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TMI Blog2009 (10) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... ught 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 the printouts to be taken out from the Laptop failing which his bail bond shall be cancelled. 3. Before adverting to the submissions made on behalf of the parties, the facts, which have given rise to this application, are that the petitioner is one of the Directors of M/s Bihar Foundry and Castings Limited (hereinafter referred to as the Company ), engaged in manufacturing of Silico Manganese and other ancillary products. On 16th /17th October, 2008, the premises of M/s Bihar Foundry and Casting Limited and its other Units, being run as M/s Gautam Ferro Alloy, were searched by the team of the officials of Director Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 remand from the Special Judge (Economic Offences), East Singhbhum, the petitioner was produced before the SubJudge-II-cum-Special Judge (Economic Offences), Dhanbad on 3.2.2009 on which date, offence report, which has been termed as preliminary complaint, was lodged which was registered as C.O. Case No. 1 of 2009 and the petitioner was sent to judicial custody. Thereafter, under the orders of the court, printouts of the files even of the corrupt files stored in the Laptop were taken out in presence of the petitioner as well as his representative, which were also sealed. From those printouts, it could be prima facie known ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, assumed to be a complaint, is fit to be set aside. 9. Learned counsel further submits that on account of accusation made in the offence report/purported complaint, the petitioner would always be considered as an accused in terms of Article 20(3) of the Constitution of India and consequently, he cannot be compelled to give evidence against himself, but the learned Magistrate, by passing order dated 18.5.2009, directing the petitioner to authenticate printouts taken from the Laptop failing which his bail bond shall be cancelled, has put compulsion upon the petitioner to give evidence against himself, which is against the principle of protecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hariyana High Court in a case of Sunil Gupta Vs. Union of India { 2000 (118) E.L.T. 8 (P H). Thus, it was submitted that the arrest of the petitioner by the Central Excise Officer never appears to be unconstitutional or illegal. It was further submitted that though certain incontradictory statements have been made in the complaint petition, but from those statements, basic thing i.e. substance which emerges is that the Central Excise Officer having reason to believe that the petitioner has committed offence under the Central Excise Act has forwarded him before the Magistrate to whom a complaint, which can be taken to be an offence report, was lodged making ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature 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 there 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 that they may carry out their duties in this behalf, powers have been conferred on them to see that the duty is not evaded and the persons guilty of evasion of duty are brought to book. Section 9 of the said Act provides for punishment for contravention of any of the provisions of a notification issued under Section 6 or Section 8 of the said Act or Rules made under clause III of Section 37(2) of the said Act, for evading the payment of any duty payable under the Act or for failing to supply any information which is required by the rules. The maximum punishment as stipulated under the Act is seven years. Section 9A of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early 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 exercisable 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 available within the vicinity to the Officer-In-charge of the nearest police station. Thereupon, the Officer-In-charge of police station has been enjoined with an obligation under Section 20 either to admit him on bail to appear before the Magistrate or in default forward him in custody to such Magistrate. Further, it appears that if a person arrested under Section 19 is forwarded before the Central Excise Officer, he in terms of Section 21(2) shall inquire into the matter by exercising all the powers which the officer In-charge of the police station does have in the matter of investigation of a cognizable case and if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hariyana High Court in a case of Sunil Gupta (supra), whereas the decision rendered in a case of Km. Rajni and others Vs. Union of India and others (2003 Cri.L.J. 2062) (supra) holding therein that the Authority working under a Special Act such as Central Excise Act, 1944 cannot override the provisions of the Code of Criminal Procedure as regards the arrest or filing of the complaint is in the context of altogether different facts wherein when a raid was conducted at the premises of a Company, three persons were arrested who made statements against the persons who were the petitioners in that case about their culpability and that led the petitioners to move before the High Court for a direction to the Authority not to arrest and the court in the backdrop of the fact that neither there is any complaint nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her (A.I.R. 1994 S.C. 1775 ) where on amongst other questions, one of the questions fell for consideration as to whether the detention authorizes 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) of the Customs Act speak about the forwarding of the accused before the Magistrate. 24. The Hon ble Supreme Court after taking into consideration several provisions of the Code of Criminal Procedure did hold that the inevitable consequence that follows is that any person is arrested occurring in the first limb of Section 167(1) of the Code takes within its ambit every person arrested under Section 35 of FERA or Section 104 of the Customs Act also as the case may be and the person arrested can be detained by the Magistrate in exercise of his power under Section 167(2) of the Code of Criminal Procedure. In other words, the person arrested under FERA or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n: 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 also. However, that part of the order stating therein that bail bond of the petitioner shall be cancelled on account of non-observance of the direction contained therein is not sustainable in law as consequence of nonobservance of the direction has been contemplated under Section 14 of the said Act itself and as such, that part of the order dated 18.5.2009 where it has been stated that the bail bond of the petitioner shall be cancelled is hereby quashed. 30. Thus, respondent no. 3 never appears to have acted without jurisdiction in the matter of arrest of the petitioner nor the proceeding pending before the Special Judge (Economic Offences), Dh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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