Shah, J. - (1.) Being in possession of evidence that the petitioners and others were concerned in the commission of offences of conspiracy to smuggle gold from foreign countries into the part of Deogad in the District of Ratnagiri, contrary to the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act, P. M. Kalyankar, Sub-Inspector of Customs and Central Excise arrested the petitioners and produced them before the Judicial Magistrate F Class, Deogad, on December 29,1961 the Government of Maharashtra promulgated a notification in exercise of the powers conferred by S. 14 of the Code of Criminal Procedure, 1898 (as amended by Bombay Act XXIII of 1951 in its application to the State of Maharashtra) appointing Mr. V. M. Gehani to be a Special Judicial Magistrate having jurisdiction over the area comprising Greater Bombay and Ratnagiri District, and conferred upon him all the powers of a Presidency Magistrate in respect of the trial in the case involving the seizure of approximately 49,990 tolas of foreign gold and known as the Deogad Gold Seizure Case.
(2.) on January 10, 1962 the Government of Maharashtra gave consent in writing as required by S. 196-A sub-s. (2) of the Code of Criminal Procedure to the institution of criminal proceedings against the petitioners and eight others for offences punishable "under S. 120B of the Indian Penal Code, 1860 read with S. 167 (81) of the Sea Customs Act, 1878 (as amended) and Section 8(1) of the Foreign Exchange Regulation Act, 1947 (as amended) and S. 120B of the Indian Penal Code read with S. 8(1) and S. 23 of the Foreign Exchange Regulation Act, 1947 (as amended)". Therefore H. R. Jokhi, Assistant Collector of Customs and Central Excise, Marine and Prevention Division, Collectorate of Central Excise, Bombay instituted a complaint in the Court of the Special Magistrate appointed under the Notification dated December 29, 1961 against 16 persons (including the petitioners) alleging that they were parties to a conspiracy at Bombay, Janjira, Dabhol and Deogad (the latter three places being in the District of Ratnagiri) and other places to smuggle large quantities of gold into India, with a view to evade or attempt to evade payment of duty thereon and to evade or attempt to evade the prohibitions and restrictions in force relating thereto during the period from about October 1959 to the end of April 1961 or thereabout in breach of the provision of the Sea Customs Act, 1878 and the Foreign Exchange Regulation Act, 1947, and that the said persons had in pursuance of the "conspiracy and with continuing purpose and design" in or about the month of April 1961 acquired or were concerned in importing and acquiring possession, contrary to the Sea Customs Act and the Foreign Exchange Regulation Act, gold totaling 49,990 tolas valued at over Rupees 70,00,000/-. The petitioners applied to the Special Magistrate that they be tried at Deogad or at Ratnagiri the headquarters of the District, for they were permanent residents of Deogad carrying on their respective occupations at Deogad, that they had already made their individual arrangements for their defence at Deogad and that it would be just and convenient that their trial should take place in the District of Ratnagiri. The Magistrate rejected their application. The petitioners then moved the High Court of Judicature at Bombay praying for an order that the case against the petitioners be transferred for trial to the court of some Judicial Magistrate at Deogad or at Ratnagiri competent to try the case, in the alternative the petitioners prayed that the Special Magistrate Mr. Gehani be directed to try the said case either at Deogad or at Ratnagiri at which place all 'facilities' were available. The High Court dismissed their application. The petitioners then moved this Court under Art. 32 of the Constitution for a writ of certiorari or other appropriate writ or direction quashing the Notification dated December 29, 1961 issued by the Government of Maharashtra or in the alternative declaring S. 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951 ultra vires and void and for an order that the case be heard at Deogad or at Ratnagiri in the State of Maharashtra by any Magistrate competent to enquire into or try the case. By this petition the petitioners submitted that S. 14 of the Code of Criminal Procedure as amended by the Bombay Legislature by Act 23 of 1951 and the Notification dated December 29, 1961 issued by the Government of Maharashtra appointing Mr. Gehani as Special Judicial Magistrate and investing him with the powers of a Presidency Magistrate, infringed Art. 14 of the Constitution.
(3.) Sub-section (1) of S. 14 of the Code as amended, in so far it is material, provides: "14. Special Magistrates.-(1) The State Government may, in consultation with the High Court, confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the official Gazette, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate in respect to particular cases or to a particular class or classes of cases, or in regard to cases generally in any local area." By S. 6-A which was also added by Bombay Act 23 of 1951 in the Code, constitution of different classes of Judicial Magistrates was provided, and under that head were included Presidency Magistrates. The State Government was, under the amended Code, competent to appoint a person with the requisite qualifications a Special Magistrate and to confer upon him the powers conferred or conferrable under the Code on a Judicial Magistrate in respect of particular case or a particular class or classes of cases or in regard to cases generally in any local area. Section 14 of the Code of Criminal Procedure as originally enacted prohibited the appointment of a Special Magistrate to function in any local area within the presidency towns, but that limitation upon the power of the State Government has, by the amendment made by Bombay Act 23 of 1951 been removed, and it is now open to the Government of Maharashtra to constitute a Special Judicial Magistrate with power to function in any local area including Greater Bombay. The expression 'local area' includes any part of a State, and it may cover more than one District. The Government of Maharashtra therefore could appoint Mr. Gehani a Special Judicial Magistrate having jurisdiction over Greater Bombay and the District of Ratnagiri and could confer upon him the powers of Presidency Magistrate in respect of the trial of the case known as the Deogad Gold Seizure Case.;