(1.)This .petition under section 482 of the Code of Criminal Procedure is directed against the order of the Additional Sessions Judge, Delhi Upholding that of the Chief. Metropolitan Magistrate, holding that Kusum Dewan and Mohinder.Adyani,who were granted pardon, were Approvers not only in respect of the charge-sheet for offences undet sections 120-B Indian Penal Code read with sections 420 IPC., 420 DPC 467/468 and 471 Indian Penal Code but also in the complaint filed under section 120 Indian Penal Code read with 5 of the Imports and Export Control Act, 1947, Section 420 IPC/4681PC 471 Indian Penal Code and Section 5 of the Import 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 the prosedure laid down in Section 306 (5) of the Code.
(2.)The petition has been filed in the following circumstances. The report of the Controller of Imports and Exports, dated 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 Collector of Customs, Bombay had reported that the firm Imported seemless stainless pipes for manufacture of Hipoderamic Needles and these were of sizes not required for manufacture of hipoderamic 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 enquiries 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 mis-representation. It was fufther revealed that the deletion of the "enduse" on the licences were forged by some unknown person. The C.B.I, was accordingly requested to take up investigation. On receipt of this report the C.B.I, registered a case under section 120B Indian Penal Code read with Section 420 Indian Penal Code . 420 Indian Penal Code ., 467 Indian Penal Code . 471 Indian Penal Code . and Section 5 of the Import and Export (Control) Act 1947, being R.C. 13/1 & E/74-Delhi. Subsequent, on a report from the Deputy Director of the Directorate of Revenues Intelligence, dated September 28,1974, addressed to the Central Bureau of Investigation against the management of Anita Industries, Faridabad, Since Industires, Ballabgarh and Ruby Industries, Faridabad, another case under sections 120 B IPC read with 420 IPC, 420 Indian Penal Code 367 Indian Penal Code 468 Indian Penal Code 471 Indian Penal Code and Section 5 of the Import and Export (Control) Act 1947, being R.C. 20/74-FS-11, was registered on November 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 similarly 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 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 import and export authorities had "since cancelled 12 licences of the face value of Rs. 201akhs 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 the one Yog Darshan. both of Delhi, and that these fake firms bad 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 a proprietors were non-existent persons and that these fictitious named bad 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 office under O.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 vanone 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 Advani, who were in the employment of Gopal Krishan Ralhan and Yog Darshan. It is further alleged that Kusum Diwan and Mohinder Advani made confessional statements u/s 164 of the Cr. P.C. on February 21, 1976 and March 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 u/s 306 of the Criminal Procedure Code 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 u/s 120-B Indian Penal Code . and Section 420/467/468/471 Indian Penal Code . 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 dated November 16, 1974." This is how the rest of the orders read :-
"Whereas the statement made by Shri M.K. Advani u/s 164 Cr. P.C. recorded by Shri B.B. Oupta 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 of 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 arid earn under profit by selling the same. He also disclosed that accused Kuku used to sign as proprietor of M/s. Sirnco 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 to those places. It appears that the statement of Shri M.K. Advani recorded U/s. 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. Where 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. Shaming, Chief Metropolitan Magistrate, Delhi hereby tender pardon to the said Shri M.K. Advani S/o Sh' R.P. Advani on the condition of his making:trueand full disclosure of the whole circumstances within knowledge .relating to the said offences of conspiracy, cheating, forgery etc. as mentioned above."
(3.)On March 26, 1977 a complaint was filed by R.S. Bansal Deputy Chief Controller of Imports & Exports, New Delhi in the court of Additional Chief Presidency Magistrate 32nd Court, Esplaned, BombayU/S:120-B Indian Penal Code . read with Section 5 of the Imports and Exports Control Act, 1.947, Section 420 I.P.C., 468/471 Indian Penal Code . and Section 5 of the Imports and Exports (Control) Act, 1947 against 1) O.K. Ralhan2) Yog Darshan 3) Fakhruddin 4) Abbas Ali and 5) B.G. Sarang, Kusum Diwan and MohinderAdvani were cited as witnesses, among others, in the complaint. In the course of complaint it was mentioned that these two persons were approver and would beexamined as "Witnesses" in the complaint. In the list of witnesses the word "approver" was shown in brackets against their named. Para 50 of the Complaint which sums up the allegations on which it is based runs this:
"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 hatcted by (1) S/Shri G.K. Relhan (2) Yogdarshan @ Kuku (3) Fakhruddin (4) Abbas Ali and (5) B.G. Sarang, accused, with the unlawful object of mis-utilisation of the goods imported against .the import licences of M/s.Anita Industries and M/S.Sirnco 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 firm 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. Indian Penal Code . r/w.sec. 5 of the Import and Exports (Control) Act, 1947, Sec. 420 IPC, 468/471 Indian Penal Code and Section 5 of the Imports and Exports (Control) Act, 1947."