Criminal Writ Petition challenging a revision order that enhanced punishment in an excise smuggling case. The High Court quashed the revision order due to lack of jurisdiction and upheld the impugned judgment of the Magistrate.
Criminal Revision Application No. 99 of 2010 quashed; Order of Chief Judicial Magistrate upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1147 OF 2013
Younus Ahmedbhai Hakimnuddin residig at Burhani Manzil, Alexandra Graham Bell Road, Malabar Hill, Mumbai 400 006.
) )
).. Petitioner
Versus
Mr. Shirish Gupte, Senior Advocate, Mr. Y.H.Muchhala, Senior Advocate with Mr. Sagheer A. Khan i/b. Vaibhav S. nagrekar for the petitoner. Mr. M.A.Adenwala for respondent No.1.
CORAM: SMT.SADHANA S.JADHAV,J. DATE : 12th June , 2014.
JUDGMENT :
The petitioner herein questions the correctness and the validity of the
order passed by Addl. Sessions Judge, Thane, dated 13.2.2013 in Criminal
Revision Application No. 99 of 2010.
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The complainant, therefore, charged the accused (1) with having committed offences under Section 9(1)(b), 9(1)(bb), 9(1)(bbb) of the said Act read with Rule 173 PP(1) and Rule 173 PP(5) read with Rule 9(1), Rule 173 PP(6) & (7) read with Rule 52A and Rule 173 PP 9(a) read with Rules 53 and 226 of the Central Excise Rules, 1944 which are punishable under Section 9(1) (ii) of the said Act, and prays that the necessary process be issued and the accused be dealt with according to law.
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Mhi 4 Cri-WP-1147-13.sxw 7. It is the case of the complainant that on 8.5.1978, the officers of the Central Excise, Head Quarters Preventive Task Force No.6 Thane found 27,28,237 pieces of Resistors valued at Rs.6,97,500/- packed on cartons (Card Board Boxes) in truck No. DYL 3191 at Mulund Octroi Naka. The goods were packed in small boxes and cellophane packets. The challan which was found in the truck had described the goods as “Scraped Resistor Material”. The goods were seized under a panchnama. Investigation was set in motion. In the course of investigation, it had transpired that the said resistors were not scrap material but of standard products. It further revealed that one T.N.Krishna Iyer had removed the said goods from the company namely M/s. Asian Electronics Ltd. Thane without determining Central Excise duty and excise was not paid on the said goods although it was the subject matter of the said Act. The said goods were not accounted for. Hence, according to the prosecution, the accused had evaded payment of Central Excise duty. Hence, a complaint was filed before the Chief Judicial Magistrate, Thane.
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completion of the investigation. The case was adjourned from time to time. The petitioner was not instrumental in protracting the proceedings. The evidence of PW-1 Dinkar Balkrishna Desmukh was recorded on 21.1.1985. PW-2 Madhukar Deshpande was recorded on 18.6.1986. The substantive evidence of PW-3 was recorded on 30.7.1986. The case was adjourned since the complainant could not keep the witness present.
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the said Criminal Case No.568 of 1992. By an order dated 19.10.1992, this Hon'ble Court was pleased to issue Rule and grant interim stay to the trial. Hence, the trial was stayed. By a judgment and order dated 14.12.2005, Criminal Application No.2896 of 1992 was dismissed. Hence, the stay was vacated. The petitioner had then approached the Hon'ble Apex Court by filing SLP No.2205 of 2006 which was dismissed on 27.7.2006. Hence, the trial Court had proceeded with the trial and delivered the judgment on 31.1.2007 and sentenced the accused to pay fine. The complainant had challenged the order in revision on the ground of inadequacy of sentence.
The very words “no proceeding by way of revision shall be entertained” are sufficient to hold that a judgment passed in the revision where in fact it was not maintainable at all would be a judgment without jurisdiction.
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consideration the length of the proceedings which were protracted on one or the other ground and, therefore, had rightly awarded the sentence of fine. The penalty awarded should necessarily be proportionate to the crime which is committed. The quantum of punishment/sentence would depend on the duty leviable on the seized articles. It is pertinent to note that in the present case, the prosecuting agency has not specifically stated the quantum of duty which was evaded by the accused persons. Section 9(1)(bb) and (bbb) are as follows :-
“9. Offences and penalties (1) Whoever commits any of the following offences, namely :-
(bb) removes any excisable goods in contravention of any of the provisions of this Act or any rule made thereunder or in any way concerns himself with such removal;
(bbb) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder;”
It contemplates that in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds one lakh of rupees, with imprisonment for term which may extend to seven years and with fine. It therefore, follows that the prosecuting agency has to specifically
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state the duty leviable on the goods which is the subject of Section 9(1)(bb) and (bbb). In the present case, the same has not been considered by the learned Magistrate or the revisional Court.
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is hereby upheld.
Writ Petition stands disposed of.
(SMT.SADHANA S.JADHAV, J.)
2 issues framed by the court
Whether a revision under Section 401(4) CrPC is maintainable when the impugned order is an appealable judgment.
Whether the High Court has jurisdiction to quash a revision order passed by a Sessions Court without proper jurisdiction.
3 provisions across 2 enactments
Yunus Ahmedbhai Hakimnuddin
B.J.Ghode
M/s. Asian Electronics Ltd.
State of Maharashtra
Sadhana S. Jadhav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
