H.L.ANAND, J. -
(1.)THIS ,petition under Section 482 of the Cr.P.C. is directed against the order of the Additional Sessions Judge. Delhi upholding that of Chief Metropolitan, Magistrate, holding that Kusum Dewan Mohinder Advani, who were granted pardon were Approvers not only in respect of the charge-sheet for offences under Section 120-B, IPC read with Section 420 IPC, 467/468 and 471, IPC but also in the complaint filed under S., 120-B IPC read with S 5. of the Imports and Exports (Control) Act, 1947, Section 420, IPC/468, IPC Section 471, IPC and Section 5 of the Imports and Export (Control) Act 1947 and that on that account, the complaint case be committed to Sessions, after the said Approvers had been examined, in accordance with procedure laid down in Section 306(5) of the Code.
(2.)THE petition has been filed in the following circumstances. The report of the Controller Imports and Exports. dt. May 22, 1974 addressed to the Central Bureau of Investigation, disclosed that Anita Industries, Faridabad, had been granted 12 licences during the years 1972-73 and that the Controller of Customs, Bombay had reported that the firm imported seamless stainless pipes for manufacture of hypodermic. Needles and these were of sizes not required, for manufacture of hypodermic needles. It was further pointed out by the Collector that the "enduse" indicated, in the licences had been deleted by the Joint Chief Controller of Imports and Exports, Calcutta. it was further reported that in the correspondence that ensued, Deputy Collector of Customs informed the Controller that inquiries revealed that the firm was no longer in existence and that a show cause notice for cancellation of these licences was issued to the firm on the ground that the firm had obtained these licences by fraud and misrepresentation. It was further revealed that the deletion of the "enduse" on the licences were forged by some unknown person. The C.B.I. was accordingly quested to take up investigation. On receipt of this report the C.B.I. registered a case under Section 120-B, IPC read with S. IPC, 420. IPC 467 IPC, 471 IPC. and Section 5 of the Imports and' Exports (Control) Act 1,947 being R.C. 13/1 and E/74Delhi. Subsequently, on a report from the Deputy Director of the Directorate of Revenue Intelligence. dated Sept. 28, 1974, addressed to the Central Bureau of Investigation against the management of Anita Industries, Faridabad, Simco Industries. Ballabgarh and Ruby Industries, Faridabad another case under Sections 120-B, IPC read with 420, IPC, 420 IPC 567, IPC 168, IPC, 471 IPC and Section 5 of the Imports and Exports (Control) Act 1947, being R.C. 20/74-FSII, was registered on Nov. 16, 1964. This report repeated the allegations made in the earlier report against the management of. Anita Industries, and referred to a number of other instances of the same nature involving Simco Industries. It was pointed out that during the course of inquiries a similarity of modus operandi adopted by Anita Industries, and Simco Industries was noticed, it was further revealed that the owner of the two firms was the same person and that he was also having another concern known as Ruby Industries which was also no more in existence. It was also revealed that all the three units had cumulatively effected imports of over Rs. 45 lakhs or so during the last three years and the main brain behind the racket appeared to be one, G K. Ralhan. It was also pointed out that as a result of reference by the Bombay Customs House, the imports and exports authorities had "since cancelled 12 licences of the face value of Rs. 20 lakhs standing in the name of M/s. Anita Industries. Faridabad under Clause 9-A of the Import Control Order 1955 on the ground that the same were obtained by fraud and misrepresentation". It is alleged that in the course of investigation by the Special Police Establishment, it was revealed that the aforesaid three firms belonged to Gopal Krishan Ralhan, the petitioner herein and one Yog Darshan, both of Delhi, and that these fake firms had been floated by them to earn profit out of the sale of import licences issued in the name of these firms. Investigation allegedly further established that the application for import licences and other papers signed on behalf of the firms as proprietors were non-existent persons and that these fictitious names had been used by Gopal Krishan Ralhan and Yog Darshan. Further Investigation revealed that out of the large number of import licences issued in favour of these three firms, 24 licences were of the actual users category and these were issued on the recommendations of District Industries Officer, Faridabad and were made by one O.P. Sharma, who at the material time, was posted in that office at Faridabad. Investigation is said to have further disclosed that Harbans Singh Khanna and Baldev Singh who were at the material time working as Inspector and Block Level Extension Officer, respectively. in the aforesaid officer, under 0. P. Sharma, were also parties to the Criminal conspiracy for the issue of import licences as these officers had verified the applications of these fake firms and recommended the issue of import licences. It was further found in the course of investigation that the various documents, purporting to be in the name of two of these firms, i.e. Anita Industries and Simco Industries, had been signed by Yog Darshan in fake names as well as by Kusum Diwan and Mohinder Adwani, who cre in the employment or Gopal Krishan Ralhan and Yog Darshan. It is further alleged that Kusum Diwan and Mohinder Advani made confessional statements under Section 164 of the Cr.P.C. on Feb. 21, 1976 and Mar. 29, 1976 respectively. It is alleged that they expressed a willingness to become Approvers. By its application of April 14, 1976, the C.B.I. moved the Chief Metropolitan Magistrate, New Delhi on the aforesaid allegations and prayed that the aforesaid two persons be granted pardon under Section 306 of the Cr. P C. on the condition of their making full and true disclosure of the whole of the circumstances within their knowledge "relative to the offences". The then Chief Metropolitan Magistrate, by two separate but identical orders of the same date, granted pardon to the aforesaid two persons. In the course of the orders the Chief Metropolitan Magistrate mentioned that Kusum Dewan and Mohinder Advani were accused persons "concerned in the commission of offences under Section 120-B, IPC and Sections 420/467/468/471, IPC and Section 5 of the Imports and Exports (Control) Act, 1947 which is the subject-matter of investigation of case F.I. R. No. 20/74-F. S II dt. Nov. 16, 1974." This is how the rest of the orders read :-
"Whereas the statements made by Shri M.K. Advani under Section 164, Cr.P.C. recorded by Shri B.B. Gupta Metropolitan Magistrate Delhi has been perused by me and it appears that Shri M.K. Advani has admitted that while he was in the employment of G. K. Ralhan, he has signed as Uma Kant as Proprietor or M/s Ruby Industries on various documents, namely. application for import licences, and other documents etc. at the instance of the accused G. K. Ralhan and Kuku accused. He has also disclosed that three fake firms, namely Anita Industries, Simco Industries and Ruby Industries were floated by accused G.K. Ralhan and Yog Darshan alias Kuku in order to obtain import licences and earn undue profit by selling the same. He also disclosed that accused Kuku used to sign as proprietor of M/s. Simco Industries and Anita Industries under fake name and that premises were hired for running factories in the name of the aforesaid industries but actually no factories were set up at those places It appears that the statement of Shri M.K. Advani recorded under Section 164, Cr.P.C. contained full and true disclosure of the whole circumstances within the knowledge relating to the offences, and would strengthen the case of prosecution against other main accused persons. Whereas with a view to obtaining the evidence of said Shri M.K. Advani s/o Shri R.P. Advani, it is desired that he should be granted pardon under the provisions of Section 306, Cr.P.C. Now. therefore, I Mohd. Shamim, Chief Metropolitan Magistrate, Delhi hereby tender pardon to the said Shri M.K. Advani s/o Shri R P. Advani on the condition of his making true and full disclosure of the whole circumstances within his knowledge relating to the said offences of conspiracy, cheating, forgery etc. as mentioned above."
On March 26, 1977 a complaint was filed by R.S. Bansal Deputy Chief Controller of Imports and Exports, New Delhi in the Court of Additional Chief Presidency Magistrate 32nd Court, Esplanade. Bombay, under Section 120-B, IPC read with Section 5 of the Imports and Exports (Control) Act, 1947, Section 420, IPC, 468/471, IPC and. Section 5 of the Imports and Exports (Control) Act, 1947 against (1) G K. Ralhan, (2) Yog Darshan, (3) Fakhruddin, (4) Abbas Ali and (5) B.G. Sarang, Kusum Diwan and Mohinder Advani were cited as witnesses, among others, in the complaint. In the course of the complaint it was, mentioned that these two persons were approvers and would be examined as "witnesses" in the complaint. In the list of witnesses the word "approver" was shown in brackets against their names. Para 150 of the complaint which, sums up the allegations on which it is based runs thus :
That from the aforesaid investigation and the evidence collected, it has been found that during the period 1971 to 1974 or thereabout, at Delhi Faridabad, Bombay and other places, a criminal conspiracy was hatched by (1) S/Shri G. K. Ralhan, (2) Yogdarshan alias Kuku, (3) Fakhruddin, (4) Abbas Ali and (5) B. G. Sarang, accused. with the unlawful object of misutilisation of the goods imported against the import licences of M/s. Anita Industries and M/s. Simco Industries in contravention of the conditions of import licences and in pursuance of the said conspiracy they did not utilize the said imported materials, in the factories of these firms as per conditions of the import licences. Further Fakhruddin and Abbas Ali, the partners of L. A. holder firms M/s. Exportrade Bombay, cheated the officers of Bombay Customs by getting the goods released dishonestly and fraudulently by using forged licences as genuine knowing them to be forged. Thus, the said accused, have committed offences under Section 120 B, IPC r/w. See. 5 of the imports., and Exports (Control) Act 1947, Section 420, IPC, 468/471 IPC and Section 5 of the Imports and Exports (Control) Act, 1947."
(3.)SUBSEQUENTLY on Jan. 23,1973, a charge-sheet was filed by the C. B.I. in the Court of Chief Metropolitan Magistrate. Delhi against, (1) Gopal Krishan Ralhan, (2) Yog Darshan, (3) O. P, Sharma, (4)Harbans Singh Khanna and (2)Baldev Singh under Section 120-B, IPC read with Section 420, IPC, 420. IPC 467, IPC, 468 and 471. IPC, on the allegations that the accused persons, were parties to a conspiracy to obtain import licences in the name of fake firms and to have committed offences of forgery and use of forged documents and obtained 48 import licences. This is how para 32 of the charge-sheet read from the aforesaid investigation and evidence collected, it has been found that during the period from 1971 to 1974. or thereabout at Delhi. Fairdabad, Bombay and other places. In India a criminal conspiracy was hatched by S/shri (1) Gopal Kishan Ralhan, (G K. Ralhan) (AI), (2) Yog Darshan alias N.K. Mallick alias Kuku (A-2), (3) Om Parkash Sharma (O.P. Sharma) (A-3), (4) Harbans Singh Khanna (A-4), (5)Baldev Singh (A-5), with the illegal object to cheat the officers of JCCI and E' (CLA) New Delhi and JCC1 and E Bombay, to dishonestly and fraudulently obtain import licences in the names of fictitious firms, Anita industries, Simco Industries and Ruby Industries, and that further in pursuance of the said criminal conspiracy and to achieve the said objects the said accused persons prepared false documents, dishonestly used the said documents as genuine, knowing them to be forged; and on the basis of misrepresentations made dishonestly inducing the import authorities to issue import licences. thereby committed offences under S, 120-D, IPC read with Section 420, IPC, Section 420 IPC, Section 467, IPC, Section 408, IPC and Section 471, IPC". Kusum Diwan and Mohinder Advani are cited as Approvers in the charge-sheet.