SHAMSHAD ALI KHAN Vs. STATE

JUDGEMENT

(1.) These appeals are directed against an order of Sri H.N. Sen, Presidency Magistrate, Calcutta, convicting and sentencing the two Appellants Md. Salim and Shamshad Ali Khan under Section 46(a) of the Bengal Excise Act and sentencing each of them to suffer rigorous imprisonment for two months and to pay a fine of Rs, 1,000 in default to suffer rigorous imprisonment for three, months more; also convicting each of them under Section 46(a) of the Bengal Excise Act read with Section 109 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for two months more; and also convicting each of them under Section 120B of the Indian Penal Code read with Section 46(a) of the Bengal Excise Act and sentencing each of them to suffer rigorous imprisonment for two months thereunder. There was an order that the substantive sentences of imprisonment would run concurrently.

(2.) The prosecution case was briefly as follows:

(3.) The accused both pleaded not guilty to the charges as framed and the main defence urged was a defence on various points of law. Thus it was urged before the learned Magistrate that Rule 27, which is a notification issued under Section 27 of the Bengal Excise Act imposing excise duty and fixing rates thereof, on various excisable articles, has no application to finished medicinal preparations like spirit chloroform and tincture cardco but applies only to the spirit intended for use in such preparations, that is, it applies to the raw spirit before the same has been compounded into finished medicinal preparations and that accordingly the accused were not liable to pay any duty for transporting and importing the bottles of spirit chloroform and tincture cardco from Bihar to Bengal. It was also urged that Rule 27 was ultra vires in so far as it applied to finished medicinal preparations. It was also urged that sanction of the State Government under Section 92 of the Bengal Excise Act and Section 196A of the Code of Criminal Procedure in respect of the charge of conspiracy was insufficient, as excise duty on medicinal preparation is now a Central subject under the Constitution of India. It was again urged that excise duties were payable by the manufacturers and not by a party who had taken delivery of the medicinal preparations from the manufacturer, and that if extra excise duty was payable for re-import of the bottles of spirit chloroform and tincture cardco to Bengal, the same ought to have been recovered from the Bengal Chemical and Smith Stan street. It was again trigged that the offence was not established because there was nothing to show that the duty was not intended to be paid after taking delivery in Calcutta or that the duty was not paid in Bihar. This argument was based on Section 28 of the Bengal Excise Act which provides that excise duty may be levied on an excisable article imported, by payment upon or before importation in West Bengal or in the province or territory from which the article is brought. It was finally urged that the spirit chloroform and the tincture cardco were meant for bona fide private consumption and therefore no duty was chargeable in view of the exemption under Section 19(2)(b) of the Bengal Excise Act.