Kuldip Singh, J.@mdashThis revision is directed against the order dated 31-3-2011 passed by the learned Judicial Magistrate, 1st Class, Kandaghat in Criminal Case No. 38/3/07/94. The facts, in brief, are that petitioner had filed complaint u/s 9 of the Central Excises and Salt Act, 1944 (for short ''Act'') punishable under Rules 173Q and 209-A of the Central Excises and Salt Rules, 1944 (for short ''Rules'') against the respondents and S.S. Khaitan, who has since died. The allegations in the complaint are that respondent No. 1-Company is engaged in the manufacture of paper falling under tariff item 48 of the Central Excise Tariff. During the period 1-3-1986 to 20-3-1990 the assessee company manufactured and cleared eight varieties of such papers for which classification was claimed by the respondents under sub-heading 4805.90 of Central Excise Tariff Act, 1985.
2. On 19-11-1989 the preventive staff of the Central Excise Collector, Chandigarh visited the factory premises of Assessee Company. The samples of eight varieties of packing paper were drawn and later on got tested from Chemical Examiner, Central Revenue Central Laboratory, New Delhi and on analysis the report opined that the sample in the form of white translucent glossy and glazed sheet of paper in respect of four varieties namely (1) G.L.P.T.-40; (2) L.B.T.-40; (3) R.B.T.-70; (4) CRBT-60 resists the penetration of fats and oils. It appears that with such characteristics such varieties of paper attracted classification under heading No. 48.06 of the said schedule instead of heading No. 4805.90 and said varieties were not entitled to concessional rate of duty as envisaged in Notification No. 25/84-C.E., dated 1-3-1984 and 138/86-C.E., dated 1-3-1986. Show cause notice was issued to respondent No. 1-Company on 1-4-1991 and the case was decided vide order dated 27-12-1991 and duty of ` 4,63,75,089.28 was demanded from the party u/s 11A of the Act. S.S. Khaitan, being the Managing Director of the Company, Anil Khaitan, being the Director of the Company and N.K. Vasu, Deputy Manager of the Company, who were incharge of the Company for the conduct of business were allegedly found to be guilty of offence, it was prayed that the accused be penalized in accordance with law.
3. The respondents and S.S. Khaitan were summoned. The proceedings against S.S. Khaitan after his death were dropped. The proceedings u/s 82 Cr.P.C. were initiated against respondent No. 3 N.K. Vasu and he was declared proclaimed offender.
4. In the pre-charge evidence the complainant examined K.D. Gupta, Superintendent of Central Excise Department as CW-1. He has supported the prosecution case. He has also placed on record order-in-original No. 36-K/3 of 21/91 dated 27-12-1991 Ex.CW-1/A passed by Commissioner of Central Excise. He admitted in cross-examination that he had not visited the factory premises with the preventive staff. He is also not aware who took the sample which was sent for chemical examination. The: learned Magistrate has held that CW-1 was not member of the raiding party nor samples were taken in his presence. It has also been observed that sanction of prosecution against the accused persons has not been proved on record. The complainant has not stepped into witness box. The learned Magistrate has noticed the order dated 27-12-1991 passed by the Commissioner of Central Excise/Chandigarh Ex. CW-1/A. He has observed that the order of the Commissioner, Central Excise, Chandigarh has been quashed by the Customs, Excise and Gold (Control), Appellate Tribunal. He has however, observed that on the basis of these orders the accused persons cannot be convicted or acquitted. It has been observed that there is no evidence on record to prove the charge against the accused persons for commission of offence punishable under the Act. The learned Magistrate ultimately discharged the respondents vide order dated 31-3-2011. It has however been observed that since N.K. Vasu has been declared proclaimed offender, case file be revived as and when he is apprehended by the police or surrenders before the Court.
5. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the petitioner that the case was fixed in the court below on 28-1-2011 and on that date it was adjourned to 28-2-2011 for pre-charge evidence. On 28-2-2011 no witness of the complainant was present on account of general budget for financial year 2011-2012. A prayer was made for adjournment which was allowed and the case was fixed on 23-3-2011 for pre-charge evidence as last opportunity. On 23-3-2011 CW-1 was cross-examined and since no other CW was present the Court closed the evidence of the complainant and fixed the case on 28-3-2011 for consideration and on 28-3-2011 the learned Magistrate heard the parties on the charge and ultimately on 31-3-2011 the impugned order was passed.
6. The complainant along with complaint has filed list of witnesses 1 to 15 and list of documents which are on record. On 28-2-2011; the learned Magistrate accepted the request of the complainant that witnesses were not present because of general budget for financial year 2011-2012 and fixed the complaint on 23-3-2011 for pre-charge evidence being the last opportunity. On 23-3-2011 the cross-examination of one CW-1 was recorded and the evidence was closed as no other witness of the complainant was present.
7. The learned Magistrate has not considered that the witnesses sought to be examined by the complainant as per list were public servants and the allegations against the accused in the complaint were serious. The learned Magistrate has not considered the aspect while closing the evidence of the complainant whether the respondents can be compensated in terms of costs or not. In view of seriousness of the allegations, the learned Magistrate has erred in closing the evidence of the complainant after giving the complainant only two opportunities of leading pre-charge evidence. In the facts and circumstances and the seriousness of the case the learned Magistrate has not exercised jurisdiction properly in closing the evidence of the complainant.8. This apart, it has not been pointed out at the time of hearing that any sanction is required under the Act for prosecuting the accused before filing the complaint under the Act. The circular No. 15/90-CX.6, dated 9-8-1990 is the internal circular of the department and it refers what steps are to be taken before filing the complaint. The aforesaid circular cannot be read that any sanction is required under the Act before filing the complaint. The letter dated 4-12-1994 at page 88 of the trial Court file indicates that the Principal Collector has accorded approval for launching prosecution against M/s. Pamwi Tissues Ltd. and its Directors S.S. Khaitan, Anil Khaitan and N.K. Vasu, Deputy Manager. The learned Magistrate has already observed in the impugned order that accused cannot take benefit of order dated 27-12-1991 Ex.CW-1/A and order passed by the Customs, Excise and Gold (Control) Appellate Tribunal. The accused have been discharged mainly on the ground of lack of evidence. The complainant was not given reasonable time to adduce evidence, therefore, in my opinion, in the interest of justice the order dated 31-3-2011 is not sustainable and is accordingly set aside. The parties through their counsel are directed to appear before the Judicial Magistrate 1st Class, Kandaghat on 20-10-2011. The trial Court shall fix further date for recording pre-charge evidence and shall give only one opportunity to the complainant to produce entire pre-charge evidence. The complainant shall be at liberty to take the assistance of the court for producing the entire evidence. It is made clear that under no circumstance the court shall give more than one opportunity to the complainant to examine pre-charge evidence. The trial Magistrate shall decide the complaint in accordance with law. The record of the trial court be sent back immediately so as to reach before the date fixed. The petition stands disposed of on above terms.
