TMI Blog1959 (5) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... tection of the currency notes on the person of the appellant had not been a legal search and consequently no proceedings could be based on the purported detection made. This point was rejected by the Bench. The second point urged on behalf of the appellant was that on 16-9-1952, when the Magistrate issued the warrant of arrest against the appellant he could not have done so without having previously taken cognizance of the offence. Since, however, the authorisation required under Section 23(3) of the Foreign Exchange Regulation Act (VII of 1947) was not obtained till the 27th of January, 1953, the cognizance taken by the Magistrate on 16-9-1952, was without jurisdiction. If the initiation of the proceeding was without jurisdiction, the conviction could not stand. The High Court thought that the contention of the appellant raised a question of law and granted the requisite certificate for appeal to this Court. 2. The prosecution case was that on 7-9-1952, the appellant went to Dum Dum Aerodrome with a view to boarding a plane for Hong Kong. The Plane was due to leave the airport at 8.30 a.m. The appellant had to go through the customs formalities before he could board the plane. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The currency notes which had been seized by the Customs Officials were directed to be released. Against the appellant s acquittal the State of West Bengal preferred an appeal to the High Court. The High Court allowed the appeal and convicted the appellant of the offence with which he had been charged. He was sentenced to pay a fine of Rs. 1,000, in default to suffer rigorous imprisonment for three months. The order of the Magistrate directing the release of the currency notes was set aside. 4. The main submission made on behalf of the appellant before us has been that the Additional District Magistrate having taken cognizance of the offence on 16-9-1952, and as the provisions of Section 23(3) of the Foreign Exchange Regulation Act had not been complied with, the entire proceedings before him and the Magistrate who tried the case were without jurisdiction. The subsequent authorization by the Reserve Bank on 27-1-1953 and the filing of the complaint on 2-2-1953 could not make legal proceedings which had already commenced without jurisdiction. It was also urged that the facts found did not attract the provisions of Section 19 of the Sea Customs Act (8 of 1878) as it could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the finding of the High Court is on a question of fact. We can see no particular reason in this case to go behind the findings of fact arrived at by the High Court. The High Court gave very good reasons for accepting the evidence of the prosecution witnesses as to the circumstances in which the currency notes in question were recovered from the appellant when his person was searched. (His Lordship reviewed the evidence and proceeded). We have, therefore, no reason to think that the High Court had erred in suspecting that the application to the Reserve Bank was antedated. On this finding it is apparent that the very foundation of the defence of the appellant is false. That the appellant did not hand over the currency notes of Rs. 25,000 at the customs barrier but was searched when the customs formalities were gone through is not only deposed to by a number of witnesses holding responsible positions but is deposed to by P.W. 4, Panna Lal Dey, Money Exchanger of Dum Dum Airport. Panna Lal Dey s evidence was accepted by the High Court and after having examined his evidence we are satisfied that there is no reason to distrust his testimony. Reference has been made to some of the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is behalf that the act of the appellant, on the facts found, amounted merely to preparation and not an attempt. 8. The main submission on behalf of the appellant was directed towards establishing that the entire proceedings before the Additional District Magistrate the trying Magistrate were without jurisdiction as cognizance of the offence had been taken on 16-9-1952, in contravention of the provisions of Section 23(3) of the Foreign Exchange Regulation Act, there being on that date no complaint in writing made by an officer authorized in that behalf by the Central Government or the Reserve Bank of India by a general or a special order. It is, therefore, necessary to see, in the circumstances of the present case, on what date cognizance of the offence was taken. In order to ascertain this certain provisions of the Foreign Exchange Regulation Act and the Code of Criminal Procedure will require consideration. Under Section 19(3) of the Foreign Exchange Regulation Act a District Magistrate or Magistrate of the first class may, on a representation in writing made by a person authorized in this behalf by the Central Government or the Reserve Bank and having reasons to believe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn Exchange Regulation Act to file a complaint. Accordingly, a complaint was filed on 2-2-1953. The Additional District Magistrate thereon recorded the following order : See the complaint filed today against the accused Narayandas Bhagwandas Madhavdas under Section 8(2) of the Foreign Exchange Regulation Act read with Section 23B thereof read with Section 19 of the Sea Customs Act and Notification No. F.E.R.A. 105/51, dated 27-2-1951, as amended, issued by the Reserve Bank of India under Section 8(2) of the Foreign Exchange Regulation Act. Seen the letter of authority. To Sri M.H. Sinha, S.D.M. (Sadar), Magistrate 1st class (spl. empowered) for favour of disposal according to law. Accused to appear before him. Accordingly, on the same date Mr. Sinha then recorded the following order : Accused present. Petition filed for reduction of bail. Considering all facts, bail granted for Rs. 25,000 with 5 sureties. To 26-3-1952 and 27-3-1952 for evidence. It is clear from these orders that on 19-9-1952, the Additional District Magistrate had not taken cognizance of the offence because he had allowed the police time till 19-11-1952, for completing the investigation. By his subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The appellant had appeared before the Magistrate on 2-2-1953, and the question of issuing summons to him did not arise. The Additional District Magistrate, however, must be regarded as having taken cognizance on this date because he sent the case to Mr. Sinha for trial. There was no legal bar to the Additional District Magistrate taking cognizance of the offence on 2-2-1953, as on that date Inspector Mitra s complaint was one which he was authorized to make by the Reserve Bank under Section 23(3)(b) of the Foreign Exchange Regulation Act. It is thus clear to us that on a proper reading of the various orders made by the Additional District Magistrate no cognizance of the offence was taken until 2-2-1953. The argument that he took cognizance of the offence on 16-9-1952, is without foundation. The orders passed by the Additional District Magistrate on 16-9-1952, 19-9-1952, 19-11-1952 and 2-1-1953, were orders passed while the investigation by the police into a non-cognizable offence was in progress. If at the end of the investigation no complaint had been filed against the appellant the police could have under the provisions of Section 169 of the Code released him on his executing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. It is, however, argued that in Chari s case, 1951 SCR 312, this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that makes no difference. It is the principle which was enunciated by Das Gupta J., which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot be themselves be regarded as acts by which cognizance taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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