IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 156 of 2011. Date of decision: 27.9.2011. Assistant Collector, Customs & Central Excise Division …Petitioner. Versus M/s Pamwi Specialty and Tissue Paper Ltd. Barotiwala and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. Rajiv Jiwan, Senior Standing Counsel. For the Respondents. Mr. Sanjay Dalmia and Mr. Vishal Mohan, Advocates. __________________________________________________________ Kuldip Singh, Judge (oral) This revision is directed against the order dated 31.3.2011 passed by the learned Judicial Magistrate, 1st Class, Kandaghat in Criminal Case No. 36/3/07/93. 2. The facts, in brief, are that petitioner had filed a complaint under Section 9 of the Central Excise and Salt Act, 1944 (for short ‘Act’) against respondents and S.S.Khaitan, who has since died. The allegations in the complaint are that respondent No-1 __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 -Company is engaged in the manufacture of paper falling under tariff item 48 of the Central Excise Tariff. The respondent No.1 had been availing the benefit of concessional rate of duty in respect of paper (packing grade) notification No. 138/86-CE dated 1.3.1986 on the ground that such paper was manufactured out of pulp containing not less than 50% by weight of pulp made from material (other than bamboo, hardwood, soft wood, rags or logs). 3. On 26.12.1988 the preventive staff of the Central Excise Collector, Chandigarh visited the factory premises of respondent No.1 at Barotiwala. N.K.Vasu, Deputy Manager (Excise and Despatch) was present in the factory premises and records were taken over from him. On scrutiny of records, it was found that respondent No.1 had wrongly availed all the benefit of concessional rate of duty in respect of paper classified under sub heading 4805.90 in terms of Notification No. 138/86-CE dated 1.3.1986 as the goods were not manufactured out of specified raw material. It was further found that entries made in the record like buying of waste paper etc. were wrong and the addresses from where the purchases were made were of non-existent firms. The notification envisaged that the goods should be manufactured out of pulp containing not less than 50% by weight of pulp made from material other than bamboo, hardwood, soft wood, records or rags. The respondent No.1 was manufacturing such paper out of imported wood pulp. Thus, the benefit of Notification No. 138/86-CE dated 1.3.1986 was wrongly availed by respondent No.1. 3 4. The show cause notice was issued to respondent No.1 on 6.4.1990, the respondent No.1 assessee availed Central Excise Duty concession amount of Rs.68,31,417.95 by concealing the fact of misusing the notification No. 138/86-CE (as amended on 1.3.1986) and thus contravened Section 9, 9A of the Act. The respondents No.2 and 3 being the Commercial Manager of the Company and respondent No.4 being the Deputy Manager of the Company were incharge of the Company and, therefore, all of them were responsible for the above mentioned acts and omissions and have thus committed offence. A prayer was made in the complaint for punishing the respondents in accordance with law. 5. The respondents were summoned. In the pre-charge evidence, the complainant examined CW-1 Mehal Singh, Superintendent of Central Excise Division, Dera Bassi. He supported the prosecution case. He has stated that he was associated with K.G.Kanwar, Superintendent and Balwinder Singh, Inspector in the raiding party. He has stated that it was found that the accused had availed Central Excise duty concession by concealing the fact of misusing the notification No.138/86-CE (as amended on 1.3.1986). He has shown his ignorance that in the raiding party any independent witness was associated. He recorded the statement of D.L.Nanda. 6. The learned Judicial Magistrate has held that there is nothing on record who were members of the raiding party when raid was conducted on 26.12.1988. A.C.Sharma, Assistant Collector 4 (preventive) head of the raiding party has not been examined to prove that in fact raid was conducted in the presence of respondent No.1. The prosecution sanction against the respondents has not been proved on record. The circular No. 15/90-CX6 dated 9.8.1990 provides where the Collector of Central Excise-in-charge of judicial work is satisfied that prosecution should be launched, in the investigation report for the purpose should be carefully prepared and signed by the Assistant Collector, endorsed by the Collector and forwarded to the Principal Collector for decision within one month of the adjudication of the case. The criminal complaint in a court of law should be filed only after the sanction of the jurisdictional Principal Collector. The sanction against the accused persons as provided in the circular has not been proved. 7. The learned Judicial Magistrate has also observed that as per CW-1 no record was recovered in his presence by seizure memo. The record was taken into possession in the presence of other witnesses who have not been examined. The complainant has not examined any independent witness. Similarly, no person from the firms which supplied the waste and white paper to respondent No.1 was examined. The complainant has failed to prove the show cause notice was issued within prescribed time. In brief, the learned Judicial Magistrate held that there is nothing on record to charge the accused for offence punishable under Section 9 of the Act. Therefore, respondents No.1, 2 and 3 were discharged for offence punishable under Section 9 of the Act. In so far respondent No.4 is 5 concerned, it was ordered that he has been declared proclaimed offender and the case file be revived as and when he is apprehended by the police or he surrenders before the court. 8. 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 learned Judicial Magistrate had fixed the case 28.2.2011 for pre-charge evidence. On that date, no witness of the complainant was present on account of general budget for financial year 2011-2012. The case was adjourned to 23.3.2011 for pre-charge evidence as last opportunity. On 23.3.2011 statement of one CW was recorded and the evidence of the complainant was closed as no other person was present. The case was fixed on 28.3.2011 for consideration and ultimately on 31.3.2011 the impugned order was passed. 9. The complainant has filed list of witnesses and list of documents alongwith the complaint which are on record. On 28.2.2011 the learned Magistrate accepted the request of the complainant that witnesses are not present because of general budget for financial year 2011-2012 and fixed the case 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. 10. 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 6 complaint were serious. The learned Magistrate has not considered for granting atleast one more opportunity to the complainant on payment of costs. The learned Judicial Magistrate in view of seriousness of the allegations erred in closing the evidence of the complainant, who has been given only two opportunities to produce the evidence. In the facts and circumstances and the seriousness of the case the learned Judicial Magistrate has not exercised jurisdiction properly in closing the evidence of the complainant. 11. It has not been pointed out at the time of hearing on either side that prior sanction under the Act is required for prosecuting the accused before filing the complaint. The circular No. 15/90-CX6, 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 Section 11A of the Act is regarding recovery of duties whereas offences and penalties are provided in Section 9 of the Act. 12. The complainant was not given reasonable opportunity to adduce evidence, hence 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 7 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. September 27, 2011. ( Kuldip Singh ), (GR) Judge.