NILKANTH SHELKE Vs. DARSHAN CHURIWALA

JUDGEMENT

(1.) This is an application for cancellation of bail granted by the learned Chief Judicial Magistrate, Dadra & Nagar Haveli, Silvassa to the respondent who is allegedly involved in the offence punishable under Section 9 of the Central Excise Act, 1944 (for short, the Act), The Deputy Director, Directorate General of Central Excise Intelligence, Regional Unit, Vapi has filed this application contending that the learned Magistrate had misdirected himself by examining whether offence under Section 9 was a socioeconomic offence and then proceeded to grant bail to the respondent. It is also contended that the respondents being at large is likely to prejudice a fair investigation, since he is an influential person in the hierarchy of the company who can influence witnesses. It was also stated that the respondent had been evading to appear before the Excise Officer and had not even complied with the directions contained in the order of the learned Magistrate. The respondent has filed a detailed reply in the form of an affidavit. I have heard the learned Special PP for the Department and the learned counsel for the respondent. It appears that after his arrest on 19-3-2011, the respondent was admitted to bail on 21-3-2011 by the learned Magistrate by his impugned order. Thereafter, the respondent had been examined by the Central Excise Officer on 4-4-2011 and 18-4-2011. The allegation is about allowing excisable goods to leave the company premises without any record or by creating parallel record. Several employees of the company were examined by the officers before the respondent came to be arrested. The Special PP submits that the offence which the respondent has committed attracts punishment of imprisonment which may extend to seven years and, therefore, is a serious economic offence, affecting the revenue and therefore the learned Magistrate should have seen that the investigation in this case would be hampered by the respondents being at large.

(2.) Though both the learned counsel submit that this question, which I am shortly referring to, is already receiving attention of the Apex Court, I may all the same refer to the provisions of Section 13 - about the power to arrest, Section 19 - about disposal of persons arrested and Section 21 - about the procedure of making inquiry by the Central Excise Officers against arrested persons forwarded to them under Section 19. The Special PP submits that, once a Central Excise Officer arrests a person with prior approval of the Commissioner of Central Excise under Section 13, he has to straightaway forward that person to the Magistrate and then the Magistrate has to deal with such person under Section 167 of the Code of Criminal Procedure. In that case, the impression in Section 19 about forwarding persons arrested under the Act to the Central Excise Officer empowered to send persons so arrested to a Magistrate would be a redundancy, since every Excise Officer, according to the Special PP, is entitled to send persons arrested under the Act to a Magistrate. Since arrest under the Act can be made only under Section 13, there is no question of any other person effecting arrest and sending the person so arrested to a Central Excise Officer. Therefore, when a person is arrested, he can be dealt with only by a Central Excise Officer empowered to send such person to a Magistrate, since there could be officers who may departmentally be not empowered to do so. Sub-section (2) of Section 21 says that, if the Central Excise Officer is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate, or forward him in custody to such Magistrate. Since Sections 13, 19, 20 and 21 are the only sections in the Act which deal with persons arrested, from the reading of these sections it appears that the first option which the officer has is to admit the accused to bail and the second option is to forward him to a Magistrate. Section 20, where a persons arrested is forwarded to the officer-in-charge of a police station, possibly because there is no nearest Central Excise Officer empowered to send the person so arrested to a Magistrate, authorises the police officer to admit such person to bail promptly. Now, if a police officer to whom such a person is forwarded is obliged to admit the person to bail, it is not clear why a Magistrate, to whom such person is forwarded, should not admit the person to bail. In any case, the offence alleged is one punishable under Section 9 and attracts punishment of imprisonment for seven years only and not life imprisonment. Therefore, there is no warrant to detain the respondent in prison pending investigation or trial, unless it is shown that the respondent is abusing his liberty. The Department had already applied before the learned Magistrate for cancellation of bail on the ground that the respondent had not attended the office of the applicant in terms of the order on which the respondent was bailed out. The learned Magistrate has dealt with that application and had granted exemption to the respondent to enable the respondent to take treatment, whereafter the respondent claims to be appearing before the Central Excise Authorities, as ordered. Since the Special PP questions this claim of the respondent, in future, to avoid loss of judicial time on account of such claims and counter-claims, the respondent would obtain an acknowledgement from the Central Excise Officer and the Officer would be obliged to give such an acknowledgement when the respondent appears before the Officer in compliance with the orders of the Magistrate. Needless to mention, the respondent would keep himself in good physical shape so that he does not have any occasion to again breach the order of the Magistrate. There is no case for interference in the order passed by the learned Magistrate admitting the respondent to bail. The application is, therefore, rejected.