( 1 ) THE Additional City Sessions Judge, Court No. 17, Ahmedabad, by the order 12th Jan. , 1987 has framed charge against the petitioner (original accused No. 4) and opponents Nos. 3 to 5 for the offences punishable under S. 20 (b) (ii) and S. 25 read with Sec. 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and S. 120b of the I. P. C. In the alternative he has framed charge for the offence punishable under S. 20 (b) (ii) of the Act. Further, in the alternative accused Nos. 2 and 4 are charged for the offences punishable under S. 25 of the Act.

( 2 ) THE petitioner original accused No. 4 has filed this Miscellaneous Criminal Application for quashing and setting aside the charge framed against him and also for releasing him on bail. It is his contention that the learned Chief Metropolitan Magistrate had not followed the procedure prescribed under S. 202 of examining all witnesses of the complainant before issuing process and, therefore, the issue of process against accused No. 4 is illegal and consequently the charge framed against the accused is also illegal and void. The petitioner has also filed another Miscellaneous Criminal Application No. 270/87 for releasing him on bail and also quashing the charge framed against him by the learned Additional City Sessions Judge on the ground that there is no evidence against the petitioner accused No. 4.

( 3 ) AT the outset it should be stated that the learned advocate for the petitioner had submitted that he is not pressing the point that the charge framed by the learned Additional City Sessions Judge against him be quashed on the ground that it is framed without there being a no evidence or on totally insufficient evidence.

( 4 ) THEREFORE, the only question which would be required to the decided in this miscellaneous application is whether the order of the learned Chief Metropolitan Magistrate issued process against the petitioner is illegal or void because he has not examined all the witnesses of the prosecution and thereby noted illegally or in violation of mandatory provisions of S. 202 (2) of the Cr. P. C.

( 5 ) IT is the contention of the learned advocate for the petitioner that examination of all the witnesses under the proviso to Sub-Sec. (2) of S. 202 of the Cr. P. C. is no more an empty formality. This provision has been incorporated so that the accused gets full information about the allegations against him and to enable him to prepare for his defence. He further submitted that the Legislature has used the mandatory language and has stated that the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. He, therefore, submitted that as the learned Chief Metropolitan Magistrate has not complied with the mandatory direction, the committal order passed by him is void and, therefore, the charge framed by the learned Additional Sessions Judge is illegal and requires to be quashed and set aside. For this proposition he has relied upon the following decisions of various High Courts : (1) Ramchander Rao v. Boina Ramchander, 1980 Cri LJ 593 (Andh Pra); (2) Shyamkant v. State of Maharashtra, 1980 Cri LJ 1388 (Bom); (3) Anisa v. Banne Khan, 1982 Cri LJ 1270 (All); (4) Bajji v. State of M. P. , 1981 Cri LJ 1558 (Madh Pra); (5) M. G. Pillai v. T. Pillai, 1983 Cri LJ 917 (Mad); (6) Kamal Krishna v. State, 1977 Cri LJ 1492 (Cal);

( 6 ) AS against this, the learned advocates for the respondents submitted that in the present case the learned Chief Metropolitan Magistrate has examined four material witnesses. The copies of the panchnama and the statements recorded by the Custom Officers are also supplied to the accused. The panch witnesses and such other witnesses were not examined, but that would not vitiate the order of issuing process passed by the learned Chief Metropolitan Magistrate. They further submitted that even if there is some omission or irregularity committed by the learned Magistrate, the order passed by t