Judgment:
ORDER
C.M.K. Prasad, J.
1. Union of India, through Asstt. Collector, Customs and Central Excise, lodged a complaint in the Court of Additional Chief Judicial Magistrate (Economic Offences Court), Indore, impleading five persons as accused, including accused No. 5 Tejpal Singh alias TOM alias TINU, who is the petitioner in this revision petition. According to the complaint, Maruti Car No. DAC 8110 was intercepted on 11-12-1988 at 22.30 hours at Hotel Pallavi situated at 1/1 Green Park, Indore in the presence of two Panch witnesses, when one of its two occupants came out of the said hotel along with the occupant of room No. 207 of Hotel Pallavi Indore. According to the complaint, the occupants of the said Maruti Car had earlier gone inside the hotel to contact the occupant of room No. 207 of the hotel. The persons occupying the said Maruti Car disclosed their identity as Pradeep Singh Walia (accused No. 1) and Harbhajan Singh (accused No. 3). It is alleged that officers of Customs and Central Excise enquired from them as to whether they possess any contraband gold in their possession, they are alleged to have replied in negative. It is further alleged that for safety and security, the aforesaid Maruti Car along with accused persons Pradeep Singh Walia, Harbhajan Singh and Mukesh Singh Rathore and two panch witnesses were escorted to the office of the Central Excise at Manik Bagh Palace, Indore. It is further alleged that the said Maruti Car was searched which resulted in recovery of 200 Foreign Made gold biscuits of 10 tolas each from a cavity on the left side, of the floor of the Car. The aforesaid accused could not produce any proof-documentary or otherwise, in support of legal acquisition/import of the recovered contraband gold biscuits. Total weight of the said biscuits was 23.330 kgs. valued at Rs. 73,48,950/-. In the opinion of the complainant, the aforesaid gold biscuits were smuggled and liable to be confiscated.
2. Further story according to the complainant is that in search of accused No. 1 Pradeep Singh Walia, a 'two-rupee' note-and one 'hundred rupee' note containing description 'R.K. Shah - 35136, Two Palwabi H-45/262502' was written in ink. It is alleged that accused No. 1 Pradeep Singh disclosed before Panch witnesses that the said two rupee note was given to him as a token by accused No. 3 Mukesh Singh Rathore at Hotel Pallavi itself for taking delivery of Foreign Made gold biscuits. He is alleged to have stated that he had written the said description on one hundred rupee note at Amritsar. So far as the present petitioner is concerned, it is stated that in his statement recorded under Section 108 Customs Act, he has stated that he knew R.K. Shah since long. He further disclosed telephone number of the said R.K. Shah. In his statement he has further admitted that he had been receiving smuggled foreign made gold from N.K. Jain through a man known as BABA. He is also alleged to have admitted that he had dealings of foreign made biscuits with N.K. Jain on telephone and, thereafter, person named as 'BABA' had delivered 50 and 70 pieces of foreign made gold biscuits during the period August 1988 to Deepawali 1988. It is further alleged that after he sold the said gold biscuits, he made payment of Rs. 45,00,000/- to N.K. Jain, through accused Nos. 3, 4 and one Gyanchand. It is further stated in the complaint that this petitioner has admitted that Indian Air Lines Tickets produced by him were purchased by him in the name of R.K. Shah as per telephonic instructions of N.K. Jain.
3. The trial was conducted according to the procedure provided for conduct of warrant cases. During trial the complainant examined three witnesses in support of its case as provided under Section 244 Cr. PC. Documentary evidence was also produced during the said trial.
4. The learned Magistrate, by its order dated 10-5-1990, in exercise of powers conferred under Section 245 Cr. P.C discharged the petitioner, whereas he had directed for framing of charges against other accused persons. Aggrieved by the aforesaid order, the Union of India, preferred revision petition before the Sessions Judge, Indore, which was ultimately heard by the 5th Addl. Sessions Judge Indore and he, by order dated 4-5-1991, set aside the order of the learned Magistrate dated 10-5-1990 and directed framing of charges against the petitioner also. Aggrieved by the aforesaid order of the learned Additional Sessions Judge, the petitioner has preferred this revision petition before this Court.
5. Shri S. Kulshrestha, learned counsel for the petitioner, in support of the application submitted that the Addl. Sessions Judge totally misdirected himself in setting aside the order of discharge passed by the learned Magistrate. He instead of applying the principle of discharge as provided under Section 245 Cr. P.C., tested the order of the Magistrate in the light of the provisions of Section 239 of the Cr. P.C. According to the learned counsel, the learned Magistrate was bound to pass order keeping in mind the principles enunciated in Section 245 Cr. P.C. Learned counsel further submitted that under Section 245 Cr. PC., the learned Magistrate is only required to see if the evidence produced as contemplated under Section 244 Cr. PC., if unrebutted, would warrant the accused's conviction. However, the learned Addl. Sessions Judge, while allowing the application has proceeded to see as to whether there is prima facie case against the petitioner. Shri Kulshrestha, in fairness, submitted that the statements made before the Customs Authorities by the petitioner can be taken into consideration for the proposes of framing charge. However, he contended that whatever has been stated by the petitioner in this statement as also from the statements made in the complaint petition, statements of the witnesses as also the documentary evidence, even if unrebutted, no case is made out for framing of charge and these materials would not warrant his conviction. According to him, the admission of the petitioner that he was involved in dealing of contraband articles earlier, cannot connect him with the present crime. He further submitted that from production of two air tickets in the name of Shri R.K. Shah, at the instance of N.K. Jain, who in fact was Mukesh Singh Rathore, it can at best be inferred that the petitioner knew Mukesh Singh Rathore. But this itself, in my opinion, cannot connect him with the crime. In his submissions Shri Kulshrestha submitted that to know a person and being associated with him in the crime is entirely different situations and one cannot be prosecuted simply on the ground that the petitioner knew the accused.
6. Shri E.G. Neema, learned standing counsel for the Union of India contended that in case there is prima facie material to connect the petitioner with the crime, the learned Magistrate was not correct in passing the order of discharge, which was rightly reversed by the revisional court. He further submitted that at this stage the learned Magistrate was not required to record order of acquittal and the same was correctly interfered with by the revisional Court.
7. Having given my anxious consideration to the entire facts and circumstances of the case, I am in agreement with the contentions of learned counsel for the petitioner that the learned Additional Sessions Judge has totally misdirected himself. Even if it is established that the petitioner was knowing accused No. 3, this by itself cannot be a ground to connect him with the crime. Further, the submission of the complainant that the petitioner was involved in smuggling activities of contraband articles earlier, cannot lead to a conclusion that he was involved in the present crime.
8. I found force in the submission of Shri Kulshrestha. Having perused the entire record, I do not find any material to connect the petitioner with the crime and the material if unrebutted would warrant petitioner's conviction the learned Magistrate was right in discharging the petitioner.
9. In the result the revision petition is allowed. The order of the learned Addl. Sessions Judge, Indore dated 4-5-1991 passed in Criminal Revision No. 165/90 is hereby set aside and that of the learned Magistrate, passed in Cr. Case No. 64/89 on 10-5-1990 is restored. Records of the courts below be sent back immediately.