G.K.SHARMA, J. - (1.) THIS miscellaneous petition Under Section 482, Cr.P.C. has been preferred against the order dated 1st Feb., 1988, passed by the CJM (Economic Offences) Jaipur, by which, he has taken cognizance against the petitioner Under Section 135 of the Customs Act, 1962 (for short, 'the act of 1962) and Under Section 85 of the Gold (Control) Act, 1968 (for short, 'the Act of 1968' and issued process against the petitioners.
(2.) THE officers of the Customs Unit, Jaipur, received some information and on that basis, they apprehended 2 persons, namely, Sushil Kumar and Ramesh Kumar. Then, on inquiry from them, they admitted that they ware carrying gold of foreign marks, in their bodies. Both the persons were brought to Central Revenue Building, Statue Circle, Jaipur. A through search of their bodies and baggage, was conducted, but, nothing objectionable was recovered. Then, they were further persuaded to take out the concealed items, and later on, both the persons took out packets from their rectum which were packed in rubber condoms and carbon papers with adhesive -tapes. Both the packets were found to contain 8 foreign -marked gold -biscuits. The customs officers demanded evidence from both the persons, but, they failed to produce any evidence documentary or otherwise, regarding illicit import/purchase/custody/control of the foreign -marked gold so recovered. Therefore, the customs officers, on a reasonable belief that the said foreign -marked gold was imported into India in an unauthorized manner, violating the provisions of Section 11 of the Act of 1962, read with Section 13 of the Foreign Exchange Regulation Act, 1947, rendering it liable for confiscation Under Section 111 of the Act of 1962, seized the said foreign -marked gold. The statements of Ramesh Kumar and Sushil Kumar were recorded on 22nd June, 1986, when they admitted the recovery of the seized foreign -marked gold from their rectum and stated that they were working for one Jagdish Soni of Sikar, who had given them US Dollars, and under whose instructions, they had brought the said foreign -marked gold from one Kamal of Kathmandu. Then on 23rd June, 1986, the residential -premises of Jagdish Soni, were searched, but, nothing objectionable was recovered. Jagdish Soni was not found there available at the time of the search, and therefore, his business -premises could not be searched for want of keys. The business -premises were, therefore, sealed. On 10th July, 1986, Manoharlal Soni, father of Jagdish Soni, filed an application that his son was out of Sikar, and so, he requested for opening the business -premises. The said business premises were opened on 12th July, 1986, and a search has made, but, nothing objectionable was recovered. Jagdish Soni was summoned for 24th June, 26th June and 7th July, 1986 but he appeared before the Superintendent, Customs, Jaipur, on 14th July., 1986 and tendered his statement under Section 108 of the Act of 1962, wherein, he denied his link or involvement with Sushil Kumar or Ramesh Kumar. The Customs Department felt that Jagdish Soni had failed to explain about his absence at the time of search of His residential as well as business premises. It appeared to them that Sushil Kumar and Ramesh Kumar were engaged in smuggling of foreign -marked gold from Kathmandu to Sikar They were caught red -handed while carrying 1159.4 gms. of foreign -marked gold valued to Rs. 2,40,000/ - and they were working for Jagdish Soni of Sikar. Thus, all the three persons appeared to have contravened the provisions of Section 11 of the Act of 1962, read with Section 13(1) of the FERA and Section 3(1) of the Imports and Exports (Control) Act, 1947, rendering the same liable for confiscation under aec. 111 of the Act, of 1962, According to the Customs Department, the seized gold was also liable to be confiscated Under Section 71 of the Act of '68, and the three persons were also liable to penal action u/a 74 of the Act of the 1968.
(3.) ON the facts as narrated above, a complaint was filed before the CJM (Economic Offences), Jaipur City, Jaipur. The learned Magistrate took cognizance and issued process against Jagdish Soni, the petitioner and Sushil Kumar and Ramesh kumar. That order of issuing process, has been challenged by the petitioner.;