N.C. Talukdar, J. -
(1.)This Rule is at the instance of the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, on behalf of the State of West Bengal, and is directed against an order dated March 13,1972, passed by Sri B. M. Chaklanabis, Presidency Magistrate, Fifth Court, Calcutta, in G.R. Case No. 1187 of 1971, discharging the three accused opposite parties under Sec. 251A(2), Code of Criminal Procedure, on the footing that there is no case against them under Sec. 417 or 420, Indian Penal Code, or under Sec. 132, Customs Act, 1962.
(2.)The facts leading on to the Rule are short and simple. The prosecution case, inter, alia, is that M/s Eastern Silk Manufacturing Company (P.) Ltd. and M/s Lakshmi Textile Mills (P.) Ltd. of 9 Jagamohan Mallick Lane, Calcutta, and others were illegally exporting silk fabrics, tashar silk, etc. by way of under -invoicing to various buyers in the foreign countries by making false declaration or statements in the shipping bills and the invoices in transacting the -business. It was further alleged that the accused were under -invoicing the exports by preparing invoices in less yardage and calculating the value on the footing of the said invoices. In the packing notes or the despatch notes, which were sent to the overseas buyers, "the accused put the full quantities actually exporting by mentioning at the end 'less hundred yards' or so. The accused had been receiving payments from different buyers outside the invoice -value and accumulating the foreign exchange secretly in foreign countries. It was further alleged that G.R. I form was prepared for the said quantity as was shown in the invoices and the goods were exported. An information was, accordingly, lodged under Ss. 12(1)(2)/4(1)/23 of the Foreign Exchange Regulation Act, 1947, and the same was registered as R.C. 5 /BOW/ 69, N Calcutta, dated February 17, 1969. Thereafter, an application was made on February 17,1969, by Sri T. P. Ghatak, Supdt.. of Police, C.B. I./BOW, Calcutta, before the Chief Presidency Magistrate, Calcutta, praying for permission to investigate into the allegations under Sec. 155(2) of the Code of Criminal Procedure and the Chief Presidency Magistrate, Calcutta, by his order of the same date accorded sanction for investigation as prayed for. On completing the investigation and obtaining a sanction for prosecution from the Collector of Customs, Calcutta, under Sec. 137 of the Customs Act, 1962, a charge -sheet was filed on June 29,1971, against (i) M/s Eastern Silk Manufacturing Company (P.) Ltd., (ii) M/s Lakshmi Textile Mills (P.) Ltd. and (iii) Shyamsunder Shah, the Managing Director of both the companies under Sec. 420, Indian Penal Code, and Sec. 132, Customs Act, 1962. The case was ultimately transferred to the Presidency Magistrate, Fifth Court, Calcutta, for disposal. The accused appeared before the learned Magistrate and documents referred to in Sec. 173, Code of Criminal Procedure, were supplied to them. On a consideration of the said documents and on hearing the parties Sri B. M. Chaklanabis, Presidency Magistrate, Fifth Court, Calcutta, discharged the three accused under Sec. 251A(2), Code of Criminal Procedure, on March 13,1972 - The said order has been impugned and forms the subject -matter of the present Rule issued on June 19, 1972.
(3.)Mr. Promode Ranjan Roy, Junior Government Advocate, appearing for the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, on behalf of the State of West Bengal, contended that the order of discharge is clearly based on a misconception of law and facts, resulting in a grave miscarriage of justice and, as such, should ex debito justified be set aside. Mr. Roy in this context referred to the three dimensions of the reasons on which the ultimate order of discharge,, as passed by the Court below, is based and submitted that those are unwarranted and untenable and resulted in a failure of justice. The said three dimensions are (i) a non -conformance to the mandatory provisions of Sec. 155(2), Code of Criminal Procedure, (ii) the "absence of a proper sanction under Sec. 137 of the, Customs Act, 1962, for a prosecution under Sec. 132 of the said Act, vitiating thereby the cognizance taken and the resultant trial and (iii) the absence in any event of the essential ingredients of an offence under Sec. 420, Indian Penal Code. Mr. Roy, however, did not join issue with the ultimate findings arrived at by the learned trying -Magistrate on the fourth branch of the defence contention advanced in the Court below, namely, that in view of the pendency of the adjudication proceedings, at the time, under Sec. 23(1)(a) of the Foreign Exchange Regulation Act, 1947, a further proceeding under Sec. 23(1)(b) of the said Act, based on the same set of facts, would not be permissible in law although the same may not rule out any prosecution on an offence under the Indian Penal Code. Mr. Ajit Kumar Dutt, - Advocate, with Mr. Biswanath Sanyal and Miss Lovely Sinha Roy, Advocates, appearing on behalf of the accused opposite parties, joined issue. Mr. Dutt contended that the findings arrived at by the learned Presidency Magistrate on the three dimensions, now impugned by the Petitioner, are quite pertinent findings sustainable in law and merits. As to the fourth dimension, Mr. Dutt agreed with the findings of the learned trying Magistrate arrived at on the first facet, and with regard to the second facet Mr. Dutt contended that the' learned Presidency Magistrate. should have come to a definite decision in favour of the accused. Mr. Dutt further submitted that there is no grave miscarriage of justice, and that the presumption of innocence with which the accused persons started has been reinforced by the factum of discharge by the learned trying Magistrate