- (1.) IS the Deputy Chief Controller at Imports and Exports. New Delhi, authorised to file a complaint under the provisions of the Imports and Exports (Control) Act. 1947 is the significant question which has cropped up In this petition under Section 482 of the Code of Criminal Procedure, preferred by the accused, and this question has arisen in the following manner.
(2.) THE Deputy Chief Controller of Imports and Exports, New Delhi, filed a complaint under Section 5 of the Imports and Exports (Control) Act. 1947 (hereinafter called the Act) against the petitioners' firm M/s. Pearl Scooters Limited, Ludhiana. The accused was summoned after preliminary evidence. Even the pre-charge evidence was recorded. At the time of consideration of charge, the accused presented an application challenging the authority of the complainant to have filed the complaint. The objection raised was considered and overruled by the learned, Special Judicial Magistrate Ist Class, Patiala and this has given rise to the accused to invoke the inherent jurisdiction of this Court at the initial stage. The objection raised can well be spelled out by quoting from and referring to the Statutes on the subject.
(3.) IN part V of the Constitution of India, Articles 52 and 53 provide that there shall be a President of India, the executive power of the Union shall be vested in the President, and that power shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 77 (1) of the Constitution provides that all executive action of the Government of India shall be expressed to be taken in the name of the President. Sub-Article (2) of Article 77 provides: Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the president. Section 6 of the Act provides for cognizance of offences and may well be reproduced here: No Court shall take cognizance of any offence punishable under Section 5 except upon complaint in writing made by an officer authorised in this behalf by the Central Government by general or special order, and no Court inferior to that of a Presidency Magistrate, or a Magistrate of the First Class shall try any such offence. Now, if the Deputy Chief Controller of Imports and Exports stood authorised by the Central Government to institute the complaint, may be by general or special order, taking of cognizance of offence against the petitioner was perfectly in order. The grievance of the petitioners is that the Deputy Chief Controller of Imports and Exports stood authorised only by the Chief Controller of Imports and Exports for the purpose and not by the Central Government, Parties are agreed that the authorization in question is vide order No, 10 of 1965 dated 1-121965 published in the Gazette of India Extraordinary Part II. This reads as under : -. . S. 0. 3787 - In exercise of the powers conferred by Section 6 of the Imports and Exports (Control) Act. 1947 (18 of 1947) and in suppression of the late Ministry of Commerce and Industry Order No. 11/60. dated the 1st Aug. 1960. the Central Government hereby authorises the Joint Chief Controllers of Imports and Exports, the Deputy Chief Controllers of Imports and Exports, the Custom Collectors and the Officers of Customs under the Customs Act. 1962 (52 of 1962 ). the Iron and Steel Controller, the Deputy Iron and Steel Controller and the Superintendents of police in the Economic Offences Wing of the Central Bureau of Investigation, to make complaints in writing in Courts in respect of any offence punishable under Section 5 of the said Act. (No. 3 (40)/63/1 (3 ).) P. SABANAYAGAM, Chief Controller of Imports and Exports. It is plain from the reading of the aforesaid order that the power of authorization under Section 6 of the Act purports to have been exercised by the Central Government, for the body of the order specifically says so. Now, is the Chief Controller of Imports and Exports, the authority authorised to authenticate the order of the Central Government, or for that matter that of the President, can only be discerned from the rules called "the Authentication (Orders and other Instruments) Rules, 1958, published by the Government of India. Ministry of Home Affairs, on 3-11-1958. Rule 2 thereof provides that orders and other instruments made and executed in the name of the president shall be authenticated: (aa) in the case of orders and other instruments relating to the office of the Chief Controller of Imports and Exports, by the Chief Controller of Imports and Exports; (a1) in the case of orders and other instruments relating to the Ministry of Commerce, by a Director or a Deputy Director (Export promotion) in that Ministry. Copies of the authentication rules as placed before me are slightly varying inasmuch as the items in one copy are provided for alphabetically and in the other numerically, but the substance is the same. In the instant case, item (aa) is item (13) in the other, and so forth. Be that as it may. it is crystal clear therefrom that order made and executed in the name of the President, so far as they relate to the Chief Controller of Imports and Exports, can be authenticated by the Chief Controller of Imports and Exports. ;