2002 (12) TMI 94 - HC - Central Excise

Court dismisses petition to quash complaint under Central Excise Act, emphasizes due process and procedural safeguards

The court dismissed the petitioners' request to quash the complaint under Sections 9AA/13/19 of the Central Excise Act, 1944, but partially allowed the ... Non-cognizable nature of offence under the Central Excise Act and its effect on investigation and arrest - Limits on arrest powers of Central Excise officers and requirement of due process - Distinction between inquiry under the Excise Act and police investigation under the Criminal Procedure Code - Pre-violation protection of fundamental right to personal liberty under Article 21 by means of writ jurisdiction - Requirement of prima facie case and filing of complaint before Magistrate for cognizanceNon-cognizable nature of offence under the Central Excise Act and its effect on investigation and arrest - Requirement of prima facie case and filing of complaint before Magistrate for cognizance - Whether the petitioners are entitled to quash the complaint and to have the proceedings under the Central Excise Act set aside (relief seeking certiorari). - HELD THAT: - The Court held that offences falling under Section 9A/9AA are non-cognizable within the meaning of the Code of Criminal Procedure and that authorities under the Central Excise Act cannot assume police-investigation powers beyond those permitted by the Cr.P.C. The Excise authorities may enquire and, if appropriate, file a complaint before the Magistrate under Section 200 Cr.P.C.; cognizance must then be taken by the Magistrate under the ordinary procedure. Arrests and further action against persons must be founded on a prima facie case and in accordance with the procedure established by law. Applying these principles, the Court found that the petitioners were not entitled to the relief of quashing the complaint or setting aside proceedings and dismissed that branch of the petition. [Paras 16, 22, 24, 25, 26]Relief seeking quashing of complaint and setting aside proceedings dismissed; petitioners not entitled to that relief.Limits on arrest powers of Central Excise officers and requirement of due process - Distinction between inquiry under the Excise Act and police investigation under the Criminal Procedure Code - Pre-violation protection of fundamental right to personal liberty under Article 21 by means of writ jurisdiction - Whether the Court should restrain the opposite parties from arresting the petitioners or otherwise grant pre-emptive relief to protect personal liberty (relief seeking mandamus/direction not to arrest). - HELD THAT: - The Court recognised that Article 21 permits pre-violation protection of personal liberty where a threatened infringement is imminent. It analysed statutory provisions (Sections 13, 19, 20, 21 of the Excise Act) and relevant Cr.P.C. provisions to conclude that Central Excise officers do not possess unfettered powers of investigation or arrest beyond those specifically authorised; any arrest must comply with the Act and Cr.P.C. The Court observed that no FIR or complaint had yet been lodged against the petitioners and that the authorities must act in accordance with law, including establishing a prima facie case before arresting or prosecuting. Consequently the Court refused to grant anticipatory bail but directed the opposite parties to act lawfully and within the limits of their powers when dealing with the petitioners. [Paras 16, 17, 21, 24, 26]No order of anticipatory bail; opposite parties directed to act in accordance with law and not to effect arrests or other action except in conformity with statutory and constitutional safeguards.Final Conclusion: Writ petitions partly allowed: the prayers to quash the complaint/proceedings were dismissed, while the respondents were directed to act in accordance with law (including requirements of due process, establishment of prima facie case and limits on Excise officers' powers) before effecting any arrest or prosecution; no costs awarded. Issues Involved:1. Quashing of the complaint under Sections 9AA/13/19 of the Central Excise Act, 1944.2. Direction to not arrest the petitioners in connection with the case.Detailed Analysis:1. Quashing of the Complaint:The petitioners sought a writ of certiorari to quash the complaint under Sections 9AA/13/19 of the Central Excise Act, 1944. They argued that the offences under Section 9 are deemed non-cognizable, meaning they do not warrant immediate arrest without a warrant. The petitioners contended that the Central Excise Officers do not have the authority to remand individuals to custody for pending investigations, as the Act only allows for inquiries, not full-fledged investigations. The court observed that no FIR or formal complaint had been lodged against the petitioners, and the remand application did not pertain to them. Consequently, the argument for quashing the complaint was not maintainable. The court emphasized that the Central Excise Act does not override the provisions of the Code of Criminal Procedure regarding arrests and the filing of complaints.2. Direction to Not Arrest the Petitioners:The petitioners also sought a writ of mandamus to prevent their arrest, fearing imminent detention based on the actions taken against others in the case. The court noted that the power of arrest under Section 13 of the Central Excise Act is conditional and must be exercised with due process. The court highlighted that the Central Excise Officers' powers are not equivalent to those of police officers under the Code of Criminal Procedure, particularly concerning non-cognizable offences. The court referenced Article 21 of the Constitution, which safeguards personal liberty and requires any deprivation of liberty to follow the procedure established by law. The court cited the Supreme Court's ruling in S.M.D. Kiran Pasha v. Government of Andhra Pradesh, which supports the pre-violation protection of fundamental rights. The court concluded that the authorities must adhere to legal procedures and cannot arrest individuals without prima facie evidence and due process.Conclusion:The court dismissed the petitioners' request to quash the complaint but partially allowed the petition by directing the authorities to act in accordance with the law regarding arrests. The court underscored the necessity of following due process and ensuring that any arrest under the Central Excise Act aligns with the procedural safeguards outlined in the Code of Criminal Procedure. The writ petitions were thus partly allowed, with no orders as to costs.