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TMI Blog2010 (4) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... leadings in the present application, it appears that the petitioner pursuant to summons issued to him appeared before the Superintendent (Prev.), Commissionerate of Central Excise, Customs and Service Tax, Bhubaneswar (Opposite Party No. 2) on 5-11-2009, 15-1-2010 and 28-1-2010 and also produced certain documents and also had his statements recorded. 3. It is stated that the petitioner had been issued with a further summon dated 19-2-2010 by which order, he was directed to produce some more documents mentioned in the schedule to such summons under Annexure-1. Apprehending arrest by the Central Excise Officers as well as apprehending that he may not be admitted on bail, an application under Section 438 Cr.P.C. for anticipatory bail was filed by the petitioner in BLAPL No. 2887 of 2010, before this Court and the same came to be disposed of on 11-3-2010 with the following directions : "Considering the submission of learned counsel for the parties and keeping in view the nature and gravity of the offence alleged against the petitioner, it is directed that in the event of arrest of the Petitioner in Central Excise Proceeding No. C.No. IV(6) 15/C.E./CPU/BBSR-II/2009, they shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed such Conditions which are absolutely perverse, inhuman, capricious, unreasonable and devoid of justice. He further states that imposing the aforesaid conditions were actuated by mala fides and vindictive design of the Opposite Parties and was intended to completely nullify and frustrate the direction of this Hon'ble Court, by which order, the petitioner had been directed to be released on bail. He also submitted that the directions to the petitioner to immediate furnish bail bond of Rs. 50,000/- along with surety of Rs. 50,000/- was imposed with the view that the petitioner would not be in a position to arrange the said amount and, therefore, would not avail the benefit of bail. It is stated that the petitioner was imposed with such conditions since the Central Excise Authorities considered the application under Section 438 Cr.P.C. for anticipatory bail as an audacious act on the part of the petitioner. It is stated that, it was with a great amount of difficulty, that the petitioner could arrange the necessary funds for the purpose of meeting such requirement as imposed in Condition No. (i). 6. In so far as challenge to Condition Nos. (ii) & (iii) are concerned, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il granted to the petitioner and relied extensively on the averments made in the counter affidavit filed on behalf of Opposite Parties 1 and 2. He essentially contended that the Company, i.e. M/s. Seeta Integrated Steel & Energy Ltd. has clandestinely removed a huge amount of sponge iron produced at their plant, resulting in loss of more than Rs. 94 lakhs of Central Excise duty. He contended that none of the condition imposed by the Arresting Officer-Opposite Party No. 1 could be considered to amount to denying the petitioner the benefit granted to him by the order of this Court in BLAPL No. 2887 of 2010. He further contended that white coller crime requires in depth investigation and putting a witness to continuous interrogation is very much required, in order to elicit the true facts in course of such enquiry. 9. In this respect, the learned counsel for the Central Excise Department placed reliance on a judgment of the Hon'ble Supreme Court in the case of Dukhishyam Benupani v. Arun Kumar Bajoria, AIR 1998 SC 696. Sri P.K. Ray submitted that an Investigating Agency should be free to fix the venue, time and the manner of question to an accused persons involved in such crimes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms therein, by which order, specific directions had been issued by the Court fixing the dates on which the accused was to appear before the Foreign Exchange Regulatory Authorities. The Department had challenged the said order granting anticipatory bail before the Hon'ble Supreme Court and the Hon'ble Supreme Court had allowed the said challenge and had set aside both the orders passed by the learned Sessions Judge as well as the Calcutta High Court. 11. In the present case, while no challenge has been made by the Department to the order of anticipatory bail granted in favour of the petitioner dated 11-3-2010 in BLAPL No. 2887 of 2010, even then the order of anticipatory bail granted by this Court, on the contrary, did not fix any term or condition and instead left it to the Arresting Officer to fix such terms and conditions on which the petitioner would be released on bail. The Arresting Officer upon arresting the petitioner imposed some conditions in his order dated 25-3-2010 under Annexure-3 to the present application, which is the subject matter of challenge. Therefore, I am of the considered view that the judgment in the case of Dukhishyam Benupani (supra) has no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow for convenience : "(ii) Sri Purusotam Das Sharma shall appear before the Superintendent (Prev.), Central Excise, Customes & Service Tax, Bhubaneswar-II Commissionerate, Central Revenue Building, Rajaswa Vihar, Bhubaneswar-07, on all working days, for 3 weeks, starting from 26-3-2010 to give evidence and to submit records/documents called for, as being relevant to the enquiry. (iii) Sri Purosottam Das Sharma shall not leave the office of the Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar-II Commissionerate, Central Revenue Building, Rajaswa Vihar, Bhubaneswar-07 on the aforesaid days, between 10.30 A.M. and 06.00 P.M. without the prior permission of the Superintendent/Inspector concerned." Apart from the aforesaid conditions, it appears that; some modification was made thereto by the Superintendent in Annexure-D to the counter affidavit which is quoted herein below : "Granted Bail as per the directions of the Hon'ble High Court of Orissa, vide Order No. 3 dated 11-3-2010 against BLAPL No. 2887 of 2010. You are requested to be present in the waiting area (room) from 10.30 A.M. to 6.00 P.M. tomorrow and on all working days for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary for furtherance of the investigation, without sufficient reason, thus have not cooperated with the investigation. 6. The above offence of clandestine removal of excisable goods without payment of Central Excise duties and non-cooperation with the investigation, is punishable under clauses (b), (bb) and (bbb) of Section 9(1) of the Central Excise Act, 1944. It is evident from the above that this offence has happened with the knowledge, concern and active involvement of Sri Sharma, the employee in-charge of the Central Excise matters of SISEL. Such acts and omissions are also punishable under Section 9AA of the Act ibid. 7. Taking into consideration the gravity of the offence and the fact that Sri Purusottam Das Sharma is the person in-charge of Central Excise matters of SISEL, I have reasons to believe that Sri Purusottam Das Sharma was actively involved in the offence of clandestine removal as well as undervaluation of sponge iron, as discussed above, to evade payment of Central Excise, Customs and Service Tax, Bhubaneswar-II Commissionerate, Bhubaneswar, place Sri Purusottam Das Sharma, under arrest under Section-13 of Central Excise Act, 1944 at 14.00 hrs. on 25-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Hon'ble Supreme Court that for the operation of Article-20(3), no "formal" accusation by the issue of process of the Court is required and the immunity Article 20(3) of the Constitution of India would commence, from the moment the person has been named by the officers who are competent to launch the prosecution against him as having committed of an offence and from that moment, such a person become the "accused of an offence" within the meaning of Article 20(3) of the Constitution of India. In the Case of Ramanilal Bhogilal Shah and Another v. D.K. Guha and Others, AIR 1973 SC 1196, a Five Judge Bench of the Hon'ble Supreme Court, has taken into consideration the fact that the petitioner in the said case had been served with the "grounds of arrest" under the Foreign Exchange Regulation Act, 1947 and on perusing the said ground of arrest, while placing reliance on an earlier judgment in the case of M.P. Sharma and Others (supra), the Hon'ble Supreme Court came to hold that the petitioner therein was a person "accused of an offence" within the meaning of Article 20(3) of the Constitution of India and that the only protection in Article 20(3) gives to him is that he cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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