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2016 (6) TMI 356 - PUNJAB AND HARYANA HIGH COURT

2016 (6) TMI 356 - PUNJAB AND HARYANA HIGH COURT - 2017 (346) E.L.T. 586 (P & H) - Seeking cancellation of bail - Offence punishable under Section 9 of the Central Excise Act, 1944 - Evasion of duty - Serious economic offence - Held that:- no infirmity found in the observations made by the Sessions Judge in applying the principle of prospectivity in the matter of interpretation of an amendment. Even if for the sake of arguments, it is presumed that the offence qua the respondent is non-bailable .....

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ain stringency of grant of bails in offences under the Excise Act. The power to exercise discretion in non- bailable offences is guided by the provisions of law and a Judicial Officer is required to objectively consider the circumstances to consider whether the discretion of bail is to be exercised in non-bailable offence in a particular case or not. - Decided against the Revenue - CRM M-32281 of 2013 - Dated:- 26-5-2016 - M.M.S. BEDI, J. For the petitioner: Mr.Sunish Bindlish, Advocate For the .....

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e bail application was declined by CJM, vide order dated August 21, 2013 and judicial remand was extended till September 4, 2013. The respondent moved the Sessions Court, Rohtak for grant of bail in which notice was issued for August 27, 2013. Reply was filed in the bail application. Even written submissions were made in the application. The Sessions Judge vide order annexure P-8 had granted bail. The cancellation of bail has been prayed for on the ground that the investigation was pending at th .....

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atio of the judgment cited by both the parties. Mr. Sunish Bindlish, counsel for the petitioner has argued that the offence under the Central Excise Act has been made non-bailable by way of amendment which came into effect w.e.f. May 10, 2013. The judgment of the Apex Court in Om Parkash Vs. UOI, 2011 (2762) ELT 321 (SC), has held that offences under Excise were non-cognizable, bailable and would be operative prospectively. It was urged that the amendment is not merely a procedural change rather .....

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petitioner has submitted that the finding of the Sessions Judge in order dated August 29, 2013 holding that the respondent would be governed by the old provisions prior to May 10, 2013, should be set aside as the procedure law can be made operative retrospectively. The main contention of learned counsel for the petitioner is that the amendment which was made vide Bill NO. 17 of 2013 making the offence non-bailable, should be construed to be retrospective in nature and it should be held that resp .....

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offence which was non-cognizable and bailable has been made cognizable and non-bailable if the evasion of duty exceeds ₹ 50.00 lacs. 16. Therefore, prior to the amendment which came into effect on 10.5.2013, the right of the accused- applicant was to be enlarged on bail on account of offence being bailable in nature and after the amendment the offence has been made non-bailable and as such the valuable right of the accused - applicant to be released on bail by the Arresting officer has be .....

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der is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute prospective unless it is expressly or by necessary implication made to have retrospective operation. Right of appeal .....

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reference may be made to few of those decisions. This Court in Garikapati Veeraya vs. N. Subbiah Choudhry & Ors. AIR 1957 SC 540, New India Insurance Company Limited Vs. Smt. Shanti Mishra (1975) 2 SCC 840, Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. (1994) 4 SCC 602; Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar & Ors. (1999) 8 SCC 16;Shyam Sundar & Ors. vs. Ram Kumar & Anr. (2001) 8 SCC 24, has elaborately discussed the scope and ambit of a .....

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ed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character, affects vested rights adversely is to be construed as prospective. 18. Therefore, since the Hon ble Apex Court in Om Parkash s case (supra) has held that the offence of bailable nature, but the amending Bill NO.17 of 2013 has divested the accused- applicant of his right to be released on bail by the Arresting officer by making the offence as non-bailable in na .....

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view of the above observations, the respondent had been granted the concession of bail. I have considered the above said observations and taking into consideration the contentions of learned counsel for the petitioner, I do not find any infirmity in the observations made by the Sessions Judge in applying the principle of prospectivity in the matter of interpretation of an amendment. Even if for the sake of arguments, it is presumed that the offence qua the respondent is non-bailable and cognizab .....

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eased on bail, but- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence .....

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fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court. Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life,, or imprisonment for seven years or more, be released on .....

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leased on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), .....

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or to any police officer or tamper with the evidence, And may also impose, in the interest of justice, such other conditions as it considers necessary. (4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its [reasons or special seasons] for so doing. (5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arres .....

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