KANTILAL TAKHATMAL JAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners, who are the accused in Criminal Case No. 429/p of 1968 on the file of the learned Additional Chief Presidency Magistrate. 3rd Court, Esplanade, Bombay, have filed this application in revision praying for setting aside the order passed by the learned Magistrate on June 14, 1968, in the said case, rejecting an application of the petitioners requesting the Court to dismiss the case on the ground that the police had no power to file a charge-sheet in respect of the offence under Section 135 of the Customs Act. 1962 for which the accused are being tried.

(2.) THE few facts which are relevant to this application are as under : the two petitioners Kantilal Jain (accused No. 1) and Dinesh Desai (accused No. 2) claim to be traders. Petitioner No. 1 claims to be a broker in jewellery and petitioner No. 2 professes to carry on printing business. On the basis of some information received by the Officers of the C. B. I. Economic Offences Wing, they raided certain premises situate at 220-224 Kalbadevi Road. Third floor, Bombay on June 28, 1966. The petitioners were found in the premises. It is alleged by the prosecution that the petitioners were carrying on the business of smuggling of gold. The premises were in actual possession of petitioner No. 1 Kantilal Jain and his brother Motilal Jain. As soon as the officers raided the premises, it is alleged, Dinesh Desai, petitioner No. 2 rushed towards the gallery in a vain bid to escape, but he was chased and caught. There was a bag in his hand which contained 24 rectangular pieces of gold with foreign marking, viz. , Comuis Neoux Pheciux, Paris 10 tolas 999. In the main hall to the south of the place there was a wall clock. Petitioner No. 1 was sitting on a mattress. In the clock 18 rectangular pieces of gold with the same foreign markings weighing 10 tolas each were found. Fourteen rectangular pieces of gold with similar marking and weight were found below the mattress on which the petitioner No. 1 was sitting. There was also a cupboard on the right side of the place where Kantilal was sitting, and in the cupboard Indian currency valued at Rs. 9100 together with a piece of paper bearing accounts in Gujarati were found. Five hundred and sixty tolas of gold consisting of 56 rectangular pieces and the total currency of Rs 12,550 and the other documents were seized as a result of the raid by the C. B. I. , E O. W. Officers. After further investigation the sanction of the Collector of Central Excise purporting to be under Section 137, was taken by the said Police Officers. Motilal the brother of petitioner No. 1, died in a house collapse before the filing of the charge-sheet. The Inspector of Police, C. B. I. , E. O. W. , Bombay therefore filed a charge-sheet in the Court of the Additional Chief Presidency Magistrate, Esplanade, Bombay, on January 22, 1968 against the two petitioners alleging therein that the two petitioners were guilty of the offence under Section 135 of the Customs Act for being in possession of the said pieces of gold, which were smuggled. According to the prosecution both of them were guilty of the offence under Section 135 of the Customs Act read with Section 34 of the Indian Penal Code.

(3.) AFTER the accused appeared in the case and three adjournments of the case for some reason or the other were granted, on June 14, 1968, an application was filed on behalf of the accused praying that the case should be dismissed because the offence under Section 135 is a non-cognizable one in view of the provisions of Section 104 (4) of the Customs Act which lays down: