- (1.) THE present appeal, under Section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 2.8.1997 passed by learned Sessions Judge, Surat in Criminal Appeal No. 43 of 1989 whereby the learned Sessions Judge has acquitted the accused for the offences punishable under Section 13 and 21 of the Octroi Act read with Section 398 of the BPMC Act, by setting aside the order of the learned Magistrate dated 4.10.1989 passed in Criminal Case No. 196 of 1984. The learned Sessions Judge by the said judgment and order has also dismissed the Criminal Revision Application No. 5 of 1990 filed by the appellant.
(2.) THE brief facts of the prosecution case are as under: 2.1 It is the case of the prosecution that the complainant Food Inspector working in Octroi Department of Surat Municipal Corporation. The Commissioner, Surat Municipal Corporation gave the authority to the appellant by letter dated 4.2.1984 to file prosecution against respondents " accused No. 1 to 6. It is the case of the prosecution that the respondent No. 1 is a partnership firm and respondents No. 2 to 6 are the partners of respondent No. 1 firm and the respondents No. 1 to 6 are doing the business of crimping on the machines. It is the case of the prosecution that the respondents No. 1 to 6 purchased and imported crimping machine on 17.3.1982 within the limits of Surat Municipal corporation. The respondent No. 1 company imported the said machine made by Himson Company within the limits of Surat Municipal Corporation which is situated in GIDC. At the time when the said machine was imported within the limits of corporation, no declaration form was filed and without paying the octroi and without declaring the case of the machine, the said machine was entered in the city. 2.2 Therefore for the aforesaid breach of the octroi rules by the accused, the complainant filed complaint before the learned Judicial Magistrate, First Class (Muni.), Surat. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, the respondent -accused were arrested and ultimately charge sheet was filed against them before the learned Judicial Magistrate, First Class (Muni.), Surat.
(3.) TO prove the case against the accused, the prosecution has examined five witnesses and also produced the documentary evidence before the learned Magistrate. At the end of trial and after hearing arguments on behalf of prosecution and the defence, the learned Judicial Magistrate, First Class (Muni.), Surat has ordered the penalty for five times for respondents No. 1 and 2 and for respondents No. 3, 4, 5 and 6 three times penalty was imposed for the said octroi amount of Rs. 23,988/ - in respect of the said machine which is valued at Rs. 9,59,519.52ps and convicted the accused for the offences punishable under Section 13(1)(e), Section 21 of Octroi Act read with Section 398 of the BPMC Act. That order of conviction was challenged by the original accused before the learned Sessions Court at Surat and the appeal was registered as Criminal Appeal No. 43 of 1989. It was heard at length by the learned Sessions Judge and the learned Sessions Judge has observed that there was a lacuna in the production of the evidence of the prosecution and the order of the conviction was set aside by the learned Sessions Judge by judgment and order dated 2.8.1997. 3.1 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Judge, Surat, the appellant has preferred the present appeal. Mr. Tej Shah, learned advocate for Mr. Prashant Desai, learned advocate for the appellant has contended that the judgment and order of the learned Judge is against the provisions of law; the learned Judge has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved all the ingredients of the evidence against the present accused. The learned advocate for the appellant, therefore, submitted that the appeal be allowed and the judgment and order passed by the learned Sessions Judge be set aside.;