Judgment

SARKARIA, J.:- This appeal by special leave is directed against a judgment, dated Jan. 21, 1976, of the High Court of Judicature at Bombay in Criminal Revision Application No. 565 of 1969, whereby is set aside an order, dated Feb. 26, 1969, of the Chief Presidency Magistrate and directed the latter to restore Case No. 244/C. W. of 1968 against the accused persons, excepting accused No. 7 (who is since dead) for being dealt with in the light of the observations made therein.

2. The case was originaly instituted on April 1, 1961 on the basis of a criminal complaint filed by the Assistant Collector (Customs) in the Court of the Chief Presidency Magistrate, Esplanade, Bombay. It is alleged in the complaint that between August 1957 and March 1960, offences u/s. 12-B, I. P. C., read with S. 167 (81) of the Sea Customs Act, 1878 and S. 5 of the Imports and Exports (Control) Act, 1947, were committed by one Ramlal Laxmidutta Nanda and others, including the appellant, who is accused No. 2 in the trial court. Ramlal Laxmidutta Nanda was alleged to be the principal culprit. He died on Sept. 15, 1960. As a result of a conspircay, twenty-four consignments of goods came from abroad and were received in Bombay. The conspiracy was carried out in this manner. By steamer, two consignments bearing similar marks woud arrive such as M. T. S. M. I. S. marked in triangle. The first consignment would contain the genuine goods and the second consignment would contain less number of cases than the first consignment. The documents would arrive for the first consignment. With the help of the documents for the genuine goods, the Customs examination would be carried out, and then at the time of removing the real consignment, contraband consignment plus one case of the genuine consignment would be removed. Remaining goods of the genuine consignments with their marks tampered, would be left unattended in the docks. Out of the 24 consignments brought into India, the last four were seized by the Customs. The appellant Mithani was not linked with any of those four. But with regard to the remaining 8 out of the twenty consignments, the prosecution alleges that it has in its possession 10 Verladescheins (called as mate sheets o receipts) which give the description of the contraband goods. Out of these 10 Verladescheins, 2 relate to consignments in the name of Suresh Trading Co. and Dee Deepak & Co. From the proprietors of these two firms, the appellant Mithani held Powers of Attoney. 96

3. Mithani was arrested and bailed out on May 11, 1960. Between March 1962 and December 1962, the Prosecution examined about 200 withnesses before the Magistrate, but had not yet examined any witness in regard to any of the lot Verladescheins.

4. The complainant made an application to the trial Magistrate, requesting him to get on record a number of documents falling into three categories, viz. (1) Verladescheins (Mates receipts), (2) the correspondence that passed between Shaw Wallace & Co. and their principals and agents aborad and also the correspondence that passed between the other shipping agents in Bombay with their principals, and (3) the documents concerning the Company known as C. C. E. I. at Zurich.

5. By an order, dated August 24, 1962, the Magistrate held that 10 out of the 20 Verladescheins were inadmissible either under the Evidence Act or under the Commercial Documents Evidence Act, 1939. By another order, dated December 6, 1962, the Magistrate held that 9 out of the 10 Verladescheins were admissible under Section 10 of the Evidence Act. Some other letters and correspondence were also excluded on the ground that they could not be said to have been written in furtherance of the conspiracy.

6. On December 12, 1962, the Magistrate found that no other witness for the prosecution was present. He, therefore, passed this order:

"None of the witnesses are present. The case is very old. There is enough evidence for the purpose of charge and about 200 witnesses are examin