9911796707
TMI Blog1979 (1) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- his legal representatives were brought on record and the appeal was heard on his behalf. Section 394 of the Code of Criminal Procedure, 1973 provides that an appeal from a sentence of fine does not abate on the death of the appellant and further the proviso to that section enables any of the near relatives to obtain leave to continue the appeal. Leave having been granted the legal representatives of the first appellant continued the appeal. As the two appeals are from the same judgment of the High Court, they were heard together. 2. The Central Excise Department authorities suspected large scale illicit transactions pertaining to the sale and transport of unaccounted for tobacco by the tobacco dealers and avoidance of payment of duty leviable under the Central Excises and Salt Act. The first accused Om Prakash was carrying on the business in Sohana as a tobacco dealer in the name and style of Messrs Yad Ram Om Prakash and the second accused was also carrying on business in tobacco in the name and style of M/s. Bhagwan Dass Gemini Dass in Ballabgarh. Shri S.M. Razak, P.W. 4, Superintendent, Central Excise, Delhi raided two or three premises in Ghaziabad including those of Chho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tobacco is prohibited without a transport permit if the quantity exceeded two standard seers. But the licence also provided that a licensee possessed of a licence in form L-2 can transport such unmanufactured tobacco to the extent of five standard maunds on a sale note issued by such a licensed sellers. The case for the prosecution is that the first accused availed of this concession and used to transport more than five standard maunds by issuing sale notes to another firm Messrs Kishan Chand which was also launched by him and from there transfer it to other buyers. A further charge which is relevant in this case is that the first accused avoided paying of the duty lawfully payable by transporting first quality tobacco known as Patta and Patta Kutti tobacco (leaves and crushed tobacco leaves) which was subject to a duty of 8 annas per pound by filling up sale notes as for the second quality Lakri and Lakri Choora (stalk and crushed stalk) variety of tobacco on which a duty of one anna per pound was payable. The allegation is that the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because if in the original sale note covering the tobacco in transit the variety of tobacco therein mentioned is different from the one which it is covering or if the rate of duty mentioned therein did not pertain to the variety which the sale note was covering, then the Watch and Ward staff by merely seeing the variety of tobacco and these two entries in the sale note would immediately discover the irregularity. When once the Watch and Ward staff found that the variety of the tobacco is properly classified and the duty paid correctly noted the goods would be passed but according to the prior arrangement the buyer, after the goods were received, would alter the classification of the tobacco and made it second quality and the tax payable as one anna per pound. After the goods reached the buyer on receipt of information the duplicate carbon copy would be changed in conformity with the original sale note as corrected. 4. The question for consideration is whether the prosecution had made out its case. So far as the charge of conspiracy is concerned we see very little material. We do not see any common interest between the first accused and the second accused. There is no reason why t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 second accused. The duplicate sale notes were found with the first accused. The original sale notes recovered from the second accused bear certain marks of erasure. The entries in the original sale notes as recovered disclose that the variety of tobacco was entered as Patta Kutti which was the first quality and the tax payable as eight annas per pound. Thus the entry found by itself does not disclose any forgery or fraud. The duplicate sale notes that were found with the first accused disclose that the carbon entries did not correspond to the entries in the original or in other words, they did not bear the impression of the original, but the entries when the duplicate were recovered showed that the variety of the tobacco was first quality Patta Kutti and the tax payable thereon was 8 annas. The contention of the prosecution that in the originals which were recovered from the second accused the entry of first quality and tax of eight annas was erased and corrected as second quality and then again corrected into first quality and 8 annas is not est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 : "The one column, which even at the initial stage would be incorrectly filled both in the original and the duplicate sale note pertains to the number of transport permit in form T.P.I. on the strength of which the tobacco, that he would now be selling, was brought into his warehouse .... Further he would also incorrectly show the actual sale of Patta or Patta Kutti as the sale of the `stalk' or `crushed stalk' variety of tobacco in the register which, under the rules, is required to be maintained for recording therein such arrivals of tobacco in this warehouse and the sale therefrom". When the case for the prosecution is that the first accused used to give false T.P.I. numbers in his sale notes, the prosecution cannot rely on the No. in T.P.I. form for showing that the quality of the tobacco transported was the first quality. It may be that the first accused gave a wrong No. but that would not prove that he transported the first quality tobacco on which higher duty is payable under the guise of the second quality. Even taking into account this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
