Judgement

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. 117 of 1970 for extension of time up to 31 March, 1972 for the return of the Commission for examination of some witnesses in West Germany in Criminal Case No. 42/CW of 1962 pending in the Court of the Presidency; Magistrate, Esplanade Courts, Bombay. The other is a writ petition of Mithani challenging the alleged arrangement mentioned in communication 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 violated of the petitioner s fundamental rights under Article 14 of the Constitution.

2. One Ram Lal Laxmi Dutta Nanda and 7 others including Mithani were alleged to have committed offence under Sec. 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. The gist of the offence committed is import of goods of a contraband nature of the value of Rs. 15 lakhs and above.

3. Mithani was arrested on 11 May, 1960 and was on bail. Ram Lal Laxmi Dutta Nanda died on 15 September, 1967.

4. The prosecution filed complaint against Mithani and 6 others on 1 April, 1961. The hearing of the case started before the Chief Presidency Magistrate, Bombay on 12 February, 1962. Several witnesses were examined. On 21 December, 1962 charged were framed. The charges inter alia were that goods were imported without licence. The goods were alleged to be of a contraband nature.

5. The prosecution case in short was this, 24 consignments were brought into India. The last 4 consignments were seized. Mithani is not charged in respect of those 4 consignments. In regard to the 8 of the remaining 20 consignments 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 contraband goods. The Bills of heading in respect of those 8 consignments however showed the goods as covered by the licences.

6. Between March 1962 and December 1962 the prosecution examined about 200 witnesses before the Magistrate. On 24 July, 1962 the Magistrate held the Verladescheins inadmissible in evidence under the Indian Evidence Art and Commercial Documents Evidence Act, 1939. By another order dated 6 December, 1962 the Magistrate however held that 9 out of 10 Verladescheins were admissible in evidence. On 21 December, 1962 on the basis of admissibility of 9 Verladescheins in evidence the magistrate framed charges. The charges framed were fewer than those claimed by the prosecution.

7. The prosecution in the month of February, 1963 went up on revision before the Bombay High Court against admission of only 9 and not all 10 Verladescheins and also against framing of fewer charges than that claimed by the prosecution. On 20 August, 1964 the Bombay High Court upheld the earlier order of the Magistrate that 10 verladescheins sheets were inadmissible. The High Court remanded the case to the Magistrate for reconsidering the charges.

8. The prosecution filed petition for special leave to appeal to this Court against the order of the Bombay High Court. The petition for special leave was dismissed.

9. The prosecution thereafter obtained an order from the Magistrate to take photostat copies of certain documents. One of the accused challenged that order of the Magistrate in a revision application before by Bombay High Court. The Bombay High Court On 4 October, 1967 gave the prosecution time up to 4 January, 1967 for calling the foreign witnesses. The prosecution failed to do so within the appointed time.

10. The prosecution in the month of January, 1967 filed an application before the Bombay High Court. fo