JUDGMENT :

Subhendu Samanta, J.

1. This is an application u/s 482 read with Section 197/401 Cr.P.C for quashing a criminal proceeding being Criminal Misc Case no. 02/97 for alleged commission of offence punishable u/s 135 of Customs Act 1962 now pending before the court of Learned Chief Judicial Magistrate Murshidabad at Behrampur wherein cognizance has been taken vide order dated 14.02.2017 and the prayer of the present petitioners for discharge was turned down on 04.03.2017.

2. The brief fact of the case is that the present petitioner No.-1 was posted as ASI no. 678 at GRP, Sealdah in the year 1984 thereafter, in the year 1997 he was transferred GRP, Katwa under Eastern Railway and now he has posted at Barasat Police Station, District North 24 Parganas. Petitioner No.-2 joined arm force as constable in the year 1980, in the year 1994 he was posted at GRP at Katwa, thereafter he was transferred to West Bengal Police in the year 2003. He retired on superannuation on 31.01.2017 while he was posted Champadali TOP under Bhadreswar Police Station District Hooghly.

3. On 3rd January 1997 Inspector of Customs, Behrampur Customs Preventive Unit apprehended 05 persons from Teesta Torsa train at Kharagpur Rail Station and seized foreign made electronics goods from their possession while they were coming from New Jalpaiguri Station. The present petitioners along with one constable Santosh Kumar karmakar was on duty in Teesta Torsa train at the time from Azimganj Rail Station to Katwa Railstation. Kharagpur Rail Station is the next stoppage after Azimganj junction. 05 apprehended persons were taken into custody by the Custom Authority vide seizure case no. 1/Imp/CL/BCPU/1997 dated 03.01.1997.

4. On 20th January 1997 the present petitioner along with Santosh Karmakar were arrested as they were on duty at the relevant point of time in the said train. They were released on bail from the court of the Learned Chief Judicial Magistrate Murshidabad in criminal Misc Case no. 02/1997.

5. The confiscation proceeding in connection with the seizure was initiated by the Joint Commissioner of Customs (prev) and in the said proceeding confiscated the seizure articles and imposed personal penalty against the 08 persons including the petitioners. Appeal was preferred against the said order before the Commissioner of Customs (W.B.) which was dismissed. The petitioner filed an appeal before the Appellate Tribunal against the said order of appeal whereby the Hon’ble Appellate Tribunal set aside the impugned order of personal penalty and remanded back the matter before the original Adjudicating Authority for de-novo decision. However, de-novo adjudication by the Adjudicating Authority is yet to be initiated.

6. In the criminal Misc no. 2 of 1997 several adjournments were obtained for submission of final report by the Customs Authority since long thus Learned CJM Murshidabad vide order dated 19.08.2008 passed an order with the effect that the Criminal Misc Case no. 2 of 1997 made file for present against the accused persons/petitioners. The liberty is given to the concerned authority to file P.R as and when some would be ready. The Customs Authority filed the P.R/ final report of 23rd April 2015 on the basis of which Learned CJM took cognizance against the accused persons by passing the impugned order dated 14th February 2017. The petitioner filed one discharged application on 17th November 2010 u/s 167(5) of Cr.P.C. Learned Court below by passing the impugned order dated 4th March 2017 rejected the application of the petitioner praying for discharge and fixed the case on 04.04.2017 for appearance of the all accused persons.

7. Hence this revision.

8. Learned Advocate for the petitioner submitted before this court that the allegation made in the complaint or in the final report submitted by the Customs Authority did not constitute offence punishable u/s 135 of Customs Act against the present petitioners.

9. He further argued that the Learned CJM Murshidabad has committ