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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 ..... l appear before the authorities concerned as and when summons are issued to him and answer all questions as do not tend to incriminate him, modification to the terms and conditions of bail granted to the petitioner - - - - - Dated:- 9-4-2010 - Indrajit Mahanty, J. REPRESENTED BY : S/Shri Laxmidhar Pangari, S.R. Pani and A.K. Das, Counsels, for the Petitioner. Shri Prashant Kishore Ray, Counsel, for the Respondent. [Judgment]. In the present application under Section 482 of the Code of Criminal Procedure, 1973, prayer has been made by the petitioner to set aside certain conditions fixed by the Inspector (Preventive) Central Excise, Customs Service Tax, Bhubaneswar-II (Opposite Party No.1) while granting bail to the petitioner pursuant to an order dated 11-3-2010 passed by this Court in BLAPL No. 2887 of 2010, granting anticipatory bail to the petitioner. 2. Shorn of unnecessary details, it appears that the Central Excise authorities conducted search and seizure on the premises of M/s. Seeta Integrated Steel Energy Ltd. on 4th November, 2009 and on the basis of such search and seizure, a proceeding for enquiry for violation of the provisions of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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. (iv) Sri Surosottam Das Sharma shall not leave the country without the prior permission of the investigating officer. (v) Sri Purosottam Das Sharma shall cooperate with the investigation in every possible manner. Sd/- (Manoj Kumar Pattanayak), Inspector (Prev.), Central Excise, Customs Service Tax, Bhubaneswar-II. 5. Mr. L. Pangari, learned counsel for the petitioner, at the out set, submitted that the challenge has been made by the petitioner to Condition Nos. (i), (ii) (iii), contained in the order dated 25-3-2010 passed by the Arresting Officer (O.P. No. 1) inter alia, on the ground that, the Opposite Party has imposed such Conditions which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the petitioner was to substantiate the plea that a heavy amount should not be demanded as surety amount and the guiding principles on which an accused can be released on personal bond without sureties. The Hon ble Supreme Court in the case of Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360 held that, the decisions regarding the amount of the bond should be an individualized decision, depending on the individual financial circumstances of the accused and the probability of his absconding and fixing the surety amount, condition should be taken of family ties and relationship, roots in the community, employment, status etc. and in appropriate cases, the Court ought to be released the accused on his personal bond. While the accused may be required to furnish cash security but such conditions of bail should not be harsh, oppressive and should not virtually result in denial of bail to an accused. 8. Mr. Ray, learned counsel for the Central Excise Department, on the other hand, opposed the prayer for modification of the conditions of bail granted to the petitioner and relied extensively on the averments made in the counter affidavit filed on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. Apart from the above, he contended that the allegation that the petitioner had faced untold difficulties in furnishing the bail bond of Rs. 50,000/- and surety amount of Rs. 50,000/- was baseless. Since the company had remitted the requisite amount to the Punjab National Bank, Bhubaneswar, on the same day on which, the Arresting Officer imposed such condition. Therefore, there existed no basis for the petitioner to contend that the imposition of the condition for providing bail bond of Rs. 50,000/- and surety amount of Rs. 50,000/- could not have in any manner caused any mental or physical strain on the petitioner. 10. In the light of the contentions raised by the learned counsel for both the parties, at the out set, the case of Dukhishyam Benupani (supra) relied upon by the learned counsel for the Excise Department requires to be dealt with the accused in the aforesaid case had sought for anticipatory bail before the Sessions Judge and the same had been granted by the learned Sessions Judge. The Hon ble Calcutta High Court had modified, certain terms therein, by which order, specific directions had been issued by the Court fixing the dates on which the accused was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10,000/- that had been fixed by the learned S.D.J.M. since the accused-petitioner therein is a an unemployed youth. 13. On consideration of the submissions made by the learned counsel for the petitioner and the Opposite Party, in so far as Condition No. (i) is concerned, it is a fact that the said condition was complied with by the petitioner on the very date in which the order of bail was passed, by furnishing fixed deposit by Punjab National Bank both towards the bail bond as well as the surety and as stated by the learned counsel for the opposite parties, the said money was provided by the Company, i.e. M/s. Seeta Integrated Steel Energy Ltd. I am of the considered view that fixation of such a condition was not excessive keeping in view the amount of revenue sought to have been evaded by the Company. Therefore, the contention of the learned counsel for the petitioner for quashing Condition No. (i) is no sustained and, therefore, fails. 14. In so far as challenge to Condition Nos. (ii) and (iii) are concerned, the same are quoted hereinbelow for convenience : (ii) Sri Purusotam Das Sharma shall appear before the Superintendent (Prev.), Central Excise, Customes Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , I am of the considered view that the same is clearly not only excessive but also effectively tantamounts to passing an order of detention in the guise of terms and conditions of bail. 16. At the closure of hearing, the learned counsel for the Central Excise Department was directed to produce the file containing the inquiry being conducted and the statements made by the petitioner in course of the inquiry. The same was duly complied with. On a perusal of the file produced by the Central Excise Authority, it appears therefrom that pursuant to the order of anticipatory bail dated 25-3-2010 passed by this Court in BLAPL No. 2887 of 2010, when the petitioner appeared before the Superintendent (Opposite Party No. 2), on the self-same date, the petitioner was arrested by the Inspector (Opposite Party No. 1) and the following has been noted in the Grounds of Arrest dated 25-3-2010 : 5. In spite of repeated summons by the investigating officer, Sri Purusottam Das Sharma has failed to produce documents/records necessary for furtherance of the investigation, without sufficient reason, thus have not cooperated with the investigation. 6. The above offence of clandestine removal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a person who is entitled to the protection guaranteed by the Constitution of India. While, it is also a fact that in the judgment of the Hon ble Supreme Court in the case of Poolpandi v. Superintendent, Central Excise and Others, AIR 1992 SC 1795 = 1992 (60) E.L.T. 24 (S.C.), the Hon ble Supreme Court came to hold that the protection of Article 20(3) of the Constitution of India is not available to a person while being interrogated during investigation , under the provisions of the Customs Act or the Foreign Exchange Regulation Act (FERA), since such a person is not an accused of an offence and is therefore, not entitled to the protection under Article 20(3), yet, in the facts of the present case, since the Arresting Officer (O.P. No. 1) has already stated in the grounds of arrest that the petitioner was liable for punishment under Section 9AA of the Central Excise Act, the petitioner is entitled to the benefit of protection guaranteed by Article-20(3) of the Constitution of India. It is also well settled 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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