# State of U.P v. Noor Mohammad & Anr

- **Citation:** (2019) 2 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-16
- **Case number:** Government Appeal (u/s 378 of Cr.P.C.) No. 170 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-noor-mohammad-anr-44557
- **Pages:** 3

## Headnote

A. Code of Criminal Procedure, 1973 -
Section
407-application-rejection-trial
delayed, by getting it transferred -
adjournment
was
sought-nonappearance of counsel and accused on
the date given-issue of warrant against
accused by court was the ground for
transfer.

B. It has been specifically mentioned by
the Trial Judge that newly engaged Senior
Counsel for defence, has sought an
adjournment of the case and given an
assurance that he will argue the case on
the only date requested by him. This date
was given to him. On that particular date,
none of the accused appeared nor the
counsel appeared, which compelled the
court for issuing warrants against the
accused persons and this was made a
ground for Transfer Application, moved
before the court of Sessions Judge, but
nowhere it was mentioned in the said
Transfer Application that there had been a
direction by this Court for expeditious
disposal of above Sessions Trial, that too,
in a time bound frame. This has neither
been mentioned before the court of
Sessions Judge, Agra, nor before this
Court, in this Transfer Application, which
itself goes to show modus and intention of
the accused-applicants, who have filed this
Transfer Application, to get the trial
delayed, by getting it transferred from the
court where it is likely to be decided in
near future. (Para 7, 8 ,10, 11 & 12)

Transfer Application (Crl.) rejected (E-6)

List of Cases Cited: -

## Text

1062 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Accordingly rejected.
----------

(2019)10ILR A 1062

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Government Appeal (u/s 378 of Cr.P.C.) No.
170 of 2019

State of U.P. ...Appellant
Versus
Noor Mohammad & Anr.
 ...Accused-Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
------

A. Code of Criminal Procedure, 1973 -
Section
407-application-rejection-trial
delayed, by getting it transferred -
adjournment
was
sought-nonappearance of counsel and accused on
the date given-issue of warrant against
accused by court was the ground for
transfer.

B. It has been specifically mentioned by
the Trial Judge that newly engaged Senior
Counsel for defence, has sought an
adjournment of the case and given an
assurance that he will argue the case on
the only date requested by him. This date
was given to him. On that particular date,
none of the accused appeared nor the
counsel appeared, which compelled the
court for issuing warrants against the
accused persons and this was made a
ground for Transfer Application, moved
before the court of Sessions Judge, but
nowhere it was mentioned in the said
Transfer Application that there had been a
direction by this Court for expeditious
disposal of above Sessions Trial, that too,
in a time bound frame. This has neither
been mentioned before the court of
Sessions Judge, Agra, nor before this
Court, in this Transfer Application, which
itself goes to show modus and intention of
the accused-applicants, who have filed this
Transfer Application, to get the trial
delayed, by getting it transferred from the
court where it is likely to be decided in
near future. (Para 7, 8 ,10, 11 & 12)

Transfer Application (Crl.) rejected (E-6)

List of Cases Cited: -

1. St. of Bihar Vs Hemlal Sah 2014 Crl. L.J.
1767

2. St. of Mah. Vs Ramdas Shrinivas Nayak AIR
1982 SC 1249 at page 1251

(Per Lord Atinkson in Somasundaram Chetty
Vs Subramanian Chetty AIR 1926 PC 136)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Government Appeal has
been proposed, under Section 378(3) of
Code of Criminal Procedure, with an
application for grant of leave to appeal
against judgment of acquittal passed by
Court
of
Special-Judge,
EC
Act/
Additional District and Sessions Judge,
Bareilly, in Criminal Appeal No. 67 of
2001 Noor Mohammad vs. State of U.P. ,
wherein the judgment of conviction and
sentence, passed by Court of Judicial
Magistrate,
North
Eastern
Railway,
Bareilly, has been altered and convicted
persons have been acquitted of charge of
offence punishable, under Section 3 of
Railway
Property
Unauthorized
Occupation Act, with this contention that
the Appellate Court failed to appreciate
facts and law placed before it, thereby,
2 All. State of U.P. Vs Noor Mohammad & Anr.
1063
judgment of acquittal is a result of
perversity
whereas,
learned
Trial
Magistrate has appreciated facts and law
and has passed impugned judgment of
conviction and order of sentence made
therein.

2. An appeal under Section 374
Cr.P.C. was filed by convict appellants
against judgment of conviction and
sentence, dated 17.7.2001, passed by the
Additional Chief
Judicial
Magistrate
(N.E.R.), Bareilly and it was transferred
to above Court of Special-Judge, EC
Act/Additional
District
and
Sessions
Judge, Bareilly as Criminal Appeal No.
67 of 2001 Noor Mohammad and others
vs. State of U.P. wherein, learned First
Appellate
Judge
passed
impugned
judgment of acquittal against it.

3. Learned AGA has argued that there
was a case of recovery of Railway property
from place of occurrence kept under 4 gunny
bags and it was seen to be thrown by two
persons who were consistently identified by
the employee of Railway Protection Force.
They were Noor Mohammad, Jawahar and
one other accused person had also thrown
bag having railway property in it and he was
subsequently identified in identification
parade, hence, there was a huge recovery of
property of Railway and witnesses have
identified the same during trial whereupon,
learned Magistrate had passed judgment of
conviction with order of sentence. But First
Appellate Judge failed to appreciate facts and
law placed before it and on the basis of
perversity, passed impugned judgment of
acquittal, hence, this appeal with above
prayer for grant of leave for filing this appeal.

4. A perusal of impugned judgment
reveals that there was no instant arrest of
any accused persons nor there was any
recovery of stolen article from their
possession. Three persons were seen
carrying gunny bag over their shoulder
and on being enquired by RPF, they had
thrown those bags and fled from spot.
They could not be apprehended.

5. The RPF personnel recovered those
gunny bags in which broken pieces of
copper wire with broken and a railway
brackets were kept which were said to be
railway property but the two witnesses PW1 and PW-2 who were witness for proving
this fact that recovered articles were
property of railway have said in their crossexamination that this electric wire was not
manufactured by railway, rather it was
purchased from private concern and it was
available with private concern. Meaning
thereby, the same being exclusively of
railway and in no circumstance available
with any other person, could not be proved
beyond doubt.

6. The identification parade was
conducted after a considerable delay; that
too with no protection that the chance for
identifying in between may never exist, was
there. Hence, on the basis of above
testimony, the First Appellate Judge passed
impugned judgment, which was based on
evidence on record. The conviction and
sentence of Additional Chief Judicial
Magistrate was result of perversity, which
was corrected by First Appellate Court. The
impugned judgment does not suffer from
any illegality or irregularity.

7. Hence, no ground for grant of
leave to file proposed appeal is there.

8. Accordingly, Application to grant
leave for filing appeal, being devoid of
merits, stand rejected.
----------
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 1064

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Commercial Tax Revision No. 162 of 2009
&
Sales/Trade Tax Revision No. 163 of 2009

M/s Fabrico India (P) Ltd. ...Revisionist
Versus
Commissioner of Commercial Tax,
U.P., Lucknow ...Opposite Party

Counsel for the Revisionist:
Sri Rakesh Ranjan Agrawal, Sri Suyash
Agarwal, Ms. Pooja Srivastava

Counsel for the Opposite Party:
C.S.C.

A. U.P. Trade Tax Act, 1948-Section 4BB, 8-A(2)(b), 29- A(2)-Timing of the
claim
raised
is
inconsequential
-
Assessee must fulfill the conditions to
claim set off - The assessing authority
rejected the claim of the revisionistassessee,
made
in
the
course
of
assessment proceedings, for set off of
the tax paid on purchase of raw material.
The first appeal of the revisionist was
allowed.-Tribunal reversed the order -
Dismissing both the revisions, the High
Court held- It was permissible for the
assessee to raise the claim at the stage
of the assessment proceedings, however,
for such claim to arise and be allowed,
assessee must be shown to have fulfilled
the conditions for the set off being
claimed. (Para 9 & 14)

B. Notwithstanding full compliance made
by the assessee, in payment of tax on
purchase of raw material and charge of
tax on sale of tubular pipes, it lost the
right to claim the set off u/s 4-BB, upon
opting to charge full tax on the sale of
tubular pipes, instead of deducting the
tax paid on purchase of raw material
from the tax payable on the sale of
tubular pipes. (Para 11, 12, 13 & 14)
Revisions filed against order dated 07.01.2009,
passed by the Trade Tax Tribunal, Meerut.

Tax Revision dismissed (E-4)

Precedent distinguished: -

1. M/s Sohan Lal Babu Ram Vs Commissioner
of Sales Tax, U.P., Lucknow & ors., (1981)
STD 121 (Para 7)
2. M/s Indian Oil Corpn., Agra Vs St. of U.P. &
anr., (1981) UPTC 1248 (Para 7)
3. Commissioner of Sales Tax, U.P., Lucknow
Vs M/s G.R. Tibrewal & Co., Kanpur, 1982
UPTC 241 (Para 7)
(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. These revisions have been filed
by the applicant-assessee against the
common order passed by the Trade Tax
Tribunal, Meerut, dated 7.1.2009, passed
in second appeal nos. 273/2003 for A.Y.
1999-2000 (U.P.) and 274/2003 for A.Y.
1999-2000 (Central). By that order, the
Tribunal has allowed the appeals filed by
the revenue and held the assesssee not
entitled to benefit of set off under Section
4-BB of the U.P. Trade Tax Act, 1948
(hereinafter referred to as 'the Act').

2. During assessment years in
question, the assessee had manufactured
tubular
poles
claiming
benefit
of
notification no. 2339 dated 22.10.1996,
read with notification no. 1223 dated
22.5.1998. In the course of the assessment
proceedings, the assessee claimed set off
of tax paid on purchase of raw materials