( 1 ) THE Additional City Sessions Judge Court No. 17 Ahmedabad by the order 12/01/1987 has framed charge against the petitioner (original accused No 4) and opponents Nos. 3 to 5 for the offences punishable under sec. 20 (b) (ii) and sec. 25 read with sec. 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 and sec. 120-B of the Indian Penal Code. In the alternative he has framed charge for the offence punishable under sec 20 (b) (ii) of the Act. Further in the alternative accused Nos. 2 and 4 are charged for the offences punishable under sec. 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 sec. 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 of 1987 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 any evidence or on totally insufficient evidence.

( 4 ) THEREFORE the only question which would be required to be decided in this miscellaneous application is whether the order of the learned Chief Metropolitan Magistrate issuing process against the petitioner is illegal or void because he has not examined all the witnesses of the prosecution and thereby acted illegally or in violation of mandatory provisions of sec. 202 (2) of the Criminal Procedure Code.

( 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 sec. 202 of the Criminal Procedure Code is no more an empty formality. This proviso 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. L. J. 593 (Andhra Pradesh) (2)Shyamkant v. State of Maharashtra 1980 Cri. L. J. 1388 (Bombay) (3)Anisa v. Banne Khan 1982 Cri. L. J. 1270 (Allahabad) (4)Bajji v. State of M. P. 1981 Cri. L. J. 1558 (Madhya Pradesh) (5)M. G. Pillai v. T. Pillai 1983 Cri. L. J. 917 (Madras) (6)Kamal Krishna v. State 1977 Cri. L. J. 1492 (Calcutta) 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 irregula