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TMI Blog2015 (5) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in conspiracy with each other did withdraw the money from the different Treasuries in crores on the basis of fake allotment letters and fictitious supply orders. Against Dr. K.M.Prasad 14 cases were lodged, whereas against Kamlesh Kumar, S/o Dr. K.M.Prasad, 8 cases were lodged. During investigation of those cases, it could be revealed that Dr. K.M.Prasad has acquired huge immovable and movable properties in his name as well as in the name of his sons and daughters including the petitioner being the son of Dr. K.M.Prasad. Further, it had been found that Dr. K.M.Prasad had received foreign exchange remittances by way of foreign exchange instruments amounting to 3,15,000/US Dollar and 1000/Pounds during the year 199192 and those transactions were not genuine gift, rather it were in violation of the provision of Foreign Exchange Regulation Act, 1973 (in short FERA). During investigation, it also transpired that the petitioner had received 75,000/US Doillars through foreign exchange remittances. 4. On such allegation, a complaint case bearing No. C III85/ 2002, was lodged against Dr. K.M.Prasad and his daughters and sons including this petitioner for contravention of provision of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been made noncognizable, but the act is silent as to whether it is bailable or nonbailable. 8. Same issue did crop up before the Hon'ble Supreme Court in a case of "Om Prakash & OthersversusUnion of India & Others [(2011) 14 SCC 1]" as to whether offences under the Custom Act, 1962 and Central Excise Act, 1944, being noncognizable, are bailable or nonbailable? Their Lordships, after having regard to certain provisions of Central Excise Act, 1944, relating to the power to arrest as contained in Section 13; provisions relating to searches and arreest; disposal of persons arrested; procedure to be followed by the Officer Incharge; inquiry how to be made by the Central Excise Officer as contained in Sections 18, 19, 20 and 21 of the Central Excise Act, 1944 and also the provisions contained in Sections 41 and 155 of the Code of Criminal Procedure, were pleased to hold that the punishment though has been prescribed under the Excise Act up to seven years but those have been intended by the legislature to be bailable. On similar analogy, Their Lordships have also held the offences under the Custom Act to be bailable. While holding so, one of the considerations was there that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation of the Foreigh Exchange and, thereby, the offence being held to be bailable keeping in view that in a similar situation, the offences under the Central Excise Act and the Custom Act, have been declared to be bailable by the Hon'ble Supreme Court in a case of "Om Prakash & Others) (Supra). 12. On the other hand, submissions are there that the decision, referred to above, is not applicable as the provisions, on the basis of which the offences under those Acts have been held to be bailable, are not similar. 13. In that event, one before coming to any conclusion, needs to take relevant provisions of the Central Excise Act, 1944 and also the provisions under the FERA Act. Relevant provisions would be Section 9(a), 13, 18, 19, 20 and 21 of the Central Excise Act, which are hereinunder:" 9(A) Certain offences to be noncognizable. ( 1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences under section 9 shall be deemed to be noncognizable within the meaning of that Code. (2) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Chief Commissioner of Central Excise on payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire 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 officerincharge 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) 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; (b) if it appears to the Central Excise Officer that there is not sufficient 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." 14. Thus, I do find that Section 9(A) of the Central Excise Act, 1944 does prescribe for compounding of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore him in terms of Section 19 of the Act. The decisions which have been cited by Mr. Parasaran deal mainly with powers of arrest under the Customs Act. The only cited decision which deals with the provisions of the Central Excise Act is the decision of the Division Bench of the Punjab & Haryana High Court in the case of Sunil Gupta Vs. Union of India. In the said case also, the emphasis is on search and arrest and the learned Judges in paragraph 22 of the judgment specifically indicated that the basic issue before the Bench was whether arrest without warrant was barred under the provisions of the 1944 Act and the Courts had not occasion to look into the aspect as to whether the offences under the said Act were bailable or not. 30. In the circumstances, we are inclined to agree with Mr. Rohatgi that in view of the provisions of Sections 9 and 9 A read with Section 20 of the 1944 Act, offences under the Central Excise Act, 1944, besides being noncognizable, are also bailable, though not on the logic that all noncognizable offences are bailable, but in view of the aforesaid provisions of the 1944 /act, which indicate the offences under the said Act are bailable in nature. 16. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply, so far as may be, in relation to any entry, search or arrest, made under this section. (4). The provisions of this section shall have effect notwithstanding anything inconsistent, therewith contained in any other provision of this Act. 56. Offences and prosecutions.- (1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes any of the provisions of this Act [other than section 13, clause (a) of subsection (1) of 1[section 18, section 18A], clause (a) of subsection (1) of section 19, subsection (2) of section 44 and sections 57 and 58], or of any rule, direction or order made thereunder he shall, upon conviction by a court, be punishable,- (i) in the case of an offence the amount or value involved in which exceeds one lakh of rupees, with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against him for the same offence; (iii)the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; (iv) the age of the accused. (5) For the purposes of subsections (1) and (2), the fact that an offence under this Act has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than six months. (6) Nothing in 3[the proviso to section 188 of the Code of Criminal Procedure, 1973 (2 of 1974)] shall apply to any offence punishable under this section. 62. Certain offences to be noncognizable. Subject to the provisions of section 45 and notwithstanding anything contained in the 1[Code of Criminal Procedure, 1973 (2 of 1974)], an offence punishable under section 56 shall be deemed to be noncognizable within the meaning of that Code." 18. Thus, I do find that under the Act, no such provision is there like that of Sections 19 and 20 of the Central Excise Act, which do stipulate that when a person is arrested under the Excise Act, he shall be forwarded to n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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