TMI Blog2009 (10) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... ition is as to whether the authorities under the Central Excise Act, 1944 (hereinafter referred to as the Act ) have the power to arrest a person under Section 13 of the Act without a warrant and without filing an FIR or lodging a complaint before a Court of competent jurisdiction. 2. The petitioner-M/s. Bhavin Impex Private Limited, a 100% EOU (Export Oriented Unit) is engaged in the manufacture of brass sanitary fittings, brass bolts, nuts, screws etc. classifiable under various chapters of the Central Excise Tariff Act, 1985, out of imported raw materials viz. mix brass scrap/mix brass scrap with iron attachment and other impurities etc. procured free of import duty under the relevant notifications under the Customs Act read with the provisions of the Foreign Trade Policy and as per the procedures laid down under the Scheme for Export Oriented Units. Pursuant to the intelligence received by the Central Excise Department that the petitioner was indulging in diversion of brass scrap imported duty-free under the 100% Export Oriented Unit (EOU) Scheme in the local market without payment of appropriate duty, a team of officers visited the unit atJamnagarand carried out search on14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was accordingly summoned to appear before the Investigating Officer on21st February, 2008. However, he did not appear on that date citing reason of illness. Thereafter, a fresh summons was issued on28th February, 2008pursuant to which Mr. Sanjay Sayani appeared before the Investigating Officer Shri K.K. Sheth, Superintendent (Preventive) on28th February, 2008. On that day, a statement of Mr. Sanjay Sayani was recorded in his own hand wherein various admissions were made. Thereafter, on the same date, Mr. Sanjay Sayani lodged an FIR against four officers including Joint Commissioner of Customs and Central Excise before the Police Commissioner,Rajkotand various other authorities. On1st March, 2008, Mr. Sanjay Sayani filed a criminal complaint before the Chief Judicial Magistrate,Rajkotagainst all officials of Customs and Central Excise being Criminal Case No. 32 of 2008. On4th March, 2008, a Civil Suit came to be filed by the petitioner for defamation and personal physical harassment against the officials of the Customs and Central Excise Department. 3. Subsequently, a search warrant came to be issued against the petitioner by the Assistant Commissioner (AE), Central Excise Headq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition, the Division Bench observed as follows :- When inquiry is to be made in respect of a suspected evasion of duty, which is ordinarily done in a clandestine manner, it would raise many questions which can be answered only upon the person concerned being questioned. This would not only help the investigation/inquiry being conducted in right direction but would also help the party concerned to explain put forth their case/version. Stand of petitioners of not appearing before respondent authorities would only cause hindrance in a lawful process. Be that as it may; the fact remains that the petitioners have not cooperated in investigation despite directions of this Court, and the stand is that although the petitioners may not cooperate in investigation/inquiry, and both the petitioners may not obey direction of the Court, still the Court may entertain this petition. Such a stand cannot be accepted. Extraordinary jurisdiction under Article 226 of the Constitution of India can be invoked to support supplement the due process of law or to protect constitutional right of a law abiding citizen, and not to support a citizen s attempt to obstruct the due process of law even by di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has subsequently also filed an additional affidavit dated 30th June, 2009 whereby certain additional documents have been placed on record, mainly to justify the reason for his not remaining present in response to the summons issued by the respondent authorities. 7. In response to the petition, the respondent No. 2 has filed an affidavit-in-reply dated6th July, 2009, denying the averments made and the contentions raised in the petition. It is averred that the material collected during the course of the ongoing investigation clearly indicates that there is clandestine removal of goods worth Rs. 2.91 crores involving central excise duty of a sum of Rs. 67,00,000/- approximately and that the petitioner, its directors and ex-directors are deliberately not cooperating with the investigation and creating obstructions to sabotage the investigation. It is inter alia stated in the said affidavit that no arrest memorandum has been issued by the Central Excise Department till the date of filing the affidavit, hence the petition is pre-mature. It is also stated that the petitioner has suppressed the fact that they have committed willful breach of the direction issued by a Division Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present and ex-directors of the petitioner company to seek their explanation in respect of such incriminating material and therefore, summons have been issued under Section 14 of the Central Excise Act for recording statements and production of documents by persons connected with the affairs and functioning of the petitioner company for the relevant period, however, they are not cooperating with the investigation. It is also stated that till date no recovery proceedings have been initiated against the petitioner for recovery of the evaded duty consequent to the search on14-2-2008at the petitioner s factory premises for the sole reason of non-cooperation on the part of the petitioner. 10. Mr. Y.N. Oza, learned senior advocate with Mr. R.K. Savjani, learned advocate for the petitioner has submitted that Section 13 of the Act which provides for the power to arrest has not been enacted to give overriding powers to the authorities akin to admissibility of statements in evidence. It is submitted that before resorting to the power of arrest under Section 13 of the Act, the entire process laid down under the Code of Criminal Procedure has to be followed. According to the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f inquiry and moreover no other person than the police officer under the Code of Criminal Procedure has power to investigate under the Act and no other person under the Excise Act can act as police officer. It has been held that the authorities working under a Special Act such as Central Excise Act, 1944 cannot override the provisions of the Code of Criminal Procedure as regards the arrest or filing of the complaint. For the convenience of the Court, they may enquire into the facts and determine the prima facie case against the accused, may file complaint before the Magistrate and it will be for the Magistrate to issue the process after looking into the gravity of the complaint. Secondly, the arrest of a person under this Act has to be made only when there is a prima facie case against him and that too by the due process of law. It is further held that the authorities under the Central Excise Act have no power under the Act to arrest anybody except in the cases as prescribed under Section 13 of the said Act, as enumerated in sub-clause (2) of Section 13 of the said Act. On completion of the enquiry, they have also power to file a complaint and pray before the Court for action in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings of the original Criminal Case pending before the Chief Judicial Magistrate, till the case is pending before the Collector, Central Excise. It is submitted that in view of the aforesaid binding precedent, the prosecution against the petitioner is required to be stayed till final adjudication by the Central Excise authorities. 12. The petition is strongly resisted by Ms. Amee Yajnik, learned Standing Counsel for the respondent No. 2-Customs and Central Excise Department. At the outset, it is contended that the petition is premature inasmuch as no arrest memo has been issued by the Central Excise Department on the date of filing of the petition or even on the date of filing of the affidavit dated6th July, 2009filed on behalf of the respondent No. 2. Next, it is submitted that the petition is not maintainable inasmuch as the petitioner is seeking a blanket order not to arrest the Directors. Next, it is contended that the petition is barred by the principle of res judicata in view of the fact that on an earlier occasion a petition wherein similar reliefs had been prayed for has been dismissed. It is submitted that the petitioner has been resorting to instituting variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without issuance of an arrest warrant and order without registering an FIR or lodging of a complaint, it is submitted that the Central Excise Officers, subject to fulfillment of inbuilt requirement of Section 13 of the Act, are competent to exercise power in accordance with law as arrest is not a punitive action but is an integral part of and in aid of investigation being carried out by the competent officers under the Act. Reliance is placed upon a decision of the Division Bench of the Punjab Haryana High Court in Sunil Gupta v. Union of India [2000 (118) E.L.T. 8 (P H)] wherein the Court was dealing with the issue as to whether a Central Excise Officer is debarred from arresting a person without a warrant despite the fact that he has reasons to believe that the person is liable to be punished under the Central Excise Act, 1944. The Court, after extensively considering the provision of Sections 9(A), 13, 14 and 18 of the Act, held that an officer of the Department of Central Excise who has been duly authorised by the Central Government is not debarred from arresting a person without a warrant when he has reason to believe that the person is liable to be punished under the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion which arises for consideration before this Court is whether arrest would come before lodging the complaint or vice-versa. It is contended that the whole purpose of Section 13 of the Act is to make statements admissible in evidence and that the law laid down by the Allahabad High Court in Kum. Rajni (supra) is the correct proposition of law and is required to be followed. 16. In the background of the facts and contentions noted hereinabove, two issues mainly arise for determination. Firstly, whether arrest can be made under Section 13 of the Central Excise Act, 1944 without issuance of warrant and whether lodgment of an FIR or a complaint is necessary as a pre condition for exercise of powers of arrest under Section 13 of the Act and secondly, whether criminal prosecution cannot be initiated or continued till the final adjudication by the Customs and Excise Department. 17. For the purpose of deciding the aforesaid issues, it would be necessary to examine the scheme of the Central Excise Act in the context of the relevant provisions. The Preamble to the Central Excise Act, 1944 says; Whereas it is expedient to consolidate and amend the law relating to central duties of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required : Provided that the exemptions under Sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions of attendance under this section. (3) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860 (45 of 1860). Section 15 of the Act which provides for Officers required to assist Central Excise Officers lays down that all officers of Police and Customs and all officers of the Government engaged in the collection of land revenue, and all village officers are hereby empowered and required to assist the Central Excise Officers in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support of their main function of levy and collection of duty on exported goods. 18. Similarly, under the Customs Act also, the powers of Customs Officers are for the purpose of checking the smuggling of goods and the due realization of customs duty to determine the action to be taken in the interests of the revenue of the country by way of confiscation of goods on which no duty has been paid and by imposing penalties and fine. The powers of Customs Officers are really not for the purpose of effective prevention and detection of crime in order to maintain law and order which the police officers enjoy. Since the provisions of the Customs Act are similar to the provisions of the Central Excise Act and various decisions of the Supreme Court touching the issue in question are rendered in the context of the provisions of the Customs Act, it would be germane to refer to the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, held that the powers of Customs Officers are really not for the purpose of effective prevention and detection of crime in order to maintain law and order which the police officers enjoy. Their powers are for the purpose of checking the smuggling of goods and the due realisation of customs duties and to determine the action to be taken in the interests of the revenues of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines. 21. In Badaku Joti v. State of Mysore, AIR 1966 SC 1746 = 1978 (2) E.L.T. (J323) (S.C.) the Supreme Court after considering the provisions of Sections 9, 13, 18 and 19 of the Central Excise Act held that the sections clearly show that the main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. Section 9 of the Act provides for punishment which may extend to imprisonment upto 6 months or to fine upto Rs. 2000 or both where a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to inquire into the charge made against such person. Further under proviso (a) to sub-section (2) of Section 21 if the Central Excise Officer is of 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 having jurisdiction in the case, or forward him in custody to such Magistrate. It does not however appear that a Central Excise Officer under the Act has power to submit a charge-sheet under Section 173 of the Code of Criminal Procedure. Under Section 190 of the Code of Criminal Procedure a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, or (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of clause (b) above can in our opinion only be a police officer properly so-called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as of the view that the admissibility of statements recorded by a Customs Officer under Section 171-A of the Sea Customs Act, 1878 would depend upon the determination of the question whether the statements when made were inadmissible under Section 25 of the Evidence Act, and Article 20(3) of the Constitution. The Court held thus : 5. Section 25 of the Indian Evidence Act, 1872, enacts that No confession made to a police officer shall be proved as against a person accused of any offence . The broad ground for declaring confessions made to a police officer inadmissible is to avoid the danger of admitting false confessional statements obtained by coercion, torture or ill-treatment. But a Customs Officer is not a member of the police force. He is not entrusted with the duty to maintain law and order. He is entrusted with powers which specifically relate to the collection of customs duties and prevention of smuggling. There is no warrant for the contention raised by counsel for Mehta that a Customs Officer is invested in the enquiry under the Sea Customs Act with all the powers which a police officer in charge of a police station has under the Code of Criminal Procedure. Under the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 173 of the Code of Criminal Procedure. He can only make a complaint in writing before a competent Magistrate. The Supreme Court found no substance in the contention that a person against whom an enquiry is made by the Customs Officer under the Sea Customs Act is a person accused of an offence and on that account he cannot be compelled to be made a witness against himself, and the evidence if any collected by examining him under Section 171-A of the Sea Customs Act is inadmissible. The Court held thus : 11. xxxxxxx By Article 20(3) of the Constitution a person who is accused of any offence may not be compelled to be a witness against himself. The guarantee is, it is true, not restricted to statements made in the witness box. This Court in State of Bombay v. Kathi Kalu Oghad observed at p. 37 : To be a witness means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. To be a witness in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by a court or judicial tribunal within the meaning of Article 20(2) of the Constitution and the prosecution was not barred. (Emphasis supplied) The Court observed that in two earlier cases in M.P. Sharma case [1978 (2) E.L.T. J287 (S.C.)] and Raja Narayanlal Bansilal case the Supreme Court in describing a person accused used the expression against whom a formal accusation had been made , and in Kathi Kalu Oghad case the Court used the expression the person accused must have stood in the character of an accused person . The Supreme Court held that the Court in Kathi Kalu Oghad case has not set out a different test for determining the stage when a person may be said to be accused of an offence and that in Kathi Kalu Oghad case the Court merely set out the principles in the light of the effect of a formal accusation on a person viz. that he stands in the character of an accused person at the time when he makes the statement. The Court was of the view that normally a person stands in the character of an accused when a first information report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sea Customs Act, 1878, is not altered. The Customs Officer even under the Act of 1962 continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry intoIndiaof dutiable goods without payment of duty and of goods of which the entry is prohibited. He does not on that account become either a police officer, nor does the information conveyed by him, when the person guilty of an infraction of the law is arrested, amount to making of an accusation of an offence against the person so guilty of infraction. Even under the Act of 1962 formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person guilty of the infraction under Sections 132, 133, 134 and 135 of the Act. Any statement made under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence. 23. In Illias v. Collector of Customs, (1969) 2 SCR 613 = 1983 (13) E.L.T. 1427 (S.C.) the Supreme Court summarized the comparison made between the duties and powers of police officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode would be applicable to this extent even in respect of an offence under Section 135 of the Customs Act. The Court referred to the provision contained in Part II of the First Schedule to the Code and more particularly to the first and second entries therein. The Court found that by virtue of the first entry in respect of offences against other laws, that is to say, laws other than Indian Penal Code, an offence punishable with imprisonment for a period of three years and upwards but not exceeding seven years is also classified as non-bailable. So also by virtue of entry No. 2 an offence punishable with imprisonment for a period of three years and upwards but not exceeding seven years is also classified as non-bailable. An offence under Section 135 of the Customs Act is in any event punishable with imprisonment of three years and upwards but not exceeding three years. Regardless of the value of goods in any event the offence is punishable with imprisonment for three years. Such being the position the offence is non-bailable. The Court held that sub-section (2) of Section 4 provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that the registration of a case and the entries of the case diary are not necessary for entertaining an application for grant of anticipatory bail, but the mere imminence of a likely arrest on a reasonable belief on an accusation of having committed a non-bailable offence will be sufficient to invoke that provision. In the backdrop of the above referred decision, the Court held that a Magistrate can himself arrest or order any person to arrest any offender if that offender has committed an offence in his presence and within his local jurisdiction or on his appearance or surrender or is produced before him and take that person (offender) into his custody subject to the bail provisions. If a case is registered against an offender arrested by the Magistrate and a follow-up investigation is initiated or if an investigation has emanated qua the accusations levelled against the person appearing or surrendering or being brought before the Magistrate, the Magistrate can in exercise of the powers conferred on him under Section 167(2) keep that offender or person under judicial custody in case the Magistrate is not inclined to admit that offender or person to bail. The Court held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 SC 29 as well as decision of an eleven-Judge Bench of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, AIR 51961 S.C. 1808, and held that the essence of the said decisions is that to bring a person within the meaning of accused of any offence , that person must assimilate the character of an accused person in the sense that he must be accused of any offence. The Court thought it apposite to note that clauses (1) to (3) of Article 22 which speak of a person arrested use only the word person . Article 22(2) states that every person who is arrested and detained in custody... . A similar expression is used in Section 167(1) of the Code reading, Whenever any person is arrested and detained in custody,.... . Thus, while referring to a person arrested and detained neither Article 22 nor Section 167 employs the expression accused of any offence . Discussing the powers of an authorised officer of Enforcement or Customs, the Court held thus :- 113. Though an authorised officer of Enforcement or Customs is not undertaking an investigation as contemplated under Chapter XII of the Code, yet those officers are enjoying some analogous powers such as arrest, seizures, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 Sec. 38 Sec. 35 Sec. 36 Sec. 40 Sec. 106 Sec. 110 Sec. 104 Sec. 107 Sec. 108 Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63 Sec. 10 Sec. 10(B) Sec. 6 Sec. 9 115. The above table manifestly imparts that all the powers vested on various authorities as given in the table are equipollent as being enjoyed by a police officer under the Code and exercised during investigation under Chapter XII because the investigation is nothing but an observation or inquiry into the allegations, circumstances or relationships in order to obtain factual information and make certain whether or not a violation of any law has been committed. 116. It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61(ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation which a police officer may in investigating the commission of an offence. He is invested with the power to enquire into infringements of the Act primarily for the purpose of adjudicating forfeiture and penalty. He has no power to investigate an offence triable by a Magistrate, nor has he the power to submit a report under Section 173 of the Code of Criminal Procedure. He can only make a complaint in writing before the competent Magistrate. (iv) The expression any person includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling goods not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been guilty of an offence punishable under Section 135 of the Customs Act. (ix) The police is the instrument for the prevention and detection of crime which can be said to be the main object of having the police. The powers of the customs officers are really not for such purpose and are meant for checking the smuggling of goods and due realization of customs duties and determining the action to be taken in the interest of the revenue of the country by way of confiscation of goods of which no duty has been paid and by imposing penalties and fine. 27. Since the provisions of the Central Excise Act are more or less in pari materia to the above referred provisions of the Customs Act, the said principles would also be squarely applicable to the provisions of the Central Excise Act. 28. From the language employed in Section 13 of the Central Excise Act, it is apparent that the said provisions confer power on the Central Excise Officer to arrest any person subject to the following : (i) he should have reason to believe that such person is liable to punishment under the Act or the rules made thereunder; (ii) such powers can be exercised by a Central Excise Officer not below the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; pursuit of offenders into other jurisdictions is laid down under Section 48; Section 49 provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape; Section 50 provides for the person arrested to be informed of grounds of arrest and of right to bail; Section 50A imposes an obligation on the person making arrest to inform about the arrest, etc. to a nominated person and Section 51 makes provision for search of the arrested persons. Section 52 to 60 of the Code provide for further modalities and procedure in case of arrest of a person. However, the provisions of Section 41 to 60 of the Code only lay down the modalities and procedure for arrest of a person and do not detract from the substantive power of arrest conferred by the statute under Section 13 of the Act. 30. Examining the issue from another angle, as noted hereinabove the arrest under Section 13 of the Act is for investigation/enquiry to fulfill the objects of the Act and not for detection of a crime. If the interpretation canvassed by the learned counsel for the petitioner is accepted, it would render the provisions of Section 13 redundant inasmuch as if a person is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Magistrate having power to try such cases or to commit such cases and under sub-clause (3) it has been provided that any police officer receiving such order may exercise the same power in respect of investigation (except the power to arrest without a warrant) by an officer in charge of a Police Station may exercise in a cognizable offence. The Court held that the case being a non-cognizable case, the Central Excise officers have no powers to that of an Officer Incharge of a Police Station. The Court held that the power of arrest has been enunciated in the Central Excise Act which has also been subjected to power of arrest as enunciated under the Code of Criminal Procedure. The Court held that Section 14 of the Central Excise Act itself mentions that it is in the nature of enquiry and no other person than the police officer under the Code of Criminal Procedure has power to investigate under the Act and no other person under the Excise Act can act as police officer. It was further held that the enquiry conducted by the Central Excise Officer under Section 14 cannot be termed as investigation trial and thus they do not have the powers which in charge officer of a police station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law laid down in the above referred decisions. In the said case the Court has held that the authorities have no power to arrest except in the cases prescribed under Section 13(2). As noted hereinabove, Section 13 has subsequently been substituted, and as it stands today, there is no sub-section (2). In the circumstances, if the view taken by the Allahabad High Court were to be accepted, under Section 13 as it stands today the Central Excise Officers would not have any power to arrest anybody and consequently the said provision would become redundant. 35. On behalf of the respondent authorities, strong reliance is placed upon the decision of the Punjab Haryana High Court In Sunil Gupta v. Union of India (supra) wherein the Court upon perusal of the provisions of Section 9(a), 13, 14 and 18 of the Central Excise Act observed thus :- xxxxx Section 9(A) introduces a fiction. As a result, the offences under Section 9 are deemed to be non-cognizable. Section 13 authorises any Central Excise Officer duly empowered by the Central Government in this behalf to arrest any person who may he has reason to believe to be liable to be punished under this Act . This provision embodies a subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Central Excise who has been duly authorised by the Central Government is not debarred from arresting a person without a warrant when he has reason to believe that the person is liable to be punished under the Central Excise Act, 1944. The Court was of the view that the power under Section 13 is not curtailed by Section 18. In fact, Section 18 is merely procedural. Thus, the competent officer is not required to obtain a warrant before he is able to arrest a person in exercise of powers under Section 13. 36. This Court is in agreement with the view taken by the Punjab and Haryana High Court, viz. a Central Excise Officer, (satisfying the conditions laid down under Section 13) is not debarred from arresting a person without a warrant when he has reason to believe that the person is liable to punishment under the Act or the rules made thereunder. Section 13 is not curtailed by Section 18 and in fact Section 18 is merely procedural. 37. As regards the second issue raised by the petitioners, i.e. criminal prosecution cannot be initiated or continued till the final adjudication by the Customs and Excise Department, in the opinion of this Court, the said issue is a non-issue inso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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