1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.REVISION APPLN. NO.43/2000 Rajkumar D.Govindani Applicant/accused VS. The State of Maharashtra Respondent WITH CRI.REVISION APPLN. NO.44/2000 Jethanand K.Tekwani Applicant/accused VS. The State of Maharashtra Respondent WITH CRI.REVISION APPLN. NO.45/2000 Kamlesh D.Vaswani Applicant/accused VS. The State of Maharashtra Respondent WITH CRI.REVISION APPLN. NO.49/2000 Pitambar V.Tekwani Applicant/accused VS. The State of Maharashtra Respondent Mrs.Veena Thadani ,for the applicants/accused CORAM:Mrs.Mridula Bhatkar,J. DATE :23rd July,2009. J U D G M E N T 1] The applicant Jethanand Tekwani in Cr.Revision No. 44/2000 is expired on 15/5/2002 . Accordingly xerox copy of death certificate is tendered which is taken on record and marked Exh.’X’ for identification. Hence the 2 case is abated against the applicant and accordingly Revision Application 44/2000 is disposed of. 2] These all revision applications are filed invoking the jurisdiction of this Court under section 482 of Cr.P.C. Against the order passed by the learned Chief Judicial Magistrate,F.C.,Thane ated 26/11/1999 rejecting the application for discharge under section 239 of Cr.P.C. . 3] The applicants who are original accused nos.10,11 and 13 (hereinafter referred as accused ) are prosecuted for the offences punishable under sections 65(A) (E), 66(1)(B) ,66(A) ,71,72,77(E) ,79,80,81,82,83 and 108 of the Bombay Prohibition Act . These accused alongwith the other accused have conspired ,aided and abetted in the commission of offence viz. evasion of the excise duty under the Bombay Prohibition Act the . This offence was detected on 28/11/1995 when the inspector of State Excise flying squad carried out the raid and found one of the accused in possession of 500 boxes of liquor which were brought from Goa in the State of Maharashtra without authorised license and by evading export tax and other taxes of Goa State. Hence the 3 offence was registered against all the accused. 4] The Petitioner/accused are whole sellers and they were found with few cases of liquor bottles from the stock of which excise duty was evaded. All the three whole sellers have purchased unpaid duty stock from one Amit Traders who has purchased the said non paid duty stock of liquor from R.T.Traders. As per the case of the prosecution R.T.Traders are the first receiver of the stock from Goa and it is not disputed that the first receiver is responsible for the payment of the excise duty on the liquor. 5] The learned counsel appearing for the accused has submitted that the accused were not supposed to pay the excise duty and they had not conspired ,abetted or aided in any commission of offence of evasion of the duty. She has further submitted that the excise duty was evaded on the basis of forged passes and there is no evidence against the accused on that point. The learned counsel for the accused has denied that the accused had purchased liquor at cheaper rate i.e.Rs.850/- or Rs.877/- but has purchased for Rs.926/-. It is further argued that 4 the accused had no knowledge about any such commission of offence . Moreover, the transport permit known as F.L.1-A carries note as pass or transport of duty paid foreign liquor and this transport permit was issued by Amit Wines agency from whom the stock was purchased. On the point of knowledge the learned counsel relied upon the bill issued by Amit Agency carrying declaration in form-B.B. required as per government notification dated 23/7/1979 certifying the payment of excise duty . The learned counsel has further submitted that the learned trial Judge has erred in appreciating the circumstances and also the evidence and absence of evidence against these accused and therefore,they are entitled to discharge. 6] The learned A.P.P. appearing for the State opposed all these revision applications on two grounds. (i) It was a conspiracy between all the accused and though the tax was evaded by first importer i.e.R.T.Traders the accused were having knowledge of this conspiracy and (II) The accused are the beneficiaries of this conspiracy. This argument of the learned A.P.P. regarding the knowledge of conspiracy is based on the 5 circumstance that the accused have purchased liquor at the cheaper rate . To substantiate his submission he relied on price difference of Rs.200/- between the market rate of the said liquor and actual purchase price. Accused no.13 though was having place of business at Pune went all the way to Bhusaval to purchase this stock at cheaper rate. Section 81 of the Bombay Prohibition Act states about the commission of offence of conspiracy. 7] Admittedly the accused are not responsible to pay the excise duty . The question is whether the wholesale purchase of unpaid duty stock of the liquor can be roped under the charges of abetment or conspiracy on the basis of his knowledge. Purchase of such stock only because it is cheaper itself is not an offence. Knowledge cannot be ascertained only on the basis of purchase at cheaper rate. Assuming even if it is a purchase with knowledge,it will not amount to participation in the commission of offence viz. evasion of duty/tax. The basic principle of conspiracy under section 120-B of the Indian Penal Code or ingredients as required under section 109 of the Indian Penal Code are to be made 6 applicable while understanding the ingredients of the offence of conspiracy under any Act when the definition of conspiracy or abetment is not specifically mentioned. The agreement of mind is a basic ingredient which constitutes the offence of conspiracy. In the present case the payment of excise duty was not the responsibility of the accused. In fact these accused who are the whole -sellers were not in picture till the stock was passed over to R.T.Traders and from R.T.Traders to Amit Agency . It is necessary for the prosecution to show some evidence against the accused that when act of evasion of the duty was committed by the co-accused, some role was attributed to the applicant/accused or any such circumstance which may reveal the knowledge and the intention to participate in the conspiracy on the part of the accused. 8] In this case no such evidence is found in the chargesheet and the learned trial Judge has erred in rejecting the application under section 239 of Cr.P.C.. Hence the order of the learned trial Judge is quashed and set aside. In the result the revision applications are 7 allowed . The accused are accordingly discharged. The case is abated against the accused who is dead and accordingly Revision Application 44/2000 is disposed of. (Mrs.Mridula Bhatkar,J.)