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TMI Blog2005 (12) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... hane came across a vehicle bearing Registration No. BYL 3191. On enquiry it was found that the goods loaded in the vehicle were being transported from M/s. Asian Electronics Ltd., Thane. In the challan description of the goods is "Scrap Resistors" and 202 packets of this material was packed in cardboard boxes. Same were despatched to M/s. Nav Bharat Radio Agencies, Mumbai. In the octroi form name of consignee was shown as M/s. Jetking Electronics. Vehicle, therefore, was taken to factory and it was detained for investigation along with goods. It is stated in the complaint that at the relevant time lock out was declared in the factory and only security staff was attending the same. Seizure proceedings were, therefore, postponed. Ultimately, same were completed on 18th/19th September, 1978. Each box came to be opened. It was found that the same was containing the goods in seal pack condition in small boxes. Markings on the said boxes were noted. It is contended that detailed inventory of the goods packed in the said 202 cartoons reveal that there were 27,89,236 pieces of resistors valued at Rs. 6,97,500/-. Panchanama was drawn. Goods were not found accompanying a valid Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avened the sub-rules because the said goods were removed without cover of a valid Central Excise transport document which is form G.P.-I. Further, contravention of the rules is pertaining to accounting of goods in the prescribed Central Excise Accounts viz., RG-I Register. Accused Nos. 2 and 3, who are applicants herein, have been, therefore, held responsible for evasion of Central Excise duty on the goods. It is further averred that they are in possession of and/or some way concerned in transporting, depositing, keeping or dealing with the goods which they know or had reason to believe are liable for confiscation under the Excise Rules. It is in these circumstances that the complaint which is filed on 1st December, 1982 alleges commission of offences under the aforesaid provisions of the Excise Act. 5. It appears from the record that upon this complaint being filed, proceedings did go on before the concerned Magistrate. Averment in the applications is that the complaint came to be filed after a period of 4 and half years from the date of completion of investigation. Despite the delay and lapse in filing the complaint, trial court on the date of filing of the same, issued process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be employees of second respondent company. They are, therefore, prejudiced inasmuch as the necessary records to support their pleas and defences are not available. 10. It is in these circumstances that the mandate of Article 21 of the Constitution of India is violated. There is no explanation for delay. Thus, the proceedings deserve to be quashed for breach of the mandate of Article 21 of the Constitution of India. The proceedings should also be quashed as against the applicants because no offence is disclosed in the complaint. It is pointed out that the offences alleged are under the Central Excises and Salt Act and more particularly section 9. The applicant in the first matter is the Works Manager whereas the applicant in the second matter is Secretary of the company. Merely stating that they are working as such would not be enough compliance with the mandate of aforesaid provisions of Central Excises and Salt Act. Specific case that accused are in charge of or responsible to the company for its business is necessary. In the absence of such averments, complaint does not disclose any offence punishable under the above mentioned provisions of the Central Excise Act. This is an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicants. For all these reasons, according to him, this Court should exercise its powers under Section 482 of Cr. P.C. and quash and set aside the present proceedings. 14. In addition to the above decisions, Mr. Muchala, relies upon a decision of a Division Bench of Calcutta High Court in the case of Kedar Nath Goenka and Ors. v. Superintendent of Central Excise and Ors., reported in 1978 (2) E.L.T. J538 (Cal.) = 1979 Cri. L.J. 421, and a decision of a learned Single Judge of this Court in the case of Garda Chemicals Pvt.Ltd. and Ors. v. R. Parthasarthy, Assistant Collector, Central Excise Kalyan and Anr. , reported in 1984 (15) E.L.T. 18 (Bom). 15. On the other hand, Mr. Satpute appearing for respondent No. 1 submits that applications are misconceived and should be dismissed. There is no case made out for quashing of the proceedings. He submits that the accused cannot demand as of right that the trial should be concluded speedily. Ultimately, according to him, the Supreme Court decisions have to be applied in the facts and circumstances of each case and considering the offences alleged against accused. If the offence is an economic offence affecting entire Nation, then, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded, based upon which allegations in the complaint are made, both Works Manager as well as Secretary have demonstrated that they were aware of the procedure under the Central Excise Act and Rules, that they were aware of the clearances, that they were aware of the duties and obligations to be discharged under the Central Excise law. In these circumstances, by merely reading some paras of the complaint in isolation, it cannot be contended that it does not disclose any offence. All necessary averments are there in the complaint. He submits that no question of prejudice arises at all. As far as fire in the head office is concerned, he states that, that cannot be put forward as a ground of prejudice. More so, when the applicants have stated that the records were not maintained. Records are to be maintained at the factory. In any event fire took place in the year 1982. The incident and violation of the enactment was in 1978. For all these reasons, there is no substance in the plea of prejudice and the applications deserve to be dismissed. 18. In addition to relying upon the decisions cited by Mr. Muchala, Mr. Satpute invites my attention to three decisions (i) in the case of Mangi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:- (1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are: (a) The period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) The worry, enxiety, expense and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is too long in a system where justice is supposed to be swift but deliberate. ". The same idea has been stated by White, J. in U.S. v. Ewell in the following words :- "... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances." However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) We cannot recognise or give effect to, what is called the "demand rule". An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was no tried speedily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (II) the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold :- (1) The dictum in A.R. Antulay case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalisation can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused concluded some time in the year 1983, thereafter, Evidence proceeded. Statements of witnesses have admittedly been recorded. Complainant had remained present. Recording of statements commenced from 1985. Deposition of prosecution witnesses was completed. On several occasions, the witnesses were present. The accused remained absent. On occasions non-bailable warrant had to be issued. (2nd September, 1986). Sometime, the Court was on leave. Partly, the pleas raised by the applicants about their ceasing to be employees of the company and, therefore, not in a position to represent the company, also accounted for the delay. Thereupon, second respondent company had to be served afresh. Upon service being complete the representatives appeared and applied for being discharged from the proceedings. That application was considered and granted. That they appeared in the year 1991 and discharged at the end of year 1991 is not disputed before me. It is, therefore, clear that the prosecution is not responsible for delaying the proceedings as is sought to be alleged. 23. The delay in filing of the complaint has not been placed in the forefront while urging that the right of speedy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the averments specifically refer to the statement of the Works Manager as well as of the Secretary. If the complaint is perused in the light of this statement, it is not a case where there is a mere reference to the section or reperoduction of language thereof. Acts of omission and commission on the part of officers concerned have been referred to. It is, therefore, contended that the accused including the company are responsible for the evasion of Central Excise duty. In doing so, they have violated and breached provisions contained in the Act and the Rules. They are responsible for non compliance with several procedural and other aspects set out in the rules. In the complaint it is averred as under :- "... from the investigations carried by the Central Excise authorities, it has been ascertained and as aforesaid that accused Nos. 2 and 3 who were and are the Secretary and Works Manager of the said firm of M/s. Asian Electronics Ltd. have evaded payment of Central Excise duty on the said 27,89,237 pieces of Electronics Resistors by not accounting them in central excise records ....". If the complaint is perused, with other material, it is clear that in the Act of disposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they have been arrayed as accused. 29. Submission of Mr. Muchala about prejudice need not detain me at all. As far as prejudice is concerned, it is not for this Court to quash proceedings merely because the accused come forward with a plea that necessary documents and records are not traceable or not available in their office. They cannot, by merely relying upon this, contend that they would be prejudiced completely. It is for them to establish at the trial that such documents and records as are relevant ought to be made available so as to enable them to effectively and properly defend themselves. That aspect can have no bearing on the request to quash proceedings. 30. In the result, there is much substance in the contention of Mr. Satpute appearing for prosecution that this is not a fit case for exercise of inherent jurisdiction of this Court and quash the proceedings in question. However, it is not as if no directions can be issued by this Court to expedite the process. Indeed, that should be the approach as ultimately, all such powers are to render justice. Therefore, the Trial Court should conclude the proceedings as expeditiously as possible and in any event by 30th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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