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TMI Blog1959 (5) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by the Magistrate on 16-9-1952, was without jurisdiction. If the initiation of the proceeding was without jurisdiction, the conviction could not stand. The High Court thought that the contention of the appellant raised a question of law and granted the requisite certificate for appeal to this Court. 2. The prosecution case was that on 7-9-1952, the appellant went to Dum Dum Aerodrome with a view to boarding a plane for Hong Kong. The Plane was due to leave the airport at 8.30 a.m. The appellant had to go through the customs formalities before he could board the plane. On an enquiry by the Customs officers as to whether he had any other articles besides what he had declared in the declaration form, the appellant answered in the negative. His baggage was then examined but no objectionable article was detected therein. The customs Officer however, noticed a pouch of somewhat unusual size which aroused their suspicion. Thereafter, the appellant was subjected to personal search. When they were about to search his person he let drop his trousers. The appellant was requested to lift up the trousers and wear them again which he did. On the search of the trousers a sum of Rs. 25,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate having taken cognizance of the offence on 16-9-1952, and as the provisions of Section 23(3) of the Foreign Exchange Regulation Act had not been complied with, the entire proceedings before him and the Magistrate who tried the case were without jurisdiction. The subsequent authorization by the Reserve Bank on 27-1-1953 and the filing of the complaint on 2-2-1953 could not make legal proceedings which had already commenced without jurisdiction. It was also urged that the facts found did not attract the provisions of Section 19 of the Sea Customs Act (8 of 1878) as it could not be said that at the moment the appellant was searched by the Customs Officials, he was taking out of India across any customs frontier as defined by the Central Government the currency notes in question. It was also urged that the explanation offered by the appellant was accepted by the trying Magistrate & the High Court ought not to have set aside the acquittal of the appellant, there being no goods ground why his explanation should not have been accepted. 5. The version of the appellant as to how the sum of Rs. 25,000 in currency notes was with him was that he was not searched at all at the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is apparent that the very foundation of the defence of the appellant is false. That the appellant did not hand over the currency notes of Rs. 25,000 at the customs barrier but was searched when the customs formalities were gone through is not only deposed to by a number of witnesses holding responsible positions but is deposed to by P.W. 4, Panna Lal Dey, Money Exchanger of Dum Dum Airport. Panna Lal Dey's evidence was accepted by the High Court and after having examined his evidence we are satisfied that there is no reason to distrust his testimony. Reference has been made to some of the evidence on a question of fact in order to satisfy ourselves whether the finding of the High Court was correct. We are satisfied that the finding of the High Court is the only view which could reasonably be taken in a case like this. 7. It is true that the appellant had not taken the currency notes in question out of India across any customs frontier as defined by the Central Government. He had, however, clearly attempted to take the same out of India. In such a case no question of his crossing the customs frontier arises. That an attempt to take out the currency notes in question is an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Reserve Bank of India by a general or a special order. It is, therefore, necessary to see, in the circumstances of the present case, on what date cognizance of the offence was taken. In order to ascertain this certain provisions of the Foreign Exchange Regulation Act and the Code of Criminal Procedure will require consideration. Under Section 19(3) of the Foreign Exchange Regulation Act a District Magistrate or Magistrate of the first class may, on a representation in writing made by a person authorized in this behalf by the Central Government or the Reserve Bank and having reasons to believe that there had been contravention of any of the provisions of that Act, issue a search warrant Inspector Mitra was so authorized by the Reserve Bank on 11-9-1952, and in pursuance of that authorisation applied to the Additional District Magistrate for the issue, of a search warrant. Under this section the search warrant is issued for the purposes of conducting investigation under that Act. On September 16, Mitra applied for a warrant of arrest against the appellant. This application was obviously made under the Criminal Procedure Code. The offence which the appellant is alleged to have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sinha, S.D.M. (Sadar), Magistrate 1st class (spl. empowered) for favour of disposal according to law. Accused to appear before him." Accordingly, on the same date Mr. Sinha then recorded the following order : "Accused present. Petition filed for reduction of bail. Considering all facts, bail granted for Rs. 25,000 with 5 sureties. To 26-3-1952 and 27-3-1952 for evidence." It is clear from these orders that on 19-9-1952, the Additional District Magistrate had not taken cognizance of the offence because he had allowed the police time till 19-11-1952, for completing the investigation. By his subsequent orders time for investigation was further extended until 2-2-1953. On that date the complaint was filed and the order of the Additional District Magistrate clearly indicated that he took cognizance of the offence and sent the case for trial to Mr. Sinha. It would also appear from the order of Mr. Sinha that if the Additional District Magistrate did not take cognizance, he certainly did because he considered whether the bail should be reduced and fixed the 26th and 27th of March for evidence. It was, however, argued that when Mitra applied for a search warrant on 16-9-1952, the Addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the various orders made by the Additional District Magistrate no cognizance of the offence was taken until 2-2-1953. The argument that he took cognizance of the offence on 16-9-1952, is without foundation. The orders passed by the Additional District Magistrate on 16-9-1952, 19-9-1952, 19-11-1952 and 2-1-1953, were orders passed while the investigation by the police into a non-cognizable offence was in progress. If at the end of the investigation no complaint had been filed against the appellant the police could have under the provisions of Section 169 of the Code released him on his executing a bond with or without sureties to appear if and when so required before the Additional District Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. The Magistrate would not be required to pass any further orders in the matter. If, on the other hand, after completing the investigation a complaint was filed, as in this case, it would be the duty of the Additional District Magistrate then to enquire whether the complaint had been filed with the requisite authority of the Reserve Bank as required by Section 23(3)(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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