Judgment

KAILASAM, J.:- These two appeals are by special leave by the first and the second accused respectively before the Judicial Magistrate First Class, Gurgaon in Case No. 84/2, against the judgment of the High Court setting aside the order of acquittal and convicting them for offences under Sections 465, 471 and 120-B, Indian Penal Code, and Section 9-A of the Central Excises and Salt Act, 1944 and sentencing them to varying terms of imprisonment. The first accused was also sentenced to four months R. I. and a fine of Rs. 2,000 or in default one months R. I. under Section 9-B of the Central Excises and Salt Act. The second accused was also sentenced to four months rigorous imprisonment and a fine of Rs. 2,000 or in default one months rigorous imprisonment under Section 9-B of the Central Excises and Salt Act. The first appellant died pending appeal and as he was sentenced to a fine aggregating to Rs. 4,000 his legal representatives were brought on record and the appeal was heard on his behalf. Section 394 of the Code of Criminal Procedure, 1973 provides that an appeal from a sentence of fine does not abate on the death of the appellant and further the proviso to that section enables any of the near relatives to obtaion leave to continue the appeal. Leave having been granted the legal representatives of the first appellant continued the appeal. As the two appeals are from the same judgment of the High Court, they were heard together.

2. The Central Excise Department authorities suspected large scale illicit transactions pertaining to the sale and transport of unaccounted for tobacco by the tobacco dealers and avoidance of payment of duty leviable under the Central Excises and Salt Act. The first accused Om Prakash was carrying on the business in Sohana as a tobacco dealer in the name and style of Messrs. Yad Ram Om Prakash and the second accused was also carrying on business in tobacco in the name and style of M/s. Bhagwan Dass Gemini Dass in Ballabgarh. Shri S. M. Razak, P. W. 4, Superintendent, Central Excise, Delhi raided two or three premises in Ghaziabad including those of Chhote Lal and Hira Lal in April, 1958.P. W. 4 took possession of tobacco of Patta variety from the premises of Chhote Lal and from Hira Lal the original sale note Nos. 40 and 22 dated 28th March, 1958 which were issued by the first accused. On 3rd April, 1958, P. W. 6, S. K. Sharma, who was Inspector, Preventive section visited the firm of the first accused and took possession of sale note-book containing the duplicate carbon copies and some P. T. I. forms and also recorded a statement from him. On a scrutiny he found the duplicates of sale notes Nos. 40 and 22 the originals of which he had recovered from Hira Lal. P. W. 6 also found certain other duplicate carbon copies and found that the originals were sent to the second accused. P. W. 6 then visited the firm of the second accused at Ballabgarh and recovered from his possession various sale notes including sale notes Nos. 71, 9 and 26 dated 2nd December, 1957, 27th December, 1957 and 10th March, 1958, Exhibits DA, DB and DC respectively. In the original sale notes recovered from the second accused, P. W. 6 found the entries pertaining to quality of tobacco and rate of duty erased. P. W. 6 confronted the second accused with these erasures and recorded a statement from him. We are, in this case, concerned with sale notes 71, 9 and 26, Exhibits DA, DB and DC respectively. The sale notes Nos. 40 and 22 which were recovered from the house of Hira Lal are not of much significance as the prosecution relied on these documents only for the purpose of proving that the first accused was indulging in similar activities.

3. P. W. 3, K. C. Sharam has given evidence relating to the levy of duty under the Act and the provisions for sale and transport of tobacco by the dealers.

A person who holds a dicence in form L-I has to account for the quality and variety of the tobacco kept by him in his curing yard. The firs