JUDGMENT - H.H. KANTHARIA, J.:---While dealing with this petition under Article 227 of the Constitution read with section 482 of the Criminal procedure Code, 1973 (hereinafter referred to as' the Code') for quashing of process issued by the learned Chief Metropolitan Magistrate, Bombay, in Criminal Case No. 427/CW/1988 at the admission stage. I am reminded of the observations made by the Supreme Court in the case of (State of Maharashtra v. Champalal Punjaji Shah)1, (1981)3 S.C.C 610 as under : "It is one of the sad and distressing features of our criminal justice system that an accused person, resolutely minded to delay the day of reckoning, may quite conveniently and comfortably do so, if he can but afford the cost involved, by journeying back and forth, between the Court of first instance and the superior Court, at frequent interlocutory stages. Applications about to quash investigations, Complaints and charges on all imaginable grounds, depending on the ingenuity of client and Counsel. Not frequently as soon as a Court takes cognisance of a case requiring sanction or consent to prosecute, the sanction or consent is questioned or a improperly accorded, as soon as a witness is examined or a document produced, the evidence is challenged as illegally received and many of them are taken upto the High Court and some of them reach this Court too on the theory that' it goes to the root of the matter'. There are always petitions alleging `assuming the entire prosecution case to be true, no offence is made out'. And inevitably proceedings are stayed and trials delayed. Delay is a known defence tactic.” This petition is a glaring example of the truth and substance contained in the above observations of the Supreme Court. 2. Short facts relevant for the purpose of disposal of this petition, at the admission stage itself, are as under : The petitioner (Original Accused No. 6) claims to be a businessman carrying on business of exports of food stuff, garments, hardware, etc. under the name and style of M/s. Gopikant and Brothers. 2. Short facts relevant for the purpose of disposal of this petition, at the admission stage itself, are as under : The petitioner (Original Accused No. 6) claims to be a businessman carrying on business of exports of food stuff, garments, hardware, etc. under the name and style of M/s. Gopikant and Brothers. The Assistant Director in the Directorate are Revenue intelligence, Bombay, filed a criminal compliant against him and ten others in the Court of the learned Chief Metropolitan Magistrate, Bombay, alleging that on information, the D.R.I. Officers visited Gala No. 17, first floor, Suyog Industrial Estate, Vikhroli (East) where they found huge quantity of Hashish meant for being exported to London and the same was concealed in the drums containing 'Mango Chutney'. Their enquiry revealved that the said Gala No. 17 was hired by accused No. 5-Nitin K. Bhabnushali through a broke named Suryakant Bhavanji Sachde @ Babubai and the petitioner had a hand in enabling the said Nitin K. Babnushali in hiring the said Gala. The Officers of the D.R.I. opened the Gala on 2nd July, 1987 and recovered 550 plastics drums/carboys containing 4,365 Kgs. of Hashish valued at Rs. 2,619 crores, concealed in 194 plastic carboys. Further enquires made by the D.R.I. Officers revealed that there was a conspiracy among the eleven accused persons to export the Hashish to London by illegal means. Therefore, the Directorate of Revenue Intelligence charged them for offences punishable under sections 120-B of the Indian Penal Code read with sections 8(c), 20, 23, 25, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sections 135(1)(a), (b) read with section 135(1)(ii) and 135-A of the Customs Act, 1962 on 19th August, 1988. The Magistrate examined the complaint and having satisfied himself that there was prima facie material on the record to proceed against the accused persons, including the present petitioner, issued process of warrant in varying amounts against different accused persons by a reasoned order on the same day. It is the said order if issuance of process that has been challenged by the petitioner in this petition. 3. Mr. Gursahani, learned Counsel arguing the petition for admission, first of all submits that the issuance of process by the Magistrate here was improper and illegal and, therefore, should be quashed and set aside. It is the said order if issuance of process that has been challenged by the petitioner in this petition. 3. Mr. Gursahani, learned Counsel arguing the petition for admission, first of all submits that the issuance of process by the Magistrate here was improper and illegal and, therefore, should be quashed and set aside. The submission of the Counsel is that some of the offences with which the petitioner and others were charged exclusively triable by the Court of Session and hence it was obligatory on the part of the Magistrate to have followed the procedure laid down in the proviso to section 202(2) of the Code and he could not have issued process without examining all the witnesses of the prosecution. In support of his contention, Mr. Gursahani relies upon a number of authorities with which I shall presently deal. Suffice, however, to say here that all these authorities are inapplicable and irrelevant to the facts of this case and I find no substance in the argument of Mr. Gursahani. 4. Although the law on the point is well-settled, I may briefly analyse the scheme of Chapter XV and partly of Chapter XVI of the Code covering sections 200 to 204. Thus, section 200 of the Code provides for the examination of the complainant when a Magistrate takes cognizance of an offence on a compliant. He is expected here to examine the complainant on oath and the witnesses present, if any, and reduce the substance of such examination to writing which should be signed by the complainant and the witnesses and also the Magistrate. However, if the complaint is by a public servant acting or purporting to act in the discharge of his official duties or a Court, the examination of the complainant is not necessary and it is not necessary if the Magistrate makes over the case for enquiry or trial to another Magistrate under section 192 of the Code. Section 201 envisages that when a complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, if the complainant is in writing, return it for presentation to the proper Court with an endorsement to the effect and if the complaint is not in writing, direct the complainant to the proper Court. Section 202 speaks in terms of a contingency when the Magistrate may chose to postpone the issue of process. Section 202 speaks in terms of a contingency when the Magistrate may chose to postpone the issue of process. Thus, on receipt of the complaint, if the Magistrate thinks fit to postpone the issue of process against the accused person, he may in that case either inquire into the case himself or direct an investigation to be made for the purpose of deciding whether or not there is sufficient ground for proceeding. However, no such directions for investigation can be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session or where the complaint has not been made by a Court, unless the complaint and the witnesses present (if any) are examined on oath under section 200. However, if the Magistrate chooses to hold an enquiry, as stated hereinabove, he may, if he thinks fit, take evidence of witnesses on oath but if it appears to him that the offence complained of is triable exclusively by the Court of Session, it is mandatory for him to examine all the witnesses of the complainant on oath. Section 203 provides that after considering the statements on oath, if any, of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint after briefly recording the reasons for doing so. Section 204 envisages that if the Magistrate taking cognizance of an offence is of the opinion that there is sufficient ground of proceeding, he shall issue process, on certain conditions being satisfied with which we are not concerned in this case. In short, a plain reading of section 200 to 204 of the Code shows that on receipt of a complaint, after following a certain procedure, if the Magistrate is satisfied that there is prima facie case to proceed, he may immediately issue process, either of summons or of warrant and if he is of the opinion that before issuing process an inquiry or investigation should be made into the allegations made in the complaint, then he may postpone the issuance of process and hold an inquiry himself or get an investigation made into the allegations against the accused persons. And, in such a situation if the offence with which the accused persons are charged is one that is exclusively triable by Court of Session, then he shall call upon the complainant to produce all his witnesses and examine them on oath before issuing process. 5. The Delhi Court in (Frank Dalton Larkins and etc. v. State Delhi Administration)2, 1985 Cri.L.J. 377 after quoting section 202 of the Code observed : “On a plain reading of sub-section (1), especially the words “may, if he thinks fit” it is manifest that it is entirely within the discretion of the Magistrate whether or not inquiry under this section should be made or an investigation ordered. A combined reading of sections 200 to 204 of the Code would show that there is no legal obligation on the part of a Magistrate taking cognizance of an offence to resort to the procedure laid down in section 202 before dismissing a complaint or issuing process to the accused after taking cognizance of the offence complained of. The purpose of the proviso to section 202(2) of the Code seems to be that where the Magistrate postpones the issue of process and decides to hold an enquiry and the case appears to him one exclusively triable by Court of Session, it will be imperative for him to examine all the witnesses for the complainant on oath. That it is discretionary with a Magistrate to postpone the issue of the process or not and there is no legal bar or impediment in his way to straightway issue the process is well settled. In other words, it is not necessary for the Magistrate in every case to take recourse to section 202. It is only case of doubt and hesitancy where a Magistrate is unable to make up mind to issue the process after complying with procedure laid down in section 200 that he may adopt the procedure provided in section 202. It is not at all obligatory on a Magistrate to hold an inquiry before issuing process and he was the power to take cognizance and issue the process without holding inquiry or directing the investigation as envisaged in sub-section (1) of section 202. It is not at all obligatory on a Magistrate to hold an inquiry before issuing process and he was the power to take cognizance and issue the process without holding inquiry or directing the investigation as envisaged in sub-section (1) of section 202. The proviso in question is intended to qualify sub-section (2) to which it is appended to make it obligatory upon the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath if it appears to him that the offence complained of is triable exclusively by the Court of Session. However, this does not, in any manner, impinge upon the discretion which vests in the Magistrate to postpone the issue of process or not.” 6. The Allahabad High Court in (Jumman and others v. State of U.P. and another)3, 1988 Cri.L.J. 199 while dealing with the same provisions of the Code observed : “After receipt of final report and protest petition in a case triable exclusively by a Court of Session in case, on the basis of the material available, even without examining the complainant or his witnesses present or directing the complainant to examine his witnesses, Magistrate feels, that prima facie case in made out, he has sufficient jurisdiction to take cognizance and as a visible manifestation of taking cognizance/process can be issued straightway and in that event procedure under sections 200 and 202 ceases to remain very material. Once the cognizance is taken and process is issued it can be either in the form of issuing summons or warrants as the case may be.” It was further held therein, “It is also not a condition precedent for issuing process that the Magistrate invariably must hold an enquiry as contemplated by section 202 or direct the investigation to be made. The power to take cognizance without holding enquiry appears to be implicit under section 202 inasmuch as section 202 opens with the words 'postponements of the issue of the process'. In other words in case the Magistrate does not want to postpone issue of the process in that event procedure under section 202 becomes redundant and need not to be followed. When the Magistrate postpones the issue of the process, only in that event he can follow the procedure under section 202 of the Code.” 7. In other words in case the Magistrate does not want to postpone issue of the process in that event procedure under section 202 becomes redundant and need not to be followed. When the Magistrate postpones the issue of the process, only in that event he can follow the procedure under section 202 of the Code.” 7. A Division Bench of this Court (Gadgil and S.J. Deshpande, JJ.), in (Re : The Extra Assistant and Additional Sessions Judge, Ahmednagar)4, 1984 Cri.L.J. 801 held : “The proviso to section 202(2) comes into play when the Magistrate postpones the issue of process and holds inquiry. In this case the Magistrate had examined the complainant under section 200 and on the same day he issued process under section 204 of the Code. He had not postponed the issue of process and hence, issue of process and the consequent commitment without examining all the witnesses was quite legal and proper.” 8. And, the Supreme Court in case of (A.R. Antulay v. Ramadas Shriniwas Nayak and another)5, 1984 Cri.L.J. 647 while dealing with the same point, enunciated the legal position as under : “Upon a complaint being received and the Court records the verification, it is open to the Court to apply its mind to the facts disclosed and to judicially determine whether process should or should not be issued. It is not a condition precedent to the issue of process that the Court of necessity must hold the inquiry as envisaged by section 202 or direct investigation as therein contemplated. The power to take cognizance without holding inquiry or directing investigation is implicit in section 202 when it says that the Magistrate may 'if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a Police Officer….. for the purpose of deciding whether or not there is sufficient ground for proceeding'. Therefore, the matter is left to the judicial discretion of the Court whether on examining the complainant and the witnesses if any as contemplated by section 200 to issue process or to postpone the issue of process. This discretion which the Court enjoys cannot be circumscribed or denied by making it mandatory upon the Court either to hold the inquiry or direct investigation. Such an approach would be contrary to the statutory provision.” 9. This discretion which the Court enjoys cannot be circumscribed or denied by making it mandatory upon the Court either to hold the inquiry or direct investigation. Such an approach would be contrary to the statutory provision.” 9. From these authorities, it is crystal clear that it is not at all necessary and obligatory on the part of a Magistrate to hold an inquiry before issuing process and he is empowered to take cognizance and issue process without holding an inquiry or directing investigation. It may be pertinent to note here that the proviso to section 202(2) of the Code is pitted against the parent sub-section (2) and not sub-section (1) and as such it can hardly be construed as controlling or fettering the discretion which vests in the Magistrate under sub-section (1). Therefore, the proviso in question is intended to qualify sub-section (2) to which it is appended and make it obligatory upon the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath if it appears to him that the alleged offence is triable exclusively by the Court of Session. But he has a discretion to postpone the issue of process. On an analytical examination of the provisions contained in section 200 to 204, it is abundantly clear that the proviso to section 202(2) comes into play only when the Magistrate postpones the issue of process and holds inquiry. In the instant case, the Magistrate examined the complaint filed before him by a public servant and came to the conclusion that there was prima facie material to proceed against the accused persons and being thus satisfied he ordered the issue of process immediately without examining the complainant or the prosecution witnesses under section 200 or 202 and, therefore, it cannot be said that his order of issuing process was tainted with any legal infirmity. 10. Now, dealing with the authorities cited by Mr. Gursahani, it may be seen that a judgement delivered by this Court (Rele, J.), in Writ Petition/Criminal Application No. 104 of 1982 on 10th August, 1982 in the case of (Gulam Kadar Gulam Rasul and others v. The State of Maharashtra)6, was with regard to a committal order passed by a Judicial Magistrate, First Class and had nothing to do with the question of issue of process. The cases of Rajender Kumar Jain v. State through Special Police Establishment and others, and Manohar Lal v. Bansi Lal and others, and (Attorney General of India v. State of Haryana and others)7, A.I.R. 1980 S.C. 1510 dealt with the point of withdrawal from prosecution under section 321 of the Criminal Procedure Code and had no relevance to the point in question. In the case of (Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others)8, A.I.R. 1976 S.C. 1947 the Supreme Court laid down that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused and that it is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one and then pointed out as to under what circumstances the process issued by a Magistrate could be quashed or set aside. Therefore, this is also not an authority which can be pressed into service to canvass a point that no process can be issued by a Magistrate unless all the prosecution witnesses are examined under the proviso to section 202(2) of the Code in a Sessions triable case. Reliance was then placed on a not reported in 1975 Maharashtra Law Journal at page 9 from a judgment of a Division Bench of this Court (M.N. Chandurkar and C.S. Dharmadhikari, JJ.) in Special C.A. No. 1535/74 decided on 7th January, 1975, in (Laxmanlal v. J.M.F.C. Khamgaon)9. The facts of that case are not available in the note but the said judgement was considered by another Division Bench of this Court in (Re : The Extra Assistant and Additional Sessions Judge, Ahmednagar), 1984 Cri.L.J. 801 (supra) and it appears therefrom that even in Special Civil Application No. 1535 of 1974 the Magistrate had not issued process on the same day but had postponed it and done so after a period of nearly a month. Therefore, the note reported in 1975 Maharashtra Law Journal at page 9 is also of no use to the petitioner. Therefore, the note reported in 1975 Maharashtra Law Journal at page 9 is also of no use to the petitioner. Another judgement of a Division Bench of this Court (Dharmadhikari and Bhonsale, JJ.) in (Shyamkant Wamanrao Pawar v. State of Maharashtra and others)10, 1980 Cri.L.J. 1388 was relied upon by Mr. Gurshani. In that case it was held that the proviso to section 202(2) of the Code was mandatory and process could not be issued without examining all the witnesses in an offence triable exclusively by the Court of Session. But the facts therein disclose that on a private complaint filed by one Govinda Bhika for some of the offences out of which one was triable by Court of Session, the Magistrate examined the complainant and two witnesses and directed issuance of process against the accused persons. Therefore, in that case, instead of issuing of process straightway the Magistrate had embarked upon an enquiry under section 202 and it that event it was incumbent upon him under the proviso to section 202(2) to have examined all the prosecution witnesses which was not done and obviously, therefore, the order of issuance of process was bad in law. In (Ramchander Rao v. Boina Ramchander and another)11, 1980 Cri.L.J. 593 the facts before the Andhra Pradesh High Court were that on 17-2-1979, the complainant filed a private complaint against 29 accused persons for offences under sections 148, 302, 324, 452 and 440 of the Indian Penal Code read with section 149 of the Indian Penal Code. The sworn statement of the complainant was recorded on 20-2-1979. The complainant had cited as many as 22 witnesses in his complaint. As the case was exclusively triable by a Court of Session, the Magistrate decided to hold an inquiry. On 1-3-1979, he recorded statements of witness Nos. 3 to 6 and 8 and adjourned the case to 8-3-1979. On that say witness No. 7 was examined as the remaining witnesses were absent. The case stood postponed to 17-3-1979 and on that day the Magistrate passed an order that the only remaining eye-witness was given up by the complainant and hence that enquiry under section 202 of the Code was closed. The case was posted to 20-3-1979 for consideration. On 21-3-1979 the Magistrate took the case on file and issued non-bailable warrants to all the accused persons. The case was posted to 20-3-1979 for consideration. On 21-3-1979 the Magistrate took the case on file and issued non-bailable warrants to all the accused persons. The Andhra Pradesh High Court was of the view that since the offence was exclusively triable by Court of Session, examination of all witnesses was mandatory and process issued to accused without complying with mandatory requirement of proviso to section 202(2) of the Code could be interfered with. Form theses facts, it can be seen that the Magistrate had not chosen to issue process on the receipt and examination of the complaint but had held an inquiry and postponed the issuance of process and that being so, it was incumbent upon him to have examined all the prosecution witnesses under the proviso to section 202(2) of the Code and thus the authority is of no use to the petitioner . Similar was the situation in case (Uma Shanker Misra v. State of U.P and another)12, 1983 Allahabad L.J. 1329 before the Lucknow Bench of the Allahabad High Court. There the learned Magistrate examined the complainant under section 200 of the Criminal Procedure Code and also examined six other witnesses under section 202 of the Code and passed an order summoning the three accused persons. The case was one exclusively triable by Court of Session and, therefore, since the Magistrate had chosen to hold an inquiry before issuing the process it was his duty under the proviso to sub-section (2) of section 202 of the Code to have examined all the witnesses which was not done by him and, therefore, his order of issuance of process was wrong. Likewise in (Gobinda Ghosh v. Smt. Subala Ghosh)13, 1979 Cri.L.J. 1005 the Calcutta High Court held similar view which cannot help the present petitioner. In (Bajji v. The State of Madhya Pradesh)14, 1981 Cri.L.J. 1558 the Madhya Pradesh High Court held that in a case where the offence is triable exclusively by the Court of Session, the non-compliance of the proviso to sub-section (2) of section 202 of the Code would amount to illegality vitiation commitment proceedings and consequent trial thereof. In (Bajji v. The State of Madhya Pradesh)14, 1981 Cri.L.J. 1558 the Madhya Pradesh High Court held that in a case where the offence is triable exclusively by the Court of Session, the non-compliance of the proviso to sub-section (2) of section 202 of the Code would amount to illegality vitiation commitment proceedings and consequent trial thereof. In that case, the question was whether the cognizance of the offence was taken by the Magistrate on a police report or a private complaint and whether the committal order was correct which are not the facts in our case and, therefore, the authority is not relevant to the facts of the instant case. However, a Single Judge of the Madhya Pradesh High Court in that case does appear to have sounded a note contrary to the settled law on the point and I may say, with respect, that I am unable to persuade myself to agree with the view taken by him. And lastly, Mr. Gursahani relied upon a Gujarat High Court ruling in case of (Laxmiben wife of Magan Parshottam v. Magjibhai Bijiyabhai and others)15, 1982(2) Gujarat Law Reporters 724 in which the facts were that in a case filed before a Magistrate where the offence was exclusively triable by Court of Session, the Magistrate instead of making enquiry himself under sub-section (2) of sub-section 202 of the Code read with the proviso directed the investigation. This, he could not have done as before issuing process he alone could have inquired into the allegation made in the complaint under section 202(2) of the Code and had to examine all the prosecution witnesses under the proviso thereof. Therefore , this authority is also of no assistance to the petitioner. 11. Regarding the merits of the matter, the submission of Mr. Gursahani is that a perusal of the impugned order passed by the Magistrate shows that he had taken into consideration the prosecution evidence in the nature of a statement of co-accused No. 5 Nitin K. Bhanushali and the petitioner's own statement which was retracted. The submission of the learned Counsel is that this was not sufficient evidence on which a Magistrate could have issued process against the petitioner. In support of his argument, Mr. The submission of the learned Counsel is that this was not sufficient evidence on which a Magistrate could have issued process against the petitioner. In support of his argument, Mr. Gursahani relied upon two judgements of this Court one by Kotwal, J., delivered on 19th January, 1987 in Criminal Writ Petition No. 702 of 1986 in case (Rajnikant Maganghai Patel v. Assistant Collector of Customs and another)16, reported in 1987(2) Bom.C.R. 100 and another in case of (Paru Mrugesh Jaikrishna v. Assistant Collector of Customs another)17, 1988(1) Cri.L.J. 963 : 1988(1) Bom.C.R. 428 by Ashok Agarwal, J. It is no doubt true that if the evidence against an accused is only on the nature of a statement of the co-accused which by itself may not be sufficient to proceed further in the matter and therefore, the proceed issued in such a case may be quashed. I, however, do not find substance in the argument of Mr. Gursahani that in the instant case there was no sufficient evidence before the Magistrate to order issuance of process because a perusal of the lengthy complaint, running into 42 pages, filed in the Court of the Magistrate shows that there easy enough prima facie material not only for the purpose of issuing process but if it goes unrebutted, it may also result in conviction of the petitioner. Thus, the statement of Suryakant B, Sachde @ Babubhai (P.W. No. 11), a broker by profession, (Page Nos. 47 and 48 of the petition) shows that (a) on the recommendation of the petitioner he had arranged the hiring of Gala No. 17 at Suyog Industrial Estate to Nitin Bhanushali (accused No. 5), (b) every time he used to consult the petitioner before hiring any godown for Nitin Bhanushali, (c) the petitioner gave the personal guarantee for the bona fides of Nitin Bhanushali and (d) the petitioner warned hi not to reveal any facts to the D.R.I. Officers about his (petitioner) and Nitin's connections with the Narcotic under seizure and not to disclose that Nitin was introduced to him (Suryakant B. Sachde @ Babubhai) by the petitioner. Further, statement of Budhana Munthana (P.W. 15) (Page No. 64 of the petition) shows that in an identification panchanama dated 7-7-87, Budhana Muthana, working as a Godown Keeper and Mukadm, at M/s. Suyog Industrial Estate, (Page No. 48 of the petition, para No. 26) identified the petitioner as the person who used to visit Gala No. 17 during the last week of June, 1987. The words “during the last week of June, 1987” assumes importance because during the period from 27-6-87 (night) to 30-6-87 i.e. within a period of 3 days, which constitute the last week of June, 1987, the drugs were concealed in the 'Mango Chutney' at Gala No. 17, which petitioner used to visit and from which 4365 Kgs of 'Hashish', a narcotic drug was recovered. Then, in his statement Nitin Bhanushali (accused No. 5) (Page No. 51 of the petition) stated that a in the night on 27-6-87, Shiva (accused No. 3) approached him at his residence with a request to allow him (accused No. 3) to store in Gala No. 17 certain plastic drums containing pickles for 3-4 days and that he accordingly handed over the keys of the godown to Shiva and (b) on 1-7-87, morning, Shiva told him that the pickles drums have been stored in the said godown No. 17 and further (c) that this party wanted to export some drugs and chemicals after concealing the same in the drums of ' Mango Chutney' meant for a London party. Again, in his statement the petitioner (Page 46 of the petition) stated that (a) he had exported prohibited items like pulses and jaggery by mis-declaration and through forgery etc. in association with Nitin (accused No. 5) in the past, (b) the export proceeds were received by him (petitioner) but not through banking channels, (c) he introduced Nitin to Babubhai (P.W. No. 11) and (d) he must have exported about 400 MT of prohibited items like pulses and jaggery with the help of Nitin Bhanushali. All this material shows the to disclose his association with Nitin in connection with the Narcotic seized by the D.R.I. Officers and not to disclose that he (petitioner) had introduced Nitin to Babubhai. It also shows the subsequent conduct of the petitioner. All this material shows the to disclose his association with Nitin in connection with the Narcotic seized by the D.R.I. Officers and not to disclose that he (petitioner) had introduced Nitin to Babubhai. It also shows the subsequent conduct of the petitioner. The Madras High Court in case of (Re: M Rangarajulu Naidu and others)18, 1985 Cri.L.J. 906 had observed : The principle underlying section 10 is that a conspirator is an agent of his associates in carrying out the object of the conspiracy. His acts and declarations are therefore admissible against the other conspirators on the same principle as the acts and declarations of an agent are receivable against his principal. Prima facie proof of conspiracy and of the accused's connection with it must be giving evidence of the act, declaration or writing of a conspirator. It is not necessary that it should be established by direct evidence that the accused and the person whose acts, statements or writings are sought to be given in evidence against the prisoner entered into a formal consultation or agreement to commit offence as in a case of conspiracy direct evidence is seldom available. It may be proved by the surrounding circumstances or by the antecedent or subsequent conduct of the accused." And lastly, the statement of Nitin Bhanushali (accused No. 5) shows that Shiva (accused No. 3) further told him that this party wanted to export some drugs and chemicals after concealing the same in the drums of 'Mango Chutney' meant for a London party and thereupon Shiva told him that consignment of 'Mango Chutteny ' with drugs and chemicals concealed therein are to be exported under forged customs documents in the name of bogus parties by forging customs examination report etc. and for which the party shall pay him (Nitin) Rs. 80,000/- in cash. Mr. Gursahani submits that the petitioner has retracted his statement. But so long as the evidentiary value that can be attached to a retracted statement is concerned, it can be considered only at the stage of the trial and not at the time of issuing process. 12. As can be seen from the various averments made in the complaint, this is a case of conspiracy involving complication facts. The prosecution should be given an opportunity to lead all the evidence in their possession in proof of the allegations made against the petitioner and other accused persons. 12. As can be seen from the various averments made in the complaint, this is a case of conspiracy involving complication facts. The prosecution should be given an opportunity to lead all the evidence in their possession in proof of the allegations made against the petitioner and other accused persons. The prosecution cannot be shut out from leading evidence in a case where there is enough prima facie material for proceeding further with a trial after issuing process. In the facts and circumstances of the case, I am of the opinion that the learned Magistrate did nothing wrong and not in the least committed any illegality whatsoever by issuing process against the petitioner and several other accused persons. Therefore, on merits also the petition is devoid of any substance. 13. In conclusion, I may quote with respectful approval quite apt observations made by the Kerala High Court on (M/s. Choice Canning Co. Ltd. and another v. K.S. Ramchandran)19, 1988 Cri.L.J. 243. Which pertinently paint the petitioner in his true colours. Brother Padmanabhan, J., of the Kerala High Court said : “Accused persons claiming themselves belonging to the 'affluent higher strata' in society generally go under the impression that the forums for bringing offenders to justice are intended only for the 'ordinary citizens' and it is below their dignity to appear as accused before criminal courts. The short cut adopted for that purpose is resort to the inherent powers of this Court. that is what the petitioners have done in this case also.” In this view of the matter, I find the petition meritless both on law and facts and reject the same in limine. 14. Mr. Gursahani applies for leave to appeal to Supreme Court. Leave is refused. Order accordingly. -----