( 1 ) HEARD learned Advocate Shri A. D. Shah for the petitioners-accused Shri D. K. Trivedi learned P. P. for respondent No. 1-State and Shri K. L. Abichandani learned Advocate for respondent No. 2 By consent of the parties the matter is heard today.

( 2 ) THE petitioners are the accused of customs case in Criminal Case No. 1427 of 1990. They are arrested on 10-6-90 for smuggling gold worth about rupees two crores. The accused had earlier filed two separate applications being Misc. Criminal Applications No. 2459 of 1992 and 2460 of 1992 before this court for releasing them on bail on the ground that trial against them is pending before the learned Chief Judicial Magistrate (Magistrate for short) even through (sic.) more than a period of two years was passed. On 3-9-92 this Court (Coram: M. S. Parikh J.) after having heard the learned Advocate for the petitioners rejected the said applications by directing the learned Magistrate to deal with the case in question and complete the stage of framing of the charge within a period of two months from the date of receipt of the writ of the order. Opportunity was also given to the petitioners to move appropriate application for bail either before the learned Chief Judicial Magistrate or before this court if the charge is not framed within that period. According to Shri Shah learned Advocate appearing for the petitioners they took direct service of two orders and served the same before the learned Magistrate on 8-9-92.

( 3 ) PERIOD of two months as directed by this Court from 8-9-92 was over on 8-11-92. Till then the Criminal Case before the learned Magistrate did not at all proceed. Therefore both the petitioners filed this common Application before this Court for releasing them on bail.

( 4 ) LEARNED Advocate Shri Shah for the petitioners relied upon the reported judgment of the Supreme Court in the case of Ratilal Bhanji v. Asst. Customs Collector Bombay reported in AIR 1967 Supreme Court 1639 and relied upon two unreported decisions of the Supreme Court in Criminal Misc. Applications Nos. 436 and 437 of 1991 decided on 3 and submitted that as the prosecution has failed to examine any witness before 8-9-92 and complete the stage of framing of charge as per the time bound programme directed by this Court in its earlier order dated 3-9-92 this Court should release the petitioners-accused on bail. As the advance copy of the petition was served upon the respondents affidavit had been filed on behalf of the respondent No. 2 by the learned Advocate Mr. K. L. Abichandani.

( 5 ) MR. Abichandani learned Advocate appearing for the Customs Department has submitted that the prosecution was very much keen to proceed with case before the learned Magistrate and complete the stage of framing of charge within a period of two months as directed by this Court in its earlier order dated 3-9-92. But in spite of its best efforts the trial could not be commenced till 5 and on that day cross-examination of Superintendent of Customs started. As the learned Magistrate who was trying the case was under the order of transfer the prosecution was unable to examine any witness before 5-11-92. He pointed out that on previous occasions i. e. on 8-9-92 21 1 and 3-10-92 the case was adjourned because of that reason. However on 12 an Application was submitted on behalf of the petitioners and accordingly the case was adjourned to 21-10-92. Meanwhile on 19-10-92 new learned Magistrate took over the charge. Thereafter again on 21-10-92 the case was adjourned as the accused asked for time.

( 6 ) HOWEVER on 2-11-92 the Customs Department could not keep Superintendent of Customs present for his further cross examination because he was transferred to Rajkot. But immediately on 5-11-92 he was kept present and he was cross-examined in 5 and 6/11/1992. Thereafter on 13-11-92 another witness was examined. His examination continued on 16/11/1992 as 14th and 15th were holidays on account of Saturday and Sunday. On 2