CHITALE,J. - (1.)Criminal Revision Application No. 687 of 1970 is preferred by accused No. 1 Jayantilal Kalidas Mehta, and accused No. 2, Bharatkumar Jayantilal, against the order passed by the learned Presidency Magistrate, 28th Court, Esplanade, Greater Bombay, on June 30, 1970, pro proceeding to frame charges against the two accused.
(2.)ON March 27, 1968, the Assistant Collector of Customs, New Customs House, Bombay, lodged the complaint, out of which this revision application arises, in the Court of the Magistrate mentioned above against the two accused and one more person, alleging offences under Section 120 -B, Indian Penal Code, Section 135 of the Customs Act, 1962, Section 5 of the Imports and Exports (Control) Act, 1947, Section 23 of the Foreign Exchange Regulation Act, 1947 and Section 417, Indian Penal Code. Subsequently, on July 6, 1968, another complaint was filed against the same persons by the Director of Enforcement alleging offences under Sections 23 and 23B of the Foreign Exchange Regulation Act, 1947. As the same set of facts gave rise to the two complaints, they were amalgamated and numbered as Criminal Case No. 59/CW of 1968. Thereafter some evidence led by the Assistant Collector of Customs was recorded. On November 27, 1969 the prosecution submitted that on the evidence led, it had made out a prima facie case and requested the Court to frame charges, conceding, however, that in view of the Supreme Court decision in Rayala Corporation v. Director of Enforcement A.I.R [1970] S.C. 494, no charge under Section 23 or Section 23B of the Foreign Exchange Regulation Act could be framed at that stage, inasmuch as the Director of Enforcement had not arrived at the conclusion required by Section 23D of the said Act. On behalf of the accused, it was urged that no charge can be framed even under Section 135 of the Customs Act, inasmuch as Section 135 was ultra vires as it contravenes Article 14 of the Constitution of India. The then trial Magistrate made a reference to this Court observing as follows:.In my opinion this question will have to be now considered afresh in the light of this latest pronouncement of the Supreme Court in the Rayala Corporation. The learned Magistrate thereupon submitted a reference for consideration of Honourable High Court under Section 432, Criminal Procedure Code.. (Ch. 3/p. bk.)
By the same order the learned Magistrate discharged accused No. 3, who was prosecuted along with the petitioners, there being no evidence against him. That reference, Criminal Reference No. 25 of 1970 came up before Wagle and Nathwani JJ. The Reference was found to be defective, inasmuch as provisions of Section 432(1), Criminal Procedure Code were not complied with. The Reference was, therefore, rejected without expressing, any opinion on the contentions raised by the petitioners. Thereafter, in June 1970 the case came up for hearing again before Mr. B.L. Gadkari, Presidency Magistrate. With regard to the constitutional question raised by the petitioners, the only order passed by the learned Magistrate reads thus: Heard both sides. There appears to be no reason to hold the impugned legislation to be ultra vires though no doubt the point raised is important and interacting. Hence charges to be framed separately. (p. 8/p. bk.)

(3.)IT is against this order that the present revision application is preferred.