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TMI Blog1966 (2) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly sentenced them to pay a fine of Rs. 2,000/- each. Both appealed against the aforesaid order. The learned Sessions Judge, whilst maintaining the conviction of Jwala Prasad and the sentence awarded to him, set aside the conviction and sentence of the respondent Daya Shanker and acquitted him of the offences for which he had been tried. Jawala Prasad, the father, appears to have submitted judgment of the learned Sessions Judge, but the State Government has filed this appeal against the acquittal of the respondent Daya Shanker. 2.The facts of the case may now be briefly summarised. Firm Devi Prasad Jwala Prasad carried on business at Kannauj. The proprietor of the firm was Jwala Prasad and it was a licensee for maintaining a bonded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Daya Shanker was concerned he could not be convicted for the reason that he was neither the owner nor an agent, as contemplated by rule 3 of the Central Excise Rules, 1944, hereinafter referred to as the Rules, so as to be deemed to be the owner. The learned Judge accordingly acquitted the respondent Daya Shanker. 4.The learned Government Advocate, who has appeared before us in support of this appeal, has raised two points. The first is that the respondent was guilty under clauses (a) and (b) of section 9 of the Act, and, secondly, that in any case the respondent is guilty as an abetter under clause (d) of section 9 of the Act. Learned counsel has urged that there was no controversy that the respondent was the manager of the firm and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 3 aforesaid runs as follows :— "When any person is expressly or impliedly authorised by the owner of any goods, factory or warehouse to be his agent in respect of such goods or factory or warehouse for all or any of the purposes of these Rules, and such authorisation is approved by the Collector. Such person shall for such purposes, be deemed to be the owner of such goods, factory or "warehouse". 6.We do not desire to enter into the controversial question as to the extent to which a manager may be deemed to be an agent also. Suffice it to say that for the purposes of assessing the liability of the respondent for breach of rules as from under section 37 it is also necessary before the responsibility of the respondent can be put on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Govt. Advocate failed to point out to us any evidence whatsoever which might indicate that the respondent was, in any way, party to the removal of those 80 bags. It cannot, therefore, be said that merely because the respondent was the manager of the firm in-charge of its business affairs he must be held responsible for shortage of 80 bags on the footing that he had been guilty of removing them for the purpose of evading duty. We should like to add that, in the complaint filed under the signature of the Assistant Collector of Central Excise on the 15th June, 1959 in para 8 thereof, it was asserted as follows :— "That in order to defeat the claim of the department the accused no. 1 has transferred his two houses and other item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate judgment that the learned D.G.C., who appeared before him for the State, conceded that the prosecution case against the appellants, who included the present respondent, was confined to clauses (a) and (b) of the Act. In these circumstances, we do not consider it appropriate now to enter into the question whether the liability of the respondent as an abettor had been made out because, in doing so, we might be overlooking prejudice to the respondent in his defence. It is clear that if liability is sought to be fixad on the respondent, as an abettor, a fresh trial must take place. 9.The offence is alleged to have been committed early in 1959 and the respondent was convicted by the learned Magistrate in May, 1962. The learned Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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