TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 314
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....ince the question of law, in almost similar factual matrix, raised in these petitions is identical, they have been heard together and are being disposed of by this common order. THE FACTS 2. It will be appropriate to look at the background facts, to the extent necessary, in the three cases at the outset. Crl.M.C. 4363/2018 3. The petitioner M/s. Rajasthan Cylinders and Containers Limited (RCCL) is a company based in Jaipur, engaged in manufacture of LPG cylinders. In 2014, it had entered into a contract with another company (HPCL) procuring certain supplies through two tenders which were perceived by the Commission to be "anti-competitive". The Commission initiated suo-motu proceedings under Section 19(1) of the Competition Act against RCCL, directing by order dated 02.02.2014 the Director General of the Commission to cause an investigation. The Director General issued summons dated 24.06.2016 followed by another on 13.07.2016 to RCCL, which were not complied with. On the report of Director General regarding non-compliance with the said processes, the Commission through Secretary issued show cause notices on 22.09.2016 and 02.12.2016. There being no response to such notices, t....
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....rector General to confirm whether FDA had complied with the notices. On 07.06.2014, the petitioner sent a letter to the Commission, received by it on 09.06.2014, stating that he had not received the earlier notices of June, 2013, reiterating that his tenure having ended, he was not aware regarding compliance by FDA. 6. The Director General submitted a report to the Commission pointing out default in compliance or submission of reply by FDA in response to notices of June, 2013 attributing full knowledge to the petitioner, recommending action under Section 43 of the Competition Act. Show cause notices were issued under directions of the Commission on 12.02.2014 to FDA and to the petitioner (in his capacity as General Secretary of FDA) respecting proposed action under Section 43 of the Competition Act. The Commission rejected the contention of FDA about newly elected office bearers (who had taken over w.e.f. 31.10.2013) not being aware of the directions of the Director General and forming an opinion that no reasonable cause had been shown by FDA or the petitioner for non-compliance, imposed by order dated 11.12.2014 penalty on FDA in the sum of Rs. 14,60,000/-at Rs. 10,000/- per day ....
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....2013 and 12.06.2013 did not yield any response. The Director General got the notice dated 12.06.2013 served through the District Collector, by communication dated 10.07.2013, the service having been effected on the petitioner by affixation, there being no response. Eventually, on the report of the Director General, the Commission by its decision in the meeting of 28.01.2014 initiated action for imposition of penalty under Section 43 of the Competition Act. Show cause notices were issued in the wake of such decision, a reply being filed by FDA. On 09.06.2014 the Commission received letter dated 07.06.2014 of the petitioner. His contentions on same lines, as noted in the context of previous case, were rejected, the process eventually leading to imposition of penalty by the Commission by its order dated 31.10.2014, in the sum of Rs. 35,20,000/- against FDA and Rs. 19,25,000/- against the petitioner at Rs. 25,000/- per day for the period of default, i.e., 14.08.2013 to 30.10.2013. 10. The copy of the order imposing penalty was statedly served on the petitioner on 22.11.2014. He did not make the payment. This led to demand notice dated 18.02.2015 being issued and statedly served on 26.....
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....n his part during the period preceding the said date, its submissions being that the issues raised by the said petitioner on this score are at best his defences giving rise to questions of fact which ought to be left for determination at the trial rather than being addressed in the jurisdiction under Section 482 Cr.P.C. where, it is argued, such inquiry may not be feasible. JURISDICITON AND POWERS OF THE COMMISSION 16. The Competition Act, 2002 ("the Competition Act") came on the statute book w.e.f. 13.01.2003 for "the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets in India, and for matters connected therewith or incidental thereto". With this legislation, the then existing Monopolies and Restrictive Trade Practices Act, 1969 stood repealed and Monopolies and Restrictive Trade Practices Commission (MRTPC) established under the said repealed Act was dissolved. The Competition Act has established, by virtue of Section 7, the Commission (called "Competition Commission of India"). The ....
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.... punishable with fine to be determined by the Commission, in terms of Section 42(2). The provision contained in Section 42(3) renders non-compliance with the orders or directions issued, or failure to pay fine imposed under Section 42(2), a penal offence which is triable by the court of Chief Metropolitan Magistrate, Delhi (CMM), cognizance thereof be taken on a complaint. 21. The Commission is conferred, by Section 36 (2), for purposes of its "inquiry", with the powers of the civil court under the Code of Civil Procedure, 1908 in certain matters including summoning or enforcing attendance of any person, requiring discovery and production of documents, requisitioning any public record or document, receiving evidence on affidavit or on commission, etc. These powers of the Commission are also extended to and conferred upon the Director General by Section 41(2) for purposes of its "investigation". 22. It is in the above context that the failure to comply with the processes, orders or directions of the commissions or of the Director General are likely to be visited by penalty as envisaged by Section 43 which reads thus:- "43. Penalty for failure to comply with directions of Commiss....
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....minal court, has to be construed in light of the clause immediately preceding it that is to say sub-section (2) of Section 42 which, in turn, refers to the failure in compliance with the orders or directions of the Commission under specified provisions of the Competition Act, such provisions not including the one for penalty imposed under Section 43. It is argued that since failure to pay penalty under Section 43 is not failure to comply with the orders or directions within the meaning of Section 42(2), such failure cannot lead to prosecution for the offence under Section 42(3). 26. It is also the argument of the petitioners that the provision contained in Section 42 is to deal with the situations arising out of "contravention of orders of Commission" (as is the marginal heading) and, therefore, the failure to comply with the processes issued by the Director General during investigation, in exercise of his power under Section 41(2) cannot be equated with failure to comply with the orders of the Commission within the meaning of Section 42(3). 27. It is further the submission of the petitioners that the failure to comply with processes of the Commission under Section 36 or of the D....
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....th the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive. Such argument might have been possible (though not necessarily accepted) if the article in the Constitution was "the circumstances and the class or classes of cases in which...". I have no doubt that by the clause, as worded, the legislature intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section. This contention therefore fails. " 31. The view taken in Sambhu Nath Sarkar v. State of West Bengal,[1973] 1 SCC 856, is similar. 32. Noticeably, in the clause defining the offence punishable under Section 42(3), the failure to pay the fine imposed under sub-section (2) of Section 42 is included as one of the possible reasons leading to such criminal action, it being provided by a disjunctive clause, the words "or fails to pay the fine imposed under sub-section (2)"being preceded and followed by a comma. The comma (,) appearing prior to the said words separates it fro....
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....at: "20. (2) No person shall be prosecuted and punished for the same offence more than once." This variance from constitutional protections given in other countries has prompted us to sift through the "Debates of the Constituent Assembly" so as to ascertain whether autrefois convict in preference to the more preponderant autrefois acquit, was the position intended to be ordained by the drafters of our Constitution. These Debates bear witness to the fact that it was indeed meditated and intended. The original proposal was -"No person shall be punished for the same offence more than once." A proposed amendment whereby the words "otherwise than as proposed by the Code of Criminal Procedure, 1898," was sought to be added, but was roundly rejected. The suggestion made by Shri Naziruddin Ahmad was that "the principle should be that a man cannot be tried again, tried twice, if he is acquitted or convicted by a court of competent jurisdiction, while the conviction or acquittal stands effective.... A man acquitted shall also not be liable to be tried again." (2-12-1948). On the next day, the extracted intervention of Shri T.T. Krishnamachari was accepted, sounding the death knell for "a....
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....ers of our Constitution were fully alive to the differing and disparate concepts of autrefois acquit and autrefois convict and consciously chose to circumscribe the doctrine of double jeopardy only to prosecution culminating in a conviction. This facet of the law has already been carefully considered by the Constitution Bench in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, and we cannot do better than extract the relevant portions therefrom: (AIR pp. 328-29, paras 7 & 11-12) "7. The fundamental right which is guaranteed in Article 20(2) enunciates the principle of 'autrefois convict' or 'double jeopardy'. The roots of that principle are to be found in the well-established rule of the common law of England 'that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence'. (Per Charles, J. in R. v. Miles [(1890) LR 24 QBD 423 : (1886-90) All ER Rep 715 (CCR)] .) To the same effect is the ancient maxim 'Nimo Bis Debet Puniri Pro Uno Delicto', that is to say that no one ought to be twice punished for one offence or as it is sometimes written Pro Eadem Causa', that is, fo....
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....nce and regulates the procedure." 12. Keeping in perspective this exposition of double jeopardy as postulated in our Constitution, the obiter dicta in State of Bihar v. Murad Ali Khan [(1988) 4 SCC 655 : 1989 SCC (Cri) 27] , expressed en passant by the two-Judge Bench does not correctly clarify the law, as this view is contrary to the dictum of the Constitution Bench [Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 : 1953 Cri LJ 1432 : 1953 SCR 730] , which was not brought to the notice of the Bench. 13. The US Supreme Court has extensively excogitated over the conundrum as to what constitutes a successive "punishment" for the purposes of attracting constitutional protection against double jeopardy, under the Fifth Amendment. The Court, in Hudson v. United States [Hudson v. United States, 139 L Ed 2d 450 : 522 US 93 (1997)] , affirmed the distinction between civil punishment and proceedings and criminal punishment and prosecution, and held that the Fifth Amendment proscribes two (or more) successive punishments or prosecutions of a criminal nature only, and permits civil punishment or proceedings either preceding or succeeding a criminal prosecution or punishment. In the ca....