1993 (7) TMI 98 - HC - Central Excise

Summary

Issues Involved:
1. Retrospective application of Section 9AA of the Central Excises and Salt Act, 1944.
2. Continuity of the offence under Section 120B of the Indian Penal Code.
3. Interpretation and application of Article 20(1) of the Constitution of India.

Detailed Analysis:

1. Retrospective application of Section 9AA of the Central Excises and Salt Act, 1944:

The core issue in this case was whether Section 9AA of the Central Excises and Salt Act, 1944, introduced on 27-12-1985, could be applied retrospectively to offences committed in 1983. The Additional Chief Metropolitan Magistrate had allowed the inclusion of Section 9AA in the complaint, considering it procedural and thus retrospective. The High Court, however, disagreed, stating that Section 9AA is substantive, not procedural. The court noted, "Section 9AA is not a procedural section or a Section describing rule of evidence merely shifting the burden of proof. It introduces criminality in relation to the persons who are in charge of the affairs of the Company along with the Company." The court emphasized that retrospective application of Section 9AA would violate Article 20(1) of the Constitution, which prohibits ex post facto laws. The court concluded that Section 9AA "cannot be given retrospective effect."

2. Continuity of the offence under Section 120B of the Indian Penal Code:

The Department argued that the conspiracy under Section 120B IPC was a continuing offence, which extended until its detection in 1987, thus justifying the inclusion of Section 9AA. The court rejected this argument, stating, "the offence or the alleged breaches were completed between 10-7-1983 and 12-7-1983." The court further clarified that the scheme under which the alleged breaches occurred ended on 15-7-1983, making the offence complete within that period. The court observed, "there is no question of continuity on fact," thereby negating the applicability of Section 9AA based on the continuity argument.

3. Interpretation and application of Article 20(1) of the Constitution of India:

Article 20(1) of the Constitution prohibits the retrospective application of penal laws. The court referred to this provision extensively, stating, "A person cannot be tried for an act which was not an offence at the time when it was committed nor can he be awarded penalty higher than the one that was prescribed at the time of commission of offence." The court emphasized that applying Section 9AA retrospectively would violate this constitutional safeguard, as it would criminalize acts that were not offences when committed. The court cited various precedents and legal principles to support this interpretation, ultimately concluding that "Section 9AA is clearly hit by Article 20(1) of the Constitution of India."

Conclusion:

The High Court quashed the order of the Additional Chief Metropolitan Magistrate, ruling that Section 9AA of the Central Excises and Salt Act, 1944, cannot be applied retrospectively to offences committed before its enactment. The court held that the alleged offences were completed in 1983, and the continuity argument under Section 120B IPC was not applicable. The court reinforced the protection against ex post facto laws under Article 20(1) of the Constitution, ensuring that individuals cannot be penalized under laws that were not in effect at the time of the alleged offences.