JUDGMENT
S.M. Daud, J.
1. This petition is by five persons arraigned as Accused Nos. 24 to 28 in the Court of the Chief Judicial Magistrate at Ratnagiri for the commission of offences punishable under the Customs Act, the Import and Export (Control) Act and the Indian Penal Code.
2. Respondent No. 1 who is an Assistant Collector of Customs, Ratnagiri Division has instituted Regular Criminal Case No. 61 of 1986 in the Court of the Chief Judicial Magistrate at Ratnagiri. The complaint recites that on the night between 22nd and 23rd of May 1985 a posse of the Customs was patrolling the area around Deogad in a patrolling craft “Al-Mashrik”. At that time they noticed a launch moving towards the shore but without lights. The signal to stop having been ignored by the launch a chase was given to the fleeing launch. It was cornered and boarded by the Customs staff. The launch tad no name or registration number and appeared to have been freshly painted. It was loaded with what appeared to be contraband. The launch was said to bear the name “Al-Ameen”. Two small vessels “Asifi” and “Bismillah-ki-Barkat” approached “Al-Ameen” without realising that it had been boarded by the Customs Staff. “Bismillah-ki-Barkat” was captured though “Asifi” managed to escape in the darkness. Al-Ameen and Bismillah-ki-Barkat along with the inmates were brought to Ratnagiri port on the morning of 23rd May 1984. A thorough search was made and this revealed that existence of 101 packages of contraband, the packages were attached under a reasonable belief that the goods had been smuggled into India in contravention of the Customs Act and the Import and Export (Control) Act. Detailed investigations were carried out when it was learnt that Al-Ameen was in fact vessel “Sameena” owned by a firm which had for its partners Accused Nos. 24 to 28. Statements of these accused and several others were recorded. In due course a complaint was lodged and the Chief Judicial Magistrate directed the issue of process against all those arraigned including the Petitioners. Petitioners questioned the taking of cognizance against them by a Revision to the Sessions Court at Ratnagiri. The Revision was heard by the Sessions Judge. The Revision having been dismissed, Accused Nos. 24 to 28 have come to this Court invoking the writ jurisdiction for that purpose.
3. Learned Counsel appearing for the Petitioners submits that there was not the slightest material collected during the course of investigation to show that his clients had committed any offence. In fact the vessel had disappeared and report of its disappearance-had been given by the Petitioners to the Port Authorities, the Police, the Bank which had financed the loan utilised for the purpose of acquisition of the vessel and the Customs authorities. This information was given in or about 3 months prior to Al-ameen’s interception on the night between 22nd and 23rd of May 1984. In spite of overwhelming evidence showing that the Petitioners were not guilty. Respondent 1 had filed a false complaint implicating them and for that purpose making a false recital in the complaint about their having admitted the commission of offence. The Sessions Judge was in error in dismissing the Revision. The petition has to be allowed and I do so for the reasons given below:
4. All that can be said to incriminate the Petitioners is their being partners of a firm which owned vessel “Sameena”. Exception is not taken to their contention that the disappearance of the Sameena was reported by them to various authorities and that this was done in about February 1984 when the vessel disappeared. They have not given any confessional statement as is recited in the complaint. This position was not disputed before the Sessions Judge. On the contrary, the argument advanced by the Complainant and the Public Prosecutor was that the Petitioners had created that evidence in defence after having committed the crime. This is a far fetched inference and it rests upon nothing better. It is difficult to believe that the Petitioners gave the information about the loss of the vessel in the middle of February 1984 knowing or intending that the said vessel would be used for smuggling activities some time 3 months later. The Sessions Judge remarked that this type of advance planning is the common modus operandi adopted by offenders. I do not know how this observation has been made and on what it is based. No such presumption or inference can be drawn seeing that it is extremely far-fetched. When the papers did not disclose anything to connect the Petitioners with the contravention of the law and the recital in the complaint about their having confessed their culpability having been found to be false, the interests of justice required that the Revision be allowed. Inasmuch as the Sessions Judge has failed to exercise jurisdiction vested in him, this Court will have to correct him. The petition succeeds and the taking of cognizance insofar as it concerns the Petitioners is hereby quashed. Rule is made absolute.