H.K. SAHA Vs. STATE & ANOTHER

JUDGEMENT

(1.) The appellant H. K. Saha was convicted by a Presidency Magistrate of Calcutta under Sec. 5 of the Imports and Exports (Control) Act, 1947 for contravention of Order No. 5 (3) (ii) of the Imports (Control) Order, 1955, which order constitutes a condition of the two licences whereunder the appellant was authorised to import betel nuts from abroad. The appellant obtained two licences on the basis of the quota certificate that was transferred to him by the licensee concerned. The allegation against the appellant was that in contravention of a term of the licences he transferred property in the goods concerned before clearance thereof through the Customs. The licences which are the subject -matter of the prosecution are Exhibits 4 and 6 and the corresponding bills of lading for the consignments concerned are Exhibits 8 and 10. The prosecution alleged that before the arrival of the goods at the Calcutta Port the complainant sold one of the bills of lading to M/s. Indo -Commercial Co., and the other to Messrs Srikrishna Subhakaran. These transferees are stated to have cleared the consignments through the clearing agents Messrs Bengal National Agency and the clearance was made without any letter of authority authorising the licensee to transfer the property in the goods. The defence was that the appellant took loans of money from Messrs Indo -Commercial Company and Messrs Srikrishna Subhakaran before the arrival of the goods and that these firms were further instructed to sell the goods as per the appellant's instructions after clearance thereof through the Customs and storing the same in their godowns. The firms are stated to have paid the appellant the sale price of the goods after deducting their dues, commissions, interest, etc.

(2.) The learned Magistrate found that the transactions entered into by the appellant with the two firms Messrs Indo -Commercial Company and Messrs Srikrishna Subhakaran were in fact sales of the goods concerned to them prior to the clearance thereof through the Customs and that the method adopted was only a camouflage intended to suppress the real nature of the transaction. On this finding he came to the conclusion that the appellant had violated the relevant condition of the licence which is incorporated in Order 5 (3) (ii) of the Imports (Control) Order, 1955 and on this finding he convicted the appellant to a fine of Rs. 1000/ - in default to rigorous imprisonment for three months. It is this order of conviction and sentence which is the subject -matter of the present appeal.

(3.) It was urged on behalf of the appellant by Mr. Poddar that the clearance of the goods through Customs with the help of the two firms named above became necessary in view of the fact that the appellant was in want of funds for the purpose of releasing the bills of lading from the Indian Overseas Bank to which the shippers had sent the same and also for the purpose of the sales tax permit which was necessary for the purpose of releasing the goods through the Customs and that the bonafides of the transaction would be apparent from the sale notes Exhibits A and B, the carbon copies whereof were seized by the police in course of the investigation but were suppressed. It was further urged that there is no satisfactory evidence that the bills of lading Exhibits 8 and 10 were endorsed by the appellant in favour of Messrs Indo -Commercial Company and Messrs Srikrishna Subhakaran respectively and that as such the prosecution must be held to have failed to prove transfer of title to the goods concerned to those firms before the same were taken delivery of from the Commissioners for the Port of Calcutta.