NAZIR GULAM RASOOL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ORAL JUDGMENT Through this revision, the petitioner impugns the order dated 17th December, 1991 passed by the Additional Sessions Judge, Greater Bombay in Criminal Revision Application No.116 of 1998 whereby the order dated 21.7.1987 passed by the Chief Metropolitan Magistrate, Esplanade, Bombay discharging the petitioner for offences under Section 135(1)(b) read with section 135(1)(i) of the Customs Act, 1962, Section 5 of the Imports & Exports Control Act, 1947 and Section 120-B IPC read with the above sections was reversed and he was directed to frame charges against the petitioner.

(2.) WHEN the case was called out in the first part of the day Mr. M.R. Kotwal learned counsel for the petitioner was absent. It was acordingly passed over. It was again called out after lunch. Still Mr. Kotwal was not present. Consequently with the help of Mr. I.S. Thakur, learned APP, I have decided the same.

(3.) THE learned Additional Sessions Judge in para 13 of the impugned order has given plausible reasons as to why at this stage the entire statement of Venketachalam P.W.4 cannot be discarded. In my view the said reasons are tenable and the learned Chief Metropolitan Magistrate at this stage when the issue to be adjudicated upon was whether charge should be framed or not erred in rejecting Venketachalam's statement in entirety. His approach in evaluating Venketachalam's statement was one which is adopted in determining whether the evidence was sufficient for conviction and not whether it was sufficient to frame a charge against the petitioner. Prima facie the view of the learned Additional Sessions Judge that the Chief Metropolitan Magistrate erred in rejecting Venketachalam's statement in entirely appears to be correct.