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of <h1>Section 9A and Section 104(4) make offences non-cognizable despite CrPC; 3-7 year offences stay cognizable non-bailable</h1> <h3>OM PRAKASH and CHOITH NANIKRAM HARCHANDANI Versus UNION OF INDIA</h3> OM PRAKASH and CHOITH NANIKRAM HARCHANDANI Versus UNION OF INDIA - 2011 (24) S.T.R. 257 ( SC), 2011 (272) E.L.T. 321 ( SC), 2011 (14) SCC 1, 2011 (11) ... Issues Involved:1. Whether all offences under the Central Excise Act, 1944, and the Customs Act, 1962, are non-cognizable and if so, whether such offences are bailable.Detailed Analysis:Issue 1: Whether all offences under the Central Excise Act, 1944, are non-cognizable and bailable.Analysis:1. Provisions of Section 9A of the 1944 Act:- Section 9A states that notwithstanding anything in the Code of Criminal Procedure, offences under Section 9 of the 1944 Act are non-cognizable.- Sub-section (2) allows for compounding of offences by the Chief Commissioner of Central Excise.2. Definitions and Interpretations:- Section 2(a) Cr.P.C. defines 'bailable offence' and Section 2(c) defines 'cognizable offence'.- Section 2(l) defines 'non-cognizable offence' as one where a police officer cannot arrest without a warrant.- Mr. Mukul Rohatgi argued that since all offences under the 1944 Act are deemed non-cognizable, they should also be bailable.3. Offences and Penalties under Section 9:- Section 9(1)(d) deals with attempts to commit or abet the commission of offences, with punishments extending up to seven years and fines for certain offences.4. Power to Arrest and Related Provisions:- Section 13 allows Central Excise Officers to arrest with prior approval.- Sections 18 to 21 outline the procedure for searches, arrests, and handling of arrested persons, aligning with Cr.P.C. provisions.5. Section 155 Cr.P.C.:- It specifies that police cannot investigate non-cognizable cases without a Magistrate's order and cannot arrest without a warrant.6. Arguments on Bailability:- Mr. Rohatgi argued that under Section 20 of the 1944 Act, the Officer in-Charge of a police station must admit an arrested person to bail, indicating that offences are bailable.- The Court agreed, interpreting that since Section 20 mandates bail, offences under the 1944 Act are bailable.7. Conclusion:- The Court held that offences under the Central Excise Act, 1944, are non-cognizable and bailable.Issue 2: Whether all offences under the Customs Act, 1962, are non-cognizable and bailable.Analysis:1. Provisions of Section 104 of the Customs Act:- Section 104(4) states that notwithstanding anything in the Cr.P.C., offences under the Customs Act are non-cognizable.- Section 104(3) gives Customs Officers the same powers as police officers regarding bail.2. Arguments and Similarities with the 1944 Act:- Mr. Rohatgi argued that the provisions of the Customs Act are in pari materia with the Central Excise Act.- He emphasized that the Customs Act's primary objective is revenue recovery, similar to the Central Excise Act.3. Court's Reasoning:- The Court noted that the provisions of Section 104(4) of the Customs Act are similar to Section 9A of the Central Excise Act.- Given the similarity in legislative intent and statutory provisions, the Court concluded that offences under the Customs Act are also bailable.4. Conclusion:- The Court held that offences under the Customs Act, 1962, are non-cognizable and bailable, similar to the Central Excise Act.Final Judgments:- Central Excise Act, 1944: Offences are non-cognizable and bailable.- Customs Act, 1962: Offences are non-cognizable and bailable.Both sets of writ petitions were allowed, affirming that offences under both the Central Excise Act, 1944, and the Customs Act, 1962, are bailable.
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