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TMI Blog2009 (10) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 3 in purported exercise of power conferred under Section 13 of the Central Excise Act, 1944 (hereinafter referred to as the said Act ) as unconstitutional and unlawful, as he in absence of any warrant of arrest, issued by the court of competent jurisdiction, is not competent to arrest a person for contravention of provision of Section 9 of the said Act, as the offences, under the said provision in terms of Section 9A of the said Act, are non-cognizable. At the same time, proceeding of a case bearing C.O. No. 1 of 2009, pending in the court of Sub-judge-II-cum-Special Judge (Economic Offences), Dhanbad, has also been sought to be quashed, as neither the said proceeding has been initiated on a complaint, as defined under Section 2(d) of the Code of Criminal Procedure nor it has been initiated upon an F.I.R. 2. That apart, the petitioner through an Interlocutory Application bearing I.A. (Cr.) No. 1170 of 2009 has also sought to quash the order dated 18-5-2009, passed by the Special Judge (Economic Offences), Dhanbad, whereby he directed the prosecution to take out printouts from the Laptop seized in presence of the parties and the petitioner was directed to authenticate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceeding so that he may move a court of law for redressal of his grievance. On the same day, one Satyanand Jha, friend of the petitioner, who had also been summoned, sent a FAX claiming ownership of the Laptop. 4. Meanwhile, the petitioner filed a writ application before this Court bearing W.P. (C) No. 5522 of 2008, challenging the search and seizure operation, which was admitted, but the investigation was allowed to be carried out with the cooperation of the petitioner. 5. Thereafter, when the petitioner appeared along with his Advocate on 2-2-2009, they were asked to verify the remaining printouts which were to be taken from the Laptop. After removing the seal, when the Laptop was turned on, the petitioner did not give his consent for taking printouts of the relevant Datas on the ground that the Laptop never belongs to him, rather according to him, it belongs to Satyanand Jha. Thereupon, the Laptop was resealed and finding prima facie evidence of evasion of duty by the petitioner and his hostile attitude towards the investigation and the act of influencing the witnesses, he was arrested with the approval of the Competent Authority. Thereafter, on getting transit rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal. Learned counsel in support of his submission has referred to a decision rendered in a case of Km. Rajni and Others v. Union of India and Others [(2003 Cri.L.J. 2062) = 2003 (156) E.L.T. 28 (All.)]. 8. He would further submit that the phraseology, made in the application, upon which said complaint case bearing C.O. No. 1 of 2009 was initiated, is so contradictory that it is difficult for the petitioner to assume it to be a complaint or any other application, as at some places it has been stated that the petitioner has committed offences under Section 9(1)(b)(bb)(bbb) read with Section 9AA of the Act and as such, cognizance of those offences be taken. However, some of the statements made in certain paragraphs would disclose that the investigation is still pending and in that event and also in view of the circular of the Department, as annexed under Annexure-6, the same could not be a complaint, as according to mandate of the circular, the prosecution should not be initiated before the claims put by the parties are adjudicated upon. Admittedly, no adjudication process has been initiated for alleged evasion of duty by the Company and under this situation, the proceeding, assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision as contained in Section 9A of the said Act which speaks about the offences under Section 9 of the said Act being non-cognizable. If such submission is accepted, the entire purpose of the Act would be frustrated, as even the competent officer having reason to believe that a person has committed offence under the said Act, he would not be able to arrest the petitioner in absence of warrant of arrest, which is never the intention of the Legislature. Therefore, all the provisions need to be construed harmoniously so that none of the provisions of the Act be deemed to be redundant. 12. In this respect, it was further submitted that the power of excise officer to arrest a person in exercise of power conferred under Section 13 of the said Act appears to be absolute which power never gets curtailed by the provision, as contained in Section 9A of the said Act and as such, any embargo of arresting a person is not upon the excise officer, rather that relates to any other person including the police officer who would be arresting a person accused of committing an offence under the Central Excise Act. Same proposition has been laid down by the Punjab Haryana High Court in a case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of occasions have held that normally the courts should be slow to pronounce the legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for the courts to take into account of the ostensible purpose and object and the real legislative intent. Otherwise a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane. 14. Keeping in view the said principle and also the cardinal principle of law that every law is designed to further ends of justice but not to frustrate on the mere technicalities, I will be dealing with the submissions advanced on behalf of the parties in the background of the principles of statutory interpretation and of the purpose and the spirit of the concerned Act as enshrined from their intendment. 15. The main purpose of the Act is to levy and collect excise duty for which the Central Excise Officers have been appointed. In order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the Central Excise Officer that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the Central Excise Officer may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. 16. These sections clearly show that the powers of arrest and search conferred upon the Central Excise Officer are in support of the main function of collection/levy of duty on excisable goods. Significantly, it be noted that apart from the Central Excise Officer who has been empowered under Section 13 to arrest a person, other person seems to have also been empowered under Section 19 to arrest a person but that person needs to forward the person arrested before the Central Excise Officer empowered to send person so arrested to a Magistrate and if such Central Excise Officer is not availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat of Central Excise Officer. Such intend of the Legislature gets reflected from the provision stipulating therein that whenever a person-accused is forwarded before the police, the police has no other alternative but to grant him bail and in case of default of bail, person needs to be forwarded before the Magistrate. 18. Thus, the intend of the Legislature is never to put any restriction on the power of the Central Excise Officer except what is there under Section 13 of the said Act. So far as provision under Section 18 of the said Act is concerned, that is related to procedure to be adopted in the matter of arrests and searches as is there in the Code of Criminal Procedure. In other words, that is confined only with respect to procedure to be adopted in the matter of arrests and searches and it never undermines or denudes the power of arrest as conferred under Section 13 of the said Act upon the Central Excise officer. This proposition has also been laid down by the Punjab Haryana High Court in a case of Sunil Gupta (supra), whereas the decision rendered in a case of Km. Rajni and Others v. Union of India and others - [(2003 Cri. L.J. 2062) = 2003 (156) E.L.T. 28 (All.)] (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the substance, it does appear that in fact, it is an offence report as the matter is still under investigation. It has been stated in the said application that the prosecution is normally launched after adjudication process is completed. Thus, one can say that no complaint has been filed in terms of Section 200 Cr.P.C. as investigation/enquiry on the allegation is still going on and that adjudication process is still to be completed. In that view of the matter, I do not find any substance in the submission made on behalf of the petitioner. 22. Moreover, I may refer to a case of Directorate of Enforcement v. Deepak Mahajan and Another [A.I.R. 1994 S.C. 1775 = 1994 (70) E.L.T. 12 (S.C.)] wherein amongst other questions, one of the questions fell for consideration as to whether the detention authorized by the Magistrate either to judicial custody or otherwise to a person forwarded under Section 35(2) of the FERA and Section 104(2) of the Customs Act becomes ab initio void and illegal. 23. I may indicate that Section 35(2) of the FERA and Section 104(1) of the Customs Act are similar to that of Section 19 of the Central Excise Act. Section 35(2) of the FERA and Section 104(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Therefore, whatever information whether it is self-incriminating or not is there in the printouts from before and the petitioner has never been asked to confirm the said information, rather he has simply been asked to authenticate those documents. In that situation, simple authentication of the documents by the petitioner would not amount as self-incriminatory statement and if it is not self-incriminatory, the petitioner would not enjoy the protection as guaranteed under the Constitution. At this stage, I may refer to a decision rendered in a case of State of Bombay v. Kathi Kalu Oghad (A.I.R. 1961 S.C. 1808), wherein the court has laid down : In order that a testimony by an accused person may be said to have been self-incriminatory the compulsion of which comes within the prohibition of the Constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not, also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. 29. In view of the discussion made above, I do not find any merit in this submission als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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