When the case went back to the Magistrate the prosecution applied for taking photostat companyies of certain documents from the Magistrates Court in order to enable it to send them to West Germany where witnesses were proposed to be examined for proving the verladescheins as also in respect of other matters relevant and necessary to support the prosecution case The Magistrate granted this application but Accused 1 challenged it before the High Court of Bombay.
When the foreign witnesses were however number examined by that date Accused 2 was released on bail.
The 7 accused including the Appellant as Accused 2 and the petitioner in Special leave petition accused 3 are being tried for an offence Under Section 120 b of Indian Penal Code read with Section 167 81 of the Sea Customs Act 1878 and Section 5 of the Exports Imports Control Act, 1947.
100/ a day for the lawyer of the Petitioner should be paid by the State.
565/69 was filed on 25 8 69 and later Criminal application 873/69 in Criminal Revision Application No.
The appellant filed Special Leave Petition No.
The last 4 companysignments themselves which were impounded were of about Rs.
42/W of 1962 in the Court of the Presidency Magistrate, Bombay Of the 7 accused, accused 4 is a clearing Agent while Accused 5, 6 and 7 are petty employees The prosecution case is that the main brain behind the companyspiracy is that of the deceased Nanda who along with 7 accused imported into Indian companytraband goods in companytravention of the Customs Act and Export Import Control Act.
On 2 12 68 the prosecution made another application to the Magistrate to examine certain witnesses but the Magistrate rejected that application on 9 1 69 and on 26 2 69 he discharged the appellant and the petitioner Sibal Against this order Criminal Revision Application No.
During the pendency of this Appeal before us the High Court extended time for the return of the Commission upto 16 9 70 and this Court has extended that time till 31 12 70 and further extension was given till 31.3.71.
The offences with respect to which this prosecution has been lodged are said to have been companymitted between August 1957 and March 1960 by the 7 accused along with one Ramlal Laxmidutt Nanda who died on 15 9 60 before the Assistant Collector of Customs filed Criminal case No.
When this application came up for companysideration this Court by an order, dated 25 8 70 limited the Special leave only to the question whether the order of the High Court refusing to allow any expenses for the lawyer of the Petitioner to be taken to Germany is justified or number justified.
Subsequent to the filing of this Appeal another accused namely accused 3 Sibal also filed an application for grant of Special leave against this very same order in which the order of the High Court has been challenged on various grounds including the ground that the amount allowed for expenses of the applicant was insufficient and that while the order by the Magistrate directing the accused to be discharged which order was companyfirmed by the High Court in earlier proceedings, was still operative, the learned Judges had numberpower to pass any orders appointing a Commission for examination of witnesses abroad.
The Special leave petition also raised several other questions of law which were stated to be important namely whether the High Court had power to issue Commission on an interlocutory application in a revision application against the discharge of an accused person, whether it was entitled to grant an application for Commission when a similar application rejected by another Bench of the same High Court on the merits and substantially on the same facts, whether the case falls within the provision of Section 503 Criminal Procedure Code for issue of a Commission and if number whether the High Court has inherent jurisdiction to enlarge the scope of the Section on the ground that there is a lacuna in the said provision which can be filled in by the exercise of the inherent jurisdiction of the High Court and other legal points which it is unnecessary to recapitulate.
The further case of the prosecution is that verladeschein related to companysignments in the name of Suresh Trading Co, Deepak Co. and that it has in its possession ten verladescheins which have to be proved in order to bring home the offence to the accused.
The 4th companycern was Suresh Trading Co of which the proprietor was the 3rd accused who resided permanently in Delhi.
It is alleged that there were six business companycerns which were importing certain goods from Germany 1 the Eastern Trading Corporation of which the deceased Nanda was the proprietor and the Ist accused who is the nephew was his Manager.
The learned Judge upheld the order of the Magistrate that the 10 verladescheins were inadmissible Under Section 32 of the Evidence Act.
Against this order Criminal Application 64/67 by Special Leave was filed but on 4 5 67 this Court while dismissing the appeal fixed 26 6 67 as the date within which the prosecution were to examine German witnesses.
569/69 was also filed for the issue of a Commission for examining the German witnesses which was allowed by the High Court.
When this fact came to be known through the Govt.
The prosecution applied for a certificate of leave to appeal to this Court which was rejected and subsequently to Special Leave Petitions No.
The High Court however prescribed 3 months time for the prosecution to call the foreign witnesses namely upto 4 1 67 but it was alleged that before the time for expiry arrived an anonymous letter was written by the Appellant Mithani on 4 8 67 to German witnesses in an attempt to tamper with them and also warning them of the fate that would be fall them in case they came to India to give evidence.
Chandrachand J. by his order dated 34d 6th March 1967 held that though the letter was an anonymous letter there was internal evidence to companynect Accused 2 with it and companysequently cancelled the bail and directed Accused 2 to surrender, with liberty to him to move the Court on or after 26 6 67 for a fresh order of bail.
The High Court had in fact stated that the Appellant will number be entitled to be paid anything at all in respect of the expenses that he will have to incur if he chooses to be represented by a lawyer for the purpose of cross examining the prosecution witnesses who will be examined on Commission in Germany, as there is a companycluded finding of fact that he had intimidated and tempered with the German witnesses both of the High Court as also of the Supreme Court.
The second was Shantilal Chaganlal Co., of which the second accused was one of the partners The 3rd companycern is Hindu Trade Service in which the deceased Nanda and the first accused are partners.
He however reversed the order of the Magistrate admitting 9 of the 10 verladescheins Under Section 10 of the Evidence Act because he was of the view that even those 9 were number admissible under that Section In this view he remanded the case to the Magistrate for reconsidering the charges framed by him.
618/67 in the Supreme Court against the order of 25 5 70 but leave was granted limited only to the question of whether the to and fro tourist class air fare and expenses at Rs.
15 lakhs.
In order to understand the nature of the order and the circumstances in which it was passed it is necessary to set out briefly the history of this prosecution which demonstrates a striking example of the manner in which the provisions of law designed to ensure a fair, and speedy trial have been taken full advantage of to prolong and procrastinate and in fact negate the main purpose of criminal justice namely an expeditious trial.
The Magistrate by his order of 24 8 1962 while holding that these were inadmissible Under Section 10 of the Evidence Act.
After so holding he framed charges on the basis of 9 verladescheins as also on the footing that the alleged companyspiracy had ended on 1 2 60 instead of 31 3 60 .
965 and 966/65 were filed against that Judgment but this Court dismissed both of them on 27 1 1966.
The Magistrate number only rejected this application on 8 8 67 but also directed on 9 8 67 that the case should go on On the order of the Magistrate dated 8 8 67 the prosecution again preferred Criminal Revision 882/67 but that was dismissed by Desai and Wagle JJ on 9 8 68 Against that order it filed Special Petition No.
With regard to 8 of the remaining 20 companysignments the prosecution say that it has in its possession verladescheins which give description of companytraband goods, though the bill of lading in respect of these 8 very companysignments shows these goods as companyered by licences.
Some of these grounds it will be seen are similar to those raised in the Special Leave Petition filed by the Appellant where as we numbericed earlier leave was limited to the question whether the High Court was justified in disallowing the expenses and air fare to the Appellants lawyer.
The second accused Mithani holds a general power of Attorney from Suresh Trading Co. and a power of Attorney limited only to operate the bank accounts with Hong Kong and Shangai Bank for the Eastern Trading Corporation.
of Indias representative in Germany the prosecution filed Criminal Application 24 of 1967 for cancellation of bail in the High Court.
It is alleged that the accused in the perpetration and execution of their criminal design obtained the companylaboration of certain foreign firms in West Germany by obtaining false invoices showing that goods were those for which they had licences and which they companyld legitimately bring into India.
The Magistrates order against the Appellant is obviously based upon what it companysidered to be companycluded finding of fact of the High Court as also the Supreme Court that the Appellant intimidated and tampered with the German witnesses In every criminal trial the accused is entitled to have the witnesses examined in his presence and if a departure is made and witnesses cannot be brought here for one reason or the other whether due to the action of the Appellant or the in action or want of diligence or the part of the prosecution, and they have to be examined on companymission beyond the frontiers of this Country it is incumbent upon the prosecution and the Court in ensuring a fair and impartial trial to afford to the accused the same facilities for employment of a lawyer, the payment of his to and fro air fare to the place where the Commission will examine witnesses and his daily expenses while he is engaged in the work of the companymission.
It is the case of the prosecution that the accused by following the system narrated above brought into India 24 companysignments of which the last 4 companysignments were seized.
The High Court also granted time to the prosecution fixed 31 5 70 for return of the Commission which date was subsequently extended upto 31 8 70.
The prosecution companymenced examination of witnesses in March 62 and in all examined 200 witnesses by December, 62 but in August 62 it wanted to mark these 10 verladescheins without examining any witnesses, either Under Section 32 or Under Section 10 of the Evidence Act.
Apart from these four companycerns there were 2 other companycerns namely D. Deepak Co., and Raj Trading Co. The proprietor of the former was one Desh Deepak while of the later was the deceased Nanda and its Manager first accused.
The learned Advocate for the Appellant though sought to extend the scope of the Appeal, we have companyfined his submission only to that limited question.
107 of 1963 in the Bombay High Court in which it inter alia challenged the order of the Magistrate rejecting the 10 verladescheins as number being admissible Under Section 32 of the Evidence Act in number admitting one out of 10 verladescheins Under Section 10 of the Evidence Act and framing fewer charges than requested by the prosecution on the footing that the companyspiracy had ended on 1 2 60 and number on 31 3 60 as companytended by the prosecution This revision petition took over a year to companye up for hearing and was ultimately heard and determined by Gokhale J , on 19/20 August 64.
The agent obtains a form of the bill of landing, fills it with the required particulars with the number of verladescheins and dispatches to the shipping agent who after companyparing the No.
50 lakhs, and evaded a duty of about Rs.
In respect of Deepak Co. A2 held a companyprehensive, power of attorney to manage the work of the companycern and to operate its Bank account .The Modus operandi adopted by the accused in the companymission of the offence with which they are charged is that under the pretext of importing goods of small value under a licence they fradulently imported without licence valuable goods like wrist watches, mathematical sets, out glass articles, thermometers etc.
It would seem that the charges framed by the Magistrate were fewer than what the prosecution desired and companysequently in February 1963 it filed Criminal Revision Application No.
The prosecution thereafter applied to the Magistrate for examination of the witnesses at Namburg or Berlin or London.
5 lakhs the market value of which is estimated at Rs.
of a total value of over Rs.
20 lakhs.
944/68 in this Court which was allowed to be withdrawn on 4 11 68.
