( 1 ) THE respondent No. 1 along with other accused was charged for the offence punishable under section 135 of the Customs Act 1962 on the allegation that in pursuance of conspiracy prohibited articles such as wrist watches foreign cloth foreign fountain-pens and other articles were brought and was in any way concerned in carrying removing depositing harbouring keeping concealing selling or purchasing or in any other manner dealing with such prohibited goods which he knew or had reason to believe were liable to confiscation under section 111 of the Customs Act and for the offences punishable under section 13 (1) of the Foreign Exchange Regulation Act 1973 and section 5 of the Import and Export Control Act read with section 120-B of the Indian Penal Code by the Chief Judicial Magistrate Amreli in Criminal Case No. 1061 of 1979.

( 2 ) AGAINST the said order of the learned Chief Judicial Magistrate Amreli framing charge against the respondent No. 1 and other accused respondent No. 1 had preferred Criminal Revision Application No. 35/82 before the Sessions Judge Amreli. The other accused had also preferred Criminal Revision Applications Nos. 30/82 and 39/82. I am not concerned with these two Revision Applications by the other accused as the said Revision Applicaions are dismissed by the learned Sessions Judge. The learned Sessions Judge by his judgment and order dated 11/05/1983 allowed the Revision Application filed by respondent No. 1 by holding that in view of section 245 of the Criminal Procedure Code the respondent No. 1 was required to be discharged because the evidence as it stood even if uncontroverted would not warrant his conviction. Against the said order of discharge the petitioner has preferred this Special Criminal Application.

( 3 ) BEFORE the learned Sessions Judge it was admitted that charge under section 13 (1) of the Foreign Exchange Regulation Act 1973 and section 5 of the Imports and Exports (Control) Act 1947 cannot be framed as no sanction was obtained for prosecuting the respondent No. 1. It is an admitted fact on record that no sanction to prosecute respondent No. 1 was obtained and therefore charge for the said offences could not be framed. Against that order no grievance is also made by the petitioner.

( 4 ) THE learned counsel for the petitioner however vehemently contended that the judgment and order passed by the learned Sessions Judge is on the face of it illegal because at the time of framing of charge the learned Magistrate is not required to consider the prosecution case meticulously and appreciate the evidence as if he is deciding the matter. He further submitted that at present the prosecution has led evidence which prima facie shows that respondent No. 1 can be convicted by the Court. According to his submission the evidence against the respondent No. 1 is of two-fold nature - (1) circumstantial evidence and (2) evidence in the form of statements of the co-accused recorded under section 108 of the Customs Act. The said statements of coaccused in terms involve the respondent No. 1 in the offence.

( 5 ) AS against this the learned counsel for the respondent No. 1 submitted that the statement of co-accused cannot be the basis for conviction and it can be relied upon only for lending assurance to the conclusion arrived at by the Court. He further submitted that against the present respondent No. 1 there is no substantive evidence on record which would implicate him in the offence. If the evidence which is recorded by the learned Magistrate is taken as it is no judicial Court would be in a position to write the judgment of conviction against the respondent No. 1. The alleged circumstantial evidence against the respondent No. 1 nowhere shows that the respondent No. 1 was involved in the alleged offence.

( 6 ) THE learned counsel for the petitioner relied upon the following circumstantial evidence to show prima facie case against the respondent No. 1: (1) Respondent No. 1 is the owner