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2016 (2) TMI 17 - JHARKHAND HIGH COURT

2016 (2) TMI 17 - JHARKHAND HIGH COURT - 2016 (334) E.L.T. 599 (Jhar.) - Arrest of the petitioner for alleged evasion of excise duty - Authorization - Validity of extension of remand - The main thrust of argument of learned counsel for the petitioner is with respect to Section 9A(1A) of the Act by suggesting that only if the opposite parties come to a conclusion that the evasion of excise duty was to the tune of more than ₹ 1 crore, the offence can be treated to be a non bailable and cogni .....

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t ₹ 10 crores. Such tentative assessment would not give any benefit to the petitioner as the same is almost ten times to the ceiling, by which the offence can be construed to be a bailable or non bailable offence. - Procedure - Section 19 very categorically states that every person arrested under this Act shall be forwarded without any delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate. - In absence of any authorization to act in term .....

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e it has already been held that the impugned order dated 21.12.2015 is not in accordance with law and the remand being contrary to the provisions of Central Excise Act enumerated above, I am inclined to allow this application. - Accordingly, this application is allowed and the impugned order dated 21.12.2015, passed by the learned Special Judge, Economic Offence in C-2-1/2015 is hereby quashed and consequently the petitioner is directed to be released forthwith. - Cr. M. P. No. 91 of 2016 .....

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preferred by the petitioner under Article 226 of the Constitution of India and the same was converted into an application under Section 482 Cr.P.C. vide order dated 15.01.2016 and resultantly the said application has been put up before this Court for its disposal. 3. The facts, which are narrated in the application, are to the effect that the petitioner is one of the Directors of an Industrial Unit engaged in manufacture and sale of Iron & Steel Product under the name of M/s Nursingh Ispat L .....

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l 20.12.2015 but according to the petitioner in spite of participating in the proceedings and rendering all cooperations, the petitioner was arrested by the opposite party no. 2 and pursuant to an application under Section 167 of the Code of Criminal Procedure made before the learned Special Judge, Economic Offences, Jamshedpur, the petitioner was taken into custody on 21.12.2015. The order dated 21.12.2015, passed by the learned Special Judge, Economic Offences, Jamshedpur is the subject matter .....

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xcise Authorities. It has been submitted that in terms of the provisions of Section 9A(1A) of the Central Excise Act, 1944, the offences under the Act have been categorized into one, which is up to ₹ 1 crore and which is non cognizable and bailable, whereas if the evasion is above ₹ 1 crore, the same is a cognizable and non bailable offence. Learned counsel submits that final quantifications of the alleged evasion have admittedly not been done and in such circumstance before praying .....

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submits that there has been blatant violation of the procedural safeguards incorporated in Sections 19, 20 and 21 of the Act as the respondent no. 2 was never empowered either to arrest the petitioner or to produce him before the nearest Magistrate for his remand into judicial custody and in such view of the matter, the remand itself being on the prayer by an officer not authorized in terms of the Act, the order dated 21.12.2015 deserves to be quashed. 6. It has also been submitted that vide No .....

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tted an illegality by getting the petitioner remanded denying him his personal liberty. It has also been submitted that the petitioner has been remanded without there being any First Information Report or a Complaint and in such circumstance, the remand itself is bad in law in absence of the same being preceded by institution of a criminal case. 7. Countering the arguments advanced by the learned counsel for the petitioner, Mr. Deepak Roshan, learned counsel for the opposite parties, has submitt .....

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gh Ispat Limited is to the tune of ₹ 10 crores. Learned counsel further submits that prima facie when it has been established that evasion of excise duty is over and above one crore, the offence automatically in terms of the provisions of the Central Excise Act, 1944 becomes a non bailable and cognizable offence and accordingly the prayer for remand under Section 167 of the Code of Criminal Procedure was made by the respondent no. 2. Mr. Deepak Roshan continuing with his argument has submi .....

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Act. It has also been submitted that Sections 19, 20 and 21 of the Act have duly been followed for producing the petitioner after his arrest before the Magistrate for his remand. In such circumstance, it has been prayed by the learned counsel for the opposite parties that the order dated 21.12.2015 cannot be interfered with as the opposite parties have given justifiable reasons for remand of the petitioner to judicial custody. 8. The main thrust of argument of learned counsel for the petitioner .....

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amount of excise duty allegedly evaded by Narsingh Ispat Limited had not been finalized and the amount arrived at is a tentative or a prima facie assessment of evasion. It does not appear from the facts of the case that evasion of excise duty as alleged touches on the border line to enable the petitioner to claim that the offence is bailable and non cognizable in nature. The prima facie assessment on scrutiny of the documents and on physical verification of the materials indicate evasion of exci .....

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entral Excise Act, 1944, which reads as under:- "19. Disposal of persons arrested.-Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magis-trate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in-charge of the nearest police station". "20. Procedure to be followed by officer-in-charge of police station.-The officer-in-charge of a police .....

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proceed to inquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same powers 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)1, when investigating a cognizable case: Provided that- (a) if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, h .....

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shall make a full report of all the particulars of the case to his official superior". 10. Section 19 very categorically states that every person arrested under this Act shall be forwarded without any delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate. 11. Section 21 is a follow up of Section 19, in which if the Central Excise Officer so empowered on enquiry into the charge against the accused, if he is of the opinion that there is sufficient e .....

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in which in order to send a person to the Magistrate and to exercise consequential powers under section 21 of the Act, such powers have been vested with all Central Excise Officer not below the rank of Superintendent of Central Excise. Learned counsel for the petitioner has submitted that respondent no. 2 being an Intelligence Officer was not empowered to act in terms of Sections 19 and 21 of the Act. This contention has not been controverted either in the counter affidavit or in course of argum .....

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