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2014 DIGILAW 1248 (BOM)

Younus Ahmedbhai Hakimnuddin v. B. J. Ghode

2014-06-12

SADHANA S.JADHAV

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JUDGMENT : SADHANA S. JADHAV, J. 1. The petitioner herein questions the correctness and the validity of the order passed by Addl. Sessions Judge, Thane, dated 13.2.2013 in Criminal Revision Application No. 99 of 2010. Respondent No. 1 herein had filed a complaint in the Court of Chief Judicial Magistrate. Thane, against the present applicant and two others which was registered as Case No. 568/CW/1982. The complainant had alleged that the accused have committed the offence punishable under Section 9(1)(b), 9(1)(bb) and 9(1)(bbb) of the Central Excise and Salt Act, 1944 read with Rule 173 of the Central Excise Rules, 1944. The complainant, therefore, charged the accused (1) with having committed offences under Section 9(1)(b), 9(1)(bb), 9(1)(bbb) of the said Act read with Rule 173PP(1) and Rule 173 PP(5) read with Rule 9(1), Rule 173PP(6) & (7) read with Rule 52A and Rule 173PP 9(a) read with Rules 53 and 226 of the Central Excise Rules, 1944 which are punishable under Section 9(1)(ii) of the said Act, and prays that the necessary process be issued and the accused be dealt with according to law. 2. The learned Magistrate, after recording the verification and evidence of the witnesses, by an order dated 31.7.2007, directed that the charge be framed against the accused. Accordingly, charge was framed against the accused. 3. By a judgment and order dated 21.3.2007, the present petitioner had been convicted vide Section 241 of Cr. P.C. of an offence under Section 9(1)(bbb) punishable under section 9(1)(ii) of the Central Excise and Salt Act, 1944. He shall pay fine of Rs. 30,000/- or he shall suffer Simple Imprisonment for a period of one month. 4. Being aggrieved by the said judgment and order, the original complainant filed Revision application No. 99 of 2010 before the Sessions Court seeking the relief of enhancement of sentence. The Sessions Court vide judgment and order 13.2.2013 had allowed the revision application. The judgment and order dated 21.3.2007 was quashed and set aside. The matter was remitted to the Court of Chief Judicial Magistrate with a direction to reconsider the aspect of punishment and sentence in the light of the provisions of Central Excise Act, 1944. However, the prayer for enhancement of sentence was rejected. Hence, this writ petition. 5. It is pertinent to note that both the accused had pleaded guilty of the charge. However, the prayer for enhancement of sentence was rejected. Hence, this writ petition. 5. It is pertinent to note that both the accused had pleaded guilty of the charge. In the abovementioned facts, it would be necessary to consider the facts of the cased and the evidence adduced by the prosecution. 6. It is the case of the complainant that on 8.5.1978, the officers of the Central Excise, Head Quarters Preventive Task Force No. 6 Thane found 27,28,237 pieces of Resistors valued at Rs. 6,97,500/- packed on cartons (Card Board Boxes) in truck No. DYL 3191 at Mulund Octroi Naka. The goods were packed in small boxes and cellophane packets. The challan which was found in the truck had described the goods as Scraped Resistor Material. The goods were seized under a panchnama. Investigation was set in motion. In the course of investigation, it had transpired that the said resistors were not scrap material but of standard products. It further revealed that one T.N. Krishna Iyer had removed the said goods from the company namely M/s. Asian Electronics Ltd. Thane without determining Central Excise duty and excise was not paid on the said goods although it was the subject matter of the said Act. The said goods were not accounted for. Hence, according to the prosecution, the accused had evaded payment of Central Excise duty. Hence, a complaint was filed before the Chief Judicial Magistrate, Thane. 7. It is a matter of record that the vehicle carrying the Resistors was intercepted on 8.5.1978. The said articles were seized on or about 18/19th May, 1978. The investigation was almost completed by December 1978. The complaint was filed on or about 1.12.1982 i.e. almost four years after the completion of the investigation. The case was adjourned from time to time. The petitioner was not instrumental in protracting the proceedings. The evidence of PW-1 Dinkar Balkrishna Desmukh was recorded on 21.1.1985. PW-2 Madhukar Deshpande was recorded on 18.6.1986. The substantive evidence of PW-3 was recorded on 30.7.1986. The case was adjourned since the complainant could not keep the witness present. 8. The statement of accused No. 1 i.e. T.N. Krishna Iyer who was then working as Manager of the factory at Thane, was recorded under Section 14 of the Excise Act. He had disclosed that material which was seized on or about 8.5.1978 was from pre-excise stock treated as scrap. 8. The statement of accused No. 1 i.e. T.N. Krishna Iyer who was then working as Manager of the factory at Thane, was recorded under Section 14 of the Excise Act. He had disclosed that material which was seized on or about 8.5.1978 was from pre-excise stock treated as scrap. As contemplated under Section 14 sub-clause (3) of Central Excise Act, 1944, the said statement was deemed to be a statement recorded in a judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code. 9. It is clear that the defence was based on the record of Asian Electronics Ltd. which was also arraigned as accused No. 1. 10. Since there was no progress in the trial of the case, the petitioner herein had filed Criminal Application No. 2896 of 1992 in this Hon'ble Court for quashing the said Criminal Case No. 568 of 1992. By an order dated 19.10.1992, this Hon'ble Court was pleased to issue Rule and grant interim stay to the trial. Hence, the trial was stayed. By a judgment and order dated 14.12.2005, Criminal Application No. 2896 of 1992 was dismissed. Hence, the stay was vacated. The petitioner had then approached the Hon'ble Apex Court by filing SLP No. 2205 of 2006 which was dismissed on 27.7.2006. Hence, the trial Court had proceeded with the trial and delivered the judgment on 31.1.2007 and sentenced the accused to pay fine. The complainant had challenged the order in revision on the ground of inadequacy of sentence. 11. The judgment and order passed by the learned Magistrate was an appealable order and therefore, revision under Section 401(4) of the Code of Criminal Procedure, 1973 would not be maintainable. Section 401(4) contemplates as follows:- "(4) Where under this Code an appeal lies and to appeal is brought, no proceeding by way of revision shall be entertained at the instance of party who could have appealed." The very words "no proceeding by way of revision shall be entertained" are sufficient to hold that a judgment passed in the revision where in fact it was not maintainable at all would be a judgment without jurisdiction. 12. In the present case, the learned Magistrate had taken into consideration the length of the proceedings which were protracted on one or the other ground and, therefore, had rightly awarded the sentence of fine. 12. In the present case, the learned Magistrate had taken into consideration the length of the proceedings which were protracted on one or the other ground and, therefore, had rightly awarded the sentence of fine. The penalty awarded should necessarily be proportionate to the crime which is committed. The quantum of punishment/sentence would depend on the duty leviable on the seized articles. It is pertinent to note that in the present case, the prosecuting agency has not specifically stated the quantum of duty which was evaded by the accused persons. Section 9(1)(bb) and (bbb) are as follows:- "9. Offences and penalties (1) Whoever commits any of the following offences, namely:- (bb) Removes any excisable goods in contravention of any of provisions of this Act or any rule made thereunder or in any way concerns himself with such removal. (bbb) Acquires possession of, or in 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." It contemplates that in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds one lakh of rupees, with imprisonment for term which may extend to seven years and with fine. It therefore, follows that the prosecuting agency has to specifically state the duty leviable on the goods which is the subject of Section 9(1)(bb) and (bbb). In the present case, the same has not been considered by the learned Magistrate or the revisional Court. 13. It is pertinent to note that in the complaint as well as the substantive evidence, the complainant has stated the value of the goods which was seized, but had not specifically calculated the leviable tax i.e. the excise duly on the said goods. 14. There was no plausible explanation for the inordinate delay in filing the complaint. The trial was protracted at the behest of the prosecution. The statute mandates filing of an appeal. The very fact that revision would not be maintainable is a sufficient ground to allow the present Writ Petition as the judgment passed in a proceeding which is not maintainable would be a judgment without jurisdiction. Hence, the order passed by the 3rd Addl. The statute mandates filing of an appeal. The very fact that revision would not be maintainable is a sufficient ground to allow the present Writ Petition as the judgment passed in a proceeding which is not maintainable would be a judgment without jurisdiction. Hence, the order passed by the 3rd Addl. Sessions Judge, Thane dated 13.2.2013 passed in Criminal Revision Application No. 99 of 2010 deserves to be quashed and set aside. The order passed by the Chief Judicial Magistrate, Thane dated 31.1.2007 passed in C.C. No. 568 of 1982 is hereby upheld. Writ Petition stands disposed of.