J P SINGH Vs. VINAY KANODIA

JUDGEMENT

(1.) By this petition the Petitioner has assailed order dated 1st December, 2009 of learned ACMM taking cognizance of the offence under Section 323/348/365/368/506 read with Section 34 and 120-B IPC on a complaint made by the Respondent and summoning the Petitioner and other officers of Directorate General of Central Excise Intelligence (henceforth referred to as "DGCEI" for short) to face prosecution and trial of the said offences.

(2.) The facts necessary to decide this petition are that the office of DGCEI had received information about large scale evasion of excise duty by M/s. Vinay Wires and Poly Products Pvt. Ltd., Unit-I & II at Rania, Kanpur Dehat and other related establishments. The officers of DGCEI, R.K. Puram conducted search of the residential premises of Directors and business/factory premises of the company in June, 2009 and found that company was involved in manufacturing of Poly film, CPP film and Flexible printed laminated rolls and pouches and found that Company, in order to evade payment of excise duty, was using parallel invoices on which finished goods were cleared clandestinely and these invoices were not reflected in their business accounts ultimately. The officers also found various incriminating documents, pen drive and found that the raw material and finished goods did not match with the stock reflected in the books. The two active Directors of the aforesaid Company were Brijesh Kanodia and Vinay Kanodia. Search of premises of one Siddharth Dixit, their marketing agent resulted into seizure of pen drive showing incriminating data reflecting that the finished goods had been sold without payment of duty of approximately 5.00 crore. After collection of entire evidence from the premises, summons was sent to the Directors and the employees of the Company for recording their statements and seeking information. Despite service of summons, Directors and employees did not appear. Second summons were sent to the Directors and employees by post as well as by fax, still no one appeared. By the time third summons were sent by post, the Company disconnected its fax, so no summons could be sent through fax. The summons sent by post were received by the Accountant, who later on sent back the summons stating that she could not contact the Directors. Field staff of DGCEI served summons at the office of Company by pasting it, for their appearance on 10th August, 2009. None appeared on 10th August, 2009. However, in October, 2009, Brijesh Kanodia, one of the Directors and C.N. Malviya, Manager filed writ petitions before the Allahabad High Court for quashing of summons and stay of arrest making allegations of torture, illegal confinement, beatings and forcible recording of statements etc. The Allahabad High Court, vide order dated 12th October, 2009 dismissed the writ petitions holding that it was well within the scope of Section 14 of the Central Excise Act to issue summons to the Directors and other employees and ask them to make statements concerning the inquiry. Despite the dismissal of the writ petitions, none of the Directors thought it proper to appear before the officers of DGCEI and they absconded.

(3.) It seems that office of DGCEI got information about the Director/ Respondents having lodged themselves in Balaji Delux Hotel in Paharganj, New Delhi and on 10th November, 2009 at about 10.00-11.00 pm they were taken from the said hotel to R.K. Puram office of DGCEI. Their arrest was not shown immediately and their arrest was shown on 11th November, 2009. Accused/Respondent Vinay Kanodia filed a complaint before learned ACMM on 20th November, 2009 wherein he alleged commission of offences under Section 341/348/308/324/326/191/192/193/196/ 120-B IPC read with Section 34 IPC against the Petitioners. This complaint was filed by him through his father Hanuman Prasad Kanodia. In the complaint he made allegations that he was lifted from hotel premises on 10th November, 2009 at about midnight and was kept in illegal detention for more than 12 hours without authority of law and he was shown arrested only on 11th November, 2009. During this illegal detention he was put to physical and mental torture. He made allegations of recording his statement under coercion. It was submitted that the complainant earlier had approached Human Rights Commission at Delhi about illegal acts of the department and the Human Rights Commission observed that the complaint related to U.P. and transferred his complaint to U.P. State Human Rights Commission. National Human Rights Commission, in the mean time, directed for conducting of inquiry by concerned S.P./S.S.P. It has alleged that due to this complaint, the officers of DGCEI illegally picked him up on 10th November, 2009 from Balaji Delux Hotel, Paharganj, New Delhi and he was forcibly taken to the office of DGCEI and wrongly confined there from 12.00 midnight on 10th November, 2009 till 1.30 pm on 11th November, 2009 and thereafter his arrest was shown. The purpose of wrongly confining the complainant was to harass and torture the complainant because of the complaint filed by him with National Human Rights Commission. Allegations were made that one Siddharth Dixit, Manager (Sales) was already in custody of the officers of DECEI and he was also tortured and Siddharth Dixit and the complainant, both were produced before the Court on 11th November, 2009. Their medical examination was conducted at Safdarjung Hospital. It is submitted that from the MLC it was clear that they had been beaten. It was alleged that the Petitioner had committed offences under Section 341, 348, 308, 324, 326, 191, 192, 193, 196 IPC. In support of this complaint, CCTV footage of the Balaji Delux Hotel was produced and Manager of the Hotel was examined and this footage showed that DGCEI officers had picked up the complainant from the Hotel forcibly and taken him to the office at R.K. Puram.