MADHO CHARAN SARKAR Vs. STATE

JUDGEMENT

(1.) The petitioners are Directors of a firm known as Harbals Private Limited Company which carries on the business of preparing Ayurvedic medicines at B. M. Das Road in Patna Town. The Excise Inspector (P. W. 3) searched the premises of the petitioner's firm and, on the 19th June, 1960, seized 21 phials of different kinds of preparations as samples. He sent them to the Excise Chemist (P. W. 4) for analysis. P. W. 4 submitted a report (exhibit 8), and thereafter P. W. 3 submitted a prosecution report (exhibit 6) against the petitioners. A Magistrate exercising first-class powers tried the petitioners, and has convicted them under Section 7 read with Section 6 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (hereinafter to be referred to as the Act). The 3rd Additional Sessions Judge of Patna has made this reference under Section 438 of the Code of Criminal Procedure with the recommendation, that the petitioners' conviction under Section 7 of the Act and the sentence imposed upon them be set aside.

(2.) Section 6 of the Act gives power to the Central Government to regulate the production or manufacture of dutiable goods or of specified component parts so that they may be produced or manufactured only in accordance with the terms and conditions of a licence granted under the Act. The Central Government in the Ministry of Finance (Department of Revenue) issued notification No. S. R. O. 1295, dated the 27th, April, 1957, whereby it prohibited the production or manufacture of dutiable goods except under a licence granted under the provisions of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956, which will henceforth be referred to as the Rules.

(3.) The prosecution case against the petitioners is that they have contravened the provisions of the above notification by engaging in the production and manufacture of dutiable goods. The trying Magistrate has not specified the clause of Section 7, under which the petitioners are guilty; but it appears that he has applied Clause (a) of that section. The learned Additional Sessions Judge was of the opinion that the Magistrate may have applied either Clause (a) or Clause (b); but I do not think that there is any case under Clause (b) because the learned Standing Counsel has not pointed out any case of evasion of payment of any duty of excise against the petitioners. The only question, therefore, which arises for consideration is whether the petitioners' conviction under Section 7 (a) of the Act is correct.