TMI Blog2024 (2) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... articles seized. The Supreme Court in Dayle De Souza Vs Government of India Through Deputy Chief Labour Commissioner (C) and Anr., [ 2021 (11) TMI 67 - SUPREME COURT] , held Criminal law should not be set into motion as a matter of course or without adequate and necessary investigation of facts on mere suspicion, or when the violation of law is doubtful. It is the duty and responsibility of the public officer to proceed responsibly and ascertain the true and correct facts. Execution of law without appropriate acquaintance with legal provisions and comprehensive sense of their application may result in an innocent being prosecuted. In the present case, a) The company has not been made an accused. b) The petitioner a director of the company has been made an accused. c) The place of seizure and the seized articles on which the case has been initiated, is the registered office of the company. The petitioner has also been arrested from the office of the company - Therefore, in the absence of the company being arraigned as an accused, a complaint against the petitioner is not maintainable - This is in clear violation of Section 46B of the Bengal Excise Act, 1909. Admittedly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts being imported by the said company. 5. The prosecution story in a nutshell is that a raiding team of the Bidhannagar Excise Department, on 31.10.2018, in between 11.30 hours to 15.20 hours, conducted a raid at the marketing office of the said company situated at AC 120, Prafulla Kanan, Krishnapur, Police Station Baguiati, Kolkata 700101 wherefrom allegedly 292 bottles of foreign liquor (O.S.) of different brands, total quantity 218.1 liters were allegedly seized and accordingly a forwarding report dated 01.11.2018 annexing the said seizure list dated 31.10.2018 was forwarded before the Court of the Learned Chief Judicial Magistrate at Barasat. The purport of the said seizure list was that the seized bottles of foreign liquor were unregistered and non-duty paid. It is the further contention of the prosecution that such articles finds its way in the clandestine market and involves interstate ramification and erosion in augmentation of Government revenue. Accordingly, it results in a heinous offence/business which is a direct threat to the Government exchequer, causing huge loss to the Government revenue. 6. The petitioner states that the petitioner was apprehe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no concept of vicarious liability until and unless the company being a juristic entity which can sue and be sued in its own capacity as per the law, is made a party. The Hon ble Apex Court has laid down this principle of law that a director or a principle officer of a company cannot be made liable until and unless the company itself is a party to the proceedings and the specific role of such director or a principle officer of the company should be expressed and/or explained in order to make that person vicariously liable for the offences. The provision of Section 46B of the Bengal Excise Act, 1909 categorically speaks about offences committed by companies. The prosecution has not impleaded the company in this instant case which has imported the Liquors which were not for sale, and has only implicated the director and an employee of the company for which, the initiation of proceedings and its continuation is bad in law. 13. Written notes of argument stating the case of the petitioner, has been filed. 14. Learned Special Prosecutor appearing on behalf of the West Bengal Excise Department has placed the relevant case records including a reply to the petitioner s written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation 2, Taratala Road, Kolkata 700088. 20. The petitioner s defense is that as the said seized articles were not for sale, the same was stored in their company office. Documents have been filed showing that the said articles (free samples) along with other duty paid articles were brought in through the Indian Customs EDI system Imports at 15/1, strand Road, Custom House, Kolkata- 1 and the importer is the petitioner s Company Duomo Distribution Private Ltd. 21. The articles were received from Polini Group, Italia. The documents are dated 05.09.2018 and the samples not for sale are duly marked in the said invoices. The raid and arrest in this case was made on 31.10.2018 as seen from the forwarding report to the Court. 22. The memo of arrest dated 31.10.2018, shows the place of arrest as:- Duomo Distribution Pvt. Ltd., at AC 120, Prafulla Kanan, Krishnapur, P.S. Baguiati, Kolkata 700101. 23. The case of the prosecution is that the pass required to be applied for by the petitioner for such import has not been done as per the State Act and thus the violation under the Act. 24. The State has alleged violation under Section 18(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... director of the said Company, and it is from the company premises that the accused was arrested and the articles seized. 30. The Supreme Court in Dayle De Souza Vs Government of India Through Deputy Chief Labour Commissioner (C) and Anr., in SLP (Crl.) No. 3913 of 2020, on October 29, 2021 , held:- 25. This position was again clarified and reiterated by this Court in Himanshu v. B. Shivamurthy and Another., (2019) 3 SCC 797 . The relevant portion of the judgment reads thus: 6. The judgment of the High Court has been questioned on two grounds. The learned counsel appearing on behalf of the appellant submits that firstly, the appellant could not be prosecuted without the company being named as an accused. The cheque was issued by the company and was signed by the appellant as its Director. Secondly, it was urged that the observation of the High Court that the company can now be proceeded against in the complaint is misconceived. The learned counsel submitted that the offence under Section 138 is complete only upon the issuance of a notice of demand and the failure of payment within the prescribed period. In absence of compliance with the requirements of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of citizens from injustice and harassment must be maintained. Earlier in M/s. Hindustan Steel Ltd. v. State of Orrisa, 1969 (2) SCC 627, this Court threw light on the aspect of invocation of penalty provisions in a mechanical manner by authorities to observe: 8. Under the Act penalty may be imposed for failure to register as a dealer Section 9(1) read with Section 25(1)(a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer to proceed responsibly and ascertain the true and correct facts. Execution of law without appropriate acquaintance with legal provisions and comprehensive sense of their application may result in an innocent being prosecuted. 31. In the present case:- a) The company has not been made an accused. b) The petitioner a director of the company has been made an accused. c) The place of seizure and the seized articles on which the case has been initiated, is the registered office of the company. The petitioner has also been arrested from the office of the company. 32. Therefore, in the absence of the company being arraigned as an accused, a complaint against the petitioner is not maintainable Dayle De Souza Vs Government of India Through Deputy Chief Labour Commissioner (C) and Anr., (Supra). 33. This is in clear violation of Section 46B of the Bengal Excise Act, 1909. 34. Section 46B of the Bengal Excise Act, 1909, lays down:- 46B. Offences by companies.-( 1) Where any offence punishable under this Act is committed by a Company, the Company and every Director, Manager, Secretary or agent of the Company, unless such Director, M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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