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TMI Blog1986 (12) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... removed from one warehouse to another subject to certain conditions. Rule 153 requires the consignor or the consignee of the goods to enter into a bond in a sum equal at least to the duty chargeable on such goods, for the due arrival and rewarehousing thereof at the warehouse of destination. The consignor was required, under Rule 156 to produce a certificate in the proper form giving details of the Central Excise licences held by the consignee, to ensure that the goods are being despatched to a person whose business having licensed can easily be checked and monitored. 2.The present appeal deals with the manner in which 14 consignments of tobacco were removed from Lalgidi in Tamilnadu allegedly for re-warehousing at Solapur in Maharashtra between 18-1-1974 to 23-3-1974 and the role of one K.S. Deshmukh, an inspector of Central Excise in that matter. Accused No. 1 K.S. Deshmukh, Accused No. 2 S.L. Deshpande, Accused No. 3 R.A. Manoki, all inspectors out of whom the last two have since been acquitted and Accused No.4 Mohammed Ibrahim the consignor, since convicted, are alleged to have entered into criminal conspiracy to cheat the revenue by evading payment, of excise duty on the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd group consists of consignments 11 to 14 which left Lalgidi on 27-2-1974, 15-3-1974, 17-3-1974 and 18-3-1974 and arrived in Solapur on 23-3-1974. Thus four consignments could have been stored either in Swati godown or in the newly rented godown at Neelanagar. 6.It is the case of the prosecution that except consignment No. 1, none of the other 13 consignments ever reached Solapur and accused 1 Deshmukh has fabricated documents to evidence their arrival with a view to confer undue pecuniary advantage on the consignor. 7.In order to facilitate the movement of goods and encourage trade and commerce, the Excise Department permits the seller of goods to transport the same to a distant place for delivery only after ensuring that adequate bond has been taken from the consignor regarding duty involved. In the present case, Ibrahim was the consignor and consignee for the consignments 1 to 9 while for the remaining 5 consignments the consignor was different but Ibrahim continued to remain the consignee, and also executed the bonds accordingly. 8.On 18-4-1974 Superintendent Rajgopalan of the Central Excise, Preventive Group, Tiruchi, wrote to his counterpart at Solapur communicating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to take a circuitous route and enter Solapur by any one of the other Naka. What is more, if the truck driver is a more adventurous one he may evade octroi altogether by taking a Kacha route lending to the Medical College. 11.This type of negative evidence led by the prosecution to prove that none of these trucks except the first one have actually arrived in the Municipal limits of Solapur has been criticised up-hill and down-dale by Mr. Gumaste, the learned Counsel appearing for the accused Deshmukh. It was submitted by him that the primary evidence about the entries of the truck in the town is contained in the Registers themselves and the evidence of someone else who purports to have gone through the register and prepared a report is nothing but a hearsay one. As happens in hearsay report, there is a contradiction regarding entries in the octroi registers. Whereas the initial search could not bear out any single entry, one entry was discovered showing the receipt of 144 bags of tobacco by a sustained research. Had the prosecution made available the entire record of the Corporation, - continues Counsel - one could have expected the accused to go through the same and fish out e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts out that there was an unholy haste on the part of the officers to grant renewal of the permit on the day the application was received and this haste, according to Counsel, is a pointer towards the complicity of accused 1 with the consignor Ibrahim. 15.To my mind, the alleged over-writing of date is not an attempt to fabricate the documents because nothing would have been achieved by such an over-writing. The fact of the matter is that Dange was on leave from 23rd to 26th December and as happens in official transactions, the date which was put by him erroneously was changed by him from 26th to 27th. Nor was anyone the gainer by fabricating the plan of Neelanagar godown because admittedly Neelanagar godown which was taken on 23rd of March 1974 was required at best for storage of only four consignments Nos. 11 to 14. There was no need to fabricate evidence regarding the arrival of these four consignments because these consignments were checked by accused 3 R.A. Manoki. When the arrival of these four consignments on 23-3-1974 at the octroi Naka of Solapur Corporation can no longer be re-agitated in this appeal in view of the principles of constructive re-judicata propounded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admits that the only reason why he says that those bags are from the consignment of 144 bags is because the figure 144 is nearer to the figure 136 than 149 which represents another consignment. He also admitted that the description of the variety and quality of the tobacco given in T.P.2. Exhibit 49 and that mentioned in the panchanama are different. The Superintendent Sawant also found that 136 packages were not stored in one room but were in three different rooms and that accords with the requirement that the consignments from different transport permits are required to be stored separately. No doubt, Sawant tried to recover lost ground by saying that storing separately does not mean storing in separate rooms and may be that separate stacks have to be put up for different consignments. But that left unanswered the question of difference in weighments. Sawant, being a Superintendent and a senior officer also sample-weighed certain bags and found that the weight did not tally with those in the weight list attached to the T.P.2 purporting to be the transfer permit for consignment No. 1 for which there was no explanation. 19.The situation that unfolds itself is that 136 bags were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was duly received in Solapur and stacked in Swati bunglow godown. Had the quality of tobacco found in Swati godown tallied with the one mentioned in the documents relating to the first consignment, matters would have been easier. But not only the quality of tobacco but also the manner of stacking in three different rooms in Swati bunglow negatives the theory of a single consignment. The finding that the Neelanagar premises emitted a strong odour of tobacco pointing out that it was used for stacking the goods in recent times and that the fact that some tobacco was found lying on the floor of that godown are all sufficient to dismantle the theory that none of the consignments had actually reached Solapur. 21.It is nobody's case that the accused was expected to keep watch and ward over the two godowns or other godowns where the various consignees were stacking their goods. All that was expected of him was to check the consignment and the papers sent along with the driver by the office of origin viz., Lalgidi. It could as well have happened that accused 4 on his own disposed of the tobacco in a clandestine manner for which he has been duly convicted. To spell out the conspiracy bet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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