J.S. Trivedi, J. - (1.) THE Central Excise authorities on receipt of some information searched the house of the Applicant Zamir Ahmad in Chandpur, district Bijnor and recovered 146 maunds 12 seers of unmanufactured to accompany After the recovery memo was prepared one Nasiruddin claimed himself to be the owner of the to accompany Zamir Ahmad who is a warehouse licensee, on a notice to show cause why he should not be proceeded Under Section 32 of the Central Excise Rules sent a written reply that the tobacco actually belonged to him and he was prepared to pay the duty for the same. Proceedings were then taken against him by the Excise Collector Under Section 33 of the Central Excise and Salt Act, hereinafter to be referred as the Act and a penalty was imposed upon him. He along with Qadir Ahmad and Nasiruddin were thereafter prosecuted in the court of the SDM Bijnor Under Section 9 of the Act and before any charge could be framed a preliminary objection was raised before the learned Magistrate that the authorities having proceeded against them and imposed a penalty Under Section 33 of the Act were debarred from proceeding and prosecuting Under Section 9 of the Act in view of Article 20(2) of the Constitution of India. It was also contended that the prosecution in any event after the period of six months from the cause of action was barred Under Section 40(2) of the Act. The objection was rejected by the learned Magistrate. A revision against the order of the learned Magistrate was also dismissed by the learned Sessions Judge, Bijnor. Zamir Ahmad has come now to this Court against the dismissal of his revision application.
(2.) THE main contention raised by the Learned Counsel for the Applicant here is that the Excise Staff having recovered the tobacco on 10 -4 -1963 the prosecution Under Section 9 of the Act on a complaint filed on 31 -3 -1964 was bad in view of Section 40(2) of the Act which bars prosecution after the expiry of a period of six months from the accrual of the cause of action. It is also contended that the Excise authorities having proceeded Under Section 33 of the Central Excise and Salt Act and having imposed a penalty were debarred Under Article 20(2) of the Constitution of India to prosecute the Applicants Under Section 9 of the Act. It is also urged that the complaint was vague and did not make out a charge Under Rules 32, 174 and 198 of the Central Excise Rubs. The question of vagueness of the complaint was neither raised before the learned Magistrate nor was it made a ground of revision before the Sessions Judge. From the nature of the allegation made by the Applicant in justification of his conduct in storing the tobacco it is clear that he was fully aware of the charge that was likely to be framed against him. This objection has no force and is rejected.
(3.) COMING next to the question as to whether the complaint is barred Under Section 40(2) of the Act, I find that the said clause reads as follows: No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the Act or order complained of. The Learned Counsel for the Applicants has contended that the cause of action in this case arose on 10 -4 -1963 when the Excise staff raided the house and found the to accompany He has also relied on a case reported in 1963 CrLJ State of Andhra Pradesh v. Abdul Hamid and Ors. in support of his contention that Section 40(2) applies to prosecution both by private parties and by the State and not only to a complaint by a private person as held by the learned Magistrate. It is true this case lays down that Section 40(2) of the Act is applicable to a complaint by the State as well. Assuming Section 40(2) applies to prosecution by the State as well it has to be seen whether a prosecution of this nature is barred Under Section 40(2) of the Act. Section 40(2) bars a suit or prosecution for anything done or ordered to be done under this Act after the expiration of six months. In the instant case the storing of unauthorised tobacco was not done under this Act, nor can it be said to have been ordered to be done under this Act. My attention has been drawn to Rule 207 as it stood before the amendment. Rule 207 as it stood before the amendment read as follows: A charge of an offence Under Section 9 of the Act shall not be made except by an officer not inferior in rank to an Inspector and every such complaint shall be preferred within six months after the commission of the offence to which it is referred. This rule was amended by notification dated 20 -1 -1953 and all the words after the word "Inspector" have been deleted. If the intention of the Legislature was to include all prosecutions by the State even if they were done or not done under the Act then the words "for anything done or ordered to be done" ought not to have been there in the section. The existence of these words clearly indicates that the bar of limitation given in Section 40(2) of the Act would apply only to a prosecution for any thing done or ordered to be done under this Act. For example, if a person files a false return a prosecution for such action will technically come Under Section 40(2) of the Act because the filing of a return is done under the Act and the filing of a false return being punishable under the Act the prosecution must in such cases be launched within a period of six months from the accrual of the cause of action. I am, therefore, of opinion that this case is not covered by the bar of limitation prescribed by Section 40(2) of the Act.;