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TMI Blog1978 (3) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Second Class Magistrate, Gudiyatham in CC. Nos. 592 and 591 of 1973 on his file respectively. These appeals coming on for hearing on Monday the 23rd and Monday the 30th day of January, 1978 upon perusing the petitions of Appeal and the record of the evidence and proceedings before the said lower Court and upon hearing the arguments of Mr. Habibullah Badsha, Central Govt. Prosecutor on behalf of the Appellant in both the appeals and of Mr. A. Nagarajan, Advocate for the respondent Nos. 1 and 2 in each of the Appeal (Accused Nos. 1 2) and having stood over for consideration till this day, the court delivered the following Judgment. Criminal Appeal No. 528 of 1975 is an appeal preferred by the State represented by the Asst. Collector of Central Excise, Vellore against the order of the judicial Second Class Magistrate of Gudiyatham in C. C. No. 592 of 1973 acquitting the two accused-respondents K. M. Gopal and T. P. Velayutham under Sec. 245(1) Cr. P. C. Criminal Appeal No. 529 of 1975 is a similar appeal preferred by the State represented by the Asst. Collector of Central Excise, Vellore against the order of the learned Judicial Second Class Magistrate, Gudiyatham in C. C. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tches were despatched from the depot of the second accused who was also seated in the van. When those 265 bundles of matches found in the van were examined, it was found that 20 of those bundles related to M/s. Gudiyatham Match Industries, 170 of those bundles belonged to M/s. Gopal Match Industries and 75 of the bundles belonged to M/s. Mohan Match Industries. The van driver produced a letter given by M/s. Moorthy Traders of which the second accused in both the cases, was the proprietor. That letter showed a despatch of 275 bundles in the van but actually only 265 bundles were found in the van. Since the shortage of 10 bundles was not adequately explained, the van was taken to Pondicherry and a probe was made when it was noticed during the probe that the bundles with serial numbers far ahead of the Sl. Nos. found on the 265 bundles were available in the market already. In the case of Sl. Nos. 583, 581 and 608 noticed on some of the bundles, wrappers with those Sl. Nos. were noticed in three shops at Villianoor. The Superintendent of Central Excise, Hqrs. Prev., Madras had thus round that some of the bundles in the van had the same serial numbers as some bundles which had already b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under clause (iii) of sub-section (2) of section 37; evades the payment of any duty payable under this Act; removes any excisable goods in(bb) contravention of any of the provisions of this Act or any rule made thereunder or in any way concerns himself with such removal; acquires possession of, or in(bbb) any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder; xx xx xx xx attempts to commit, or abets the(d) commission of, any of the offences mentioned in clauses (a) and (b) of this section, shall be punishable, Rule 173-F of the Rules framed under the Central Excises and Salt Act says : - "Where the assessee has complied with the provisions of rules 173-B, 173-D and, where applicable, 173-C he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not, except as otherwise expressly provided in these rules, "remove such goods, unless he has paid the duty so determined.' Rule 173-B says : "1. Before removin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods manufactured in his factory and the payment of that excise duty before the excisable goods are removed from the factory by means of gate-passes in which the manufacturer is required to note down also the amount of the duty already paid by him and the time when the excisable goods are removed from the factory. The prosecution case is that the first accused in both these cases, in order to evade payment of the excise duty, removed excisable goods from their factories without a gate-pass in a van and the second accused abetted the commission of the aforesaid offence. 4.It cannot be and is not seriously disputed that on 29-8-72 a van TNJ 337 belonging to M/s. Gopal Match Factories and driven by one Ramalingam, a driver of the Gudiyatham Match Industries was intercepted when it was carrying 265 bundles of matches. The prosecution case is that all these 265 bundle of matches had been removed from the factories of the first accused in both these cases without payment of excise duty and without gate-passes in order to evade the payment of excise duty on them. The prosecution has tried to prove the offence alleged against the accused by means of circumstantial evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serial No 587 which was found on the wrapper MO 277. The bundle of matches MO 38 had the serial No. 573 which was the serial No. found on the wrapper MO 278. The serial No 621 found on the bundle of matches MO 86 was also found on the wrapper M O 279. Then from P. W. 6 seven bundles of matches bearing the same serial numbers as were found on the bundles of matches MOs 39, 42, 43, 58, 36, 40 and 63 recovered from the van were recovered from P. W. 6 and his statement Ex. P 15 was recorded, but P. W. 6 did not support the prosecution case and he was treated hostile by the prosecution. From P W 9 three bundles of matches bearing serial Nos. 557, 567 and 577 which were the serial numbers found on the bundles of matches MOs 22 and 32 recovered from the van were recovered from P. W 9 and his statement Ex. P. 21 was recorded. From P W 15 a bundle of matches bearing serial No 604 was recovered and that was also the serial No. found on the bundle of matches MO 69 one of the bundles recovered from the van. The statement Ex P 22 was recorded from PW 15. PW 15 however did not support the prosecution case and was treated as hostile by the prosecution. Likewise, PW 10 from whom was recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put cannot be ruled out. PWs 5 and 9 were not able to say who were the persons who supplied them with the bundles of matches which had the wrapper MO 269 and the bundles MOs 22 and 32 recovered from P. W. 9. It has also been contended by the learned Counsel for the respondents that the excise officials instead of going to the factory and making a thorough check to find out whether there has been an evasion of excise duty in respect of the bundles seized from the van, have simply based the entire prosecution case on the recovery of wrappers and bundles contained in the same serial numbers as were found on bundles of matches recovered from the van. P. W. 4 from whose shop wrapper MO 266 was recovered has stated that it was also the practice to bring other articles purchased in covers which originally contained match bundles. His further evidence is that some persons used to supply match bundles to his shop and some of those persons used to bring those bundles on cycles and he cannot say who those persons were. PW 5 from whom the bundle of matches MO 269 was recovered has also stated that he does not know who supplied that bundle. PW 7 from whom also a bundle of matches was recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of match boxes without having paid the excise duty thereon, and the second accused abetted the commission of the aforesaid offence by the first accused. But then from the mere fact that the serial numbers found on some wrappers and bundles of matches already in the market tallied with some of the number found on the bundles of matches from the van, it cannot be predicated with any amount of certainty that the bundles of matches found in the van were removed from the factories of the first accused for the purpose of evading the payment of excise duty, especially when it is admitted that the bundles of matches manufactured during the course of one year will be bearing serial numbers starting from '1' and the next year instead of continuing serial Nos., again serial Nos. would be started beginning with number '1' and when there is no evidence as to in which year exactly the bundles and wrappers seized in this case from the market were put into the open market and there is the possibility of those wrapper and bundles being of goods manufactured in a previous year. The fact that there is no gate pass to cover the bundles of matches found being transported in a van also would not go to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court, in its conduct of the appeal should and will, act in accordance with the rules and principles well known and recognised in the administration of justice". This view of the Privy Council has been affirmed by the Supreme Court in Sanwat Singh v. State of Rajasthan (1961 SC 715) and the Supreme Court summarized the legal position thus : '1. An appellate Court has ful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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