K.S. Muhammed v. The Assistant Collector of Central Excise, Thrissur & State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940** **Crl.Rev.Pet.No. 304 of 2002** **AGAINST THE JUDGMENT IN CRA 323/1999 of II ADDL.SESSIONS COURT,ERNAKULAM** **AGAINST THE JUDGMENT IN CC 183/1990 of ADDL.C.J.M., ERNAKULAM DATED 09-09-1999** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **K.S.MUHAMMED** **PROPRIETOR, M/S. FAKEER BEEDI COMPANY,, KOPPAM, PATTAMBI(NOW DEFUNCT)** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE SRI.S.M.PRASANTH SRI.T.RAMPRASAD UNNI** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **1 THE ASST.COLLECTOR OF CENTRAL EXCISE THRISSUR.** **2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** **SMT. MAYA . M.N -PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.304/2002 2 ## **JUDGMENT** This Criminal Revision Petition is filed against the concurrent findings of the the court below. Accused/revision petitioner was the 1[st] accused in CC No.183/1990 on the files of the Additional Chief Judicial Magistrate's Court, for Economic Offences, Ernakulam. The charge was under Section 9 of the Central Excise and Salt Act, 1944 and he was found guilty under Sections 9(1) and (2) of the Central Excise and Salt Act. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.20,000/- and in default to undergo simple imprisonment for three months. The appeal preferred before the Sessions Court was also not successful. Hence this Criminal Revision Petition. 2. When this Criminal Revision Petition came up for hearing, the learned counsel appearing for the revision petitioner submitted before me that the appreciation of the evidence by the court below can be only termed as perverse. It is also the submission of the learned counsel that, it can be seen that he was found guilty under Section 9(I) Crl.R.P.No.304/2002 3 and (2) of the Central Excise and Salt Act, 1944. Actually, there is no such section for which conviction can be passed. It is also the submission that the entire proceedings against the petitioner is vitiated by grave irregularity from the point of trial of framing the charge. It is the submission that there was no charge against the petitioner under Section 9(I) and (2), for which he is now convicted. It is also the submission of the learned Senior counsel that under the Code of Criminal Procedure, nobody can be convicted without a charge and also highlighted that the charge has not been altered at any stage of the proceedings. It is the further submission that under the Scheme of the Central Excise Act, there is vast difference between charge under Section 9(I)(b) and 9(I) 9(I)(bb) and (bbb). The charge against the petitioner is highlighted for commission of offence under Section 9 and allied provisions, the same is not punishable under Section 9(I) and (2) of the Act. It is also the submission that the charge laid against the petitioner was only under Section 9 without indicating under which limb of that section he has to face trial. It is also the submission of the learned Senior Counsel that there is vast difference between the Crl.R.P.No.304/2002 4 different provisions under Section 9. The absence of charge therefore, vitiate the entire trial, as the accused is seriously prejudiced by not told of the correct charge. 3. It is the submission that under the circumstances, at least the matter has to be remanded back for framing a proper charge. The learned Senior counsel submitted that provisions of the Code of Criminal Procedure regarding framing of charge, reading of the charge etc. are mandatory in nature. Therefore, the lack of following these aspects will vitiate the entire prosecution. Thus, there has been a gross violation of the principles of natural justice, as the charge under which the petitioner has been convicted has not been read over to him. Hence, the whole proceedings will vitiate. 4. I heard the learned Public Prosecutor. 5. The learned Public Prosecutor submitted before this court that, here is a case, where, two courts below appreciated the evidence. The first time, the revision petitioner is raising prejudice in respect of the charge. It is the submission that Section 464 of the Code of Criminal Procedure is specific regarding such omission to frame or Crl.R.P.No.304/2002 5 absence or error in charge. This is a case, which will come under the purview of Section 464(I) and not one under Section 464(2) of the Code of Criminal Procedure. There is nothing to interfere with the conviction and sentence passed by the courts below. After hearing the learned counsel, I perused the evidence and records in this case. 6. The facts necessary for consideration of this revision petition is as follows:- The complainant herein is the Assistance Collector of Central Excise, Tirur Division and as per the complaint, an inspection was seen conducted at the premises of Fakri Beedi Company at Kecheri. The inspection was done on 25.01.1987. At the time of inspection, the Manager was present. It is the case of the prosecution that on verification of the stocks and accounts, 20kgs of Beedi Tobacco and 1,00,240 unlabelled Beedie were found therein. It was seized by the officers after preparing mahazar. It was also the case of the complainant that some other relevant materials found are also seized. It is also the case of the prosecution that the revision petitioner herein was having another premises opposite to one Saritha Theater, Keecheri. Crl.R.P.No.304/2002 6 The said premises also was searched in the presence of the revision petitioner herein along with other witnesses. It was the case of the complainant that from therein 2,01600 unlabelled beedies and 1380 kgs of beedi tobacco kept unaccounted in the premises and one transit note book were seized from therein under a mahazar. It was also the case of the complainant that on the very same day, the premises of Fakri Beedi Company at Koppam in Palakkad District was also searched by the officers in the presence of 1[st] accused and witnesses. 20400 labelled beedies and 4,200 unlabelled beedies were found in the premises as against the closing stock of 16500 labelled beedies and 10,000 unlabelled beedies on 24.01.87. It was also the further case that behind the Fakri Beedi Company, there was a locked room, the owner K.P.Hamsa was summoned and in the presence of the revision petitioner herein, the said room was opened. When the said room was examined, it contained beedi and beedi labels. 44,300 beedi bundles affixed with the Fakeer Beedi labelss 4,80300 unlabelled beedi in newspaper bundles also found therein. Thus, altogether 4,62,620 beedies were found. Crl.R.P.No.304/2002 7 7. A show cause notice was issued to both the accused, who are the owner and manager of the Fakri Beedi Company. It was adjudicated by the Collector and demanded a sum of Rs.2,48,62.30 from the 1[st] accused as the proprietor of Fakri Beedi Company Koppam under Rule 9(2) read with Section 11(I) of the Central Excise and Salt Act. A penalty of Rs.75,000/- was also imposed on the 1[st] accused and a penalty of Rs.5,000/- on the 2[nd] accused. Since they were violated the Central Excise Rules 1944, with wilfull intention of evading payment central excise duty, it was found that they had committed an offence punishable under Section 9(i) and (2) of the Central Excise Salt Act. It can be seen that even though originally prosecuted, 2[nd] accused died during the pendency of the trial. Thus, it was only proceeded against the 1[st] accused, the court took cognizance and on appearance of the 1[st] accused after taking preliminary evidence and hearing, charge was framed. Accused pleaded not guilty. Evidence of PWs1to 9 recorded and Exts.P1 to P15 were marked. After completing the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure. It can be seen that Crl.R.P.No.304/2002 8 DW1 was also examined on the defence side. After appreciating the evidence, the court below convicted the accused and sentenced as stated above. Hence this revision. 8. In this case, there was seizure of labelled and unlabelled beedies. Further there was seizure of beedi tobacco. It can be seen that regarding the appreciation of the evidence, no illegality or perversity seen committed by the courts below. But, at the very same time, the revision petitioner got a case that charge was not proper. The court charge was as follows:- _“That you, A1, engaged in the manufacture of beedies under licence No.L4.104/75 in the brand name of “Fakir Beedi” at your factory at Koppam, Palghat District during July 1982 to January 1987 stored unmanufactured tobacco for the manufacture of beedies without proper accounting at your above said factory and collection centres at Keecheri, Trichur District and removed 6,12,49,910 beedies manufactured by you, from your factory and collection centres without payment of excise duity and without proper accounting and also without proper transport documents and thus wilfully evaded payment of excise duty amounting to Rs.2,48,062/15 and thereby committed offence punishable u/s 9(i) (ii) of the Central Excise and Salt Act,1944 and within my cognisance. An I direct that you be tried by this court on the said charge._ Crl.R.P.No.304/2002 9 _Given under my hand and the seal of this court on this the 30[th] day of September, 1995.”_ 9. Thus, the grievance of the revision petitioner is that the offence quoted therein was under Section 9(1) of Central Excise and Salt Act, 1944. Section reads as follows:- _“9. Offences and penalties-[(1)] Whoever commits any of the following offences, namely:-_ _(a) contravenes any of the provisions of a notification issued under Section 6 or of Section 8, or of a rule made under clause (iii) of sub-sec.(2) of Section 37;_ _(b) evades the payment of any duty payable under this Act;_ _[(bb) removes any excisable goods in contravention of any of the provisions of this Act or any rule made thereunder or in any way concerns himself with such removal;_ _(bbb)acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule_ Crl.R.P.No.304/2002 10 ## _made thereunder;]_ _(c) fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information;_ _(d) attempts to commit or abets the commission of, any of the offences mentioned in Clauses (a) and (b) of this section;_ _[shall be punishable,-_ _(i) in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine:_ _Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months;_ _(ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both.]”_ ## xxxxxx 10. But on a mere perusal of the above, it can be seen that there Crl.R.P.No.304/2002 11 was amendments in the year 1992. Thus, on a careful perusal, it can be seen that, a re-numbering was done under Section 9(i) and all the offences impugned therein are seen made punishable under Section 9(i) &(ii). There may be an omission of Sub Section (i), which was introduced by the Act, 36 of 1973. That omission cannot be treated as material in the light of Section 464 of the Code of Criminal Procedure. In this case, by going though the charge, it can be seen that the details of the allegation for which, he is facing the trial is made clear. When the charge is clear regarding the allegations, quoting of the offences or omission of quoting the Sub Section will not vitiate the trial. 11. It is also relevant to note that the decision in **Ramachandran v. State of Kerala ( 1987 (1) KLT 421)** is also not relevant on the facts of the case. Thus the only remaining point is regarding the sentence. The court below awarded a minimum sentence of six months and to pay a fine of Rs.20,000/- with default simple imprisonment for three months. 12. Considering the fact that the age of the revision petitioner who is accused No.1. was given as 53 in the judgment and the case is Crl.R.P.No.304/2002 12 that of the year 1990 and now we are in 2018 and for the last 28 years the case is therein and also considering the fact that the aged revision petitioner is suffering from various ailments, I feel that this can be treated as a special circumstance to give reduction in the minimum sentence awarded by the court below as provided in the Act. 13. Considering this aspect, the sentence imposed is modified and reduced as simple imprisonment for two months. As there is reduction in the substantial sentence, the fine amount is increased to Rs.1,00,000/- and in default of payment of the fine amount, he shall undergo simple imprisonment for 15 days more. With the above modification on the side of the sentence, the revision petition is allowed in part. **Sd/-** **K.P.JYOTHINDRANATH** **JUDGE**