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TMI Blog1983 (3) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... s depot in a building Municipal No. 131, D-4, Main Road, Rabkavi. Mr. Nandan, the Inspector of Central Excise, visited the Veerabhadreswara Weaving Factory on 7-12-1976 along with another Inspector Sri S.K. Ummarji. He found the cotton yarn beams loaded in the 12 power looms and there were half woven sarees in them. The managing partner A-2 and the other two persons A-3 and A-4 were present at that time. They had not obtained licence from the competent authority to manufacture the sarees. In the presence of two respectable persons, namely, Siddappa Miraji (not examined) and Shankarappa Chenni, (PW 3), Inspector Nandan sealed the looms. A panchanama Ex. P-2 was drawn in that connection. All the three persons gave a joint confessional statement as per Ex. P-3, admitting their control over the looms and admitting the manufacturing of cotton fabrics without obtaining licence or tex mark from the department. Thereafter, Inspector Nandan went to the factory office which had a sign board reading "Sri Veerabhadreswara Weaving Factory Office, Rabkavi". Therein 1604 sarees manufactured in Veerabhadreswara Weaving Factory were found. 96 sarees were found uncut and unwrapped. The remaining sar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed in their factory and Krishna Road, Rabkavi and that no excise duty on the said sarees had been paid by the accused persons to the department and that accused had removed 1604 sarees from their factory to the factory office without paying the duty and without obtaining the gate pass and that the accused were found in possession of 1604 sarees knowing or having reason to believe that they are liable to be confiscated under the provisions of the Act and thus had ultimately found that the accused persons had committed the offences under Sections 9(i)(a), 9(i)(b), 9(i)(bb) and 9(i)(bbb) of the Central Excises and Salt Act, 1944. It is no doubt true that PWs 3 to 5 have turned hostile. Though PWs 3 to 5 might have turned hostile, there is ample evidence consisting of oral evidence of Asst. Collector (PW 1) and (PW 2) and the joint confessional statement of accused persons marked as Ex. P-3 and confessional statement of A-2 marked as Ex. P-7 and the additional confessional statement marked as Ex. P-8. We were taken through the entire evidence. Though Sri Deshpande, very vehemently commented upon the evidence of PWs 1 and 2, and the confessional statements, his arguments did not impres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate that the search in this case is in contravention of Sections 103 and 165 of the Crl. P.C. 10. It is no doubt true, that the Supreme Court in the said Subbayya's (1) case has stated that the entire search was without jurisdiction and the further proceedings taken on such an invalid search were all vitiated and it set aside the conviction. The Supreme Court also held in the said Subbayya's (1) case that Sections 53 and 54 of the Karnataka Excise Act gave valuable safeguards for the liberty of the citizens in order to protect them from ill-founded or frivolous prosecution or harassment. The said judgment is dated 24-1-1979. 11. In a subsequent judgment in State of Maharashtra v. Natwarlal Damodardas Soni - AIR 1980 S.C. 593 which was decided on 4-12-1979, the Supreme Court held thus : "Taking the first contention first, it may be observed that the police had powers under the Crl. P.C. to search and seize this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in State of Maharashtra v. Natwarlal Damodardas Soni's (supra) case, which has been decided on 4-12-1979. If there are two decisions of the Supreme Court the one which is rendered later in point of time has to be accepted. These subsequent rulings do not appear to have been brought to the notice of the learned Chief Judicial Magistrate. Therefore, in view of the said principles that the contravention of Sections 103 and 165 does not vitiate the search and further investigation and conduct of the trial and in view of the close and careful scrutiny of the evidence on record, we have come to the conclusion that the accused have committed the offence under Sections 9(a), 9(i)(b), 9(i)(bb) and 9(i)(bbb) of the Central Excises and Salt Act, 1944." 13. The learned Counsel Sri Deshpande, for the accused persons contended that this was the first offence of the accused persons. However, Section 9(3)(i) states that the fact that the accused has been convicted for the first time for an offence under this Act shall not be considered as special and adequate reason for awarding a sentence of imprisonment for a lesser term. Therefore, the said argument cannot hold goods in this case. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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