Punjab-Haryana High Court
Brahm Vasudeva And Ors. vs K.L. Bajaj, Assistant Collector, ... on 11 August, 1987
Equivalent citations: 1988(15)ECC93, 1988(33)ELT20(P&H)
JUDGMENT I.S. Tiwana, J.
1. The three petitioners, along with the Company, M/s. Pressure Cookers and Appliances Ltd. are being proceeded against in a complaint filed under Section 9 of the Central Excises and Salt Act, 1944 (for brief, the Act) in the Court of Chief Judicial Magistrate, Jullundur. They pray for the quashing of the said complaint and the proceedings taken therein so far.
2. It is urged on their behalf that the complaint, Annexure P.2, filed by Mr. Bajaj, Assistant Collector, Central Excise, Jullundur, does not disclose any offence against any of them. In order to appreciate the contention raised, a reference to the material and relevant part of complaint is but necessary. This is what is contained in paragraph 7 of the complaint :-
"7. M/s. P.C.S. Limited Nangal Shama thus contravened the provisions of Section 6 of the Central Excises and Salt Act, 1944 read with Rules 173C, 174, 9(1), 52A, 53, 226 and 173G of the Central Excises Rules, 1944 inasmuch as they manufactured excisable goods without applying for or holding Central Excise Licence and removed to the manufactured excisable goods without payment of duty and without observing Central Excise formalities. M/s. P.C.S. Limited Nangal Shama have thus rendered themselves liable to punishment under Section 9 of the Central Excises and Salt Act, 1944."
3. But for this there is not even a whisper or a remote reference as to in what manner" these petitioners were in any way concerned with the commission of the above noted offence. Their learned counsel urges with some amount of vehemence that the very opening words of Section 9 of the Act, which are to the effect that "whoever commits any of the following offences" clearly indicate that it is only the individual or the person who is specifically alleged to have committed the offence, can be proceeded against under the Act. The stand of Mr. Brar, learned counsel for the respondent complainant is that as a matter of fact petitioners Nos. 1 and 2 were the Managing Directors of the above noted company and No. 3, Mr. S.S. Arora was the General Manager of the same and therefore in the very nature of things they were very much concerned with the working and manufacturing of the articles by the company. I, however, find it difficult to appreciate this submission of the learned counsel. As has been pointed out earlier, there is not even a word in the whole complaint whereby it is specified that any of these petitioners enjoyed the above noted status as is sought to be urged or were in any way concerned with the manufacture of goods which the company is stated to be producing. In the absence of any such allegation there cannot possibly be any conclusion other than the one that the complaint against the petitioners is not maintainable or they cannot be proceeded against for an offence under Section 9 of the Act. In order to be fair to Mr. Brar it may be mentioned here that in support of his above noted sub- mission that, if not against all then at least against petitioner No. 3 it has to be assumed that he being the Manager of the Company was very much concerned with the manufacture of articles being produced by the Company he seeks reliance on Municipal Corporation of Delhi v. Ram Krishan Rohtagi and Ors, - A.I.R. 1983 S.C. 67. Having perused the judgment I, however, find that the facts in that case were materially different from the ones which are before me. In that case it had specifically been averred, as indicated in paragraph 12 of the report, that :-
"Before going to the complaint, we might state that it is common ground that the complaint clearly contains the allegations regarding the visit of the Inspector to the shop of respondent No. 6 (Madan Lal) and that the sample taken by him, which was sent to the Public Analyst, was manufactured by Upper Ganges Sugar Mills, Daryaganj, Delhi, having its registered office at Calcutta and that the Public Analyst, found the samples to be adulterated. There is no dispute regarding these facts. The only point on which the controversy qentres is as to whether or not on the allegations, the Manager as also the other respondents 1 to 5 committed any offence. The main clause of the complaint which is the subject matter of the dispute is Clause No. 5 which may be extracted thus :-
'5. That the accused No. 3 is the Manager of accused No. 2 and accused Nos. 4 to 7 are the Directors of accused No. 2 and as such they were in charge of and responsible for the conduct of business of accused No. 2 at the time of sampling."
4. There is no such averment in the impugned complaint Annexure P.2. The material part of the same, i.e., paragraph 7, has already been reproduced above. In the absence of any averment that petitioner No. 3, Mr. Arora, was even the Manager of the Company, the learned counsel does not appear to be justified in drawing any support from the observations made by their Lordships of the Supreme Court in the above noted case.
5. In the light of the discussion above I allow this petition and quash the complaint and the proceedings against the petitioners now pending in the Court of Chief Judicial Magistrate, Jullundur.