Amaresh Roy, J. - (1.) This Rule was issued by my learned brother Niyogi, J. on November 5, 1962, upon an application for revision made in this Court on behalf of two accused persons V.K. Godhwani and Bahadur Singh who along with another person named Sankdhari have been complained against by Shri S.N. Banerjee, Assistant Collector of Customs and Superintendent, Preventive Service as having committed alleged offences under Section 167(81) of the Sea Customs Act, 1878, and Section 5 of the Imports and Exports (Control) Act, 1947. Prosecution allegations are that on April 24, 1962, the said Sankdhari arrived at Dum Dum Air Port from Singapore on a return-journey air-ticket with baggages consisting of two handbags and two suit-cases and one camera. On opening two handbags and one suit-case, it was found that those contained a quantity of doubtful consumer goods including a particular type of cigarette cases, On examination of the leather suit-case, it was found to contain card-board boxes each containing 50 pieces of wrist watches and also a packet containing white stones which were subsequently found to be synthetic stones. Sankdhari is alleged to have made a statement that, by an arrangement with the other accused persons, he had acted as carrier of smuggled goods to be brought from Singapore to Calcutta and certain documents including one envelope addressed to the Manager, Wedge Wood Hotel, 5A, Sadar Street, Calcutta was found on search of the person of Sankdharij Petitioner No. 1, V.K. Godhwani is the Manager and petitioner No. 2 Bahadur Singh is the proprietor of the Wedge Wood Hotel. On April 25, 1962, an application was made before the Chief Presidency Magistrate, Calcutta by Shri S. C. Mukherjee, Assistant Collector of Customs, praying for search warrants under Section 172 of the Sea Customs Act, 1878, and search warrants were issued by the learned Chief Presidency Magistrate. On the same day, accused Sankdhari and V. K. Godhwani were produced before that learned Magistrate under arrest and they were released on bail. On May 4, 1962, accused Bahadur Singh surrendered by making a petition before the learned Chief Presidency Magistrate and he was also released on bail.
(2.) The complaint for alleged offences under Section 167(81) of the Sea Customs Act, 1878, and Section 5 of Imports and Exports (Control) Act, 1947 was filed before the learned Chief Presidency Magistrate on June 22, 1962 and cognizance was taken by an order recorded on that date. On the same date, the case was transferred to Shri A. K. Chatterjee, Presidency Magistrate, for disposal. This complaint was filed before the learned Chief Presidency Magistrate by the complainant named above and with it was appended a document by which S.K. Sribastava, Chief Customs Officer at Port of Calcutta, authorised Shri Sachindra Nath Banerjee, Assistant Collector of Customs and Superintendent, Customs Office, Calcutta, to the a complaint in Court by virtue of Section 187-A of the Sea Customs Act, 1878. By his order dated June 22, 1962, the learned Presidency Magistrate Shri A.K. Chatterjee fixed I2th July and 13 July for evidence.
(3.) On July 12, 1962, an application was filed before the learned Presidency Magistrate by a learned Advocate Mr. S.C. Roy Choudhury describing himself as "Public Prosecutor" stating that "he had been engaged by the State as the Public Prosecutor to conduct the prosecution of that case and he wanted to withdraw from, the prosecution 'through' Sankdhari in that case in order that he may be examined as a prosecution witness in the case." This petition was made under Section 494 of the Code of Criminal Procedure praying for consent of the Court for such withdrawal necessary under that section of the Code of Criminal Procedure. That was opposed on behalf of the other two accused persons and prayer was made on their behalf for an adjournment to address the Court on the prayer made on behalf of the prosecution. The learned Magistrate did not grant the adjournment prayed for and made an order saying: "I do not see any reason to adjourn for hearing on the petition for withdrawal and in the circumstances stated by the prosecution in the petition permission is given to withdraw the case and the accused Sankdhari is discharged under Section 494, Cri. P. C." Thereafter, on the same date, when the Magistrate on the prayer of the prosecution proceeded to examine the discharged accused Sankdhari, defence again prayed for adjournment. But that prayer was also disallowed and the discharged accused Sankdhari was examined-in-chief on that very day. Then only, August 1, 1962, was fixed for cross-examination. But that cross-examination has been adjourned at several instances thereafter and has not taken place in the Court of the Presidency Magistrate, when on November 5, 1962, this Court was moved for quashing the order dated July 12, 1962, and upon issue of the Rule the proceeding of the Presidency Magistrate was stayed. The Rule was issued on the ground No. III in the petition which is in the these terms: "III. For that the learned Special Public Prosecutor having not been properly acquainted on the material date, the permission given by the learned Magistrate to withdraw the case under Section 494, Cri. P. C. was illegal and without jurisdiction," ;