1. The State through Assistant Collector, Central Excise, Kalyan Division II, Kalyan, has filed this Criminal Appeal for enhancement of the sentence passed by the Learned Judicial Magistrate, First Class, Wada by his order dated 23-1-1980 in Case No. 46/78.
2. The respondent herein, who will be referred to as the accused, was charged with offence under Sections 9(b), (bb), (bbb) and (c) of the Central Excises and Salt Act, 1944 (Act No. 1 of 1944). The prosecution case was that on 31-5-1975, the Inspector of the Central Excise visited the Warehouse belonging to the accused and found :-
(i) 2,174 - Bags of 'Bidi Patti' (Tobacco Leaves) weighing 69,105.700 Kgs. missing from the warehouse. The prosecution alleged that these goods were removed by the accused from the warehouse unauthorisedly and were disposed off by him;
(ii) 756 Bags of inferior quality of Tobacco weighing 17,295.44 Kgs. were stocked in the warehouse, which did not tally with the warehouse accounts and thereby the Accused contravened the provisions of Sections 9(b), (bb), (bbb) and (c) of the said Act.
3. The accused pleaded guilty before the Learned Magistrate and prayed for leniency. The Learned Magistrate stated that the accused was the only earning member of his family, that this was his first offence, that there was no excise duty payable on Tobacco on the date on which the sentence was passed, and that the accused was in a financially distressed situation. He, therefore, sentenced the accused to suffer simple imprisonment till rising of the Court and to pay a fine of Rs. 1000/-, in default to suffer Rigorous Imprisonment for one month. It is against this order that the State through Assistant Collector, Central Excise, Kalyan Division II, Kalyan, has now approached this Court for enhancement.
4. Mr. Vyas, the Learned Advocate appearing on behalf of the Excise Department, has submitted that under Section 9(1)(i) minimum penalty of six months was prescribed in a case where the duty leviable under the Act exceeded Rs. 1,00,000/-. Mr. Vyas contended that the Learned Magistrate had erred in awarding punishment which was less than the minimum prescribed under the provisions of Section 9(1) of the said Act. Mr. Vyas, therefore, submitted that it was necessary to interfere with the order passed by the Learned Magistrate and to enhance the Sentence to the minimum of six months, prescribed under Section 9 of the said act.
5. Section 9 provides :-
'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 of a rule made under Clause (iii) of sub-section (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 rules 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 term of less than six months;
(ii) in any other case, with imprisonment for term which may extend to three years or with fine or with both.'
6. Now, it is pertinent to note that the minimum prescribed under the Proviso to Section 9(1)(i) is six months in case of an offence relating to excisable goods duty leviable whereon exceeds Rs. 1,000,00/-. In the instant case neither in the charge, nor in the evidence, nor in the judgment of the Learned Magistrate is there any mention of the duty which was leviable on these goods which had been found in the warehouse of the accused or which were found missing from the warehouse. Not only that, but even the value of the goods is not to be found in the charge or in the evidence or in the judgment. In this view of the matter, it is difficult to state whether in this case the duty leviable under Sections 9(b), (bb), (bbb) and (c) of the said Act exceeded Rs. 1,00,000/-. If therefore, the case of the accused did not fall within the proviso to clause (i) of sub-section (1) of Section 9 of the said Act, then the accused need not be meted out with the minimum sentence which is prescribed thereunder. Clause (ii) of sub-section (1) of Section 9 provided for imprisonment in any other case which could extend to three years or with fine or with both. The Learned Magistrate, therefore, was justified in showing leniency to the accused and passing the sentence which was less than that provided under Section 9(1)(i) of the said Act. There appears to be no reason for interference with the sentence passed by the Learned Magistrate.
7. In the result the Criminal Appeal is dismissed.
8. The State has also filed Criminal Application praying for orders to permit the Assistant Collector, Central Excise Division X, Kalyan to destroy the Muddemal property in this case, i.e. Tobacco, stored in the godown belonging to Smt. Begum Khuje at Wada. Mr. Vyas submitted that the tobacco was in a deteriorating condition and, therefore, order for destruction was sought for. Mr. Tirodkar has no objection. Leave to the Assistant Collector, Central Excise Division X, Kalyan to destroy the Muddemal Property, i.e. Tobacco found from the warehouse of the Accused.