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TMI Blog1979 (1) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... by the trial Court - 200 and 201 of 1972 - - - Dated:- 23-1-1979 - S/Shri Jaswant Singh and P.S. Kailasam, JJ. [Judgment per : Kailasam, J.]. - These two appeals are by special leave by the first and the second accused respectively before the Judicial Magistrate First Class, Gurgaon in Case No. 84/2, against the judgment of the High Court setting aside the order of acquittal and convicting them for offences under Sections 465, 471 and 120-B, Indian Penal Code, and Section 9A of the Central Excises and Salt Act, 1944 and sentencing them to varying terms of imprisonment. The first accused was also sentenced four months' R.I. and a fine of Rs. 2,000/- or in default one month's R.I. under Section 9B of the Central Excises and Salt Act. The second accused was also sentenced to four months' rigorous imprisonment and a fine of Rs. 2,000/- or in default one month's rigorous imprisonment under Section 9B of the Central Excises and Salt Act. The first appellant died pending appeal and as he was sentenced to a fine aggregating to Rs. 4,000/- his legal representatives were brought on record and the appeal was heard on his behalf. Section 394 of the Code of Criminal Procedure, 1973 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Nos. 40 and 22 which were recovered from the house of Hira Lal are not of much significance as the prosecution relied on these documents only for the purpose of proving that the first accused was indulging in similar activities. 3. P.W. 3, K.C. Sharma, has given evidence relating to the levy of duty under the Act and the provisions for sale and transport of tobacco by the dealers. A person who holds a licence in form L-1 has to account for the quality and variety of the tobacco kept by him in his curing yard. The first accused possessed a licence in form L-5 which enabled him to maintain a warehouse wherein he could store unmanufactured tobacco without payment of duty after purchasing the same from a dealer who is a licensed holder in form L-1. The first accused had also a licence in form L-2 which authorised him to carry on wholesale trade in tobacco, that is, to sell, transport or dispose of unmanufactured tobacco kept by him in his warehouse after payment of duty. The rules required that a licensee holding licence in form L-5 could remove unmanufactured tobacco from the curing yard to his bonded warehouse by a permit in form T.P.I. The transport of duty-paid unmanufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariety of tobacco by making an entry to that effect in the register which pertains to the purchasing of that variety of tobacco and after a while, the buyer in question would rub off from the original sale notes the entries in the columns meant for the variety of tobacco and the rate of duty and substituted the original entries thereon with `stalk' or `crushed stalk' for the variety of tobacco and one anna for the rate of duty respectively. On the other hand the seller, the first accused, would record in the two blank columns of the duplicate sale notes `stalk' or `crushed stalk' (Lakri or Lakri choora) and the rate of duty as one anna and in this manner he would bring the entries in the duplicate sale notes in line with the substituted and forged entries in the original sale notes in accordance with an obvious pre-arranged plan. The reason for mentioning the correct variety of the tobacco and the duty paid thereon in the original sale note is for avoiding the detection in transit by the Watch and Ward staff of the Central Excise Department because if in the original sale note covering the tobacco in transit the variety of tobacco therein mentioned is different from the one which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it was of the first quality. The High Court relied on Exhibit P.W. 6-E wherein the second accused mentioned that he used to sell in retail the Lakri variety at Rs. 30/- per maund. We find that this circumstance on which so much reliance was placed by the High Court was not put to the second accused when he was examined in the trial Court. Further, as rightly pointed out by the trial Court there is no evidence as to the prevailing two varieties of tobacco. It may be that the second accused paid the higher price because he had a favourable market. We find that on the evidence on record there is no material at all for basing the conclusion that the first and second accused acted in concert or that the second accused derived any benefit by purchasing tobacco at Rs. 32/- to Rs. 36/- per maund or that what was actually received by the second accused was first quality tobacco. In the circumstances, we leave out the charge of conspiracy as not having been established. 5. The case against the accused depends upon the sale notes Nos. 71, 9 and 26, Exhibits DA, DB and DC. The carbon copies are Exhibits DA, DB and DC. It is admitted that the original sale notes were recovered from the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the tobacco as first quality and the duty at eight annas per pound which was the higher duty payable. The entries as shown would not result in any loss of revenue. On a consideration of the evidence against the second accused we have no hesitation in agreeing with the trial Court that the prosecution has failed to prove any of the charges against him. 7. So far as the first accused is concerned the learned Counsel appearing for the State pointed out that regarding the sale note T.P.I. No. mentioned does not pertain to Lakri variety but to Patta variety. As the dealer will have to show the T.P. I. No. by which he acquired the tobacco in his sale notes and as the sale note DC to the second accused showed that it was the second variety it was not in consonance with T.P.I. No. which disclosed that the variety of tobacco acquired was not first quality. The statement that only second quality was transferred to the second accused is proved to be false. We were impressed by this argument but we find that the High Court has noted that the practice of the first accused was to incorrectly fill up the column relating to the transport permit in form T.P.I. The High Court has observed : ..... X X X X Extracts X X X X X X X X Extracts X X X X
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