Calcutta Jute Mfg. Co. Ltd. and Another vs The State

S.S. Ganguly, J.—On prosecution allegation that on 9-5-74 the two accused- the first one being M/s. Calcutta Jute Manufacturing Co. Ltd. and the second the Manager thereof-had removed 20 bales of Hessian without debiting the duty in the Personal Ledger Account but under cover of gate pass Nos. 375 and 376 and further that (2) on 5-5-1974 and 7-5-1974 they had manufactured 81 bales of jute manufactures and had stored the same in the factory without account in the statutory Books and Accounts and had thereby violated Central Excise Rules 9(1), 173(f), 173G (1) and 173G(2) read with Rule 52, 173G(4) read with Rule 53 of Central Excise Rules, 1944 thus committing the offences punishable under Sections 9, 9(1)(a), 9(1)(b) and 9(1)(bb) of the Central Excises and Salt Act, 1944, a charge was drawn up against both the accused accordingly. Both the accused having pleaded guilty to the said charge, the learned S.D.J.M., Alipore convicted them u/s 9(1)(ii) of the Central Excises and Salt Act, 1944 and fined them Rs. 2,500 in default to R.I. for one year each.

It is urged in this revisionary application that apart from a mere technical violation, there was no violation of any provision of law in this case, that the accused pleased guilty on a misconception of fact and law and that as such the order of conviction and sentence should be set aside.

Now it appears, as pointed out by the learned Advocate for the petitioners, that there is really no evidence on the second point of the charge viz. manufacture and storing 80 bales of jute manufactures without accounting for those in the statutory registers. This item of the charge though based on the allegation in the complaint cannot be sustained.

As for the first item of the charge, viz. removal of 20 bales of jute manufactures without debiting the duty payable on account of the same in the personal ledger Account, it is urged that there was really no ''removal'' in this case since the bales in question were found inside the factory premises.

From the evidence of Amulya Chandra Pathak, P.W. 4 all that appears is that he and the other members of his party found a lorry loaded with manufactures of jute goods. There is nothing to show from the evidence that this lorry was found outside the gate of the factory premises. Factory as per the definition of Section 2(e) of the Central Excises and Salt Act, 1944 includes the precincts thereof and therefore if the lorry was found inside the factory premises though there was really any removal in this case under Rule 9 of the Central Excise Rules, 1944. It may be that it is under such circumstances that the aforementioned witness concluded his evidence before the learned Magistrate by saying that he also felt that there had been only a technical violation in this case. It further appears from the judgment of the learned Chief Judicial Magistrate that a finding in the Departmental Proceeding was produced before him and it appeared from this finding that the company was found entitled to be exempted from the charge in respect of 20 bales. Presumably, the department had no grievance against the present petitioners with regard to the 20 bales of the first point of the charge,

In view of the above, it appears that there really was no material against the present petitioners on the basis of which sustainable charge could be framed against them. In that view of the matter their plea of guilty does not amount to anything since no offence was really committed in this case; State of M.P. Vs. Mustaq Hussain Azad and Others, .

The order of conviction and sentence passed by the learned Magistrate cannot, therefore, be sustained and they are hereby set aside. The rule is made absolute accordingly.