S.P. Srivastav vs State of Gujarat

Respondents Nos. 1 to 4, hereinafter referred to as the accused, have been convicted by the learned Judicial Magistrate, First Class, 3rd Court, Baroda of the offence punishable u/s 9(2) of the Central Excises and Salt Act, 1944, (hereinafter referred to as the Act), on their own plea of guilty and sentenced to suffer S.I. till the rising of the court and to pay a fine of Rs. 125 and in default of payment of fine, to suffer R.I. for a period of 15 days. As the complainant, Assistant Collector of Central Excise, Baroda, felt that the above sentence was inadequate, he has given this application for enhancement of sentence.

In the above case, the complaint filed by the petitioner was in respect of offences punishable under Sections 192, 196, 198, 200 and 468 read with Sections 109 and 120B of the Indian Penal Code. According to the learned Advocate for the accused, looking to the sentences provided for the above offences, the learned Magistrate should have followed the procedure prescribed for trial of warrant cases. In the present case, the learned Magistrate has not examined any witness and straightway recorded the plea of the accused. He has also submitted that there is no reference to Section 9(2) of the Act in the complaint and that on the day on which the accused are alleged to have committed the offences mentioned in the complaint, Section 9(2) of the Act was not in existence. The learned Advocate for the complainant and the learned Public Prosecutor an are unable to controvert the above position. Section 9(2) of the Act which was enacted in the year 1973 provides for enhanced punishment for previous conviction. It was not the case of the complainant that any of the accused had previous conviction for the offence under the Act. Considering all these circumstances, it becomes evident that the accused could not have been convicted of the offence punishable u/s 9(2) of the Act. The learned Public Prosecutor and the learned Advocate for the complainant are fair enough to concede the above position. According to the learned Advocate for the accused, prosecution for the offence in question was barred by limitation. The above question need not be considered at this stage in view of the fact that, the order of conviction and sentence passed by the learned Magistrate is liable to be set aside and it is necessary to remand the matter to the trial court for retrial.

The order of conviction and sentence passed by the learned Magistrate is set aside and the matter is remanded to the trial court for retrial according to law. As the complaint in this case was filed as far back as on 15th March, 1974, the learned Magistrate is directed to dispose of the matter as expeditiously as possible. Application is allowed to the above extent.