AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2009 (9) TMI 24
X X X X Extracts X X X X
X X X X Extracts X X X X
....64/2007, which is preferred by the Central Excise Collectorate, New Delhi (hereinafter referred to as the "Department"), is directed against the order dated 09.10.2006 passed by the learned Addl. Chief Metropolitan Magistrate, New Delhi (in short the "ACMM"), whereby he has closed the pre-charge evidence being led by the department. On the other hand, the Crl. M.C. No. 1832/2008, which has been preferred by the Eskay Electronics (I) Pvt. Ltd., its Managing Director, Mr M.S. Kathuria and its Production Manager, Mr. N.P. Kathuria (hereinafter individually referred to as "accused no.1", "accused no. 2" and "accused no. 3" respectively and collectively referred as "accused"), have preferred the petition primarily on the ground of violation of their fundamental right under Article 21 of the Constitution of India, which mandates a speedy trial. It is the contention of the accused that they were summoned by the trial court on 04.09.1989 for violation of the provisions of Section 9 and 9A of the Central Excise & Salt Act, 1944 (hereinafter referred to as the "CE Act"), and till date, the prosecution has not even completed the pre-charge evidence. 3. In the aforesaid circumstances, I hav....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The said list of witnesses detailed out names of twenty four (24) persons. The learned ACMM by an order dated 03.02.1989 took cognizance of the complaint, filed by the department, under Section 9 and 9A of the CE Act read with Section 193, 192 and 120 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC"). After taking cognizance, the learned ACMM registered the complaint, and summoned the accused. 5. Mr Dinesh Mathur, learned Senior Counsel, appearing for the accused, instructed by Mr D.K. Mathur, Advocate submitted that pursuant to orders of the learned ACMM, passed way back on 03.02.1989, the accused have appeared before the learned ACMM, even so, the prosecution by the department has not proceeded beyond the pre-charge stage. In order to buttress his submission, he has placed reliance on the orders passed by the ACMM from time to time. It is contended by the learned senior counsel that the accused cannot be held responsible for the tardy conduct of prosecution by the department. The learned senior counsel has submitted that accused no. 2 is today, approximately 86 years of age, while the accused no. 3 is nearly 48 years of age. He submits that it is unlikely ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4.05.1989, it appears on a perusal of the order sheet, that for the first time, the first prosecution witness was partially examined, was on 30.10.1991. His examination got completed on 19.05.2001. In the interregnum on 30.04.1999, second prosecution witness was partly examined. From the order sheet, it is not clear as to whether the examination of second prosecution witness was at all completed. What is, however, brought out, upon perusal of the order sheet, that on 17.07.2003, examination-in-chief of PW3 was carried out. The examination-in-chief was finally completed on 09.10.2006, when the impugned order was passed. This apart, there have been adjournments, on at least 13 occasions, on the ground that the prosecution witnesses are not available. These dates are 16.12.1996, 14.01.1998, 28.08.1998, 29.04.1999, 11.10.1999, 12.01.2000, 05.04.2000, 13.07.2000, 13.11.2000, 20.05.2002, 03.09.2002, 04.03.2004 and 13.12.2004. In addition to this reason, the matter has also been adjourned on the ground of change of counsel by the department, the records being bulky and also that the original documents were put in a box, whose lock could not be opened as the keys were lost. A reading of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he matter was pending before the adjudicating authority, an application was moved by the petitioners/accused before the Settlement Commission, Customs and Excise, Principal Bench. Before the Settlement Commission, the petitioners/accused had admitted a duty liability of Rs 8,55,650/- against total duty demand of Rs 65,83,506/- apart from a demand of Rs 11,000/- on seized TV sets. The learned senior counsel placed the final order of the Settlement Commission dated 28.12.2007 before me, whereby the following directions were issued:- "Central Excise Duty: The Duty liability of the applicant in this case is settled at Rs 45,43,550/-. Amount of Rs 9,47,090/- already stands deposited. Applicant is directed to deposit balance amount of Rs 35,96,460/- within 15 days of receipt of this order and send intimation to Revenue and the Bench after which the same shall also stand appropriated towards the additional duty liability. Interest: The SCN does not seek to levy and interest and the applicant has also not made any prayer for immunity from the same. Hence no order need to be passed on this issue. Penalty: In view of the facts and circumstances as mentioned in para 12 above, the Ben....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this Court quashed the proceedings where a matter had languished in trial court at the stage of pre-charge offence for a period of nearly 12 years. The proceedings were initiated against the accused in the said case under Section 56 of the Foreign Exchange Regulation Act, 1973. These proceedings were initiated on 26.06.1986, and after nearly a decade, the first witness produced by the prosecution was still under cross-examination. This Court, based on the principle, enunciated in Raj Deo Sharma vs State of Bihar 1998 (7) SCC 507, quashed the criminal proceedings. The observations made in Raj Deo Sharma (supra) in para 8 & 9 of the judgment being relevant are extracted hereinbelow: "8. The entitlement of the accused to speedy trial has been repeatedly emphasised by this Court. Through it is not enumerated as a fundamental right in the Constitution, this Court has recognized the same to be implicit in the spectrum of Article 21. In Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, the Court while dealing with the cases of undertrials who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uly authorized in that behalf. No progress in the case was made till 1998. The accused was forced to file another petition under Section 482 of the Cr.P.C. seeking to quash the entire criminal proceedings on account of delay. This petition was admitted by the High Court on 20.11.1998. The petition came up for hearing before Court on 11.05.2007, when in an affidavit, filed on behalf of the prosecution, it was disclosed that the Superintendent of Police, Muzaffarpur vide letter dated 27.02.2007 had directed the Dy. Superintendent of Police to complete investigation. Investigation was started on 28.02.2007 and a fresh chargesheet was filed on 01.05.2007. 11.5 The point, to be noted here is that, what is often trotted as contributory delay on the part of the accused, which is really in one sense taking recourse to a remedy available in law, did not find favour with the Supreme Court. Taking recourse to a legal remedy by the accused was not countenanced as delay attributable to the accused. As a matter of fact, a specific submission with respect to the delay being attributable to the accused was raised by the prosecution in the said case, which is noticed by the Court in paragraph 8 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... about delay in investigation, the Superintendent of Police, Muzaffarpur directed the Deputy Superintendent of Police to complete the investigation. It was only thereafter that a fresh chargesheet is stated to have been filed on 1-5-2007. 28. It is also pertinent to note that even till date, learned Counsel for the State is not sure whether a sanction for prosecuting the appellant is required and if so, whether it has been granted or not. 29. We have no hesitation in holding that at least for the period from 7-12-990 till 28-2-2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising f....