(1.) THIS application under sections 435, 439, 561a/or section 526 of the Code of Criminal Procedure read with Article 227 of the Constitution of India is directed against an order dated the 2nd November 1972 passed by Sri R. Samajder, Presidency Magistrate, 3rd Court, Calcutta in case No. C/907 of 1968 and/or for transfer of the said case No. C/907 of 1968 pending in the said court.
(2.) THE Rule was issued only to show cause why the order dated the 2nd November, 1972, as referred to in the petition should not be set aside but the prayer with regard to transfer was not pressed at the time of obtaining the Rule.
(3.) THE facts of the case briefly state dare that the petitioner who is an Italian national has been staying in India for a long time and that he came to India through the Palam Airport and obtained clearance of his baggages from the Custom Officials. But on the 26th February, 1968, on the allegation that 83 strings of coral beads, 6 gold rings set with coral, one pair of gold ear tops with coral and one pair of gold Cuff links were found in his possession in room No. 15 in Carlton Hotel, Calcutta, he was arrested by the Assistant Collector of customs and produced before the Chief Presidency Magistrate, Calcutta who took cognizance of the offence under Section 135 of the Indian Customs Act, 1962, and an amalgamated charge under Section 135 of the Act was framed against him. Against that order framing the amalgamated charge, the petitioner moved this Court in its criminal revisional jurisdiction and obtained a Rule. In that revision matter (Crl. Revision No. 842/68) the amalgamated-charge as framed by the learned Magistrate was set aside and the case was sent back for framing a fresh charge according to law. The learned Magistrate thereafter framed charges both under clauses (a) and (b)of the Act. Thereafter the petitioner again moved this Court on the ground that it was not proper for the Magistrate to frame charges under both the clauses (a) and (b) of the Act and in the Crl. Revision No. 441/69 this court set aside the charge that was framed under clause 155 (a) of the Act and sent the case back to the learned Magistrate and directed that the Magistrate should proceed only on the charge made under Section 135 (b)of the Act. Then again when the case was sent back to the learned Magistrate the petitioner raised an objection to the court's jurisdiction to try the case. The learned Magistrate held that the charge as framed was proper, but he did not entertain the contention of the defence with regard to the point that he had no jurisdiction to try the case. Then the petitioner again moved this court in criminal revision 177/72 and in this revision case this Court held that the charge framed under Section 135 (b) was proper and it was further held by this court that the objection as to question of jurisdiction was not properly considered by the learned Magistrate. The case was sent back by this court and the learned Magistrate this time considered the question of jurisdiction and the objection raised by the defence. With regard to the jurisdiction the learned Magistrate held that he had jurisdiction to try the case under Section 135 (b) of the Act. Being aggrieved by the order as above the present application for revision has been made in which Rule as aforesaid has been issued for setting aside the impugned order. That Rule has come up for hearing before us and has been heard at length on the submissions made on behalf of the respective parties.