STATE OF UTTAR PRADESH Vs. SEWAK CHAND

JUDGEMENT

(1.) This is an appeal against an order dated July 16, 1966 acquitting the respondent, Sewak Chand of an offence under Section 9(b) of the Central Excises and Salt Act, 1944.

(2.) The respondent, Sewak Chand is one of the proprietors and partners of the firm Messrs Sewak Chand, Chunni Lal. It is alleged that Sewak Chand, hereinafter referred to as the accused, used to keep tobacco in two warehouses situated in Nawabganj. These warehouses were duly checked and inspected by the officers of the Central Excise Department, and, at the time of annual stock taking in October, 1962 it was found that there was 739 Md 36 Sr 8 Ch. Tobacco present there. This stock of tobacco consisted of hookah tobacco and tobacco stalks. Subsequently 37 Md. 25Sr. 8ch of tobacco stalk was cleared after payment of Central Excise duty and thus there remained 702 Mds. 11Sr. of hookah and stalk tobacco. The godowns were again checked on 29th February, 1964 and the tobacco stock was found intact. Thereafter, officials of the Central Excise Department visited the godowns of the accused on the 17th, 18th, 24th and 25th of April and on 5th May, 1964, but the accused did not let them check the godown. On 6th May, 1964, Shri I.S. Oberoy, Inspector of Central Excise Department sent a registered A.D. Notice informing the accused that he should make himself available for stock checking on 12th May, 1964. In spite of service of this notice the accused was not available. The officials of the Central Excise Department again visited the warehouses of the accused on 18th, 19th and 23rd May, 1964 for the same purpose, but the accused was not available on any of these days. Finally, on 30th May, 1964, a notice in the writing of Sri N.C.S. Ahluwalia, Deputy Supdt. Excise was pasted on the warehouses, requiring the accused to be present on 2-6-1964 at 8 a.m. on 2-6- 1964. Sri Ahluwalia with his party including Sri I.S. Oberoy, Sri S.B. Misra and other staff of the Central Excise Department, reached warehouse at about 8 a.m. along with a search warrant issued by a Sub-Divisional Magistrate, Nawabganj. They found the building of the warehouse burning, but neither the accused nor anybody from his house cared to visit the spot. This warehouse was accordingly inspected in the presence of witnesses but not tobacco burnt or unburnt was found in any of the rooms of the godown except that about two or three Mds. of tobacco was found burning in the middle room. According to the complainant, there were no signs of burning of tobacco and the walls also did not show any sign of fire. A Panchanama of this inspection was prepared. The officials of the Central Excise Department thereafter inspected the other building of the warehouse by breaking open the lock in the presence of witnesses and five stock cards showing the quantity and quality of tobacco in stock were found there. The tobacco found there was of inferior quantity weighing 147 Md. 11Sr. 3 Ch. This tobacco was not in conformity with the tobacco mentioned in the stock card. According to the complaint, the original tobacco had been removed by the accused without permission of the Central Excise Department and had been replaced with tobacco Chura, dust and fuel wood just to avoid payment of Central Excise duty. The Panchanama of search of this godown was also prepared and substituted tobacco was given in custody of one Har Narain Superdar after taking samples. It was contended that, in this manner, the accused evaded payment of Central Excise duty on 702 Md. 11Sr. of tobacco and tobacco stalks, amounting to Rs. 29,873.29 paise. A demand notice dated 9th June, 1964 was sent to the accused who did not pay the duty in spite of service of notice of him. It may be mentioned that one Chunni Lal was also another proprietor and partner of the firm Sewak Chand Chunni Lal was also prosecuted along with the accused for the same offence.

(3.) The accused stated that he was one of the proprietors and licensee of the warehouse but he did not substitute any tobacco, nor did he set the godown on fire as suggested by the prosecution. He did not pay the duty as the tobacco in one of the godowns was burnt, and the stock position in the other godown was intact. He attributed his implication in the case to non payment of duty which had been wrongly assessed. Chunni Lal also denied the prosecution case and stated that he lived at Badaun and carried on cultivation there, and he had nothing to do with the two warehouses at Nawabganj.