1966 (2) TMI 20 - HC - Central Excise

Summary

Issues:
1. Conviction under section 9 of the Central Excise and Salt Act, 1944.
2. Appeal against acquittal of one respondent.
3. Liability of the respondent as an abettor under clause (d) of section 9.

Analysis:

Issue 1: Conviction under section 9 of the Central Excise and Salt Act, 1944
The case involved a complaint filed against the accused for contravening section 9 of the Act. The accused were found guilty of contraventions under clauses (a) and (b) of section 9 by the Magistrate. However, on appeal, the respondent Daya Shanker was acquitted by the Sessions Judge. The government appealed against this acquittal, arguing that the respondent was liable under clauses (a) and (b) of section 9. The court examined the contentions and ruled that the respondent could not be held liable under clause (a) as he was not deemed to be the owner as per rule 3 of the Central Excise Rules, 1944. The court also found no evidence linking the respondent to the removal of 80 bags of tobacco under clause (b), thereby upholding the acquittal of the respondent.

Issue 2: Appeal against acquittal of one respondent
The government advocate contended that the respondent could be held liable as an abettor under clause (d) of section 9. However, the court noted that the original complaint was vague and did not include allegations under clause (d) or intent to hold the respondent as an abettor. As such, the court declined to consider this argument, emphasizing that introducing a new theory of liability at this stage would prejudice the respondent's defense. The court highlighted the need for a fresh trial if liability as an abettor was to be established.

Issue 3: Liability of the respondent as an abettor under clause (d) of section 9
The court emphasized that the respondent had not been called upon to defend against liability as an abettor during the trial or appeal. Given the lack of prior focus on this aspect of liability, the court deemed it inappropriate to delve into this issue without affording the respondent a fair opportunity to defend against this new theory of liability. The court also considered the time elapsed since the alleged offense and subsequent acquittal, deeming it inappropriate to order a retrial in the circumstances.

In conclusion, the court dismissed the appeal, upholding the acquittal of the respondent and emphasizing the need for due process and fairness in establishing liability under the Central Excise and Salt Act, 1944.