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TMI Blog1993 (7) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 4 in 1989 Criminal Misc Application filed another Misc. Criminal Application No. 4869 of 1992 challenging that very order and hence both the matters are being dealt with together. 3.The 1989 matter being first in point of time and the Department having concentrated right from the beginning on that matter, in the course of hearing whatever reference was made to the position of record, it was in connection with said 1989 matter, though both the matters were heard together and are being disposed of by this common judgment. 4.A copy of the complaint is filed at Annexure F at page 59 onwards going upto page 109, followed by Annexure G, which is the said Application No. 5/28 starting from page 131 going upto page 141. 5.As could be expected, at page 112 of the book, Section 9AA has been quoted in its entirety. Thereafter, detailed argumentative submissions have been made in the application in support of the final prayer of permitting Section 9AA to be added in the caption as well as in the prayer clause of the original complaint. 6.The controversy revolves around the question whether Section 9AA introduced with effect from 27-12-1985 in the Salt Act will have retrospective effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the changes brought about by Section 9AA are only of procedural nature and they merely shift the burden of proof and hence, the said Section must be given retrospective effect. This submission has found favour with the Learned Additional Chief Metropolitan Magistrate and hence, the impugned order. 8.In the argument before me the question of retrospectivity was thrashed out elaborately and while doing so, on behalf of the Department, i.e. Respondent No. 1, L.A. Shri K.L. Abichandani had also introduced a new element of continuity sought to be made out on the basis of charge under Section 120B of Indian Penal Code alleged in the complaint right from the beginning. His submission was that conspiracy is a continuing offence and till detection in the year 1987, the offence continued and the investigation was initiated on detection and complaint was filed in the year 1987 itself and Section 9AA having come into force in the year 1985 it would certainly apply and there is, therefore, no question of retrospectivity at all. In other words, Section 9AA could have been included in the complaint right from the beginning because it was in existence when the complaint was filed and as it was le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of the aforesaid submission about continuity in fact. There, it was held that person who had [come] to India from Pakistan and having stayed after 24-7-1950, the date on which an Ordinance for prohibiting the overstaying came to be promulgated, such stay was held to be a continuing offence. Factually, therefore, the present case would not help respondent No. 2. 14.The 3rd decision relied on in 63 SC 1850. This decision also would not be of any help to respondent No. 1 at all. It is about conspiracy itself being a separate and independent offence and therefore, framing of a separate charge in connection therewith. 15.The submission made on behalf of the complainant by L. A. Shri Abichandani on the ground of continuity with reference to Section 120B Indian Penal Code, in my opinion, therefore, is required to be rejected. It is pertinent to note here that Section 9AA confines its operation to the offences under the Salt Act only and Section 120B of Indian Penal Code not being an offence under the Salt Act, Section 9AA will have no effect whatsoever [qua] Section 120B of Indian Penal Code. At this stage I would like to quote Section 9AA to appreciate the remaining contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the introduction of Section 9AA was the only one answerable for the alleged offence. This would be the position in case of a conspiracy that may be alleged against all or any of the persons having connection either with the management of the Company or running of a particular Department, which would be the position in the instant case with regard to original accused Nos. 5, 6 and 7. This is cited only by way of an example to illustrate the point under discussion and these remarks or observations are not to be treated at all as a finding of fact qua accused Nos. 5, 6 and 7. 17.In the aforesaid background, the learned Counsel Shri P. Chidambaram had referred to Article 20(1) of the Constitution of India. 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, that is the essence of the aforesaid constitutional provision. That exactly is the meaning assigned to the terms "ex post facto" as could be seen from Black's Dictionary page 580 defining this term. The Dictionary visualises two possibilities as under : (1) A law passed after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy is permitted to be a defence for the person made liable on account of legal fiction contained in sub-section (1). However, as rightly submitted by learned Counsel Shri P. Chidambaram, sub-section (2) does not afford any defence whatsoever provided it is proved that the offence has been committed with the consent or connivance or is attributable to any neglect on the part of any Director, Manager, Secretary or other Officers and he or they shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. 22.Even in the proviso to sub-section (1) lack of knowledge might be possible to plead and prove, but the exercise of due diligence introduced by way of defence for the first time in relation to the deeming fiction contained in sub-section (1) could not per se have been exercised as that was not expected of the Director or the person in-charge of the affairs of the Company, because, till then, he did not know that this will be the requirement to escape liability from deeming fiction. A statutory provision introduced in an existing statute by way of amendment may [by] express word be made retrospectively effective or there might be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it is created or beyond the language of the Section by which it is created. Moreover a fiction in terms enacted for the purpose of a particular Act is normally restricted to that Act and cannot be extended to cover another Act. 25.Learned Counsel Shri Abichandani had referred to the passage from the judgment of Lord Asquith given in Best End Dwelling Co. Ltd. v. Pinabury Borough Council and the quotation appears at page 226 of that book. It says that once the legal fiction is created the consequences are also to be taken to have been so created and whatever they be, one should not allow one's imagination to boggle when it comes to inevitable corollaries of the state of affairs that ensues. 26.Relying on 1987 (32) E.L.T. 234 (SC) = AIR 1988 SC 191 learned Counsel Shri Abichandani had submitted that Section 11A is operating retrospectively. However, on reading the judgment, it appears that under Section 51 of the Finance Act, Rules 9 and 49 were amended and in conjunction with Section 56A the amended Rules were given retrospective effect. Section 11A provides for recovery in ordinary course within a period of 6 months and 5 years if there is short levy, short payment, non-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any could have been held guilty and as a result, only punishment of fine could have been imposed. Obviously, when living persons are deemed to be liable because of Section 9AA, imprisonment can also be ordered which was not possible to the Class of offenders till addition of 9AA that were contemplated namely the Company. The aforesaid principles will also, therefore, indicate that Section 9AA cannot be given retrospective effect and there is no internal evidence as to retrospectivity. 27.Learned Counsel Shri Chidambaram has also relied on AIR 1984 SC 87. It is a decision under East Punjab Rent Restriction Act. It lays down that unless legislative intent is clear or language implies necessarily all laws affecting substantive rights are prospective. If language is clear and unambiguous, effect should be given according to its tenure. 28.Discussion on this line can certainly be continued. But coming to the facts of the present case, when amending Act itself does not assign any reason or set out any object, it will not be possible to ascertain the purpose of creation of fiction. If it is taken to be the one as submitted by learned Counsel Shri Abichandani that persons in-charge of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going through the Section, I do not find any declaration whatsoever. What it contains is a legal fiction. When AIR 1969 (1) SCC 809 cited by Shri Abichandani is referred to, this submission can, to an extent, be understood. In the course of the judgment, it has been stated that declaratory statutes are retrospective. However, later on it is made clear that Statute should declare by its language that it is retrospective. Section 21 of U. P. Jamindari Abolition and Land Reforms Act was made expressly retrospective and to harmonise Section 157 thereof with Section 27, they were considered to be retrospective. Declaratory statutes in the aforesaid position would clearly mean that the language of the statute should itself declare it to be retrospective. This declaration is missing in Section 9AA. 33.AIR 1979 SC 602 relied on by learned' Counsel Shri Abichandani relates to procedural changes that were brought about in Prevention of Corruption Act, 1947. On the contrary in para 7 in the course of discussion while dealing with 1967 Amendment, it has been held that procedural changes can be retrospective, but there is no power given to the Legislature to create new offence with retrospect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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