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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> SC held that Sub-section (1) of Section 9A makes offences under the Act non-cognizable notwithstanding the CrPC, but non-cognizable status does not ... Offences and penalties - whether all offences under the said Act are non-cognizable and, if so, whether such offences are bailable - Sub-section (1) of Section 9A, which has been extracted hereinbefore, states in completely unambiguous terms that notwithstanding anything contained in the Code of Criminal Procedure, offences under Section 9 shall be deemed to be non -cognizable within the meaning of that Code - expression “non-cognizable” - HELD THAT:- An offence punishable with imprisonment for three years and upwards, but not more than seven years, has been shown to be cognizable and non-bailable - the definition of “non-cognizable offence” in Section 2(l) of the Code makes it clear that a non-cognizable offence is an offence for which a police officer has no authority to arrest without warrant Submissions made by Mr. Rohatgi that since offences under the Customs Act are non-cognizable, they are, therefore, bailable, was wholly incorrect, as all non-cognizable offences are not bailable - Both Section 9A of the 1944 Act and Section 104(4) of the Customs Act, 1962, provide that notwithstanding anything in the Code of Criminal Procedure, offences under both the Acts would be non-cognizable - offences under Section 135 of the Customs Act, 1962, are bailable and if the person arrested offers bail, he shall be released on bail in accordance with the provisions of sub-Section (3) of Section 104 of the Customs Act, 1962, if not wanted in connection with any other offence 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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