Jaswant Singh, J.
1. The petitioner, Corporal Airman. Bakhshish Singh and leading Aircraftman Burman Anil Chander belonging to 23rd wing of the Air Force are alleged to have imported in Air Force Service Vehicle No. VD 38915 from the State of the Punjab into the State of Jammu and Kashmir on December 11. 1967. 14 bags of gram Dal and 46 bags of Kabli Grams, the export of which from the former State was banned by virtue of G. S. R. No. 575 dated April 18. 1967, issued by the Central Government. Ministry of Food, Agriculture, Community Development and Cooperation. While the vehicle on entering the territories of our State was being checked by Lance Naik Jacob at the Madhopur Check Post the petitioner is alleged to have improperly placed currency notes of the value of Rs. 20/-in the pocket of the short coat of the former. After some investigation a complaint under Section 165-A, R. P.C. for offering bribe to Lance Naik Jacob was filed in May 1969, by the Public Prosecutor, Special Police Establishment, Ambala. Branch in the court of the Special Judge, (Sessions Judge) Kathua On June 10. 1969 when the case was still at its initial stage, the Wing Commander. Commanding Officer No. 23 Wing Air Force, respondent No. 5. herein wrote to the Special Judge. Kathua. informing him that the competent Air Force Authority had decided that the petitioner should be tried by Court Martial and requesting him to deliver the petitioner with the statement of the offence with which he was charged to the Officer Commanding Air Force station, Jammu for being tried by court-martial. On receipt of the communication the Special Judge surrendered the petitioner without any demur for trial by a court-martial. On the petitioner being made over to the Air Force Authorities, a District court martial consisting of respondents Nos. 2 to 5 herein was constituted to try the petitioner on the following charges:
First Charge. Section 71 Air Force Act, 1950. Committing a civil offence that is to say transporting essential commodities made punishable under Section 7 of the Essential Commodities Act. 1955 read with Ministry of Food, Agriculture Community Development and Co-operation (Department of Food)) order dated 18th April. 1967. In that he along with accused (No. 2) 275043 Leading Aircraftman Barman Anil Chandra, at 00.30 hours on 11 December 1967, exported from the State of Punjab the following prohibited items in service vehicle No: VD-38915 in contravention of para 3(1) of Ministry of Food, Agriculture. Community Development and Cooperation. (Department of Food) order dated 18th April 1967:
Dal Chana ... 14 bags.
Kabuli Chana ... 46 bags.
Second charge. Section 65. Air Force Act, 1950.
An act prejudicial to good order and air force discipline. In that they i.e. both the accused on 11th December 1967. at Madhopur Traffic Check Post were found carrying unauthorised goods consisting of 14 bags of Dal Chana and 46 bags of Kabuli Chana. in a service 3 Ton vehicle B. A. No. 38915.
Third Charge. Section 65 Air Force Act. 1959. An act prejudicial to good order and air force discipline. On 11th December, 1967. at Madhopur Traffic Check post, having been checked by Lance Naik Jacob K. U. of No: 107 Communication Z one Provost Unit, while carrying prohibited goods in a service vehicle No: VD-38915. improperly placed three currency notes of the value of 20/- in the pocket of the short coat of the said Lance Naik Jacob.'
2. The Court Martial commenced the trial on January 17. 1970, and on July 28. 1971 when the trial was nearing completion the petitioner moved this Court for issue of an appropriate writ. direction, or an order quashing the aforesaid charges framed against him by the court-martial and directing his release on the ground that the aforesaid offences for which he has been charged by the court martial are exclusively triable by criminal courts, that under Section 71 of the Air Force Act. the Court martial can only try 'civil offences' that the offences with which the petitioner has been charged, not being 'civil offences' according to the definition of the term as contained in Section 4 of the Air Force Act are not triable by the court martial and that order dated June 11. 1969 of the Special Judge. Kathua, respondent' No: 7, herein, is illegal and without jurisdiction. It has been further averred by the petitioner that he made an application before respondents Nos. 2 to 5 for quashing the charges but they rejected his application on July 5, 1970.
3. A notice in regard to the petition was issued to respondents. Pursuant to the notice respondents Nos. 1 to 5 have filed a return averring inter alia that the offences for which the petitioner has been charged are exclusively triable by the court martial, that he has not been charged for an offence under Section 165-A of the Ranbir Penal Code and that the trial is almost over and only the findings recorded by the court martial remain to be announced.
4. Two questions arise for consideration in this case. Firstly, whether the offences with which the petitioner has been charged by the court martial are triable by the court martial or not, and Secondly, whether the action of respondent No. 7 in surrendering the petitioner to the court martial was justified.
5. The gravamen of the first charge against the petitioner is that on December 11. 1967. he exported from the State of Punjab the aforesaid essential commodities in violation of the ban imposed by the Central Government vide its order No. G. S. R. 575 dated April 18. 1967. issued under Section 3 of the Essential Commodities Act. 1955, Act No. X of 1955. This being clearly a 'civil offence' within the meaning of the term as defined in Section 4 of the Air Force Act. (hereinafter referred to as 'the Act') has by virtue of the legal fiction created by Section 6 of the Act to be treated as an offence against the Act and is triable by the Court Martial. The contention of Mr. S.P. Gupta, that since the Essential Commodities Act. 1955 was not applicable to the State of Jammu and Kashmir on the relevant date the trial of the petitioner on the first charge is illegal, is not, in my opinion, well founded as it over-looks that the charge, as already indicated, is not in relation to the State of Jammu and Kashmir but is in relation to the State of Punjab, I. therefore-overrule the objection and hold that the trial of the petitioner by the court martial in respect of the first charge does not suffer from any infirmity on the ground of lack of jurisdiction.
6. Regarding the petitioner's trial on the second charge which relates to transport by him of prohibited commodities in service vehicle contrary to good order and air force discipline as envisaged by Section 65 of the Act, it may be stated that the learned Counsel appearing on his behalf has not disputed that the court martial has jurisdiction to try this charge. In view of this forth right and well-founded concession. I hold that the charge is also triable by the court martial.
7. As regards the third charge for which the petitioner is arraigned before the court martial, it has been vehemently urged by the learned Counsel for the petitioner that Section 7 of the Jammu and Kashmir Criminal Law Amendment Act. 1958. Act No. III of 1958 excludes the jurisdiction of the court martial to. try the offence covered by this charge. He has tried to reinforce his contention by submitting that the act attributed to the petitioner falls within the mischief of Section 165-A R, P.C. and the Air Force Authorities cannot by giving it a different nomenclature confer jurisdiction on the court martial which it does not possess. I regret, I cannot accede to this contention. A reference to Para 2 of the return filed by respondent Nos. 1 to 3 would show that the petitioner has not been charged by the Court Martial either for an offence under Section 165-A of the Ranbir Penal Code or under Section 66 read with Section 70 of the Act. but has been charged for an offence under Section 65 of the Act. which, it would be noticed, creates a new category of offences. In the circumstances, the offence with which the petitioner has been charged is. in my opinion triable by the court martial.
This view is in accord with the pronouncement of their Lordships of the Supreme Court in Major E. G. Barsay v. State of Bombay : 1961CriLJ828 which was reiterated in Som Datt Datta v. Union of India : 1969CriLJ663 . In these decisions their Lordships have clearly observed that the offences enumerated in Sections 34, 35 and 37 etc. of the Army Act which create a new category of offences are exclusively triable by a court martial. As these Sections are pari materia with Sections 34, 35, 36 and 37 etc. of the Act which create a new category of offences, the offences covered by these Sections are. on the same analogy of reasoning, exclusively triable by the court martial. In this view of the matter the acts falling within the ambit of Section 65 of the Act which as already stated, creates a new category of offences prejudicial to good order and discipline of Air Force are triable by a court martial. The offence of offering bribe contrary to the provisions of Section 165-A. R. P.C. may be exclusively triable by the Special Judge under the Jammu and Kashmir Criminal Law Amendment Act, 1958, but since the petitioner has not been charged with that offence by the court martial but has been charged only for an offence prejudicial to good order and air force discipline. I find it difficult to hold that the third charge as framed is not triable by the Court martial. The contention of Mr. S. P. Gupta in respect of this charge is. therefore, replied.
8. The second question that arises for consideration in this case is whether Mr. G. A, Tak, functioning as Special Judge, under the Jammu and Kashmir Criminal Law Amendment Act, 1958. was justified in surrendering the petitioner to the Air Force authorities in compliance with their requisition. The offence under Section 1'65-A. R. P.C. with which the petitioner was charged before him being one of the offences mentioned in Section 6 (1)(a) of the Criminal Law Amendment Act. clearly fell within the sphere of his jurisdiction and as held in : 1961CriLJ828 (Supra). Joginder Singh v. The State of Himachal Pradesh : 1971CriLJ511 and State v. Ram Lakhan AIR 1971 J & K 54 - 1971 Cri LJ 470 (FB). there was no provision in the Act i. e. the Air Force Act. to exclude his jurisdiction. As such there was nothing to prevent him from proceeding with the trial. His action therefore, in tamely surrendering the petitioner to the Air Force authorities without even ascertaining as to whether there was -anything in the Act which excluded his jurisdiction, was wholly wrong and cannot be upheld. This irregularity does not. however, change the complexion of things and cannot vitiate the trial held by the court martial. What a criminal court or a court martial is concerned with is whether the accused is before it and whether it has jurisdiction to try him for the offence with which he is charged. Any illegality connected with his arrest or surrender does not at all affect the jurisdiction of a criminal court or a court martial. I am fortified in this view by the decision in Emperor v. Vinayak Damodar Savarkar 1911 ILR 35 Bom 225 : 12 Cri LJ 356 : E. C. D. Wheeler v. Emperor AIR 1928 Sind. 161 : 29 Cri LJ 1089 and R. v. O/C Depot Battalion R. A. S. C, 1949 All ER 373.
9. In the result the petition fails and is hereby dismissed. The Air Force authorities shall after conclusion of the trial and announcement of the findings by the Court Martial and completion of other formalities under the Act, make over the petitioner for being proceeded against in the court of the Special Judge. Kathua, or any other Judge having jurisdiction over the area within which the offence under Section 1'65-A. R. P.C. is alleged to have been committed. They shall also return to the Judge the complaint as also the statement of the charge etc which might have been forwarded to them by the Special Judge, Kathua.