Krishnaswamy Reddy, J.
1. This appeal has been preferred by the Assistant Collector of Central Excise, Vellore, against the order of acquittal of the Respondents, by the Sub-Magistrate, Gudiyatham.
2. The first respondent is the father and the second Respondent is the son. The first Respondent is the Proprietor of Messrs. Shanmugam Match Works, Gudiyatham and is running the Match Factory at Palmaneer Road, Pichanoor, Gudiyatham with a valid licence issued by the Central Excise Department. The second Respondent is the authorised Agent of the said Shanmugam Match Factory. The first respondent has been allowed by the Department to use approved trade label 'The Golden Eagle' on the matches manufactured at Messers Shanmugam Match Factory. The matches manufactured at his premises can be removed outside the factory premises only under a gate pass after debiting the duty payable to the Central Governmentte the presoribed register and accounts maintained at the factory. The bundles also should be serially numbered and deposited in the store room of the factory before they are removed out of the premises on gate passes.
3. On 28-06-1972 at about 1 P.M. P.W. 1, the Superintendent of Central Excise, Gudiyatham along with his officers inspected Shanmugam Match Factory and checked the stock and accounts found in the premises. In the course of their check, they suspected that the matches were stored in the lumber room situated opposite to the Match Factory, which was under the Control and in possession of the second Respondent. P.W. 1 checked the lumber room in the presence of the second Respondent. P.Ws. 2 and 3 were also said to have been present at that time. He found 205 gross of matches in 41 bundles affixed with label 'Golden Eagle' approved for Messrs. Shanmugam Match Factory. The bundles were not given the factory's serial numbers and there was no gate pass for the removal of the matches from out of the factory premises. P.W. 1 seized all those 41 bundles under a mahazar attested by the witnesses. The second respondent also gave a statement Ex. P. 5. P.W. 1 thereupon gave a complaint before the Sub-Magistrate alleging that the Respondents had committed Ian offence under Section 9(b) of the Central Excises and Salt Act, 1944, with the object of evading payment of duty.
4. P.Ws 2 and 3 who were examined for the purpose of speaking about the seizure and the alleged statement given by the second respondent turned hostile.
5. The first Respondent stated that he did not know anything about the seizure and that he was not present at the time of the seizure.
6. The second Respondnent stated that he went to Vellore on the day when P.W. 1 inspected the factory premises, and returned at about 3 P.M. At that time, P.W. 1 and other Excise Officers took him to their office and told him that they had inspected the factory and found certain unauthorised matches in the lumber room, and took his signatures in two blank papers stating that they were doing so only for his benefit. He also stated that the statement was not read out to him and that there were corrections in the statement He further stated that he never kept matches in the lumber room and he had nothing to do with M.O. 1 series which were seized from the lumber room. He also stated that those matches were not manufactured in their factory.
7. The learned Sub-Magistrate, in his shabby judgment, gave very unsatisfactory reasons for acquitting the Respondents. He seems to be under the impression that since P. Ws 2 and 3 turned hostile, it will not be safe to act upon the evidence of P.W. 1. The Magistrate seems to have had a wrong action. P.W, 1 is a respectable officer. Apart from that, the matches were seized. Thereforethere cannot be any doubt that P.W. 1 had seized 41 bundles of matches from lumber room. There is absolutely no reason to suspect the evidence of P.W. 1. Even though P. Ws 2 and who were once the Subordinates of the Respondents, had turned hostile, there is absolutely no justification to reject the evidence of P.W.I, especially in the face of seizure which was not disputed even by the Respondents. But however, there is one infirmity in this alleged to have been committed by the respondents. It is true that M.O. 1 series were seized from the lumber room. It is not satisfactorily proved that the lumber room was in the occupation of the Respondents. Excepting the evidence of P.W. 1 that the matches were seized from the lumber room, there is no other evidence either oral or documentary that the lumber room was in the occupation of the Respondents at the time of seizure. It is stated that it was not a lumber room but it was a pump set room. Whatever it is, the fact of exclusive occupation of the premises by the Respondents has not been established beyond reasonable doubt. Even in Excise P. 5 the statement recorded by P.W. 1 from the second respondent, we do not find any admission that the lumber room belonged to the respondents. Excise P. 5 does not amount to a confession. Excise P. 5 appears to have been obtained on a promise.' It is very significant to note the following sentences in that statement which would vitiate the statement as voluntary confession.
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This statement would exonerate the Respondents as he (second Respondent) would state that in his absence, it was done by his servants and that the same mistake would not be repeated. It appears that the statement was obtained from the second respondent on a promise that no action would be taken against him, but with a warning that he should not repeat this again. I am therefore, of the view that Excise P. 5 far from incriminating the Respondent (Accused) exonerates them. So, on this view, I do not find, in spite of the shabby judgment of the Sub-Magistrate, any compelling reason to interfere with the order of acquittal.
This appeal is, therefore, dismissed.