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TMI Blog2002 (12) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner No. 1 Km. Rajni is the proprietor of M/s. Gopal Grinding, which crushes the Supari and other material used in manufacturing Gutka by the company. 4.A raid was conducted on 4-7-2001 at the company premises and it was found that the company was selling Pan Masala without paying Excise Duty. Three persons namely Mukesh Bajpai, Rajneesh Tewari and Amit Srivastava were arrested for offences punishable under Sections 9/9AA and under Section 13 of the Central Excise Act, 1944 (hereinafter to be referred as Act) and were produced before the Magistrate and in accordance with Section 19 of the Act. 5.A preliminary objection has been raised by the learned Advocate General regarding the maintainability of the writ petition and submitted that till date no F.I.R. has been lodged against the petitioners and no complaint has been lodged against them but the petitioners are apprehending their arrest. The learned Counsel for the petitioners submitted that this objection could have been raised at the initial stage of the writ petition, therefore, we propose to dispose of these writ petitions on merit. 6.The learned Counsel for the petitioners submitted that according to Section 9A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuated in the said application that Mukesh Bajpai has given some statement that Pan Masala is despatched from the factory and Bijak is prepared by M/s. Anju Agency, 105, Gora Bagh, Lucknow and the same is also distributed by them and some manipulation is there. Therefore, it is apparent that so far as Mukesh Bajpai is concerned, the department has bailed him out also and all the three persons who were arrested have also been bailed out. A plain reading of the complaint also makes an allegation against Sri Mahesh Singh Patel that he had also knowledge of the said Bijaks along with Kailash Nath Singh Patel. 11.Sri Virendra Bhatia, learned Counsel for the petitioners has argued that he has full apprehension that Mahesh Singh Patel one of the petitioners may also be arrested without any knowledge as it has been done by the respondents in the other cases. 12.It will be relevant to discuss that offence under Section 9A of the Act which prescribes, the levy of Rs. 1,00,000/- as fine with imprisonment for a term which may extend up to seven years under Section 9A of the said Central Excise Act, the offence is said to be non-cognizable within the meaning of Code and under Section 9AA. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout delay to the nearest Central Excise Officer empowered to send person so arrested to Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer in charge of the nearest police station. Therefore, we observe that the powers and duties of the officer under this Act is not parallel to the power of Station House Officer of the police Station. Chapter XII of the Code of Criminal Procedure deals with the information to the police and their powers to investigate. This does not contemplate the power of investigation to any other officer other than mentioned therein sub-clause (1) of Section 154 Cr. P.C. deals with the investigation of the cognizable offence which is not attracted in the present case under Excise Act, which has been made non-cognizable. Sub-clause (1) of Section 155 Cr. P.C. deals with the information regarding non-cognizable cases and investigation of such cases and under sub-clause (2) of the said section wherein it has been provided that the investigation can be made only with the order of the Magistrate having power to try such cases or to commit such cases and under sub-clause (3) it has been provided any police officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court have observed:- "Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the procedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of the society, including the State, not to infringe that right." 20.The question before their Lordships was at what stage the right can be enforced? Does a citizen have to wait till the right is infringed? Can the obligation or compulsion on the part of the State to observe the right be made effective only after the right is violated or in other words can there be enforcement of a right to life and personal liberty before it is actually infringed? When a right is yet to be violated, but is threatened with violation can the citizen move the Court for protection of right? The protection of the right is to be distinguished from its restoration or remedy after violation. When right to personal liberty is guaranteed and the rest of the society, including the State is compelled o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act can act as police officer. The further argument of the learned Counsel for the State that under proviso every such enquiry as aforesaid shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code. Therefore, the word used shall be deemed to be a judicial proceeding, cannot be extended beyond the meaning which can be gathered from the context of Section 14 of the Act and therefore, the enquiry conducted by the Central Excise Officer under Section 14 cannot be termed as investigation trial and thus they do not have the powers which in charge officer of police station or person deputed by Court for the investigation has. That an officer in charge of the police station can only register an F.I.R. otherwise it will be interference in law. The result is that they cannot register on information as F.I.R. under Section 154(1), Cr. P.C. or they cannot proceed either under Section 154 as officer in charge of the police station for a non-cognizable offence. Consequently they are also not entitled for the powers under 156 and 157, Cr. P.C., and therefore the Magistrate cannot take cognizance on their report as a police report. The on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual or individual. When we speak of a right as a legally protected interest. In the words of Kelsen, it refers to a right as the "reflex of a legal obligation". Right is often understood as a will power conferred by law. A right in the sense is present if the conditions of the sanction that constitutes a legal obligation includes a motion, normally of the individual in relation to whom the obligation exists, the motion is aimed at the execution of the sanction and has the form of a legal action brought before the law applying organ. Then this organ may apply the general norm to effectuate the right, which is the reflex of the legal obligation by executing the sanction. The right which is the reflex of the legal obligation is equipped with the legal power of the entitled individual to bring about by a legal action the execution of a sanction as a reaction against the non-fulfilment of the obligation whose reflex is his right, or as it is sometimes called, the enforcement of the fulfilment of this obligation. To make use of this legal power of motion is exercise of the right. In this sense each right of an individual contains a claim to the behaviour of another individual — n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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