1994 ALLMR ONLINE 1172
BOMBAY HIGH COURT

G.R. MAJITHIA AND P.S. PATANKAR, JJ.

Chubby Ekwealcoh Vs. A. K. Sekar Asstt. Collector of Customs Bombay and another

187 of 1993

14th December, 1994

Petitioner Counsel: H. H. Keshwani
Respondent Counsel: R. M. Agarwal, (for No. 1) and D. T. Palekar, A. P. P., (for No. 2), .

Narcotic Drugs and Psychotropic Substances Act (1985),S. 36 Criminal P.C. (1973),S. 313 Criminal P.C. (1973),S. 313 Narcotic Drugs and Psychotropic Substances Act (1985),S. 23, Customs Act (1962),,S. 135(1)(a) Narcotic Drugs and Psychotropic Substances Act (1985),S. 21, Criminal P.C. (1973),,S. 200

Cases Cited:
1994 Cri LJ 3271 : AIR 1994 SC 2420 : 1994 AIR SCW 3420 (Ref. to) [Para 7]
1994 AIR SCW 4393 : (1994) 6 JT (SC) 326 [Para 11]
1994 AIR SCW 5115 : 1994 (3) AD SC (Cri) 46 (Ref. to) [Para 6]
1992 Cri LJ 570 (Kerala) (Rel. on) [Para 17]
1991 Cri LJ 800 (Kerala) (Rel. on) [Para 17]
(1991) 1 Crimes 667 (Madh-Pra) (Diss. from) [Para 17]
1987 Cri LJ 1106 : AIR 1987 Kerala 184 (FB) (Diss. from) [Para 17]
1984 Mah LJ 168 : (1984) 86 Bom LR 163 (Rel. on) [Para 16]
1983 Cri LJ 1044 : AIR 1983 SC 595 (Ref. to.) [Para 17]
1981 Cri LJ 1558 (Madh-Pra) (Diss. from) [Para 17]
1980 Cri LJ 593 (Andh-Pra) (Disting.) [Para 17]
1980 Cri LJ 1388 (Bombay) (Disting.) [Para 16]
1978 Ker LT 424 : ILR (1978) 2 Ker 233 [Para 16]


JUDGMENT

P. S. PATANKAR, J. :-The Appellant herein came to be convicted by the learned Special Judge, Greater Bombay in Sessions Case No. 1033 of 1987 dated 23-2-1993 under Section 21 read with Section 8(c) of the Narcotic Drugs and Psychotropic Sub stances Act, 1985 (hereafter called 'the Act') and sentenced to suffer r/i for 10 years and to pay fine of Rs. 1,00,000/- in default to suffer further r/i for 6 months. The Appellant also came to be convicted for an offence punishable under Section 23 read with Section 28 of NDPS Act 1985 and for the offence punishable under Section 135(1)(a) read with Section 135(1)(ii) of the Customs Act, 1962. However no such separate sentence was awarded. The same is under challenge in his appeal.

2. The prosecution case in nut-shell was as follows : -

On 11-8-1987 at 2.15 a.m. officers of Air Intel ligence Unit of Customs Department posted at Sahar International Air Port Bombay on suspicion inter cepted the Appellant, a Nigerian, bound for Addis Ababa by Ethiopion Air Lines Flight No. ET-611. He cleared through Emigration and Custom check. The Appellant was having 2 bags. No contraband was found in it. The Appellant was further ques tioned by P.W. 1 Mr. Norman D'Souga, Custom Officer. The Appellant thereupon pointed out one brown colour zipper hand bag Article 3 which was on the Conveyor Belt. Immediately thereafter he removed a small piece of paper - baggage claim tag -- from his pant pocket and swallowed it. He also rushed and pulled out baggage tag of the checked-in- bag Article 3 and ran away jumping on the conveyor belt. He ran towards the basement on the ground floor and disappeared. A search was conducted with the help of security staff and fire brigade staff and using search lights. After about 2 hours he was found hidden in bushes at the air port. While hiddening in the bushes at the air port, he swallowed baggage tag. He was brought to Department loungue and identi fied the checked in baggage lying on the Conveyor belt, he was asked to produce the travel documents. Appellant produced pass-port, air ticket and board ing card. He was asked to open the bag. Appellant opened it with the key possessed by him. It contained 159 stapler boxes. Out -- of them 69 contained brown powder in polythene bags. Preliminary test revealed is to be a psychotropic substance -- amphatemine. Powder was collected. It weighted 10.175 Kg. 6 representative samples of 15 grams each were taken for chemical test. This was done under Panchanama. The remaining bulk was duly packed/sealed, labelled. At 7-00 a.m. on 11-8-1987 Appellant made a statement Exh. 21 pursuant to the

summons Exh. 20. Appellant was arrested and pro duced before a Magistrate on 11-8-1987 at 3.30 p.m. On 12-8-1987 he was sent to Jail Hospital as he was suffering from bronchitis and Hernia. On 24-8-1987 Appellant filed bail application admitting seizure from him but stating that contraband belonged to one Mr. John, his Nigerian friend, who told him that the bag contained Vitamin powder and if he carries the same to Addis Ababa, he would be paid 5000 Naira. He was then taken in the judicial custody. Again on 31-8-1987 bail application was filed claim ing bail on the ground that he was suffering from Hernia and requires treatment. Story of John was repeated and complaint of assault was made for the first time. On 7-9-1987 confessional statement was retracted by him. On 3-9-1987 sanction Exh. 29 under Section 137 of Customs Act was granted and complaint Exh. 30 came to be filed on 7-9-1987 by P.W. 7 Shri Kannan Sekar. On 7-9-1987 learned Magistrate issued the process. On 28-9-1987 com mittal order came to be passed. On 26-9-1987 samples were sent to C. A. for analysis. The C. A. report (Exh. 25) dated 4-1-1988 was received.

3. The Appellant defended himself by contend ing that he has been falsely implicated in the crime by the Customs Officers. He was apprehended from the passengers' hall at Sahar Air Port. He has not checked in. He was straightway taken from the said hall to the office of Air Intelligence Unit and came to be implicated. He denied that Article 3 bag was belonging to him. He also denied that he made voluntary statement before the Customs Officers. He stated that he was assaulted and forced to put the signatures on some papers.

4. Prosecution examined P.W. 1 Norman D'Souza Preventive Officer, Bombay Customs, to prove search and seizure under seal No. P. O. 222 carried out by him. P.W. 2 Mr. Ganpati M. Shetty, Preventive Officer of Customs was examined to prove remaining contraband kept in Ware house bearing No. Rand ID-63 of 1987 after following the procedure under Section 52-A on 16-8-1988 and panchanama Exh. 15. Certificate of the learned Magistrate regarding destruction is at Exh. 16. P.W. 3 Mr. Vasant R. Hublikar, Superintendent of Cus toms is examined to prove that search and seizure was carried out under his supervision and appellant made the statement before him on 11-8-1987 Exh. 21 voluntarily. P.W. 4 Mr. Navalkishore B. Singh Intelligence Officer of Customs at Sahar Air-Port, Bombay is examined to prove that he carried the entire contraband along with samples to the Strong Room of Customs and deposited it under Entry No. R/ID/563/87. P.W. 5 Shri Jagdishkumar M. Sain, Intelligence Officer, is examined to prove that he carried the sealed sample packets from Customs Strong Room to C. A. on 26-11-1987 and they were bearing Seal No. PO-222. He mentioned that Lab Entry 883-884/Seizure dated 26-11-1987 and its memo Exh. 25 dated 4-1-1988 was received by him. P.W. 6, Mr. Rajendra G. Bhivagaje, Traffic Assistant at Sahar International Air-port, was pancha for recovery of contraband and examined to prove panchanama dated 17-8-1987, Exh. 5. P.W. 7 Mr. Kannan Sekar, Assistant Director of Antievasion, was examined to prove filing of complaint Exh. 30 dated 7-9-1987 and sanction for prosecution under Section 137 of Customs Act dated 3-9-1987 Exh. 29.

5. On appreciation of evidence the learned trial Judge found the Appellant guilty as mentioned above.

6. The learned Advocate for the Appellant first submitted that Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985 has no juris diction to try this case as the offence has taken place prior to 29-5-1989. He submitted that it ought to have been heard as regular Sessions trial and as this was not the case, the trial is vitiated. He sought to rely upon the judgment of the apex Court reported in 1994 (3) AD SC (Cri) 46 : (1994 AIR SCW 5115), Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India. First it is necessary to note that no such point was in the trial Court and secondly judgment of the apex Court has been erroneously relied upon. The main question considered by the apex Court was regarding grant of bail to under trials involved under the Act. The apex Court also considered the effect of Amendment Act 2 of 1989 (Narcotic Drugs and Psychotropic Sub stances (Amendment) Act 1988). By the said Act original Section 36 was substituted and Section 36A to Section 36D were introduced. The amendment came into force on 29-5-1989. Section 36D pro vided for hearing during the transitional period of the cases. New Section 36 contemplated constitu tion of Special Courts. The question was when it can be said that the Court is constituted i.e. on the date of issuance of the Notification constituting such Court or the subsequent notification when the incumbent is appointed. The apex Court held that when the incumbent is appointed, the Court/Tribunal gets ready for functioning and it can be said that the Court has been constituted. The apex Court accepted the view taken by the single Judge of this Court and differed from the view taken by the Division Bench. The apex Court observed as follows (at pp. 5127-28 of AIR SCW) : -

"So, from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishable prescribed is three years or less since only the Court of Sessions is empowered to deal with such cases. There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the non-obstante clause in Section 36D(1)(a), all offences under the Act become triable only by the Court of Sessions till the constitution of Special Courts and thereafter by the Special Court. Ordinarily, therefore, cases pending before the Court of Sessions by virtue of Section 36D(1) would be transferred to the Special Court, but Sub-Section (2) of Section 36D carves out an exception in relation to an offence of which the Court of Sessions has already taken cognizance. Where the Court of Ses sion has already taken cognizance under Sub-Section (1) of Section 36D that Court will be entitled to hear and dispose of the case and will not be required to transfer the same to the Special Court of the area by virtue of the exception carved out by Sub-Section (2) of Section 36D. On a conjoint reading of Section 36, 36A to 36D it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area consti tuted under Section 36. That is the thrust of Clause (a) of Sub-Section (1) of Section 36A. But the legislature was aware that there may be a time-gap between the coming into force of these provisions w.e.f. 29th May, 1989 and the constitution of a Special Court. This period which is a transitional period is taken care of by Section 36D of the Act. Under this provision during the transitional period offence committed under the Act would be tried by the Court of Session alone notwithstanding any thing to the contrary contained in the Code. But once the Special Court is constituted under Section 36 that Court alone would have jurisdiction to try the offences under the Act and except those in relation whereto the Sessions Court has already taken cogni zance." These observations amply show that if cognizance is taken after the Special Court is constituted, irrespective of date of offence, it is required to be tried by Special Court. The only difference is made in those cases in which cognizance is already taken as on that date it can be said that Court has applied its mind. But cases in which cognizance is not taken the said question does not arise. The forum of trial does not depend upon the date of commission of offence. In the present case cognizance can be said to be taken on 10-1-1992 when charge was framed and the Court applied its mind for the first time. At no time prior thereto committal Court was called upon to apply its mind. On that date Special Court has already come into existence. Hence we reject this contention.

7. The next contention raised is that no case that powder found was Narcotic. Drug was put to the Appellant and hence opportunity to explain was taken away. There was violation of Section 313 of Code of Criminal Procedure. In view of this vital lacuna the prosecution is vitiated. In fact question Nos. 81 and 83 were specifically put regarding the test memo Exh. 25 and remarks of test memo. The answers of the Appellant were 'I do not knew'. Thus he was fully aware about the substance of accusation and charge against him (See AIR 1994 SC 2420 : (1994 Cri LJ 3271), Suresh Chandra Bahri v. State of Bihar with Gubachan Singh v. State of Bihar and Raj Pal Sharma v. State of Bihar, para 27). He was also given opportunity to explain his own statement, therefore, there was no question of prejudice. There is no merit in this contention.

8. The learned Advocate for the Appellant sub mitted that statement Exh. 21 of the Appellant dated 11-8-1987 recorded at 7.00 a.m. by P.W. 3 Vacant R. Hublikar requires to be descarded as it was done under pressure and assaulting Appellant. In support of this, there is nothing except Appellant's statement under Section 313. In fact he has admitted his signature on it, but stated that officers assaulted him and forced him to sign. It is necessary to note that he was produced before the learned Magistrate for remand on 11-8-1987 at 3.30 p.m. but no complaint of any force or assault was made. He sought for bail on 24-8-1987 but no such complaint was made even at that time. It was for the first time made on 31-8- 1987 when Appellant sought for bail for second time. This was clearly at after thought and made with view to wriggle out of the statement. Therefore, we reject this contention.

9. The learned Advocate for the Appellant pointed out that there was delay is sending the samples to C. A. for analysis. He pointed out that seizure was dated 11-8-1987 and sample was sent on 26-11-1987. The said delay of more than 3 months has not been explained and it has not been mentioned in the complaint Exh. 30 that the said samples were kept in Strong Room of the Customs. He, therefore, submit ted that tampering of samples has not been ruled out and the Appellant is entitled to get benefit of doubt and acquittal. Non mention in the complaint of keeping of samples in the Strong Room of Customs, in our view, is irrelevant. Prosecution has examined P.W. 4 Navalkishore Banarasingh-Prasad Singh,

Intelligence Officer, to prove that he carried the samples etc. on 12-8-1987 to Customs Strong Room and were given entry No. as R/ID-03187.3 packets were thus deposited in Index Cell of Customs House and the packets were given entry numbers. He identified them. There is no reason to doubt his testimony as he was not cross-examined except to show that his statement was not recorded by his superiors. Therefore non production of original reg ister also cannot affect the prosecution case regard ing storing of samples. Prosecution examined P.W. 5 Jagdishkumar Mangal Sain, Intelligence Officer, to prove that on 26-11-1987 he collected from Customs Strong Room 2 sealed packets bearing Seal No. P. O. 222 and prepared memo and carried them to C. A. The packets were given Lab Nos. 883-884 on the sealed packets and he received back the test memo Exh. 25 after examination. He identified the packets Article 5A and 5B. Again nothing was elicited in his cross-examination to doubt his evi dence. There is no dispute on Customs Seal No. PO 222 and it has been amply proved. The officer effecting seizure P.W. 1 Norman D'Souza and also pancha witness P.W. 6 Rajendra G. Bhivagaje have stated about the seal etc. The test memo Exh. 25 mentions about receipt of sealed covers by C. A. and return of sealed remnant sample. Therefore, possibility of tampering was ruled out and we reject this contention.

10. The learned Advocate for the Appellant then submitted that there was no sanction under Section 137 of Customs Act 1962 by the Collector of Cus toms and hence the cognizance could not have been taken. Section 137(1) is as follows :-

"(1) No Court shall take cognizance of any offence under Section 132, Section 133, 134 or Section 135, except with the previous sanction of the Collector of Customs."

The learned Advocate for the Appellant is right in this respect and the learned Advocate for Respon dent No. 1 has not disputed this position. Therefore, the conviction of a Appellant under Section 135(1)(a) read with Section 135(1)(iii) of Customs Act will have to be set aside. However, the learned Advocate for the appellant submitted that Customs officers could not have investigated the case at all and hence even conviction under NDPS Act is liable to be set aside. It is to be noted that no such sanction is required for an offence under NDPS Act. Sections 42 and 43 of NDPS Act clearly confer powers of investigation, search, seizure etc. on officers of Customs Department also. Therefore, it is not pos sible to accept that entire conviction would be vitiated.

11. The learned Advocate for appellant submit ted that there is violation of mandatory provisions of Section 50(1) as the appellant was not given the opportunity to be searched before the Gazetted Officer or Magistrate. It is first to be noted that it is not a case of personal search. The brown colour zipper bag was checked in and was on the conveyor belt. It was not in possession of appellant hence the judg ment of the apex Court in the case reported in (1994) 6 JT(SC) 326 : (1994 AIR SCW 4393), Ali Mustaffa Abdul Rehman Moosa v. State of Kerala is not attracted. In Ali Mustaffa Abdul Rehman Moosa's case, accused was found in waiting room at Quilon Railway Station along with bag from which narcotic drugs were seized. However, here it is the case of the prosecution that Appellant was having 2 hand bags and one brief case. Out of them, one brown colour zipper hand bag was checked in. The panchanama Exh. 5 made immediately mentions about this checked in baggage from which contraband seized was concealed in 69 stapler boxes. The copy thereof was given to the appellant. The appellant has admitted this in his statement Exh. 21 recorded at 7.00 a.m. on 11-8-1987 itself. The learned Advocate for the appellant pointed out that complaint mentions only of one brown colour zipper hand bag and one brief case and finding of contraband from the said colour zipper hand bag of appellant. Therefore he submit ted that the case that appellant was possessing 3 bags totally and out of these one brown colour zipper hand bag was checked in was false and it was case of personal search. We find the complaint Exh. 30 sketchy one and without containing all the details. It contains the necessary ingredients of the offence charged. But the procedural aspects are not stated and all details are not given. In fact it gives the description of the bag as 'hand bug' from which the powder was found and not the bag in the hand of the appellant. It further makes mention regarding panchanama Exh. 5. The Panchanama clearly men tions about the said brown colour zipper hand bag as checked in bag and one hand bag and one briefcase possessed by the appellant. The contraband was found only in checked in bag and not in the bag and brief case in hand of the appellant. This is also recorded and accepted by the appellant in his state ment at Exh. 21. Panchanama Exh. 5 and the state ment Exh. 21 were contemporaneous documents. The copy of panchanama was immediately given to the appellant. Therefore, we reject this contention.

12. The learned Advocate for the appellant then submitted that various improvements are made in

the oral evidence of witnesses. Complaint/panchanama are at variance with the said oral evidence. Hence he submitted that whole case of pros ecution was doubtful. He pointed out 4 aspects in this regard, viz.

(i) Complaint mentions about 2 bags, while in evidence there are 2 bags with the appellant and one checked in bag. Therefore checked in bag is added.

(ii) There is no mention in the complaint that samples were kept on 12-8-1987 with the Customs' Strong Room;

(iii) The complaint mentions about amphatamine i.e. psychotropic substances while test memo Exh. 25 showed substance was morphine - narcotic drug covered under Section 2(xvi) of the Act;

(iv) Panchanama does not show that lables affixed were signed by panchas.

13. First 2 we have already dealt with and pointed out how they are not useful for defence. In the case of 3rd when the Customs Officer P.W. 1 Norman D'Souza carried out preliminary test, it was indicated as amphatamine - psychotropic substance and complaint came to be filed on that basis on 7-9-1987. But when test memo Exh. 25 was received on 4-1-1988, it was shown as morphine - narcotic drug. The officers of Customs are not experts in the test. The provisional or preliminary test was carried out to determine whether prima-facie any offence is committed. The final and real opinion came from C. A. in the form of test memo Exh. 25.

14. In the case of fourth circumstance the panchanama Exh. 5 clearly mentions that samples were sealed with PO Seal No. 222. The pancha P.W. 6 Rajendra G. Bhivagaje in his evidence has given details and mentions about making of signatures and putting up seals. It cannot be said that there was any addition or improvement. Therefore, in our opinion, it cannot be said that the prosecution case is doubt ful. We reject this contention.

15. The learned Advocate for the appellant submitted that before issuing the process the learned Magistrate ought to have examined on oath the complainant and witnesses in view of Section 200 Code of Criminal Procedure and as this has not been done, the prosecution is vitiated. The learned Advo cate for the appellant has failed to note the proviso (a) to Section 200 which is as follows : -

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint;

In the present case P.W. 7 Kannan Sekar, Assis tant Collector of Customs, was the public servant and in that capacity filed the complaint Exh. 30. Hence we reject this contention.

16. The learned Advocate for the appellant next contended that in view of Section 202(2) proviso, the learned Magistrate before committing the appel lant for trial to the Court of Sessions ought to have called upon the complainant to produce all his wit nesses and examined them on oath. As this has not been done, the prosecution is vitiated. In support of this proposition he relied on the Division Bench Judgement of this Court reported in 1980 Cri LJ 1388, Shyamkant Wamanrao Pawar v. State of Maharashtra and also on the Judgment of the Divi sion Bench of Andhra Pradesh High Court reported in 1980 Cri LJ 593 (Ramchander Rao v. Boina Ramchander) It is first to be noted that Division Bench in the case of Shyamkant (cited supra) was dealing with the case of private complaint and issue of process was postponed. The Division Bench observed that proviso to Sub-Section 2 of Section 202 is mandatory and when it appeared to the Mag istrate that the offence was triable exclusively by the Court of Sessions, process could not have been issued without examining all the witnesses. It was held that Section 202(2) proviso applies to a case which is exclusively triable by the Sessions Court and when the prosecution is instituted on the basis of private complaint, and issue of process is postponed. Even the case before the Division Bench of Andhra Pradesh High Court in the matter of Ramchander Rao's (cited supra) was of private complaint filed under Sec. 324, 452 and 440 read with 149 of I.P.C. In that case also issue of process was postponed and enquiry was ordered. In these circumstances it was held that it was mandatory on the part of Magistrate to call upon the complainant to produce all his witnesses and examined them on oath when the case was one triable exclusively by the Court of Sessions. In the present case the complainant is a public servant and the process was issued immediately on the date of filing it i.e. on 7-9-1987. In fact subse quent Division Bench judgment of this Court reported in 1984 Mah LJ 168 Hausabai Tukaram Wable v. Waman Kondaji Ghogare, has considered similar situation and also distinguished Shyamkant's case (1980) Cri LJ 1388) (Bombay) (cited supra). In the said case offence involved was under Section 395 of I.P.C., exclusively triable by the Court of Sessions. The learned Magistrate on receipt of com plaint examined it under Section 200 of Cr. P.C. and found sufficient ground to proceed and straightway ordered the issue of process and later on committed

the case to the Sessions Court. The committal order came to be challenged. It was held that taking of cognizance and issuing of process may be simulta neous acts. Unless the Magistrate takes cognizance, he cannot issue process. Once Magistrate postpones the issue of process, the provisions of Section 202 of the Code of Criminal Procedure start operating. It is only if the Magistrate after examining the complaint does not issue process and postpones the issue of process, in that contingency only the provisions of Section 202 are attracted. The proviso to Sub-Section (2) of Section 202 of the Code of Criminal Procedure comes into play only when the Magistrate postpones the issue of process and holds enquiry. The Division Bench considered the provisions of Chapters XV and XVI of Code of Criminal Procedure i.e. Section 200 to Section 209. Shyamkant's Case (cited supra) is distinguished on the ground that it was a private complaint under Sections 436, 342, 323, 504, 506 read with Section 34 of I.P.C. and in which the learned Magistrate had postponed issue of process. The Division Bench relied upon the judgment delivered by the Division Bench earlier by this Court and on the judgments of the apex Court and held that Magistrate may adopt any of three ways :-

(i) He may issue process at once under Section 204(1) of the Criminal Procedure Code;

(ii) He may postpone the issue of process and may direct inquiry or investigation as provided by Section 202(1) of the Code; or

(iii) He may dismiss the complaint under Section 203 of the Code after considering the statement on oath, if any, of the complainant and the witnesses and result of the enquiry or investigation (if any) under Section 202, if the Magistrate is of the opinion that there is no sufficient ground for proceedings.

It was held that Section 202 is in two parts. Words of Section 202(1) clearly show that the Magistrate is vested with a discretion which is a judicial discretion whether to issue process or not. If he postpones the issue of process, it is also a judicial discretion. Because, at that stage, he wants some more evidence and wishes to remove his hesitancy about the truth of the allegations on the basis of the material before him. The purpose of investigation or enquiry as provided under Section 202 is limited to find out whether there is sufficient ground for proceedings or not. But the Magistrate can well direct the issue of process at once under Section 204(1) and in that event the provisions of Section 202(2) proviso is not attracted.

17. The two judgments of learned Single Judges of M. P. High Court, in the case Bajji v. The State, 1989, Cri LJ 1558 and Rameshchandra Patel v. Union of India 1991 (1) Supreme Court 667, no doubt support the proposition sought to be can vassed by the learned Advocate for the appellant. In fact Rameshchandra's case was under the provi sions of NDPS Act. The proposition that proviso to Sub-Section (2) of Section 202 comes into play only when the Magistrate postpones the issue of process and decides to hold enquiry, was not accepted. This was held to be necessary in view of Section 208 of Code of Criminal Procedure requiring supply of copies of statements and documents instituted other wise than on Police Report and triable by the Court of Sessions to occur. However, it is not possible to accept the ratio of these judgments in view of the ratio of the Division Bench judgment of our Court in Housabai's case (1984 Mah LJ 168) (cited supra). The ratio of Full Bench judgment of Kerala High Court reported in 1987 Cri LJ 1106 : (AIR 1987 Kerala 184), Moideenkutty Haji V. Kunhikoyan supports the appellant's contention. The said matter was placed before the Full Bench of High Court of Kerala. In view of the expression of doubt by the Division Bench regarding the ratio of the judgment reported in 1978 Kerala LT 424, Suleman's case. It is necessary to note that subsequent Division Bench which expressed doubt regarding Suleman's case which arose out of complaints by private person, though exclusively triable by the Court of Session. The first was regarding murder and second was under Sections 313 and 493 of I.P.C. It was observed "It is evident that the legislature intended two differ ent types of enquiries, a discretionary enquiry in ordinary complaint case and a mandatory enquiry in complaint cases under S. 202. In the discretionary enquiry the Magistrate can either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. But in a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to S. 202(1)". The Single Judge of that Court in later case reported in 1991 Cri LJ 800 State Superintendent, Special Customs Preventive Unit Cannanore v. Moidu dis tinguished the Full Bench Judgement and held that procedure prescribed under Section 202(2) has to be confined to private complaint disclosing sessions offence and not to complaint coming from public officer acting or purporting to be in discharge of his official duties coming under Clause (a) of Section 200 of Code. The Single Judge was concerned with the complaint which was filed by Superintendent of Central Excise, Special Preventive Unit. The Divi sion Bench of Kerala High Court in 1992 Cri LJ 570. State Circle Inspector of Excise, Cannur, was

concerned with the cause under NDPS Act. It was held that the Special Court is empowered to take cogni zance of the offence under the Act without there being a committal proceeding. Thus the Sessions Judge is empowered under Section 36D of the Act is entitled to take cognizance of the offence without there being a committal proceeding. It was further held that power under Section 36D has been not withstanding anything contained in the Criminal Procedure Code. Therefore, it cannot said that in a complaint filed under the provisions of the Act the Magistrate should conduct enquiry contemplated under Section 202(2) of the Criminal Procedure Code and commit the case to Sessions Court. The apex Court in AIR 1983 SC 595 : (1983 Cri LJ 1044) Dr. S. S. Khanna v. Chief Secretary, Patna observed as follows (para 8) : -

"An enquiry under Section 202 of the Code is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can commence only after process is issued to the ac cused. The said proceedings are not strictly proceed ings between the complainant and the accused. A person against whom a complaint is fled does not become an accused unless it is decided to issue process against him. Even if he participates in the proceedings under Section 202 he does so not as an accused but as a member of the public. The object of the enquiry under Section 202 is the ascertainment of the fact whether the complainant has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need to be taken. The Section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings under Section 202 of the Code."

In our opinion, it is necessary to construe the provisions of Section 200 harmoniously with Section 202 of Criminal Procedure Code. Section 200 is a general one dealing with examination of com plainant before taking cognizance. Proviso (a) thereof shows that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses in case the complaint is filed by a public servant acting or purporting to act is dis charge of his official duty. Section 202 deals with postponement of issue of process by learned Magis trate and ordering the investigation or enquiry for satisfying himself prima-facie regarding truthful ness of the allegations in the complaint. The discre tion is conferred upon the Magistrate who can order investigation or enquiry before taking cognizance of the case. Section 202(1) proviso takes away the discretion of ordering investigation into two cases mentioned in Clauses (a) and (b) thereof. Section 202(2) confers discretion upon the Magistrate to take evidence of witnesses on oath in inquiry. But the discretion is again taken away by proviso where the offence complained or before the Magistrate is triable exclusively by the Court of Sessions and the proviso further mandates the Magistrate to call upon the complainant to produce all the witnesses and examine them on oath. Here it is necessary to con fine the phrase 'complainant' to a person who is not a public servant as mentioned in proviso (a) to Section 200. This procedure is not mandatory where the complaint is by public servant. But even in a complaint filed by Public servant the Magistrate may exercise discretion as contemplated by Section 202(2) in case of doubt regarding allegations and is free to call upon such complainant and his witnesses to state on oath to find out whether there is sufficient ground for proceeding before committing.

18. In the present case it was a complaint filed by the public servant in the discharge of his public duty and issue of process was ordered immediately. In addition in this case the committal order was not at all challenged and even such point was not raised during the trial. Hence we reject this contention.

19. Hence the following order : -

The appeal is partly allowed. The conviction and sentence under Section 135(1)(a) read with Section 135(1)(ii) of the Customs Act 1962 is set aside. The rest of the order regarding conviction and sentence is maintained.

Appeal Partly Allowed