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Writ Petition (Crl.) No. 66 Of 2011 With W.P. (Crl.) Nos. 85 Of 2010 And 74, 87, 101-102 Of 2011 And 74 Of 2010 With 36-37, 51, 76, 84 Of 2011 And Crl. M.P. No. 10673 Of 2011 In W.P. (Crl.) No. 76 Of 2011. Case: 1. Om Prakash and Anr., 2. Choith Nanikram Harchandani Vs Union of India and Anr.. Supreme Court (India)

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Case NumberWrit Petition (Crl.) No. 66 Of 2011 With W.P. (Crl.) Nos. 85 Of 2010 And 74, 87, 101-102 Of 2011 And 74 Of 2010 With 36-37, 51, 76, 84 Of 2011 And Crl. M.P. No. 10673 Of 2011 In W.P. (Crl.) No. 76 Of 2011
CounselFor Petitioners: Nikhil Jain, Adv. and For Respondents: Arvind Kumar Sharma, Adv.
JudgesAltamas Kabir, Cyriac Joseph and Surinder Singh Nijjar, JJ.
IssueCentral Excise Act, 1944 - Sections 104(4), 135
Citation2011 (272) ELT 321 (SC), 2012 (1) ACR 1062 (SC), AIR 2012 SC 545, 2012 CriLJ 779, 2011 (187) ECR 363 (SC), 2011 (4) KLT100 (SN) , 2011 (2) LW 497 (Crl), 2012 (1) MLJ 104 (SC), 2011 (11) SCALE 310, 2011 (6) UJ 4111
Judgement DateSeptember 30, 2011
CourtSupreme Court (India)

Judgment:

Altamas kabir, J.

  1. Two sets of matters have been heard together, one relating to the provisions of the customs act, 1962, and the other involving the provisions of the central excise act, 1944, since the issue in both sets of matters is the same. The common question in these two sets of matters is that since all offences under the central excise act, 1944 and the customs act, 1962, are non-cognizable, are such offences bailable? Although, the provisions of both the two acts in this regard are pari materia to each other, we shall first take up the matters relating to the central excise act, 1944, hereinafter referred to as "the 1944 act", namely, (1) writ petition (crl) no. 66 of 2011, om prakash & anr. V. Union of india & anr., which has been heard as the lead case, (2) writ petition no. 85 of 2010 and (3) writ petition (crl.) Nos. 74, 87, 101 and 102 of 2011.

  2. section 9a of the 1944 act, which was introduced in the act with effect from 1st september, 1972, provides that certain offences are to be non-cognizable. Since we shall be dealing with this provision in some detail, the same is extracted hereinbelow:-

    "9a. Certain offences to be non-cognizable.- (1) Notwithstanding anything contained in the code of criminal procedure, 1898 (5 of 1898), offences under section 9 shall be deemed to be non-cognizable within the meaning of that code.

    (2) the any offence under this chapter may, either before or after institution of prosecution, be compounded by the chief commissioner of central excise on payment, by the person accused of the offence to the central government, of such compounding amount and in such manner of compounding, as may be prescribed.

    Provided that nothing contained in this sub-section shall apply to -

    (a) a person who has been allowed to compound once in respect of any of the offences under the provisions of clause (a), (b), (bb), (bbb), (bbbb) or (c) of sub-section (1) of section 9;

    (b) a person who has been accused of committing an offence under this act which is also an offence under the narcotic drugs and psychotropic substances act, 1985 (61 of 1985);

    (c) a person who has been allowed to compound once in respect of any offence under this chapter for goods of value exceeding rupees one crore;

    (d) a person who has been convicted by the court under this act on or after the 30th day of december, 2005."

  3. What is important is the non-obstante clause with which the section begins and in very categorical terms makes it clear that notwithstanding anything contained in the code of criminal procedure, offences under section 9 of the 1944 act would be deemed to be non-cognizable within the meaning of the code. In fact, subsection (2) of section 9a also provides for compounding of offences upon payment of the compounding amount with the exceptions as mentioned in the proviso thereto.

  4. Mr. Mukul rohatgi, learned senior counsel appearing for the petitioners in both sets of matters, submitted that since the expressions "cognizable" or "non-cognizable" or even "bailable offences" had not been defined in either the 1944 act or the customs act, 1962, one would have to refer to the provisions of the code of criminal procedure, 1973 (cr.p.c.) To understand the meaning of the said expressions in relation to criminal offences. Section 2(a) cr.p.c. Defines "bailable offence" as follows:-

    "2(a) "bailable offence" bailable in the means an offence which is shown as first schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence;"

    Section 2(c) defines "cognizable offence" as follows:-

    "2(c) "cognizable case" means an offence for which, and "cognizable offence" means a case in which, a police officer may, in accordance with the first schedule or under any other law for the time being in force, arrest without warrant;"

    Section 2(1) defines "non-cognizable offence'' as follows:-

    "2(1) means an offence for which, and "non-cognizable offence" "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant;"

  5. Mr. Rohatgi then submitted that offences which are punishable under the 1944 act have been indicated in section 9 of the said act and these sets of cases relate to the offences indicated in section 9(1)(d) of the said act. Section 9(1)(d) is again divided into two sub-clauses and reads as follows:-

    9. Offences and penalties (1) Whoever commits any of the following offences, namely

    (a) to (c)............................................................................

    (d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section;

    Shall be punishable,-

    (i) in the case of an offence relating to any excisable goods, the duty leviable thereon under this act exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine:

    Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for a term of less than six months;

    (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both.

  6. What is of significance is that offences covered by clauses (a) and (b) and the subsequent amendments thereto relating to any excisable goods, where the duty leviable thereon under the act exceeds one lakh of rupees, would be punishable with imprisonment for a term which may extend to seven years and with fine, whereas under section 9(1)(d)(ii), in any other case, the offence would be punishable with imprisonment for a term which may extend to three years or with fine or with both.

  7. Since the question of arrest is in issue in these sets of cases, mr. Rohatgi then referred to the provisions of section 13 of the 1944 act, which deals with the power to arrest in the following terms:-

    13. Arrest. Any central excise officer not below the rank of power to inspector of central excise may, with the prior approval of the commissioner of central excise, arrest any person whom he has reason to believe to be liable to punishment under this act or the rules made thereunder.

  8. Mr. Rohatgi submitted that the said power would have to be read along with sections 18, 19, 20 and 21 of the 1944 act along with section 155 cr.p.c. Section 18 of the 1944 act provides for searches and how arrests are to be made under the act and rules framed thereunder and reads as follows:-

    18. Made. All searches made under this act or searches and arrests how to be any rules made thereunder and all arrests made under this act shall be carried out in accordance with the provisions of the code of criminal procedure, 1973 (2 of 1974), relating respectively to searches and arrests made under that code.

  9. Sections 19, 20 and 21 deal with how a person arrested is to be dealt with after his arrest and the procedure to be followed by the officer in-charge of the police station concerned to whom any person is forwarded under section 19. For the sake of understanding the scheme, the provisions of sections 19, 20 and 21 of the 1944 act are extracted herein below ad seriatim:-

    19. Arrested. Every person arrested under this act shall disposal of persons be forwarded without delay to the nearest central excise officer empowered to send persons so arrested to a magistrate, or, if there is no such central excise officer within a reasonable distance, to the officer-in-charge of the nearest police station.

    20. Followed by officer-in-charge of police station. The procedure to be officer-in-charge of a police station to whom any person is forwarded under section 19 shall either admit him to bail to appear before the magistrate having jurisdiction, or in default of bail forward him in custody to such magistrate.

    21. Made by central excise officers against arrested inquiry how to be persons forwarded to them under section 19. (1) when any person is forwarded under section 19 to a central excise officer empowered to send persons so arrested to a magistrate, the central excise officer shall proceed to enquire into the charge against him.

    (2) the same powers for this purpose, the central excise officer may exercise and shall be subject to the same provisions as the officer-in-charge of a police station may exercise, and is subject to under the code of criminal procedure, 1898 (5 of 1898), when investigating a cognizable case:

    Provided that -

    (a) sufficient if the central excise officer is of opinion that there is evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a magistrate having jurisdiction in the case, or forward him in custody to such magistrate;

    (b) not sufficient if it appears to the central excise officer that there is evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the central excise officer may direct, to appear, if and when so required, before the magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior.

  10. As indicated in section 18, all steps taken under sections 19, 20 and 21 would have to be taken in accordance with the provisions of the code of criminal procedure and the relevant provision thereof is section 155 which deals with information as to non-cognizable cases and investigation of such cases, since under section 9a of the 1944 act all offences under the act are non-cognizable. For the sake of reference section 155 cr.p.c. Is extracted herein below:-

    "155. Non-cognizable cases and investigation of such cases. information as to (1) when information is...

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