JUDGMENT
1. The State represented by the Assistant Commissioner of Central Excise is challenging the acquittal of the respondent in E.O.C.C. No. 99/96 on the file of the Additional Chief Metropolitan Magistrate, E.G. 11, Egmore, Chennai – 8. Heard Mr. N.P. Kumar learned Counsel appearing for the appellant and Mr. R. Sudhakar learned Counsel appearing for the respondent. The complaint came to be filed alleging violation of Sections 9(1)(b)(i) and 9(1)(bb)(i) of the Central Excises and Salt Act. In support of the prosecution case, four witnesses were examined. One of the main contention put forward before the trial Court at the instance of the defence was that, the prosecution in this case has to be necessarily preceded by an approval by the Principal Collector of the Department and that prior approval by the Principal Collector is wanting in this case. The learned trial Judge accepted this defence and acquitted the accused. Mr. N.P. Kumar learned Counsel for the appellant would contend that Ex. P. 10 in this case is the prior approval from the Principal Collector and therefore the acquittal is bad in law. Learned Counsel appearing for the respondent would contend that the prosecution is fully aware about the mandatory requirement (though not statutorily but as a result of administrative circular issued by the Central Board of Excise and Customs) that a prior approval by the Principal Collector is necessary before the prosecution could be launched in this case. Only realising such a requirement to be complied with, the prosecution examined P.W. 4 by filing a petition under Section 311 of the Code of Criminal Procedure. Even thereafter they did not produce the prior approval and Ex. P. 10 would not satisfy the requirement as referred to above.
2. In the context of the rival submissions made by the learned Counsel on either side. I went through the records. On going through the judgment under challenge, it appears to my mind that the learned trial Judge had not given any clear finding as to whether the offence complained of is made out or not, though he appears to have discussed at some length on that issue. Therefore proceeding on that basis, I also applied my mind to find out whether the conclusion arrived at by the learned trial Judge that the prosecution must end in an acquittal for want of prior approval can be sustained or not. P.Ws. 1 to 3 had come to be examined initially regarding the offence itself. The defence throughout was that the prosecution is bad for want of prior approval. At that stage the prosecution filed Crl. M.P. No. 431/1997 under Section 311 of the Code of Criminal Procedure. The prayer in that application is as follows:
“For the above said reasons, the complainant/petitioner prays that this Hon’ble Court may be pleased to reopen the hearing of the case and to permit the additional prosecution witness Mr. Thomasrajan, Assistant Commissioner, Zonal Office in the office of the Chief Commissioner of Central Excise at Chennai to speak about the administrative approval order dated 3-5-95 granted in relation to this case and thus render justice.”
On this, the said application had come to be ordered and P.W. 4 had come to be examined. P.W. 3 in his evidence in cross would state as follows :
“1 do not know whether the Collector has given sanction order to prosecute the company.”
3. In the context of the evidence of P.W. 3, there cannot be any doubt that prior approval of the Principal Collector is definitely required before the prosecution could be launched. Having this piece of evidence in mind, I went through the evidence of P.W. 4. Before looking into his evidence, I extract hereunder the contents of Ex. P. 10 :
“It is informed that Principal Collector has accorded administrative approval for launching prosecution against M/s. Greaves Cotton Company Limited.”
Now turning to the evidence of P.W. 4, he speaks in the following lines :
“As per the executive instructions the proposal for launching prosecution is forwarded by the Commissioner concerned to the Chief Commissioner for granting administrative approval. Only after getting the administrative approval from Principal Collector of the concerned area, the prosecution is to be launched. At the time of granting administrative approval by the Principal Collector, I was working in the office of the Principal Collector. The communications about the administrative approval have been communicated to the Collector concerned. I have communicated the sanction on behalf of the Principal Collector about the administrative approval to the Collector for launching prosecution.”
The petition filed under Section 311 of the Code of Criminal Procedure to reopen the case speaks about the requirement of the Department to exhibit the prior administrative approval dated 3-5-95. Ex. P. 10 is not the approval order by the Approving Authority himself but it is only a communication signed by P.W. 4 and forwarded to the concerned Department. The submission made by Mr. N.P. Kumar learned Counsel for the appellant is that the file is available and it shows that prior approval had been granted. I perused the file. A note had been circulated to the hierarchy of officers, the last of which is to the Principal Collector. The sum and substance of the operative portion of the note is “to consider granting approval to prosecute the company.” Therefore the note was circulated to the officers concerned, including the Principal Collector, to apply their mind and decide one way or the other. Under such circumstances, the application of mind of the Principal Collector can be exhibited in the note file, either by saying “Yes” or “No”. In the original file, I do not find any such endorsement made by the Principal Collector before whom the file was placed. The mere signing of the note file by the Principal Collector would not necessarily mean that he had granted the approval. The possibility of the Principal Collector’s mind refusing to grant the approval cannot also be totally eliminated from the note file. Therefore it is clear to my mind that from the file produced by the learned Counsel for the appellant, it cannot be concluded that the Principal Collector had given the prior approval. Ex. P. 10 by itself is not the approval of the Principal Collector. But on the other hand it is a communication from P.W. 4 indicating that the Principal Collector had granted the approval, while in fact there is no such approval on record. Granting approval is a positive act showing reflection of mind by the concerned authority and such reflection is definitely absent in the file. Therefore the argument of Mr. N.P. Kumar that mere signing by the Principal Collector of the note file containing a request as referred to above would amount to according prior approval, does not appear to be sound in law. In view of the categorical evidence of P.Ws. 4 that prior approval from the competent authority is a sine qua non for the prosecution have no doubt that the judgment of the learned trial Judge acquitting the accused for want of prior administrative approval cannot be interfered with. Accordingly I find no merits in this appeal and consequently the same is dismissed.