd accused and has connected him with the affairs relating to his possession of the gold bars. Thus, the accusations in both the cases are inextricably mixed up. He further contends that accused-1 in his statement under section 342, Criminal Procedure Code, has also made mention of Exhibit P-7, which is marked as one of the exhibits in the joint trial. According to him, P.W. 1 in his evidence, has stated that he took accused-1 to the Customs House and on the information given by him, he proceeded to the premises in the occupation of accused 2 and made a search, and therefore the averments in Exhibit P-7 and the evidence of P.W. 1 that he traced accused-2 on the information griven by accused 1 should have and in fact had prejudiced the mind of the trial Magistrate against the second accused since both of them were tried jointly. After going through the evidence of P.W. 1. I find that Exhibit P-7 was recorded from accused-1 after the search of the premises of accused-2. Hence, it is clear that the confession was made by accused-1 after the entire facts relating to both the accused had come to the knowledge of P.W. 1. Though I am not going into the question of the truth or otherwise of the prosecution case that accused-1 gave oral information at the first instance which led to the search of the premises in the occupation of accused-2 as spoken by P.W. l, the fact remains that Exhibit P-7, the confession given by ‘accused-1 contains allegations about accused-2 also. It is true, as seen from the judgment of the trial Court, that the learned trial Magistrate has dealt with the evidence standing against accused 1 and 2 separately and has not brought into discussion the averments contained in Exhibit P-7 as against accused-2, while dealing with his case separately. It is true, as seen from the judgment of the trial Court, that the learned trial Magistrate has dealt with the evidence standing against accused 1 and 2 separately and has not brought into discussion the averments contained in Exhibit P-7 as against accused-2, while dealing with his case separately. Relying on this fact. Mr. Srirangan would contend that no prejudice has been caused to the accused and in fact the accused have not made any complaint of any prejudice at the earliest point of time and therefore, according to him, it cannot be said that the accused have suffered any prejudice on account of the joint trial, and the misjoinder of persons is curable under section 537, Criminal Procedure Code. I am unable to agree with the contention of Mr. Srirangan. It is true that there are a number of decisions supporting the view that an objection to mis-joinder of persons or charges in violation of the provisions of sections 233 to 239, Criminal Procedure Code, is to be taken at an early stage of the trial, so that there may be time enough to rectify the error. But, it is well settled by the Supreme Court that where such objection is raised for the first time only in appeal or revision, what the appellate or revisional Court has to consider is whether prejudice has in fact been caused to the accused by reason of such mis-joinder. It has been held in Brichh Bhuian v. State of Bihar1, that after the amendment of 1955. misjoinder of charges (which includes misjoinder of persons also), is saved by section 537, Criminal Procedure Code, if it has not occasioned a failure of justice. Then, in another case viz., State of Andhra Pradesh v. Ganeswara Rao2, the Supreme Court has held that the appellate Court or the revisional Court has to consider whether prejudice has in fact been caused to the accused. Mr. Then, in another case viz., State of Andhra Pradesh v. Ganeswara Rao2, the Supreme Court has held that the appellate Court or the revisional Court has to consider whether prejudice has in fact been caused to the accused. Mr. K. Ramaswami would contend that Exhibit P-7 and the evidence of P.W. 1 about the information given by accused 1 leading to the seizure of the gold from the premises in the occupation of accused-2 came to be admitted because of the trial being a joint trial, and therefore prejudice had been caused as it is likely that the mind of the trial Magistrate, has been influenced and that but for the joint trial this evidence would not have been admitted. Further, he would contend that at any rate prejudice has got to be presumed in a case of this nature, where a piece of evidence would not have been admitted but for the trial having been made joint and where the circumstances do not prima facie indicate the offences having been committed in the course of the same transaction. Horwill, J., in Moongan and others v. Mir Roshan Ali Sahib1, has held that where there is a misjoinder of accused, there is always a possibility that the Court would be unconsciously prejudiced by evidence that would be irrelevant if the accused were tried separately. For the foregoing discussions, I am of the view that the contention raised by M.K. Ranjaswami that prejudice has been caused to the accused in this case by the joint trial, has considerable force. 12. I therefore conclude that there is mis-joinder of persons, which amounts to a manifest illegality, and prejudice has been caused to the accused by this joint trial, and the trial having thus been conducted in a manner prohibited by law, it has to be held to be altogether illegal. In view of this finding on the question of law and since I propose to remand the matter for fresh trial, I do not wish to go into the other questions involved in this case. 13. Hence, Criminal Revision Cases Nos.1243 and 1244 of 1974 are allowed and the convictions and sentences passed against both the accused are set aside, and C.C.No.3600 of 1973 is remanded for fresh and separate trials in respect of each of the accused. 13. Hence, Criminal Revision Cases Nos.1243 and 1244 of 1974 are allowed and the convictions and sentences passed against both the accused are set aside, and C.C.No.3600 of 1973 is remanded for fresh and separate trials in respect of each of the accused. The cases will be disposed of according to law by the V Metropolitan Magistrate, Madras, uninfluenced by any observation made by roe in justification of this order. 14. In view of my allowing the above two criminal revision cases remanding the case for re-trial, the question of enhancement of the sentences does not arise at this stage and hence Criminal Revision Case No. 274 of 1974 is dismissed.