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Asstt. Collector Of Central Excise (L&a) v/s M/s. Fibre Foils (P) Ltd. And Others

Company & Directors' Information:- INDIA FOILS LTD [Amalgamated] CIN = L27203WB1960PLC024870

Company & Directors' Information:- P G FOILS LIMITED [Active] CIN = L27203GJ1979PLC008050

Company & Directors' Information:- S S S FIBRE LIMITED [Active] CIN = U17110PB2005PLC027818

Company & Directors' Information:- FIBRE FOILS LIMITED [Active] CIN = U21010MH1968PLC014111

Company & Directors' Information:- S K FOILS LIMITED [Active] CIN = L27109HR1986PLC026080

Company & Directors' Information:- R. S. FOILS PRIVATE LIMITED [Active] CIN = U27103GJ2004PTC044224

Company & Directors' Information:- S R FOILS LIMITED [Amalgamated] CIN = U74899DL1993PLC052148

Company & Directors' Information:- N B FOILS PRIVATE LIMITED [Active] CIN = U51109DL2008PTC180245

Company & Directors' Information:- M R B FOILS LIMITED [Strike Off] CIN = U29309WB1994PLC063524

Company & Directors' Information:- C. R. FOILS PRIVATE LIMITED [Strike Off] CIN = U27310DL2007PTC164280

Company & Directors' Information:- G L FIBRE PRIVATE LIMITED [Strike Off] CIN = U17112PB2010PTC033873

Company & Directors' Information:- INDIA FIBRE PVT LTD [Active] CIN = U17232WB1968PTC027401

Company & Directors' Information:- D P FOILS PRIVATE LIMITED [Active] CIN = U27310WB2013PTC191485

    Cri. Appeal No. 553 of 1996

    Decided On, 16 August 2000

    At, High Court of Karnataka


    For the Appellant: Urval N. Ramanand, Advocate. For the Respondent: Rajesh Chander Kumar, Advocate.

Judgment Text

The appellant filed a complaint against the respondents alleging that the accused committed offence punishable under S. 9(1) of the Central Excise & Salt Act, 1944 (for short 'the Act').

2. The brief facts of the case are that the 1st respondent is the company where the 2nd respondent is the Managing Director and the 3rd respondent is the Regional Manager. The company has been manufacturing canister composite containers falling within tariff item No. 68 and the said containers are liable for payment of excise duty. The company held a licence and maintained statutory registers and paid the excise duty on the containers manufactured by it up to 20-6-1984. It is alleged that the respondents 2 and 3 with an intention to avoid payment of the excise duty by the company the 1st respondent, filed a classification list with the authorities falsely noticing that the company had employed only 9 workers and therefore. It is not liable for payment of excise duty. On 16-2-1995 the officers visited the factory of the respondent No. 1 and seized several incriminating documents which established that there were more than 10 workers for the period subsequent to 20-6-1984. It is the case of the appellant that the company had employed more than 10 workers and was within the definition of S. 2(m) of the Factories Act. Despite the said fact, respondents 1 to 3 filed classification list and did not obtain the licence for manufacturing the containers and did not make entries in the registers as required under the Act. On the other hand, the respondents removed the goods without issuing gate pass and thereby contravened the provisions of Sec. 6, R. 174, R. 53, 9(1), 52(A), 173(B), 173(C) & 226 and thereby committed the offence punishable under S. 9 of the Act. The said complaint was registered in C.C. No. 71/88 on the file of the Special Court for Economic Offences at Bangalore. The respondents denied the charges and therefore, the appellant examined P.W. 1 and got marked through him Exs. P-1 to P-8. The respondents have not chosen to examine any witness or produce any document. After hearing the arguments, the learned Court below has come to the conclusion that the appellant failed to establish the case against the respondents 1 to 3 and therefore, acting under S. 248(1), Cr.P.C. acquitted them. Being aggrieved by that order, the appellant preferred this appeal.

3. Heard Sri. Urval N. Ramanand learned counsel for the appellant and Sri. Rajesh Chander Kumar for R. 1 to R. 3.

4. The learned counsel for the appellant has vehemently argued that respondents 2 and 3 have admitted their guilt before P.W. 1 and the statement recorded by the P.W. 1 is admissible in evidence and it does not require any corroboration to hold that the respondents 1 to 3 are guilty of the offence. He also further submitted that the documents produced in this case fully corroborate the statement made by P.W. 1 before the Court and also the admissions of R. 2 and R. 3 before P.W. 1. Therefore, the learned Court below has committed an error in acquitting the respondents.

5. Repelling this argument, the learned counsel for the respondents contended that Ex. P-3 the statement of Tendulkar and Ex. P-4 the statement of N. K. Madhu when read, makes it clear that nowhere they have admitted the guilt. On the other hand, for each question they have given answers to indicate that they have not committed any offence. They have gone to the extent of saying that they have not appointed at any time 10 or more persons to hold that they are guilty of the offence. In addition to that, he submitted that the material documents which are in custody of P.W. 1 have not been produced before the Court for the reasons best known to P.W. 1. Except the oral testimony of P.W. 1, there is no other incriminating material against the respondents 1 to 3. The inspector who had visited the factory and reported the matter to P.W. 1 and seized the materials, has not been examined before Court. The particulars of the persons who were present at the time of the inspection are not mentioned. It is not known as to whether they had employed 10 or more persons to work in the factory. Merely because some persons were present, would not make out a case that the respondents 1 to 3 employed more than 9 persons in the factory to work. Therefore, he submitted that the learned Magistrate has rightly acquitted the respondents, which order does not call for interference.

6. The first question that arises for consideration is as to whether respondents 2 and 3 have admitted their guilt before P.W. 1.

7. The learned counsel for the appellant has taken me through the entire statements recorded by P.W. as per Exs. P-3 & P-5, but no where either R-2 or R-3 have admitted their guilt. Admissions should be as per S. 17 of the Evidence Act. According to S. 17 an 'admission' is a statement of fact which waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is true. Admissions are admitted because the conduct of a party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue. Admissions are very weak kind of evidence and the Court may reject them if it is satisfied from other circumstances that they are untrue. Admissions as defined in Ss. 17 and 20 and fulfilling the requirements of S. 21 are substantive evidence. An admission is the best evidence against the party making it and though not conclusive. shifts the onus to the maker on the principle that what a party himself admits to be true may be reasonably presumed to be true so that until the presumption is rebutted the facts admitted must be taken to be true. An admission must be examined as a whole and not in parts. (1979) 1 SCR 664 : (AIR 1979 SC 154). It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission of any fact. An admission in so far as facts are concerned would bind the maker of the admission but not in so far as it relates to a question of law. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. Statement is a genus, admission is the species and confession is the sub-species. A confession, therefore, is a statement made by an accused admitting his guilt. When a party accepts his statement made in earlier proceedings, it amounts to admission. Every admission made by an accused person is not, in the view of the law, a confession, nor can it be held that admission mean only statements made by parties to civil proceedings, and do not include statements made by parties in criminal proceedings. Every statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact made by an accused person is an admission under Ss. 17 and 18 and under S. 19 an admission may be proved as against the person who makes it unless, under some provision of the Evidence Act or other law, it is rendered inadmissible. For an admission to have the effect of substantive evidence it must be voluntary.

8. With this principle in mind, I have carefully gone through the statements marked as Exs. P-3 & P-5. I am fully convinced that these statements are not voluntary but they also cannot be construed as admissions. But it is only in the nature of explanation for each and every question put forth by P.W. 1.

9. The learned counsel for the appellant vehemently argued that in the last paragraph of their statement both of them admitted that they would produce all the documents before the authority to prove that they have never employed more than 9 persons at any time after exemption certificate was obtained by the respondents. However, they did not produce any material before the authority to substantiate their case. This argument is unsustainable. The P.W. 1 or his officers never directed the respondents to produce those documents. From the evidence of P.W. 1 most of the documents were seized by him or his subordinate officers on his directions. He also admits in his cross-examination that all those materials are with him but for the reasons best known to him, he had not produced the same before the Court. Under those circumstances, the Court below has rightly drawn an adverse inference against the case of the appellant. No plausible reason is forthcoming as to why these documents are not produced, moreso when the alleged confession statement was retracted by the respondents. As stated above, even from the evidence of P.W. 1 also it does not disclose that he had gone to the factory premises and fortified as to whether more than 10 persons were employed. On the other hand, his subordinate officer had reported the matter and that officer also has not been examined before Court, to further corroborate the evidence of P.W. 1. Here also, no explanation is forthcoming.

10. The learned counsel for the appellant has vehemently argued that the statements made before P.W. 1 itself is sufficient to establish the case of the appellant. It is true if the admissions made by the respondent are proved beyond all reasonable doubt, such statements made before the officer concerned is admissible as he is not a police officer. In the absence of all other materials, it is impossible to hold that the appellants have proved the case against the respondents. The learned Court below also has taken into consideration that P.W. 1 has admitted that the name of Raja which appears in Ex. P-4 is not appearing in Ex. P-6 and that 5 names at Sl. Nos. 10, 11 to 14 in Ex. P-6 are taken on the basis of attendan

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ce register and not on the basis of file No. 28 O.T. Sheets. P.W. 1 also could not say as to how many workers were on over-time on 28-8-84. P.W. 1 also has admitted during the course of recording the statement of respondents 2 and 3. He had seen the job cards of all the workers of the factory regarding the nature of the work done by them, but those cards are also not produced before Court. 11. There is nothing to show that this officer had warned respondents 2 and 3 that under S. 164(2), Cr.P.C. that their statement is admissible against them or against the co-accused. Therefore, as rightly pointed out by the learned Magistrate, this important aspect is conspicuous in its absence the statements recorded by P.W. 1. Having given my thoughtful consideration, I am of the firm view that there are no material set aside the order passed by the lead Magistrate. For the foregoing reasons, this appeal no merit. Accordingly, it stands dismissed confirming the order passed by the learned Magistrate acquitting the respondents. Appeal dismissed.