ZAMIR AHMAD Vs. STATE AND ANOTHER

JUDGEMENT

(1.) 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 Under Section 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 Under Section 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 Under Section 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 Under Section 33 of the Act were debarred from proceeding and prosecuting Under Section 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 Under Section 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 Under Section 9 of the Act on a complaint 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 Under Section 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 Under Section 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.) COMING next to the question as to whether the complaint is barred Under Section 40(2) of the Act, I find that the said clause reads as follows: