2009 (9) TMI 24 - HC - Central Excise

Jurisdiction investigation proceedings by central excise officer held that - In the present case the accused have been appearing in the case since the date when summons were first made returnable on 04.05.1989. The delay in the instant case is purely on account of callous attitude on the part of the prosecution. It may also be noted that in so far as the aspect of revenue loss is concerned the same is subject matter of the proceedings before a Division Bench of this Court. The delay in the instant case has clearly deprived the accused of their fundamental right to speedy trial under Article 21 of the Constitution of India. The accused no. 2 as noted hereinabove is 86 years of age. Accused no. 3 is 48 years of age. The matter is at the pre-charge stage. In view of the long delay it is quite obvious that the prosecution will find it quite hard if not impossible to secure conviction given the long gap of time since the prosecution first commenced. trial proceedings quashed

Summary

Issues Involved:
1. Violation of the fundamental right to a speedy trial under Article 21 of the Constitution of India.
2. Delay in prosecution and its impact on the accused.
3. Responsibility for the delay in the trial.
4. Compliance with procedural requirements under Section 244 of the Cr.P.C.
5. Adjudication of excise duty evasion allegations.
6. The impact of the Settlement Commission's order on the criminal proceedings.

Issue-wise Detailed Analysis:

1. Violation of the Fundamental Right to a Speedy Trial under Article 21:
The accused contended that their fundamental right to a speedy trial, as mandated under Article 21 of the Constitution of India, was violated. They were summoned on 04.09.1989 for violations under Sections 9 and 9A of the Central Excise & Salt Act, 1944, and the prosecution had not completed the pre-charge evidence even after several years.

2. Delay in Prosecution and Its Impact on the Accused:
The court noted that the accused had appeared before the learned ACMM since 04.05.1989, yet the prosecution had not progressed beyond the pre-charge stage. The first prosecution witness was partially examined on 30.10.1991, and his examination was completed only on 19.05.2001. The second prosecution witness was partly examined on 30.04.1999, and it was unclear whether his examination was completed. The examination-in-chief of the third prosecution witness was completed on 09.10.2006. The court observed that there had been numerous adjournments due to the unavailability of prosecution witnesses and other reasons, indicating a lack of seriousness by the department in prosecuting the case.

3. Responsibility for the Delay in the Trial:
The court found that the department was primarily responsible for the delay. The department had not moved an application under Section 244 of the Cr.P.C. for summoning witnesses, which was obligatory. The court rejected the department's argument that the trial court should have issued summons based on the list of witnesses provided with the complaint.

4. Compliance with Procedural Requirements under Section 244 of the Cr.P.C.:
The court emphasized that it was the complainant's responsibility to move a proper application for summoning witnesses under Section 244 of the Cr.P.C. The department's failure to do so contributed significantly to the delay in the trial.

5. Adjudication of Excise Duty Evasion Allegations:
The court noted that the Principal Collector had confirmed the entire demand of duty and imposed a penalty of Rs 20 lacs. However, the Central Excise and Gold Appellate Tribunal remanded the matter for re-adjudication. The Settlement Commission later settled the duty liability at Rs 45,43,550/-, with Rs 9,47,090/- already deposited and the balance to be paid. The court observed that the department's contention of dues exceeding Rs 65 lacs was incorrect, as per the Settlement Commission's order.

6. The Impact of the Settlement Commission's Order on the Criminal Proceedings:
The court acknowledged that the Settlement Commission's order reduced the duty liability and imposed a penalty of Rs 1 lakh. The court noted that the order of the Settlement Commission was subject to a challenge in a pending writ petition. However, the court held that the delay in the criminal proceedings had deprived the accused of their fundamental right to a speedy trial.

Conclusion:
The court quashed the proceedings pending in the court of the learned ACMM, Delhi, citing the long delay and the department's lack of seriousness in prosecuting the case. The bail bond furnished by the accused was canceled, and the security was discharged. Consequently, the department's petition was rendered infructuous and disposed of accordingly.