NARAYANDAS BHAGWANDAS MADHAVDAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an appeal on a certificate granted by the Calcutta High Court. Two points had been urged before the Bench of the High Court which granted the certificate. The first was that the search conducted by the Customs officials which had resulted in the detection of the currency notes on the person of the appellant had not been a legal search and consequently no proceedings could be based on the purported detection made. This point was rejected by the Bench. The second point urged on behalf of the appellant was that on 16-9-1952, when the Magistrate issued the warrant of arrest against the appellant he could not have done so without having previously taken cognizance of the offence. Since, however, the authorisation required under S. 23 (3) of the Foreign Exchange Regulation Act (VII of 1947) was not obtained till the 27th of January, 1953, the cognizance taken by the Magistrate on 16-9-1952, was without jurisdiction. If the initiation of the proceedings was with- out jurisdiction, the conviction could not stand. The High Court thought that the contention of the appellant raised a question of law and granted the requisite certificate for appeal to this Court.

(2.) The prosecution case was that on 7-9-1952, the appellant went to Dum Dum Aerodrome with a view to boarding a plane for Hong Kong. The plane was due to leave the airport at 8.30 a. m. The appellant had to go through the customs formalities before he could board the plane. On an enquiry by the Customs Officers as to whether he had any other articles besides what he had declared in the declaration form, the appellant answered in the negative. His baggage was then examined but no objectionable article was detected therein. The Customs Officers however, noticed a pouch of somewhat unusual size which aroused their suspicion. Thereafter, the appellant was subjected to personal search, When they were about to search his person he let drop his trousers. The appellant was requested to lift up the trousers and wear them again which he did. On the search of the trousers a sum of Rs. 25,000 in Indian currency notes was discovered in two secret pockets. They were concealed from below the surface and opened from the inside. On 11-9-1952, the Reserve Bank of India authorized Inspector S. B. Mitra of the Special Police Establishment, Calcutta to make a representation to the Additional District Magistrate, 24 Parganas (hereinafter referred to as the Additional District Magistrate) for permission to proceed against the appellant as required, under S. 19 (3) of the Foreign Exchange Regulation Act, 1947. Mitra thereupon applied to the Additional District Magistrate on 16-9-1952, for a search ' warrant to be issued which was allowed, Mitra on the same date also applied to the same Magistrate that a warrant of arrest might be issued against the appellant. This was also allowed and a warrant of arrest was issued by the Additional District Magistrate and petitioner was thereafter arrested and released on bail with a direction to appear before the Additional District Magistrate on September 9. On September 19 he was released on bail by the Additional District Magistrate in the sum of Rs. 50,000 with 10 sureties of Rs. 5,000 each, On November 19, the Appellant asked for exemption from attending the court on the successive dates fixed for the case but the application was refused. On 27-1-1953, the Reserve Bank of India authorized Mitra to file a complaint against the appellant. On 2-2-1953, a complaint was filed against the appellant charging him with an offence under S. 8 (2) of the Foreign Exchange Regulation Act read with S. 19 of the Sea Customs Act and Notification No. FERA 105/55 RB dated 27-2-1951.

(3.) Thereafter, the appellant was tried by another Magistrate, Mr. Sinha, who acquitted him under S. 258 of the Code of Criminal Procedure. The currency notes which had been seized by the Customs Officials were directed to be released. Against the appellant's acquittal the State of West Bengal preferred an appeal to the High Court. The High Court allowed the appeal and convicted the appellant of the offence with which he had been charged. He was sentenced to pay a fine of Rs. 1,000, in default to suffer rigorous imprisonment for three months. The order of the Magistrate directing the release of the currency notes was set aside.