LAWS(SC)-1979-1-55

OM PRAKASH BHAGWAN DASS Vs. STATE OF HARYANA

Decided On January 23, 1979
OM PRAKASH Appellant
V/S
STATE OF HARYANA Respondents

JUDGEMENT

(1.) These two appeals are by special leave by the first and the second accused respectively before the Judicial Magistrate First Class, Gurgaon in Case No. 84/2, against the judgment of the High Court setting aside the order of acquittal and convicting them for offences under Sections 465, 471 and 120-B, Indian Penal Code, and Section 9-A of the Central Excises and Salt Act, 1944 and sentencing them to varying terms of imprisonment. The first accused was also sentenced to four months' R. I. and a fine of Rs. 2,000 or in default one month's R. I. under Section 9-B of the Central Excises and Salt Act. The second accused was also sentenced to four months' rigorous imprisonment and a fine of Rs. 2,000 or in default one month's rigorous imprisonment under Section 9-B of the Central Excises and Salt Act. The first appellant died pending appeal and as he was sentenced to a fine aggregating to Rs. 4,000 his legal representatives were brought on record and the appeal was heard on his behalf. Section 394 of the Code of Criminal Procedure, 1973 provides that an appeal from a sentence of fine does not abate on the death of the appellant and further the proviso to that section enables any of the near relatives to obtaion leave to continue the appeal. Leave having been granted the legal representatives of the first appellant continued the appeal. As the two appeals are from the same judgment of the High Court, they were heard together.

(2.) The Central Excise Department authorities suspected large scale illicit transactions pertaining to the sale and transport of unaccounted for tobacco by the tobacco dealers and avoidance of payment of duty leviable under the Central Excises and Salt Act. The first accused Om Prakash was carrying on the business in Sohana as a tobacco dealer in the name and style of Messrs. Yad Ram Om Prakash and the second accused was also carrying on business in tobacco in the name and style of M/s. Bhagwan Dass Gemini Dass in Ballabgarh. Shri S. M. Razak, P. W. 4, Superintendent, Central Excise, Delhi raided two or three premises in Ghaziabad including those of Chhote Lal and Hira Lal in April, 1958.P. W. 4 took possession of tobacco of 'Patta' variety from the premises of Chhote Lal and from Hira Lal the original sale note Nos. 40 and 22 dated 28th March, 1958 which were issued by the first accused. On 3rd April, 1958, P. W. 6, S. K. Sharma, who was Inspector, Preventive section visited the firm of the first accused and took possession of sale note-book containing the duplicate carbon copies and some P. T. I. forms and also recorded a statement from him. On a scrutiny he found the duplicates of sale notes Nos. 40 and 22 the originals of which he had recovered from Hira Lal. P. W. 6 also found certain other duplicate carbon copies and found that the originals were sent to the second accused. P. W. 6 then visited the firm of the second accused at Ballabgarh and recovered from his possession various sale notes including sale notes Nos. 71, 9 and 26 dated 2nd December, 1957, 27th December, 1957 and 10th March, 1958, Exhibits DA, DB and DC respectively. In the original sale notes recovered from the second accused, P. W. 6 found the entries pertaining to quality of tobacco and rate of duty erased. P. W. 6 confronted the second accused with these erasures and recorded a statement from him. We are, in this case, concerned with sale notes 71, 9 and 26, Exhibits DA, DB and DC respectively. The sale notes Nos. 40 and 22 which were recovered from the house of Hira Lal are not of much significance as the prosecution relied on these documents only for the purpose of proving that the first accused was indulging in similar activities.

(3.) P. W. 3, K. C. Sharam has given evidence relating to the levy of duty under the Act and the provisions for sale and transport of tobacco by the dealers. A person who holds a dicence in form L-I has to account for the quality and variety of the tobacco kept by him in his curing yard. The first accused possessed a licence in form L-5 which enabled him to mantain a warehouse wherein he could store unmanufactured tobacco without payment of duty after purchasing the same from a dealer who is a licensed holder in form L-1. The first accused had also a licence in form L-2 which authorised him to carry on wholesale trade in tobacco, that is, to sell, transport or dispose of unmanufactured tobacco kept by him in his warehouse after payment of duty. The rules required that a licensee holding licence in form L-5 could remover unmanufactured tobacco from the curing yard to his bonded warehouse by a permit in from T. P. 1. The transport of duty-paid unmanufactured tobacco is prohibited without a transport permit if the quantity exceeded to stanard seers. But the licence also provided that a licensee possessed of a licence in form L-2 can transport such unmanufactured tobacco to the extent of five standard maunds on a sale not issued by such a licensed seller. The case for the prosecution is that the first accused availed of the concession and used to transport more than five standard maunds by issuing sale notes to another firm Messrs. Kishan Chand which was also launched by him and from there transfer it to other buyers. A further charge which is relevant in this case is that the first accused avoided paying of the duty lawfully payable by transporting first quality tobacco known as Patta and Patta Kutti tobacco (leaves and crushed tobacco leaves) which was subject to a duty of 8 annas per pound by filling up sale notes as for the second quality Lakri and Lakri Choora (stalk and crushed stalk) variety of tobacco on which a duty of one anna per bound was payable. The allegation is that the first accused while drawing the sale-notes would indicate in the columns meant for variety of tobacco and the rate of duty thereon, correctly the variety of tobacco i. e. Patta or Patta Kutti, actually being sold and annas eight as the rate of duty thereon. However, he would do so in such a manner that the two corresponding columns pertaining to the quality of tobacco and the rate of duty in the duplicate copy of the original sale note were left blank. The one column, which even at the initial stage would be incorrectly filled both in the original and the duplicate sale note pertains to the number of transport permit in form T. P. 1, on the strength of which the tobacco, that he would now be selling, was brought into his warehouse. This number would be of form T. P. I under which the variety of tobacco had been brought to his warehouse. Further, he would also incorrectly show the actual sale of Patta or Patta Kutti as the sale of the 'stalk' or 'crushed stalk' variety of tobacco in the register which, under the rules, is required to be maintained for recording therein such arrivals of tobacco in his warehouse and the sale therefrom. When the tobacco reached the premises of the buyer, in this case the second accused, he would show the purchases of Patta or Patta Kutti variety of tobacco as the purchase of 'stalk' or 'crushed stalk' variety of tobacco by making an entry to that effect in the register which pertains to the purchasing of that variety of tobacco and after a while, the buyer in question would rub off from the original sale notes the entries in the columns meant for the variety of tobacco and the rate of duty and substitute the original entries thereon with 'stalk' or 'crushed stalk' for the variety of tobacco and one anna for the rate of duty respectively. On the other hand the seller, the first accused, would record in the two blank columns of the duplicate sale notes 'stalk' or 'crushed stalk' (Lakri or Lakri choora) and the rate of duty as one anna and in this manner he would bring the entries in the duplicate sale notes in line with the substituted and forged entries in the original sale notes in accordance with an obvious pre-arranged plain. The reason for mentioning the correct variety of the tobacco and the duty paid thereon in the original sale note is for avoiding the detection in transit by the Watch and Ward staff of the Central Excise Department because if in the original sale not covering the tobacco in transit the variety of tobacco therein mentioned is different from the one which it is covering or if the rate of duty mentioned therein did not pertain to the variety which the sale note was covering, then the watch and ward staff by merely seeing the variety of tobacco and these two entries in the sale note would immediately discover the irregularity. When once the Watch and Ward staff found that the variety of the tobacco is properly classified and the duty paid correctly noted the goods would be passed but according to the prior arrangement, the buyer, after the goods were received, would alter the classification of the tobacco and made it second quality and the tax payable as one anna, per pound. After the goods reached the buyer on receipt of information the duplicate carbon copy would be changed in conformity with the original sale note as corrected.