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TMI Blog1989 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... cused No. 1 - M/s. Pure Drinks Pvt. Ltd. was a company manufacturing aerated water falling under Chapter No. 22 of the Central Excises Tariff holding a Central Excises licence in form L-4 with effect from 22nd January 1986. Under an agreement, accused No. 1 took on lease of M/s. Pure Drinks Ltd. New Delhi. The Central Excise duty on excisable goods manufactured is to be paid by the manufacturer and for that purpose he is required to maintain a stock book in form RG -1, a personal ledger Account and maintain sufficient deposit for the purpose of paying excise duty on the goods intended to be removed. The manufacturer is also required to make payments of excise duty by making a debit entry in the personal ledger account and then remove the goods by issuing gate pass in form GP-I. The goods can be removed only by issuing gate pass which is to accompany excisable goods to their first destination. It is alleged that on 4-9-1986 the officers of the Central Excises intercepted two motor vehicles at Mahalaxmi Railway Station while they were carrying glass bottles containing aerated water of the brand names allotted under, Chapter No. 22 of the Central Excise Tariff. Two drivers gave their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings were initiated for the evasion. It was contended that the accused Nos. 3 to 12 were responsible for and were connected with the affairs and business of the accused No. 1 and they were working on responsible positions at Bombay and New Delhi and that at the relevant time the accused Nos. 2 to 12 were in-charge of and responsible to accused No. 1 for the affairs and business of accused No. 1. It is not necessary to set out the other details, stated in the complaint. {Suffice it to say that excisable goods were removed in contravention of the provisions of Rules 99(1), 173 and 52, 52-A, 54 read with Rules 173-G, 47 and 49 and Rule 173-G r/w. Rules 53 and 226 of the Central Excise Rules, 1944 and that accused knew that the goods were liable for confiscation under Rule 173-G of the Central Excise Rules. Action was therefore sought under the aforesaid sections of the Central Excise and Salt Act, 1944 and the Indian Penal Code. 3. The learned Magistrate passed an Order in the following terms on 10-8-1977: "The Complainant exempted. Mr. A.R. Gupte for the prosecution. Issue summons against each of Accused. Adjourned 24-9-1987." 4. The first submission of Shri Bhagat for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation is authorised to file, for the offences under the Act, a complaint has to be filed. The heirarchy of the Officers is that at the bottom is the Sub-Inspector and above him the Inspector of Central Excises and then Superintendent of Central Excises who is under the Assistant Collector, and above him the Deputy Collector and the Collector for Central Excises. The Complainant evidently was an officer under whom the investigation had been done by the officers working under him. To be within clause (a) of the proviso to Section 200, it is necessary that the complaint should be by a public servant acting or purporting to act in the discharge of his official duties. Considering the heirarchy, it is apparent that in respect of offences which were investigated by the officials working under him, the complaint could be made by the Assistant Collector of Customs and while doing so, he would be acting or purporting to act in the discharge of his official duties and, therefore, the Magistrate need not examine the complainant and the witnesses, if the complaint were to be filed by such an officer. The next submission was that it was imperative that the complainant should have attended the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excises and Salt Act, the power to file a complaint was implicit and if the offences were committed within the area for which the complainant was appointed, he would have the power to File a complaint and in these circumstances it cannot be said that he was not acting or purporting to act as a public servant in the discharge of his official duties. The benefit of the proviso (a) to Section 200 would evidently be available to him. With regard to the proposition that the complainant - a public servant need not attend in person, I am supported in my view, by a decision of the Allahabad High Court in 1973 CRI. L.J. 999 - State v. S.D. Gupta, where it was observed that since there is no provision in the Criminal Procedure Code stating either expressly or impliedly that the complaint must be presented to the Magistrate by the complainant personally it cannot be held that a complaint sent by post is not valid and cannot be taken cognizance of. Clearly, if the Magistrate were to be of the view that the complainant's examination is necessary, the complainant could be called for his verification. 6. The learned Counsel for the Petitioners contended that in the present case it was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed under Section 203 of the Code of Criminal Procedure. 8. Reliance was placed on behalf of the Petitioners on the observations in Nirmaljit Singh Hoon v. The State of West Bengal (1973) 3 S.C.C. 753 where it was said in para 22 that whether there was prima-facie evidence even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of process could not be refused and particularly to the portion which says that unless the Magistrate finds that the evidence led before him itself is contradictory or intrinsically untrustworhty process cannot be refused if that evidence makes out a prima facie case. What was emphasized was that there should be evidence in the manner contemplated by the provisions of the Indian Evidence Act because, otherwise the sufficiency or otherwise of the grounds of the proceedings cannot be made out. This case, however, does not deal with the applicability of the proviso to Section 200 of the Criminal Procedure Code. Reference was also made to the observations in paragraph 6, 7 and 8 in Chandra Deo Singh v. Prakash Chandra Bose Chabi B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was said that the Magistrate must apply his judicial mind to the material before him and ascertain not only that there is sufficient ground for proceeding further in the complaint but also the nature of the offence for which the accused need be summoned. The Magistrate does not enjoy an unrestricted power to summon a person at his whim, fancy or caprice simply because a complaint has been filed against him. Unfortunately there is no discussion in this judgment on what are the statutory requirements of Section 204 particularly when Section 204 does not require a reasoned order to be given. On the other hand, I find much to commend, with respect, in the Full Bench decision of Patna High Court in 1988 CRI. L.J. 129. In para 18 of the Judgment, it has been said "what next calls for pointed notice is the fact that Section 203 further mandates that in every case in which the Magistrate dismisses the complaint therein, he must briefly record his reasons for doing so. Thus, this provision in express terms mandates the materials for consideration and the reasons for acting (hereon for the purposes of dismissal. On the other hand, Section 204 makes no statutory requirements of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of both the Companies, and were concerned with the affairs of both the Companies. 12. In T.J. Stephen & Ors. v. M/s Parle Bottling Co. (P) Ltd. & Ors. 1988 (34) E.L.T. 409 -1988 CRI. L.J. 1095, it was pointed out that since proviso (a) to Section 200, Criminal Procedure Code, was applicable to the complaint, the Magistrate was competent to issue process on the basis of the complaint, particularly when the allegations in complaint prima-facie showed commission of offence and, secondly, the Managing Director could not be discharged on the ground that there were no allegations against him and that the offence was committed by the Company as the licensee, since the Company by itself could not act. While dealing with the question regarding discharge under Section 227, Criminal Procedure Code, it was observed in Union of India v. Prafulla Kumar Samal & Anr. AIR 1979 S.C. 366 that where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. 13. The submission was that basic facts were not stated in the complaint and facts showing the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they were therefore liable to pay the penalty. Ultimately while ordering confiscation of the goods a penalty of Rs. 5 lacs was imposed on M/s. Pure Drinks Pvt. Ltd. Bombay. It was not the contention of the learned Counsel for the petitioners that the Criminal case cannot proceed because of any of the provisions of the Code of Criminal Procedure which barred the second trial now because obviously the adjudication proceedings cannot be said to amount to a criminal trial. Under Section 9-AA (1) of the Central Excises and Salt Act, 1944, where an offence under this Act has been committed by a Company, every person who at the time the offence was committed was in charge of, and was responsible to, the Company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The proviso to that Section enables the person concerned to show that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. It is, therefore, clear that though the adjudication proceedings could no), have proceeded ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, mean that the result of a proceeding under the Act would be binding on the criminal court. The Criminal Court has to judge the case independently on the evidence placed before it. Otherwise there is a danger of a contention being advanced that whenever the assessee or any other person liable under the Act has failed to convince the authorities in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the criminal Court." 16. It was urged on behalf of the Petitioners that observations in the above case came to be made in respect of the adjudication proceedings which were pending, while in the present case, the ratio in Uttamchand's case would apply because the adjudication proceedings have been concluded. I am however, clear that the circumstance whether the adjudication proceedings are pending or concluded would not make any difference to the proposition which has been laid down in P. Jayappan's case after considering the ratio of Uttamchand's case and the observations extracted above clearly show that the criminal Court has to judge the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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