1969 PLP 816 (SCMR)

AMIRUDDIN AHMAD, J.‑The appellant, who is one of the Directors of Messrs East Pakistan Oil Mills, Khulna, a firm registered under the Companies Act, imported or purported to import from one Kusturi Lall Shrinibash Company of Calcutta one oil expeller machine and some spare parts appertaining to oil‑mill machinery from India for a sum of Rs. 31,520 in Indian Currency. The Indian Currency was obtained by the appellant through the Muslim Commercial Bank Limited, Khulna. The appel lant submitted an import application, dated the 22nd December 1952, to the Land Customs Officer, Khulna, for clearance of aforesaid machinery. On this deal the appellant was charged as follows :‑ "That you, on or about the 11th day of August 1952, at Khulna, P. S. Khulna, as Director of the East Pakistan Oil Mills, Khulna, imported Oil mills machinery parts and remitted Rs. 31,520 in Indian Currency equivalent to Rs. 21,993‑11‑9 in Pakistan Currency through the Muslim Commercial Bank, Khulna, on 3‑11‑52, and whereas you showed falsely in the invoice and other connected important documents Rs. 24,500 to be price of the Oil Expeller though the real price of the Oil Expeller was not more than Rs. 9,

000. Accordingly you violated the provisions of sections 4(3) and 22 of the F. E. Regulation Act by remitting Rs. 15,500 in Indian Currency in excess for the purpose of using it otherwise than for the purchase of the Oil Expeller and thereby committed an offence punishable under section 23 of the F. E. R. Act, 1957. And I hereby direct that you be tried by this Court on the said charge." On this charge the appellant was convicted by the Tribunal under section 23 of the Foreign Exchange Regulation Act and sentenced to six months' rigorous imprisonment and a fine of Rs. 15,

000. In confirming the conviction and sentence passed on the appellant the High Court rejected the evidence of a number of witnesses and rightly so because they did not have any important bearing on the direct question in issue in the case, namely, what was the price of the articles actually imported. But the learned Single Judge, who dealt with this appeal, relied on the evidence of only two witnesses, namely, P. W. 6 and P. W. 9 remarking on the evidence of the latter witness as follows :‑ "The evidence of this witness is most convincing and nothing has been brought out in his cross‑examination to discredit him. I have no hesitation to accept his evidence." We have gone through the evidence of these two witnesses, namely, P. W. 6 and P. W. 9, and find that their evidence has no direct bearing on the present prosecution case. P. W. 6 is a Store Keeper, who in 1951 imported on oil expeller at a cost of Rs. 9,000 in Indian Currency. According to him, the expeller was the best quality of Indian origin, and in his opinion no expeller of Indian origin was sold at Rs. 24,500 at that time. His evidence has been considerably watered down in cross‑examination, when he stated :‑ "I do not know how many Oil Expeller producers are there in India. I do not know from which company the accused imported the Oil Expeller. I was not examined by the Investigating Officer. Only one Expeller was imported by us." Then he put in a catalogue of the Company from which he had purchased his expeller. He further stated :‑ "I have no document to show that the Expeller imported by us was of the best quality of Indian origin." This is all the material portion of his evidence. So far as P. W. 9 is concerned, who was a Managing Director of the Dacca Oil Mill, he stated in examination‑in‑chief that he imported three oil expellers towards the end of 1952 or beginning of 1953. They were of the best quality. Each of them cost Rs. 7,000 to Rs. 7,

500. He also stated :‑ "I went to Calcutta, enquired and ascertained that the Expellers of the Baharati company were the best. At that time the Expellers imported. by me were of the highest price." In cross‑examination he stated :‑ "I enquired through Sk. Nabi Bakhsh of India of the quality. He is an exporter of oil machinery parts. I did not personally go to the Bharati Company. I consulted A. T. Hossain Company, Strand Road, Calcutta ..I do not know Kusturi Lall Shrinibash Company in Calcutta." It is surprising to note that all this evidence was led by the prosecution without reference to the actual expeller and the parts that were imported and were the subject‑matter of the prosecution. It is admitted on both sides that nobody cared all these years to open the parcel and to find out what machine was imported, what was its quality, size and what were the spare parts, who were the manufacturers and no attempt was made to find out their actual value in relation to the size and quality of the machine and parts. The prosecution in this case has been hopelessly mismanaged, and only vague statements by P. W. 6 and P. W. 9, most of whose informations were hearsay, were relied upon. So there is no evidence on the record to show the value of the machinery that was actually imported. There is no evidence of complicity between the absconding accused Babulal Agarwala and the present appellant. We find that the evidence adduced is utterly insufficient to bring the charge home to the appellant. We, therefore, allow this appeal and set aside the conviction and the sentences passed on him. The fine, if paid, should be refunded. His bail bond is cancelled. Appeal accepted.