- (1.)The respondent Daya Shanker along with his father Jwala Prasad was tried by the First Class Magistrate of Fatehgarh in respect of a complaint filed by an Assistant Collector of Central Excise that they had committed offences under section 9 of the Central Excise and Salt Act, 1944, hereinafter referred to as the Act. The learned Magistrate found that they had both committed offences under clauses (a) and (b) of section 9 of the aforesaid Act, and accordingly sentenced them to pay a fine of Rs. 2,000/- each. Both appealed against the aforesaid order. The learned Sessions Judge, whilst maintaining the conviction of Jwala Prasad and the sentence awarded to him, set aside the conviction and sentence of the respondent Daya Shanker and acquitted him of the offences for which he had been tried. Jawala Prasad, the father, appears to have submitted judgment of the learned Sessions Judge, but the State Government has filed this appeal against the acquittal of the respondent Daya Shanker.
(2.)The facts of the case may now be briefly summarised. Firm Devi Prasad Jwala Prasad carried on business at Kannauj. The proprietor of the firm was Jwala Prasad and it was a licensee for maintaining a bonded warehouse, for storage of tobacco, under a licence from the Central Excise authorities, under the provisions of the Act. On the 3rd of February, 1959, a Deputy Superintendent of Central Excise at Kannauj went to inspect the warehouse. It was alleged that both the father Jwala Prasad and his son the respondent Daya Shanker avoided inspection by making themselves scarce. The Deputy Superintendent however, got the locks removed, inspected the warehouse and found a number of irregularities involving breaches of the Act and the Rules framed thereunder. On the 5th June, 1959, the Assistant Collector of Central Excise at Fatehgarh filed a complaint against both alleging commission by them of offences under section 9 of the Act. A perusal of the complaint, as also of the judgment of the learned Magistrate, makes it clear that an objection on behalf of the accused persons was raised before the learned Magistrate that the complaint under Section 9 was vague inasmuch as it was clear as to which of the various clauses of Section 9 were alleged to have been contravened. The learned Magistrate took the view that though there were four sub-clauses in section 9 of the Act the offences alleged to have been committed appeared to fall under clauses (a) and (b). What is important to notice is that both the accused were tried on that footing, found guilty of contravention of the aforesaid clauses and convicted accordingly.
(3.)The learned Judge, on appeal, took the view that so far as the respondent Daya Shanker was concerned he could not be convicted for the reason that he was neither the owner nor an agent, as contemplated by rule 3 of the Central Excise Rules, 1944 , hereinafter referred to as the Rules, so as to be deemed to be the owner. The learned Judge accordingly acquitted the respondent Daya Shanker.