1. The Assistant Collector of Central Excise, Salem has filed this appeal against the order of acquittal of the respondent by the sub-Magistrate, Attur, I can even straightaway say that the reason given by the sub-Magistrate for acquittal of the respondent, especially the reason that the prosecution has failed to prove the removal of the tobacco is quite unsatisfactory. The man, who removes the tobacco does not generally, do so with the knowledge of others. Whenever there is a discrepancy between the stock book and the actual stock, it is the duty of the person concerned to explain as to how the discpepancy occurred, as that is within the special knowledge of that person alone.
2. There is no dispute that the respondent was a warehouse licensee in tobacco. On inspection, it was found that there was a discrepancy between the quantity of tobacco show in the stock register and the actual stock stored by the respondent. By a comparison of the stock entries in the stock book and the stock actually sorted, it was found that there was a difference of 18, 45 kilograms of chewing tobacco. The stock book showed 11,280 kilograms, w'hile the actual stock was 22,934 kilograms. When the respondent was asked to explain he exated that he shortage was due to driage in storage. It is in evidence that tobaco was stocked for a long time. It is conceded by the prosecution that there will be a dringe and that driage in some cases, may even go to an extent of 42 per cent.
3. In this case, the shortage is 35 percent. It, therefore, cannot be said that the shortage was only due to clendestine removal. It might be due to dringe, whatever, it might be, the appellant would, certainly, be entitled to benefit of doubt. This being an appeal against the order of acquittal I do not find any sufficient reason to interfere with the order. The appeal is dismissed.