J.D. Jain, J.
(1) The C.B.I. (SPE) filed a charge-sheet against the respondents, numbering five in all, under Section 120B read with Section 420, Indian Penal Code, and Sections 420, 467, 468 and 471, Indian Penal Code, on the allegations that during the period April 1971 to December 1973, a large number of import licenses under 'actual user category' for importing stainless steel pipes and tubes were obtained by respondents 1 & 2 from the officer of the Chief Controller of Imports and Exports (GLA), New Delhi, in the name of non-existent firms viz, M/s. Anita Industries, Faridabad, M/s. Simco Industries, Ballabhgarh and M/s. Ruby Industries mostly on the basis of essentiality certificates issued by the Director of Industries, Haryana, Chandigarh, respondents 3 to 5 being the concerned officials who allegedly issued false certificates in favor of the non-existing firms. Besides that respondents 1 & 2 also obtained a large number of import licenses in the name of aforesaid non-existing firms from the Import Offices at Delhi, Kanpur and Bombay under Registered Exporters Promotion Scheme (R.E.P. category) ; the same having been issued against the export entitlements of different exporters of Bombay purchased by respondents 1 & 2 in the name of the aforesaid fictitious firms. It is further alleged that the papers pertaining to M/s. Anita Industries, M/s. Simco Industries, and M/s. Ruby Industries were signed under the fictitious names of S/Shri Ish Kumar, Kanwal Sen and Uma Kant respectively. The import licenses under the 'actual user category' were obtained by respondents 1 & 2 for the aforesaid non-existing firms on the basis of false essentiality certificates issued by the officer of the Director of Industries, Haryana, Chandigarh, on the recommendation of respondents 3, 4 & 5 who are alleged to have falsely certified in their reports that the aforesaid firms had installed machinery and the units were under production etc. Similarly the basis for the issue of import licenses under R.E.P. category were the certificates issued by the Director of industries District Industries Officer (respondent No. 3) showing that these firms were engaged in the production activities of various items for which the stainless pipes and tubes were required. Hence the charge against the respondents essentially was that they had entered into a criminal conspiracy Along with two approvers Smt. Kusam Dewan and Sh. Mohinder Advani and other unknown persons having for its object to cheat the officers of Join't Chief Controller of Imports and Exports, New Delhi and Bombay for obtaining import licenses in the name of three aforesaid fictitious firms and in order to achieve the object of the aforesaid conspiracy, the respondents prepared false and forged documents and dishonestly used them as genuine knowing them to be forged and thus induced the import authorities to issue the import licenses. A separate complaint was also filed on 1st April,1977, under Section 5 of the Import and Export (Control) Act. 1947 (for short the Act) in respect of only those import licenses against which actual imports were made. That complaint, inter alia, alleged hatching of a different conspiracy, having for its object to mis utilise the imported material in contravention of the import licenses issued in the names of M/s. Anita Industries and M/s. Simco Industries. The said complaint is still pending.
(2) Before the charges were framed by the learned Chief Metropolitan Magistrate, respondents moved two separate applications, one by respondents 1 & 2. and the other absence of a complaint as envisaged under Section 6 of the Act, the Court was not competent to take cognizance of offence which were primarily and essentially offences under Section 5 of the Act and for which filing of a complaint by a duly authorised officer was a condition precedent. This plea prevailed with the learned Chief Metropolitan Magistrate who vide impugned order dated 3rd December, 1979, discharged all the respondents.
(3) I have heard counsel for the parties at length and bestowed my careful thought and consideration to the arguments advanced before me. On a consideration of the facts of this case and the authorities adverted to by counsel for the parties, I am inclined to hold that the impugned order of discharge cannot be sustained. So, I proceed to record reasons for the same.
(4) Section 5 of the Act renders a person who contravenes or attempts to contravene, or abets a contravention of, any order made or deemed to have been made under the Act or any condition of a license granted under any such order liable to be punished with imprisonment for a term which may extend to two years and also with fine, such punishment being without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962. It prescribes a minimum sentence of imprisonment for six months which may, of course, be reduced for special and adequate reasons to be recorded in the judgment of the Court. Import (Control) Order, 1955, is one such order which was issued under the Act. Its rule 10D reads as under :
'(1)No person shall make, sign or use or cause to be made, signed or used any declaration, statement or document in obtaining a license or in importing any goods knowing or having reason to believe that such declaration, statement or document is false in any material particular. (2) No person shall employ any corrupt or fraudulent practice in obtaining any license or in importing any goods.'
(5) Relying upon this rule the argument advanced by the learned counsel for the respondents is that false, fabricated and forged documents, which according to the prosecution, were pressed into service by the respondents for obtaining the import licenses by playing fraud on the authorities concerned merely constituted contravention of this rule and as such they could be prosecuted and punished only under Section 5 of the Act. However, no prosecution against them could be launched except in accordance with the provisions of Section 6 of the Act which imposes restriction regarding the cognizance and trial of offences punishable under Section 5 and makes it obligatory upon the Court to take cognizance of an offence only upon a complaint in writing made by an officer authorised in this behalf by the Central Government by a general or special order. In other words, the chargesheet filed by the C.B.I. in this case was just an attempt to circumvent the mandatory provisions of Section 6. Surely, the provisions of Section 6 cannot be evaded by resorting to device or camouflage by changing the garb or label of an offence which was essentially and primarily offence under Section 5 of the Act.
(6) The learned counsel for the State, on the other hand, has canvassed with considerable fervour that it is open to the prosecution to launch prosecution against an offender for both or any of the offence if the same facts give rise to two distinct and separate offence. It is contended that even if cognizance of an offence arising out of the same set of facts cannot be taken by the Court for want of the requisite complaint, there is no bar to the prosecution of the offender for offences under different enactment or the general law, as the case may be, for which no sanction or complaint is necessary. Reference in this context has been made to Section 26 of General Clauses Act which lays down that where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. It is evidently a rule against double- jeopardy and it only bars punishment of offender twice for the same offence and not trial or conviction under both enactments. Further if the offences are distinct there is no question of the rule as to double-jeopardy being applicable. In the State of Bombay v. S.L. Apte and another, : 1961CriLJ725 . It was held that :
'IF the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20(2) of the Constitution being applicable. Though S. 26 of the General Clauses Act, in its opening words refers to 'the fact or commission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence'. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.'
(7) Reference in this context was made by their Lordships to Slate of Madhya Pradesh v. Veereshwar Rao Agnihotri, : 1957CriLJ892 and Om Parkash Gupta v. State of U.P., : 1957CriLJ575 , in which it was held that :
'THE offence of Criminal misconduct punishable under S. 5(2) of the Prevention of Corruption Act is not identical in essence, import and content with an offence under S. 409 of the Penal Code. The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate S. 409 of the Penal Code. There can be no objection to a trial and conviction under S. 409 of the Penal Code even if the accused has been acquitted of an offence under S. 5(2) of the Prevention of Corruption Act.'
(8) Chandrika Sao sao Hazari Lal v. State of Bihar, Air 1967 Sg 170, appears to be directly in point. In that case an Assistant Superintendent of Commercial Taxes paid surprise visit to the shop of the appellant in order to inspect the books of account maintained by the shop and at that time the appellant was in the shop. The Assistant Superintendent of Commercial Taxes found that two sets of accounts books were kept in the shop. He took them up and started looking into them. The appellant snatched away both the books from him, passed them on to one of his servants who made them over to another servant who was on the upper floor. The Assistant Supdt. directed his orderly peon to recover the books. The peon was, however, prevented by the appellant from going to the place where the account books had been taken and in the scuffle which ensued between the two, the orderly's shirt was torn. It was held by the Supreme Court that :
'THE appellant had committed an offence under S. 26(1)(h) of the Behar Sales-Tax Act as also under S. 353, Indian Penal Code . because he had used criminal force. He could be prosecuted for either or both these offences at the discretion of the prosecution. It may be that he was not prosecuted for both the offences and the prosecution was restricted to the offence under S. 353, I.P.G. only to obviate the necessity of obtaining the commissioner's sanction which was required for prosecution under S. 26(1)(h) of the Act. Even so, the prosecution could not be said to have done something which was unwarranted by law. An offence under S. 353, Indian Penal Code . was a graver offence than the one under S. 26(1)(h) of the Act. In choosing to prosecute the appellant for a graver offence under the general law the prosecution could not be regarded as having acted colourably. If the prosecution were to be so restricted, graver offences would go unpunished.' In the course of judgment their Lordships further observed that it would lead to startling results if it were to be held that the prosecution acted colourably in not restricting the accusation to a minor offence requiring sanction.
(9) It may be noticed that the punishment which may be awarded for an offence under Section 5 of the Act is imprisonment for a term which may extend to two years and also fine. However, the punishment awardable under various offences under the Indian Penal Code for which the respondents are sought to be tried is much more; offence under Section 467 being punishable with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and also fine. Similarly punishment under Section 468 may extend to imprisonment for seven years also fine. Fraudulent user of a forged document as genuine entails punishment under Section 471 in the like manner as that prescribed for a person who had forged such document. Thus, there can be no doubt that the offences for which the respondents are sought to be prosecuted are much graver than the offence under Section 5 of the Act. It appears that the learned Chief Metropolitan Magistrate slipped into the grave error of equating the two offences because he somehow laboured under the impression that the maximum punishment under Section 5 of the Act was imprisonment for seven years besides fine. It seems that he took note of Section 5 as amended subsequenltyon25th January, 1976 and not as it stood originally. The felicity in reasoning on his part) thereforee, may well be ascribed to misreading of Section 5 as it stood at the relevant time.
(10) The learned Chief Metropolitan Magistrate has also misconstrued the authority of Supreme Court in Basir-ul-Huq v. The State of West Bengal, : 1953CriLJ1232 . The facts in that case were that Nurul Huda, one of the appellants, had lodged a report at the police station to the effect that one Dhirendra Nath had beaten and throttled his mother to death. When the funeral pyre was in flames, Nurul Huda Along with other appellants and accompanied by the sub-inspector of police arrived at the cremation ground. Pointing out the dead body he repeated the allegation that Dhirendra Nath had killed his mother by throttling her and that there were marks of injury on her body which they could show to the Sub-Inspector if he caused the body to be brought down. from the pyre. At their suggestion the fire was extinguished and the dead body was taken down from the pyre in spite of the protests from the complainant, Dhirendra Nath. However, no injuries were found on the body of the deceased and even the post-mortem examination did not reveal any injury on her person. So, the Sub-Inspector after investigation reached the conclusion that a false complaint had been made against Dhirendra Nath. Subsequently, Dhirendra Nath filed a complaint against Nurul Huda and others, inter alia, on the allegations that they had made imputations malafide out of enmity against him with the intention of harming his reputation. Accordingly, a charge under Section 500, Indian Penal Code, was framed against Nurul Huda and other appellants. It was contended that the offence disclosed was one under Section 182, Indian Penal Code (falsity of the report) and as such the Court could not take cognizance of the same without the requisite complaint under Section 195, Code of Criminal Procedure. It was in the background of these facts that their Lordship observed that:
'THOUGH,in our judgment, S. 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is within the ambit of that Section, it has also to be borne in mind not included that the provisions of that Section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the Section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In order words, the provisions of the Section cannot be evaded by the device of charging a person with an offence to which that Section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other Section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in S. 195, Cr. P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195 prosecution for such an offence cannot betaken cognizance of by misdescribing it or by putting a wrong lable on it.'
(11) Unfortunately the learned Chief Metropolitan Magistrate has taken note of only the second part of this paragraph and the first part thereof seems to have gone completely unnoticed. The point for consideration simply is whether distinct offences have been committed by the respondents in the same transaction and the answer must necessarily be given in the affirmative. According to the prosecution, some of the documents produced by the respondents before the Joint Chief Controller of Imports and Exports were valuable securities, for instance, cheques signed by respondents I and 2 in fictitious names of'Kanwal Sain', proprietor of M/s. Simco Industries and 'Ish Kumar', proprietor of M/s. Anita Industries. Further the rent receipts purporting to bear the signatures of landlord, namely, Bhim Sain for the months of August and September 1970 were also pressed into service in order to show that the premises were in occupation of M./S. Simco Industries. Thus, it is urged that Section 467 is clearly attracted to the facts of this case. No doubt the object of the respondents in doing so apparently was to secure import license but that would not warrant the interference that they did not commit distinct and separate offences outside the purview of Section 5 of the Act. Surely, offences under Sections 420, 467, 468 and 471 are constituted and are made up of entirely different ingredients and it matters little that the same were committed by the respondents with a view to accomplish their object of getting import licenses. There is no good reason why they should not be prosecuted and punished for the said offences even if they cannot be prosecuted for offence under Section 5 of the Act for want of requisite complaint. Significantly Rule 10-D does not cover offence of forgery.
(12) The learned counsel for the respondents as also the learned Magistrate has adverted to a decision of Bombay High Court in M/s. Phoenix Mills Ltd. v. Central Bureau of Investigation, (1973) 75 Bom LR 87. That was a case under Section 120B of the Indian Penal Code read with Section 5 of the Act, the allegation against the accused being that they had entered into a criminal conspiracy to dispose of imported goods in breach of the conditions of license issued under the Act and that in pursuance of the conspiracy they had actually disposed of the goods. Under the circumstances, it was held that the allegations contained in the charge- sheet disclosed primarily and essentially offence squarely falling within the ambit of Section 5 of the Act and as such mandatory provisions of Section 6 of the Act could not be permitted or to be avoided circumvented by seeking to prosecute the petitioner for the offence of conspiracy only when there was no complaint in writing against the accused as required under Section 6 of the Act. The instant case is manifestly distinguishable on facts because the ratio of the judgment in the Phoenix Mills (supra) was that whenever the law requires a complaint or sanction by a particular authority as a condition to be satisfied before initiation of a criminal proceeding that requirement also applies to the abetment, attempt or conspiracy to commit that offence. It is well established principle that a prosecution for a lesser offence should not be launched when the facts alleged constitute a graver offence. Hence, this authority is of no assistance to the respondents. On a parity of reasoning, my earlier decision in Jagat Kumar v. State Criminal Revision No. 90/78 decided on 6th November, 1980, which too was alluded to by the learned counsel for the respondents is of no help to them. In that case too, it was held that prosecution could not be launched for mere conspiracy even though the facts alleged unerringly disclosed actual corn mission of offence punishable under the Foreign Exchange (Regulation) Act, l947 because of prohibition contained in Section 23(3) and Section 23D of the said Act. My attention was also invited by the learned counsel for the respondents to an unreported judgment of the Bombay High Court in State of Maharashtra v. R. Rajan alias Ramiah Rajan and others, Criminal Revision No. 501 of 1973 decided on 29th November, 1973. A perusal of the said judgment would no doubt show that the charge-sheets had been filed against the accused persons under Section 120B read with Sections 419, 420, 467, 471 and 468 of Indian Penal Code and read with Sections 4 and 5 of the Foreign Exchange (Regulation) Act, 1949 and the discharge of the accused persons for want of requisite complaint under Section 23(3) of the said Act was maintained. The allegations against the accused were that in pursuance of the conspiracy and in furtherance of their common intention they had remitted amounts as price of the goods with the help of the forged invoices and false documents in fictitious names through Bank as also fictitious shipping bills, bills of lading, sight drafts, etc. covering bogus shipment of goat and sheep skin from Singapore to Bombay. They were, however, discharged relying on Phoenix Mills as also Basir-ul-Huq (supra). An argument was advanced on behalf of the prosecution that offences under Section 120B read with Sections 419, 420, 467, 471 and 468 of the Indian Penal Code were distinct offences committed and completed within India. However, this contention was repelled by their Lordships with the observations that charge-sheets clearly indicated that the conspiracy was to remit currency in contravention of the Foreign Exchange (Regulation) Act, and the acts of cheating and fabrication etc. were primarily and essentially or in truth and substance, constituted part and parcel of the same,. It would, however, appear that the accused persons were not sought to be charged with any substantive offence of cheating or forgery etc. It may also be noticed that the judgment of the Supreme Court in Chandrika Sao & Hazari Lal (supra) too was not noticed which, to my mind, will apply on all fours to the instant case with due deference to the learned Judges of the Bombay High Court, thereforee, I am persuaded to follow the ratio of Chandrika Soa & Hazari Lal (supra).
(13) To sum up, thereforee, the impugned order of discharge cannot be sustained. It is accordingly quashed and the case is remanded to the Court below for proceeding further in accordance with law.