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Central Excise Commissionerate, Rohtak Versus Deepak Gupta

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

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 and cognizable, there is no bar for a Court to grant concession of bail in non-cogn .....

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rcise 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 respondent: Mr. N.S. Shekhawat, Advocate This is a petition under Section 439 (2) C .....

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al 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 the juncture when bail was granted and an number of persons were not joining inquirie .....

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e 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 same was the substantive law vide which the offence was made cognizable and non-ba .....

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st 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 respondent would be deemed to be an accused in non-bailable offence despite the fact th .....

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lable 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 been infringed and as such the amendment vide Act No.17 cannot be said to be a proced .....

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quent 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 may be a substantive right but the procedure for filing the appeal including the p .....

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s. 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 an amending legislation and its retrospectivity and held that every litigant has a v .....

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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 nature and as such the same is liable to be construed as prospective in nature. It is .....

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ail. 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 cognizable, there is no bar for a Court to grant concession of bail in non-cognizable offen .....

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able 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 punishable with imprisonment for three year or more but not less than seven years: .....

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g 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 bail by the Court under this sub- section without giving an opportunity of hearing .....

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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), the Court shall impose any condition - (a) that such person shall attend in accorda .....

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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 arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the tri .....

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