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TMI Blog1971 (2) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 not 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. When this application came up for consideration 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 not justified . Subsequent to the filing of this Appeal another accused namely accused 3 Sibal also filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerns 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 second was Shantilal Chaganlal Co., of which the second accused was one of the partners The 3rd concern is Hindu Trade Service in which the deceased Nanda and the first accused are partners. The 4th concern was Suresh Trading Co of which the proprietor was the 3rd accused who resided permanently in Delhi. 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. Apart from these four concerns there were 2 other concerns 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. In respect of Deepak Co. A2 held a comprehensive, power of attorney to manage the work of the concern and to operate its Bank account .The Modus-operandi adopted by the accused in the commission of the offence with which they are charged is that un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the consignments to be sent out used to enter correctly actual contents, their nature and quantity in the Verladeschein but when the bill of lading is filled in, taking advantage, it is said of the practice in the shipping Companies of only checking the No. of the verladeschein with that stated in the bill of lading, false description of goods and other particulars were given so that when the bill of lading was received by the importers in Bombay the Custom Officials would only know that the consignment contains those goods stated in the bill of lading which were goods permitted to be imported under the licence. Shri Khan-delwala explained the further case of the prosecution as to what happened when the goods were received in the Bombay port which of course has yet to be established by credible evidence. It appears that invariably another consignment would also be despatched which contained the actual goods shown in the bill of lading for which the bill of lading would not be forwarded. When the consignment arrives there will be two sets, one of 13 packages containing importable goods which are shown in the bill of lading along with another of 11 packages containing contraban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 verladescheins as not being admissible Under Section 32 of the Evidence Act in not 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 conspiracy had ended on 1-2-60 and not on 31-3-60 as contended by the prosecution This revision petition took over a year to come up for hearing and was ultimately heard and determined by Gokhale J , on 19/20 August '64. The learned Judge upheld the order of the Magistrate that the 10 verladescheins were inadmissible Under Section 32 of the Evidence Act. 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 not admissible under that Section In this view he remanded the case to the Magistrate for reconsidering the charges framed by him. The prosecution applied for a certificate of leave to appeal to this Court which was rejected and subsequently to Special Leave Petitions No. 965 and 966/65 were filed against that Judgment but this Court dismissed both of them on 27-1-1966. 3. When the case went back to the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Revision Application No. 565/69 was filed on 25-8-69 and later Criminal application 873/69 in Criminal Revision Application No. 569/69 was also filed for the issue of a Commission for examining the German witnesses which was allowed by the High Court. 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 appellant filed Special Leave Petition No. 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 ₹ 100/-a day for the lawyer of the Petitioner should be paid by the State. 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. 4. The brief history of this case would show how a prosecution which was launched in 1961 has been shuttling up and down for 10 years between all the Courts from the lowest to the highest, in which as we said earlier all the provisions of law designed to ensure speedy crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d A7 we find little merit in the Court singling out the accused Appellant. It is not a case of punishment for something he is said to have done during the initial stages for which he in any case had his retribution by the loss of personal freedom for nearly three months when his bail was cancelled and he was directed to surrender. We think interest of justice requites that he also should be treated in the same way as the other accused and consequently we allow the appeal and direct that the prosecution to pay to the Appellant also the tourist class air fare for one lawyer plus ₹ 100/ per day for the expenses of the stay of the lawyer in Germany during the actual time required for execution the Commission. 5. In so far as the Special Leave Petition (Criminal) No. 890 of 1970 of A1 is concerned similar ground to those urged by Accused 2 when he filed his Special Leave Petition were also urged namely that the High Court could not without setting aside the order of discharge direct a Commission for the examination of German witnesses to issue. This Court had in A2's application specifically limited the question only to his grievance that he was neither paid his lawyer' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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