RAMSWAROOP Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS application is under Section 439 of the Code of Criminal Procedure. The applicants four in number were arrested on 29. 3. 1996. They were produced before the Magistrate on 30. 3. 1996 who remanded them to judicial custody till 6. 4. 1996. It is submitted by Mr. Bhangde. Ld. Counsel that after 6. 4. 1996, as per an application for extension of remand, the ld. Magistrate extended the remand up to 16. 4. 1996. In the meanwhile it is submitted by the ld. Counsel for the applicants that an application for enlarging the applicants on bail was made, which application was rejected by the ld. J. M. F. C. Nagpur, whereupon the applicants moved the 6th Additional Sessions Judge, Nagpur, under Section 439 of the Code of Criminal Procedure for bail which application too was dismissed on 3. 4. 1996. It is thereafter that this application is moved before this Court.

(2.) ON behalf of non-applicant No. 2 a reply has been filed. It was submitted by the ld. Counsel for the applicants, Mr. Dharmadhikari, that the applicants were forwarded to Police Station, Sadar, Nagpur, and an application for bail was filed before the Station House Officer though the same was not entertained. Later the applicants were produced before the Magistrate. The ld. Magistrate, as indicated earlier, remanded the applicants to judicial custody. The first point raised by Mr. Dharmadhikari is that the offence being non-cognizable under Section 9a of the Central Excises and Salt Act, 1944 (for short, "the Act"), Section 167 of the Code of Criminal Procedure (for short, "the Code"), has no application. Therefore, the order of remand is vitiated as the ld. Magistrate is not clothed with jurisdiction to pass an order remanding the applicants to judicial custody. The second point urged by the ld. Counsel is with due regard to the ambit and scope of Section 20 of the Act, the offence is a bailable offence, and therefore, rejection of the application for bail by both the ld. Magistrate as well as the Sessions Judge is illegal. Lastly, the ld. Counsel submitted that even assuming that Section 167 of the Code is applicable and the offence is non-bailable, the facts of the case are such that the applicants are entitled to be enlarged on bail atleast on conditions.

(3.) ON the other hand, ld. Counsel for non-applicant No. 2 Mr. Bhangde, maintained in view of the fact that the remand application Annexure-A, estimates evasion of tax to the tune of rupees two crores and the offence is punishable with imprisonment for a term which may extend to seven years and fine under Section 9 of the Act, as per Schedule I, Part II of the Code the offence is non-bailable. According to him even assuming that the estimate is rough and the evasion is less, the offence disclosed being one punishable under Section 9 of the Act, the applicants are liable to be punished for a term up to three years, which again is non-bailable under Part II of Schedule I of the Criminal Procedure Code. The ld. Counsel also submitted that with due regard to Sections 18, 19, 20 and 21 of the Act, it is idle to contend that Section 167 of the Code has no application. According to Mr. Bhangde, the result of such an interpretation to the contrary will render the provision requiring the officer-in-charge of the Police Station or the Central Excise Officer duly authorised in that behalf to forward the arrested person to the Magistrate ineffective. If the Magistrate cannot exercise powers under Section 167 there will be no purpose for sending the prisoner to the Magistrate. Therefore, such an interpretation with due regard to the wording of the aforesaid section is not possible. Reliance was placed by the ld. Counsel on the decision in the case of Directorate of Enforcement v. Deeepak Mahajan and Another 1991 (58) ECR 632 (SC) = (1994) 3 SCC 440 in support of his contention that Section 167 (1) of the Code will apply even where the arrest is made under the provisions of Special Act, like Central Excises and Salt Act, 1944.