Research › Browse › Judgment

Allahabad High Court · body

1968 DIGILAW 59 (ALL)

Zamir Ahmad v. State

1968-01-31

J.S.TRIVEDI

body1968
ORDER J.S. Trivedi, J. - The Central Excise authorities on receipt of some information searched the house of the Applicant Zamir Ahmad in Chandpur, district Bijnor and recovered 146 maunds 12 seers of unmanufactured to accompany After the recovery memo was prepared one Nasiruddin claimed himself to be the owner of the to accompany Zamir Ahmad who is a warehouse licensee, on a notice to show cause why he should not be proceeded u/s 32 of the Central Excise Rules sent a written reply that the tobacco actually belonged to him and he was prepared to pay the duty for the same. Proceedings were then taken against him by the Excise Collector u/s 33 of the Central Excise and Salt Act, hereinafter to be referred as the Act and a penalty was imposed upon him. He along with Qadir Ahmad and Nasiruddin were thereafter prosecuted in the court of the SDM Bijnor u/s 9 of the Act and before any charge could be framed a preliminary objection was raised before the learned Magistrate that the authorities having proceeded against them and imposed a penalty u/s 33 of the Act were debarred from proceeding and prosecuting u/s 9 of the Act in view of Article 20(2) of the Constitution of India. It was also contended that the prosecution in any event after the period of six months from the cause of action was barred u/s 40(2) of the Act. The objection was rejected by the learned Magistrate. A revision against the order of the learned Magistrate was also dismissed by the learned Sessions Judge, Bijnor. Zamir Ahmad has come now to this Court against the dismissal of his revision application. 2. The main contention raised by the Learned Counsel for the Applicant here is that the Excise Staff having recovered the tobacco on 10-4-1963 the prosecution u/s 9 of the Act on a com plaint filed on 31-3-1964 was bad in view of Section 40(2) of the Act which bars prosecution after the expiry of a period of six months from the accrual of the cause of action. It is also contended that the Excise authorities having proceeded u/s 33 of the Central Excise and Salt Act and having imposed a penalty were debarred Under Article 20(2) of the Constitution of India to prosecute the Applicants u/s 9 of the Act. It is also contended that the Excise authorities having proceeded u/s 33 of the Central Excise and Salt Act and having imposed a penalty were debarred Under Article 20(2) of the Constitution of India to prosecute the Applicants u/s 9 of the Act. It is also urged that the complaint was vague and did not make out a charge Under Rules 32, 174 and 198 of the Central Excise Rubs. 3. The question of vagueness of the complaint was neither raised before the learned Magistrate nor was it made a ground of revision before the Sessions Judge. From the nature of the allegation made by the Applicant in justification of his conduct in storing the tobacco it is clear that he was fully aware of the charge that was likely to be framed against him. This objection has no force and is rejected. 4. Coming next to the question as to whether the complaint is barred u/s 40(2) of the Act, I find that the said clause reads as follows: No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the Act or order complained of. The Learned Counsel for the Applicants has contended that the cause of action in this case arose on 10-4-1963 when the Excise staff raided the house and found the to accompany He has also relied on a case reported in 1963 CrLJ State of Andhra Pradesh v. Abdul Hamid and Ors. in support of his contention that Section 40(2) applies to prosecution both by private parties and by the State and not only to a complaint by a private person as held by the learned Magistrate. It is true this case lays down that Section 40(2) of the Act is applicable to a complaint by the State as well. Assuming Section 40(2) applies to prosecution by the State as well it has to be seen whether a prosecution of this nature is barred u/s 40(2) of the Act. Section 40(2) bars a suit or prosecution for anything done or ordered to be done under this Act after the expiration of six months. Assuming Section 40(2) applies to prosecution by the State as well it has to be seen whether a prosecution of this nature is barred u/s 40(2) of the Act. Section 40(2) bars a suit or prosecution for anything done or ordered to be done under this Act after the expiration of six months. In the instant case the storing of unauthorised tobacco was not done under this Act, nor can it be said to have been ordered to be done under this Act. My attention has been drawn to Rule 207 as it stood before the amendment. Rule 207 as it stood before the amendment read as follows: A charge of an offence u/s 9 of the Act shall not be made except by an officer not inferior in rank to an Inspector and every such complaint shall be preferred within six months after the commission of the offence to which it is referred. This rule was amended by notification dated 20-1-1953 and all the words after the word "Inspector" have been deleted. If the intention of the Legislature was to include all prosecutions by the State even if they were done or not done under the Act then the words "for anything done or ordered to be done" ought not to have been there in the section. The existence of these words clearly indicates that the bar of limitation given in Section 40(2) of the Act would apply only to a prosecution for any thing done or ordered to be done under this Act. For example, if a person files a false return a prosecution for such action will technically come u/s 40(2) of the Act because the filing of a return is done under the Act and the filing of a false return being punishable under the Act the prosecution must in such cases be launched within a period of six months from the accrual of the cause of action. I am, therefore, of opinion that this case is not covered by the bar of limitation prescribed by Section 40(2) of the Act. 5. The next submission of the Learned Counsel is that the Applicants having been punished u/s 33 of the Act cannot be punished again for the same offence u/s 9 in view of Article 20(2) of the Constitution of India and Section 26 of the General Clauses Act. 5. The next submission of the Learned Counsel is that the Applicants having been punished u/s 33 of the Act cannot be punished again for the same offence u/s 9 in view of Article 20(2) of the Constitution of India and Section 26 of the General Clauses Act. Under the Central Excise and Salt Act and the rules framed thereunder a licence is necessary for the storing and manufacture of tobacco and other excisable goods. The Act and the rules also provide for the levy of duty and enumerate the offences and penalties. They also restrict and prohibit the store and transportation of excisable goods without the permission of the excise authorities. Section 9 of the Act enumerates the offences and prescribes the punishment to be imposed for the commission of any offence mentioned therein. Section 33 gives the power of confiscation and the imposition of penalty by officers of the Excise department as the case may be. The purpose of the Act is to expose a person for a criminal offence and at the same time to expose him to a penalty under the law intended to collect the maximum revenue. 6. In order to attract Article 20(2) of the Constitution which is based on the principle of double jeopardy it is essential to find out if the order of confiscation and imposition of penalty passed by the Excise authorities u/s 33 of the Act is a prosecution within the meaning of Article 20 of the Constitution. The Learned Counsel for the Applicants has contended that the proceedings before the Excise authorities were judicial proceedings and a penalty having been imposed the same amounts to a prosecution and punishment as envisaged in Article 20(2) of the Constitution. It is true that the word "penalty" has been used in Section 33 of the Act but then it has to be borne in mind that the imposition of "penalty" here is in the nature of revenue proceedings with a view to prevent a recurrence of such infringement and to recoup the loss of revenue resulting from such infringement. An administrative tribunal or other officers may have to act judicially but in doing so they cannot be said to perform the function of a court unless they are so invested under the statute. The proceedings before the Excise officers cannot therefore amount to prosecution. An administrative tribunal or other officers may have to act judicially but in doing so they cannot be said to perform the function of a court unless they are so invested under the statute. The proceedings before the Excise officers cannot therefore amount to prosecution. The prosecution, therefore, for an offence u/s 9 cannot be said to be barred by Article 20(2) of the Constitution. In Thomas Dana Vs. The State of Punjab, AIR 1959 SC 375 while dealing with the provisions of the Sea Customs Act in a case where the unauthorised goods were confiscated and thereafter a prosecution launched, their Lordships of the Supreme Court held (per majority) that The proceedings before the Sea Customs Authority u/s 167(8) of the Sea Customs Act are not "prosecution" within the meaning of Article 20(2) of the Constitution. Therefore, the fact that in such proceedings the custom authorities have both confiscated the goods and also inflicted a penalty on the person does not bring into operation the provisions of Article 20(2) so as to prevent his prosecution and imprisonment u/s 167(81) of the Act read with Section 23 and Section 23-B Foreign Exchange Regulation Act.... The principle laid down in the above case support the State. The prosecution of the Applicants, therefore, is not barred by Article 20(2) of the Constitution. 7. The result therefore is that this revision has no force and is accordingly dismissed.