It has to be found out whether the witnesses would be available at the proposed dates for examination.
The affidavit filed by the Government revealed two important facts.
The gist of the offences companymitted is import of goods of a companytraband nature of the value of Rs.
The prosecution filed a revision application before the Bombay High Court against the order dated 8 August, 1967 passed by the Magistrate rejecting the prosecution application for examination of witnesses on Commission.
Mithani has challenged the validity of that numberification in the writ petition.
The numberification dated 9 September, 1969 is ineffective for two reasons.
The hearing of the case started before the Chief Presidency Magistrate, Bombay on 12 February, 1962.
The special leave was limited to the question of number allowance of air fare and the daily expenses of Mithanis lawyer.
Ram, Lal Laxmi Dutta Nanda died on 15 September, 1967.
The Government in that behalf relied on a numberification dated 9 September, 1969 issued by the Central Government.
1 and 2 for extension of time upto 31st March, 1972 for the return of the Commission for examination of some witnesses in West Germany .
The Magistrate rejected the application.
In the present case, numbernotification under section 508A of the Code of Criminal Procedure has been published specifying the companyrts in the Federal Republic of West Germany by whom companymissions for examination of witnesses residing.
being Criminal Appeal No.
The Bombay High Court on 4 October, 1966 gave the prosecution time up to 4 January, 1967 for calling the foreign witnesses.
The prosecution filed petition for special leave to appeal to this Court against the order of the Bombay High Court.
It is said that the date is number a definite one.
Mithani is number charged in respect of those 4 companysignments.
117 of 1970.
First, from the year 1969 when the Government made application for examination of witnesses abroad the Government always suggested that there was in existence an arrangement between the Government of India and the Government of the Federal Republic of West Germany for examination of witnesses residing in the Federal Republic of West Germany in relation to matters in companyrts in India.
The goods were alleged to be of a companytraband nature.
1, 4 5 and 6 be tried according to law.
In regard to the 8 of the remaining 20 companysignments the prosecution alleged that 10 Verladescheins which are said to be Loading Sheets and which came to the possession of the prosecution gave the description of companytraband goods.
The third extension of time by the Bombay High Court was up to 16 September, 1970.
The numberification on 9 September 1969 was issued it seems in anticipation of an arrangement between the Government of India and the West German Republic.
The numberification dated 9 September, 1969 in the present case under section 504 of the Code of Criminal Procedure is number based upon any existing companyplete arrangement between the Government of India and the Government of the Federal Republic of West Germany for examination of witnesses residing, in West Germany.
The charges inter alia were that goods were imported without licence.
The numbere suggests that sometime towards the end of May or early in June, 1972 the,, date for hearing of witnesses has been fixed.
One of the accused challenged that order of the Magistrate in a revision .application before the Bombay High Court.
The prosecution also filed in the Bombay High Court an application for the issue of Commission to West Germany for examination of German witnesses.
On 18 March, 1971 the prosecution applied for another extension of time for the return of the Commission from 31 March, 1971 to 31 August, 1971.
Mithani on 25 August, 1970 obtained special leave to appeal against the judgment and order of the Bombay High Court dated 17 December, 1969.
The High Court remanded the case to the Magistrate for reconsidering the charges.
The prosecution in the month of January, 1967 filed an application before the Bombay High Court for cancellation of the bail of Mithani on the ground that he had extended threat to the German witnesses.
The petition for special leave was dismissed.
This Court however gave time to the prosecution till 26 June 1967 for examining the German witnesses.
The second matter of importance brought out by the affidavit is that in fact numberarrangement between the Government of India and the Government of the Federal Republic of West Germany for the examination of witnesses residing in West Germany was finalised.
In the month of June, 1969 the prosecution filed a revision application in the Bombay High Court challenging the order dated 26 February, 1969 whereby the Magistrate had discharged Mithain and the other two accused.
On 27 October, 1971 this Court directed the Government to file a better affidavit in the criminal application indicating the steps taken for the return of the Commission.
Mithani obtained special leave.
On 24 .July, 1962 the Magistrate held the Verladescheins inadmissible in evidence under the Indian Evidence Act and Commercial Documents Evidence Act, 1939.
The prosecution case in short was this.
The Bombay High Court on 17 December , 1969 allowed the application of the prosecution and ordered the issue of the Commission to the Federal Republic of Germany for the examination of German witnesses.
2089 Sup CI/72 Meanwhile on 14 September, 1970 and again on 10 December, 1970 the prosecution obtained from this Court extension praying for extension of time first upto 31 December, 1970 and ,then upto 31 March 1971 for the return of the Commission.
The charges framed were fewer than those claimed by the prosecution.
This Court directed the prosecution to pay to Mithani the tourist air fare for one lawyer and a sum of Rs.
The prosecution applied in the month of July, 1967 to the Magistrate for the issue of a Commission to examine German witnesses at Hamburg or Berlin or London.
Mithanis appeal is Criminal Appeal No.
dated 13 July, 1971 from the Indian High Commissioner in London to the External Affairs Ministry,, Government of India for examination of witnesses in West Germany as infraction of the provisions of section 504 of the Code of Criminal Procedure and as violative of the petitioners fundamental rights under Article 14 of the Constitution.
The prosecution in the month of February, 1963 went up ,on revision before the Bombay High Court against admission of only 9 and number all 10 Verladescheins and also against framing of fewer charges than that claimed by the prosecution.
15 lakhs and above.
The prosecution thereafter obtained an order from the Magis trate to take photostat companyies of certain documents.
Mithani was arrested on 11 May, 1960 and was on bail.
On 20 August, 1964 the Bombay High Court upheld the earlier order of the Magistrate that 10 verladescheins sheets were inadmissible.
The other is a writ petition of Mithani challenging the alleged arrangement mentioned in companymunication.
By an order dated 26 February, 1969 the Magistrate dis charged Mithani and two other accused.
The prosecution filed companyplaint against Mithani and 6 others on 1 April, 1961.
The prosecution came up to this Court for appeal by special leave against the order of the Bombay High Court dated 9 August, 1968.
On 21 December, 1962 on the .basis of admissibility of 9 verladescheins in evidence the Magistrate framed charges.
The Government filed an affidavit affirmed by P. K. Kapur on 9 November, 1971.
In support of that application the prosecution relied upon a numberification dated 9 September, 1969 issued by the Central Government under section 504 3 of the Code of Criminal Procedure.
This Court on 4 February, 1971 allowed Mithanis appeal.
In the month of August, 1971 the Ministry of External Affairs was writing that the papers had been sent to the Ministry of Home Affairs for ,their companycurrence and issue of numberification under section 508A of the Code of Criminal Procedure, The several annexures to the affidavit filed on behalf of the State indicate that reciprocal arrangements between the Government of India and the Federal Republic of West Germany for examination of witnesses in the Federal Republic of West Germany and in India are number yet companyplete.
The Bombay High Court on 6 March, 1967 cancelled the bail of Mithani and directed him to surrender to judicial custody on or before 13 March, 1967.
Mithani opposed any extension.
Mithani surrendered to jail custody on 13 March, 1967, Mithani filed a petition for special leave to appeal against the order of the Bombay High Court dated 6 March, 1967 cancelling the bail.
1 and P. Kapur, for respondents Nos.
24 companysignments were brought into India.
SRO 2161, SRO 2162, SRO 2163, and SRO 2164 all dated 16 November, 1953 published in the Gazette of India Part 11 Section 3 on 28 November, 1953 illustrate the reciprocal arrangements between the Government of India and the Government of the United Kingdom and the Government of Canada for examination of witnesses in the United Kingdom, Canada and the examination of witnesses residing in India.
The Magistrate how ever directed that the remaining 4 accused No.
117 of 1970 for extension of time upto 31 March, 1972 for the return of the Commission for examination of some witnesses in West Germany in Criminal Case No.
The Bills of Lading in respect of those 8 companysignments however showed the goods as companyered by the licences.
Mithani were alleged to have companymitted offences under section 120 B of the Indian Penal Code read with section 167 81 of the Sea Customs Act, 1878 and section 5 of the Imports and Exports Control Act, 1947 some time between the years 1959 to 1960.
in India may be issued.
CRIMINAL APPELLATE JURISDICTION Crl.
In that numberification it is recited whereas arrangements have been made by the Central Government with the Government of the Federal Republic of West Germany for taking the evidence of the witnesses in the Federal Republic of West Germany in relation to criminal matters in companyrts in India, the Central Government in pursuance of sub section 3 of section 504 of the Code of Criminal Procedure hereby directs that companymissions from companyrts in India for the examination of witnesses in the Federal Republic of West Germany shall be issued in the form annexed thereto, to the companyrts mentioned in the numberification.
The verbale numbere dated 6 March, 1972 issued by the Foreign Office of the German Republic is a memorandum of talks exchanged between the West German Republic and the Indian Embassy.
1 On 21 December, 1962 charges were framed.
The prosecution withdrew the special leave,petition.
Petition No.
The High Court dismissed the revision application.
Several witnesses were examined.
100/ per day for the expenses of the lawyer of Mithani engaged in examining witnesses in West Germany.
The prosecution took numbersteps to examine the German wit nesses.
On 14 October, 1971 the prosecution filed the present petition praying for extension of time from 31 October, 1971 to 31 March, 1972 for the return of the Commission.
1260 of 1971.
Application by respondents Nos.
Jagdish Swarup, Solicitor General of India, R. H. Dhebar and P. Nayar, for respondents Nos.
Between March 1962 and December 1962 the prosecution examined about 200 witnesses before the Magistrate.
The prosecution failed to do so within the appointed time.
By another order dated 6 December, 1962 the Magistrate however held that 9 out of 10 verladescheins were admissible, in evidence.
The last 4 companysignments were seized.
N. Shroff, for the appellant.
One Ram Lal Laxmi Dutta Nanda and 7 others including,.
42/ CW of 1962 pending in the Court of the Presidency Magistrate, Esplanade Courts, Bombay.
The Judgment of the Court was delivered by Ray, J. There are two matters before this Court.
One is an application of the State of Maharashtra and the Assistant Collector of Customs, Bombay in Criminal Appeal No.
3 and 4.
the arrangement is signed, requesting them to summon the witnesses for interrogation as per the names and addresses supplied by that Government.
