SHARMA, J. - (1.) THE learned Chief Judicial Magistrate (Economic Offences), Jaipur has made this reference with regard to Section 104 of the Customs Act and Section 309, Cr. P.C.
(2.) TO understand the point of reference I just give in nut shell the facts of this case. Mohanlal Tambi and others were arrested for the contravention of some provisions of the Customs Act. On an information, the Customs Department raided the business premises of M/s. Shiv Shanker Lal Gupta, Baba Harish Chandra Marg, Jaipur, from 14 -1 -81 to 17 -1 -81 and recovered/seized contravened precious/semi -precious stones weighing 2156.279 kgs. valued at Rs. 14,04,017.70 p. under Section 110 of the Customs Act. 1962, on a reasonable belief that the said goods have been acquired/possessed/controlled/imported in contravention of the provisions of Section 3(1) of the Import and Export (Control) Act, 1947, read with Section 11 of the Customs Act, 1962. In this context Mohanlal Tambi was interroga1ed under Section 108 of the Customs Act, and his statement was recorded. No specific information could be obtained from Mr. Tambi by his interrogation. The Customs Authorities then arrested him on 20 -1 -81, and he has been under arrest for two days, or more, when he submitted an application under Section 439, Cr. P.C. Until this day, the Customs Authorities have not been able to obtain any information from him regarding the discovery of any fact relevant to this case. The bail application was accepted by the learned Sessions Judge, and Mr. Mohanlal Tambi was released on furnishing surety and bail bonds. Thereafter on 18 -8 -82, Mr. Tambi filed an application under Section 104 of the Customs Act before the learned Chief Judicial Magistrate. In this application, he has mentioned that he has been released on bail on 22 -1 -81 before taking cognizance against him by the Court for contravention of any provisions of the Customs Act. According to him, after his release on bail, adjournment can only be given under Section 309, Cr. P.C. Section 167, Cr. P.C. is applicable only when the accused is in police custody. The corresponding section to Section 309, Cr. P.C. is the old Section 344, Cr. P.C. According to that old section 344, Cr. P.C. the Court was empowered to grant adjournment, though cognizance of the case had been taken or not but under Section 309, Cr. P.C. adjournment can only be granted when the Court takes cognizance of the case. He has alleged that since in the Customs Act and the Foreign Exchange -Regulation Act, there is no provision to grant adjournment without taking cognizance, he should not be asked to attend the Court, and if the department files any complaint, a notice be given to him and he will attend the court accordingly. On this application the learned Chief Judicial Magistrate heard both the aides and made this reference to this Court. What the intention of the learned Chief -Judicial Magistrate is, that when the accused is released on bail and the Court has not taken cognizance of the case against him, is it binding on the accused to attend the court on every date, or, in other words, after the release of the accused on bail, the department will file a complaint against him and when the court takes notice of the complaint, then accused be informed about the date of his appearance. So, is it binding on the person to come to the Court on every date of hearing without the cognizance being taken by the Court.
(3.) I have pursued the order of the learned Chief -Judicial Magistrate and also heard Mr. Khandelwal appearing on behalf of the accused.;