J.K. Mohanty, J.
1. The petitioner, who was convicted by the Additional Chief Judicial Magistrate, Bhubaneswar under Section 5 of the Imports and Exports (Control) Act, 1947 (hereinafter referred to as the 'Act') and sentenced to undergo R. I. for six months and Pay fine of Rs. 1,000/-, in default, to undergo R. I. for a further period of one month, having been unsuccessful in appeal (Criminal Appeal No, 113/77) preferred against the aforesaid order of conviction and sentence before the Sessions Judge, Puri. has come up in revision.
2. The petitioner as the proprietor of M/s. Cuttack Industries, Malgodown, Cuttack, obtained an import licence from the Assistant Collector of Imports and Exports, Calcutta, for importing non-essential oils and other materials for the purpose of manufacturing lonzenges and toffees. On the strength of the licence (Ext, 2) he imported 1,441 Kgs. of orange oil, 400 Kgs. of lemon oil amongst others. It is alleged by the prosecution that the accused, instead of utilising the lemon oil and orange oil for the preparation of lozenges and toffees for the purpose for which the licence was granted to him, Hold 1,395 Kgs. of orange oil and 385 Kgs. of lemon oil without the permission of the competent authorities, and thus violated the conditions of the licence and made himself liable under Section 5 of the Act.
3. The prosecution, in order to prove the case against the petitioner, examined twenty witnesses and exhibited a large number of documents. The defence examined one witness. The learned Magistrate after considering the evidence on record convicted the petitioner as stated above and in appeal the conviction and sentence of the petitioner were maintained.
4. In this case the issue of the import licence (Ex. 2) in favour of the petitioner and the actual import of 1,441 Kgs. of orange oil and 400 Kgs. of lemon oil are not disputed. But the case of the petitioner is that he has not mis-utilised the imported orange oil and lemon oil in violation of the conditions of the licence as alleged by the prosecution and in any event there is no evidence that mis-utilisation, if any, was done with the petitioner's knowledge or connivance so as to render Turn liable un3er'SecFon 5 of the Act 5. The condition of the import licence as mentioned in Ext. 2/3 is a follows:
(i) the goods imported under the licence shall be utilised in the licence holder's factory for manufacture of the end product for which the licence was issued and no portion thereof will be sold or otherwise transferred to any other party or utilised for a different end product. The licensee shall maintain proper accounts of consumption and utilisation of goods imported agains the licence.
The petitioner also executed a bond (Ext. 30) wherein he agreed to abide by the conditions imposed as per Ext. 2/3 The application (Ext, 5) filed by the petitioner on the basis of which the import licence (Ext. 2) was granted goes to show that the licence was issued for the purpose of manufacturing confectioneries such as Jozenges and toffees. So, from the above documents it is absolutely clear that the petitioner was precluded from using the imported lemon oil and orange oil for the purposes other than manufacture of lozenges and toffees.
6. In this case there is no direct evidence that the petitioner sold orange oil and' lemon oil in contravention of the conditions of the licence and did not utilise the same for the purpose for which it was imported. The prosecution relies on circumstantial evidenge to 'provision sale of orange oil and lemon oil by producing oral and documentary evidence.
According to the prosecution as per Ext. 48 (carbon copy of the cash Memo in the handwriting of one Ramjiban Garodia, who was an employee of the petitioner's firm, ifTTHncuT 770 Kgs. of orange oil valued at Rs. 18.480/- and 225 Kgs. of lemon oil valued at Rupees 6,525/- were sold to one Bjcjijtranand Mohanty of 'STinTaTpurrrrilPrPin53 and as per Ext 48/1, 625 Kgs, of orange oil valued at Rs. 15,060/- and 160 Kgs. of lemon oil valued at Rs. 4,640/- were old. to one JK. Apparao of Berhampur oh 1411-1968. These Exts 48 and 48/l have been proved through P. W. 10, a son of late Ramjiban GarodiA.P. Ws. 12 and 15 who were the employees of the petitioner's firm have also proved these documents. The corresponding entries (Exts. 49 and 49/1 ) in the Account book in the handwriting of Ramjiban Garo-dia have also been proved by these witnesses. In Exts. 48 and 48/1 instead of 'orange oil' and 'lemon oil',_ only 'orange' and 'lemon' have been mentioned P. 'Ws. 12 and 15 have also 'proved the entry (Ext. 51) made at pages 94 and 95 of the Orissa Sales Tax Account Register maintained by the petitioner's firm, Ext. 51 shows that on 13-11-1968 goods worth Rs. 25,005/- and on 14-11-1968 goods worth Rs. 19,700/-were sold to Bichitranand Mohanty of Sambalpur and K. Apparao of Berham-pur respectively. It is claimed by the prosecution that though 'orange' and 'lemon' have been mentioned in Exts. 48 and 48/1, in fact 'orange oil' and 'lemon oil' have been sold. On behalf of the accused-petitioner it is claimed that the 'orange' and 'lemon' mentioned in Exts. 48 and 48/1 do not refer to 'orange oil' and 'lemon oil' but to the finished products, i.e orange lozenges' . and 'lemon lozenges'. So, it is to be seen far the prosecution has been . able to prove that actually orange oil and lemon oil were sold,
7. P. W. 13, who worked as the Industrial Supervisor of Berhampur and also of Sambalpur, on a reference to the register_ of small., scale industries, stated that he did not come across any industry or person in the name of K. Apparav at Berhampur or in the name of Bichitranand Mohanty at Sambalpur. Similarly, another Industrial Supervisor (P. W. 14) of Berhampur, who deposed with reference to the register of small scale industries, stated that there was no industry in the name of K. Apparao at Berhampur or Bichitranand Mohanty al Sambalpur as there is no such mention in the register. P. W. 16, a Revenue Clerk of Berhampur Municipality for the relevant period, has stated that there is no person named K. Apparo in BerhamDUr Municipality having any licence for confectionery business Similarly P.W. 17, a Tax Collector of Sambalpur Municipality at the relevant time has stated that there is no person named Bochitranand Mohanty having a licence for confectionery business in sambalpur Municipality So from the evidence of all the above witnesses (P. Ws 13, 14, 15 and 17) the prosecution wants to established by process of elimination that there are no persons named as Bichitranand Mohanty within Sambalpur Municipality and K. Apparao within Berhampur Municipality who were having confectionary business. The learned Sessions Judge has come to hold:
If the said Bichitranand Mohanty and K. Apparao are real persons in existence who could purchase confectionary worth more than Rs. 20.000/- in a single day from the appellant's firm, evidently for the purpose of their business, it is difficult to believe that they would have escaped the notice of the said P. Ws. 13, 14, 16 and 17. In any event from the above evidence it is clear to the accused that the prosecution is asserting that the said K. Apparao and Bichitranand Mohanty are fictitous persons and a categorical suggestion was also put to D. W. 1 to that effect by the prosecution. Hence under the circumstances the saidji. Apparao and Bichitranand Mohanty 'are'material. witnesses for the defence and it was incumbent on the defence to examine them~ If the sale transactions under 'Exts. 48 and 48/l are straight clean deals of sale of lozenges, as contended by the defence, it should not have been difficult for the defence to examine the said two witnesses in support of the defence plea.
8. The prosecution further relies on the evidence of P, W. '3, the District Industries Officer, Cuttack during the relevant period, and P. W. 6. the Supervisor. According to P. W. 3 he visited_ the firm ,,9 the accused' to check the stock of orange oil and lemon oil, but due to the absence of the proprietor (accused) the records were not made available. Ext. 8 'is the report submitted' by him to the Director of Industries. He also proved the notice (Exts. 9 and 9/1) issued to the accused to produce the records. He further deposed that the accused applied to the authorities of the Industries Office to permit him to use the imported orange oil and lemon oil for preparation of orange and lemon paste as the oils were found to be of inferior quality and not suitable for manufacture of lozenges. The authorities asked the accused to supply samples of the oils, but as the accused did not comply, he was not given any permission to prepare lemon paste or orange paste. This is corroborated by Exts. 11 and 12, the applications sub- mitted by the accused to the District Industries Officer. Cuttack. P. W. 4, the Manager of the firm Clearing Agent of Customs, Calcutta, has deposed that the accused has himself taken delivery of the imported lemon oil and orange oil as per receipt
9. On a discussion of the evidence of the defence witness who has been examined as _D. W. 1, the appellate court observed that though this witness has stated that he was a broker the sale transactions under Exts. 48 and 48/l and has obtained commission of Rs. 1,000/- for arranging the transactions, he could not say the proof of if He also could not 'say the names of the parties. After discussing the evidence of D. W. 1 the appellate court disbelieved him. The appellate court has also observed that when the attention of the accused was drawn to the sale of orange oil and lemon oil under Exts. 48 and 48/l in his (accused's) statement, he only replied that he did not sell these goods to anybody as alleged. He did not state that under Exts. 48 and 48/1 what was sold was orange lozenges. The accused has also stated that he does not know if there are any such person by name K. Apparao. and Bichitranand Mohanty. The learned courts below'' came to the conclusion that the failure of the accused to mention a particular fact in his statement under Section 342, Criminal P. C. (old) would go to show that the defence now taken is an after-thought. In the present case during the course of his examination, the accused did not take the plea that under Exts. 48 and 48/l lozenges were sold to two businessmen - one of Sambalpur and the other of Berhampur. Ultimately the courts below came to the conclusion that the defence has not examined the two most important witnesses, namely, Bichitranand Mohanty and K. Apparao, and has not been able to prove the defence plea regarding the utilisation of the orange oil and lemon oil and from the evidence produced by the prosecution it can also safely be held that the accused has sold orange oil and lemon oil in contravention of the conditions of the licence.
10. Mr. Mohanty, learned Counsel. Appearing for the petitioner submitted that even taking the entire evidence of the prosecution as a whole. Nothing has been established that the accused has sold orange oil or lemon oil to anybody. Exts 48 and 48/l do not indicate that orange oil or lemon oil has been sold and not orange lonzenges or lemon lozenges. He further argued that Exts. 48 and 48/l show that orange was sold at Rupees 24/- and lemon was sold at Rupees 29/-. So the average comes to Rs. 26/-. So the learned courts below should not have disbelived the evidence of D. W. 1 when he stated that the lozenges were sold at Rs. 26/-. He further submitted that the cost of lemon oil when received at Calcutta was Rs. 28/- including the charges for taking delivery etc. So nobody will sell the same at a lesser price or at the same price without making any profit at Cuttack. He also argued that when the prosecution has failed to establish that the accused sold orange oil or lemon oil, the onus cannot shift to the accused to establish that he has not sold the same.
11. On a consideration of the evidence on record, no doubt the prosecution has proved that the accused has imported lemon oil and orange oil for the quantity mentioned in Ext. 2 and there is a condition in Ext. 2/3 that the same would be utilised for the purpose of manufacturing lozenges. It is also in the evidence that the cash memos (Exts. 48 and 48/1) for the alleged sales are in the handwriting of one Ramjiban Garodia who was an employee of the petitioner's firm. But there is no direct evidence to show that whatPwere 'sold under Exts 48 and 48/1 were orange oil and lemon oil. The utilisation register of the imported oils has not been seized nor produced by the prosecution in this case. There is also no evidence on record to show that the petitioner has .not manufactured lozenges after receipt of the imported oils. From the documentary evidence such as tax register and small scale industries register the prosecution has tried to establish that no persons named K. Apparao and Bichitranand Mohanty were dealing in lozenges. But this evidence cannot conclusively establish that there were no persons in the name of Sichitranand Mohanty and K. Apparao. On circumstance of the case a grave suspicion may arise against the petitioner that what he has sold under Exts. 48 and 48/l are not lozenges but oils. But mere suspicion;, however strong,'' 'cannot take the place of legal proof.
12. After hearing the argument of both sides and in the facts and circumstances of the case I am of the view that the prosecution has not been able to prove the case against the accused-petitioner beyond reasonable doubt and the petitioner is entitled t0 the benefit of the same. The revision is, therefore, allowed, the conviction and sentence of the petitioner are set aside he is acquitted. Fine if already realised be refunded to the petitioner.