Allahabad High Court
Manoj Kumar Arora vs Union Of India Through Asst ... on 21 October, 2020
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8314 of 2020 Applicant :- Manoj Kumar Arora Opposite Party :- Union Of India Through Asst Commissioner Central Excise Noida Counsel for Applicant :- Syed Imran Ibrahim,Aushim Luthra,Manish Tiwary(Senior Adv.) Counsel for Opposite Party :- Krishna Agrawal Hon'ble Naheed Ara Moonis,J.
Heard Shri Manish Tiwari, learned Senior Advocate assisted by Shri Imran Ibrahim, learned counsel for the applicant and Shri Krishna Agrawal, learned counsel for the Union of India on the second bail application.
This is the second bail application moved on behalf of the applicant Manoj Kumar Arora (under Section 439 of Criminal Procedure Code) with the prayer to release him on bail in Complaint Case No. 700/9 of 2017, now numbered as Case No. 3104 of 2017 (Union of India Vs. Manoj Kumar Arora), under Sections 9, 9AA of Central Excise Act, Central Preventive NOIDA-II, pending in the Court of Special Chief Judicial Magistrate, Meerut.
The submission of the learned counsel for the applicant is that the applicant is facing trial for the offence under Section 9 and 9AA of the Central Excise Act and is languishing in jail since 15.3.2017 and the maximum punishment provided under the aforesaid sections is 7 years and so far the applicant has undergone detention of half of the maximum period of imprisonment as prescribed for the aforesaid offence and hence the applicant is entitled to the benefit of Section 436-A of the Code of Criminal Procedure to release him on default bail.
Learned counsel for the applicant has not raised any other plea except the period of detention. Learned counsel for the applicant has submitted that on account of his continuous detention, he is deprived to take care of his ailing aged mother, who is suffering from cancer and a girl child who is also facing serious ailment. The trial is proceeding in snail's pace and out of 45 witnesses, only 7 witnesses have been examined so far. Hence, his prayer for bail may be considered sympathetically.
Per contra, Shri Krishna Agrawal, learned counsel appearing on behalf of Union of India has submitted that the first bail application of the applicant was rejected after considering the merits and seriousness of the offence with which the applicant is charged for removing goods without payment of duty clandestinely. Hon'ble Supreme Court has rejected the bail application of the applicant endorsing the order passed by this Court. All the Departmental Officers of the case have already been examined by the Special Chief Judicial Magistrate as Additional District and Sessions Court, Meerut had directed the lower court to examine only material witnesses of the case and not to examine all witnesses and now finally evidence of seven witnesses have been concluded and the opportunity to cross-examine those witnesses have been afforded to the defence counsel. However, the defence counsel was insisting for examination of all the witnesses of the case.
Learned counsel for Union of India further submits that demand of central excise duty of Rs. 2,63,84,15,357/- along with interest imposing penalty has been served upon the applicant, but no statutory appeal has been preferred under the Central Excise Act, 1944 within stipulated period. There is clinching evidence against the applicant, but there is no whisper of payment of the huge amount by the applicant, who is the main accused. The applicant had also feigned illness and made an attempt to escape from police custody.
Hon'ble Apex Court from time to time has extended the order directing the trial court to conclude the trial proceeding of the case and lastly by order dated 17.8.2020, the learned trial court has been directed to conclude the case within four months from the date of order. In pursuance of the order of Hon'ble Supreme Court the applicant was asked to be present before the trial court on 05.10.2020, but he did not turn up. Bailable warrant was issued against the witnesses for appearing before the court on 12.10.2020. The applicant is not entitled to the benefit of Section 436-A Cr.P.C. as he will avoid reach of law to conclude the trial to its logical end. Hence, the applicant does not deserve to be released on bail on any terms otherwise jeopardise the revenue involved in the case.
This Court has given its anxious consideration to the submissions advanced by the learned counsel for the parties. The applicant is connected with serious economic offence of evading excise duty causing huge loss to the government exchequer.
The first bail application of the applicant being Criminal Misc. Bail Application No. 25409 of 2017 was rejected by this Court vide order dated 09.8.2017. The following observations were made by this Court while rejecting the first bail application:
"From the rival submission of the learned counsel for the parties, it emerges out that M/s Poorvai Pan Masala Private Ltd. Plot No.59 Udyhog Kendra-II Ecotech-III Greater NOIDA (U.P) was found illegally manufacturing Pan Masala at plot no.48 Phase-I Ecotech III Greater NOIDA without obtaining Central Excise Registration and also without clearing the excise duty. During search by the officials of Excise Department packing rolls of scented zarda and pan masala were found in the said premises thus it stood proved that the applicant in association with co-accused persons were involved in clandestine manufacture and supply of the pan masala and scented zarda. The officials of the Excise Department had rightly seized finished and unfinished goods, raw material, machinery and packing material. Non-automatic packing machines, pulverisor machine, domino machine etc. were found . An amount of Rs. 8,87,000/- in Indian Currency was found in a bag kept in Director's room. The said amount of currency could be the sale proceeds of the excisable goods manufactured and cleared by the Unit. The records relating to the attendance of the employees as well as procurement of raw materials for the manufacturing of pan masala along with some finished and unfinished goods were available in the Unit.
In the light of above submission, it transpires that the applicant evaded the excise duty by procuring the raw material and also not accounting the clandestine and surreptitious production in the statutory books. The clandestinely manufactured goods were supplied in the market without cover of lawful documents.The applicant is the master mind and beneficiary of entire scheme of duty evasion . The applicant had knowingly and willingly made distance in order to create a veil and to escape legal liabilities cast upon him. According to section 9AA of Central Excise Act, every person who at the time, the offence was committed was in charge shall be severally and jointly liable for being prosecuted for the aforesaid offence. There is nothing in the Act that the prosecution depends upon the result of the adjudication. Two proceedings are quite independent . The finding in one is not conclusive in the other proceedings. Both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceedings.A prosecution can be launched even after the completion of adjudication. Since the offence under section 9 (1A) Excise Act is cognizable and non-bailable and is grievous in nature, hence this Court does not deem it congruous to interfere in such matters. The evasion of excise duty not only affects the economy of the State but also cause a serious threat to the nation. The afore-mentioned decisions cited by the learned counsel for the applicant are rested on entirely different set of facts and circumstances which have no applicability with the present case. The economic offences are undoubtedly more grave in nature than those offences which are non-cognizable. I see no justifiable ground to grant bail to the accused applicant and his bail application deserves to be dismissed.
In the result, the bail application filed on behalf of the applicant stands rejected.
In the circumstances, the moot question is whether the benefit of Section 436-A Cr.P.C. can be extended to the applicant to release him on bail merely because he has served half of the maximum sentence prescribed under sections 9, 9AA of the Central Excise Act, 1944. "Economic offence" constitutes a class apart and need to be visited with different approach in the matter of bail. Nature of risk has to be carefully weighed individually in each case in order to extend the benefit of Section 436-A Cr.P.C.
Section 436-A Cr.P.C. reads as under"
"436-A. Maximum period for which an undertrial prisoner can be detained.:- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one half of the said period or release him on bail instead of the personal bond with or without sureties.
Provided further that no such person shall in any case be detained during the period of explanation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under the law.
Explanation:- In computing the period of detention under this Section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
The explanation to Section 436-A Cr.P.C. places a restriction that in case there is a delay in proceeding caused by the accused, the period of detention shall be excluded for granting bail. Therefore, a person cannot claim as a matter of right to be released on bail merely because he was under detention for half of the maximum sentence prescribed, as when there is lapse on the part of the accused to delay the proceeding, such benefit will not be extended to him.
This Court is conscious of the fact that amid Covid-19 pandemic all the courts are highly disturbed and on account of which trial proceedings are held up due to various reasons. Hon'ble Supreme Court was also conscious of the facts that overcrowding in jail amid covid-19 outbreak would seriously affect the prisoners languishing in jail either as under-trial or as convicts, hence an order was passed on 23.3.2020 directing all the State Governments to release the prisoners to decongest the jail. A high powered committee was also directed to be constituted by the respective State and the State Governments have also followed the directions of Hon'ble Supreme Court for releasing such prisoners, who are detained for offence less than seven years. In this particular case, even if the applicant may not be at fault, but since the courts were not functioning normally and directions for concluding trial has been extended by the Hon'ble Apex Court for four months vide order dated 17.8.2020, which shall come to an end on 16.12.2020, hence the applicant is not entitled to be released on bail.
In the consideration of the facts of the case admittedly the case being related to economic offence and a sum of Rs. 2,63,84,15,357/- along with interest has been levied upon the applicant by the Commissioner vide order dated 15.6.2018 against which no appeal has been preferred by the applicant before the Customs, Excise and Service Tax Appellant Tribunal within the stipulated period of three months and in case the applicant is released even on short term bail he will try to flee away from the clutches of the Court and may prolong the conclusion of the trial. Moreover, the applicant has already made an unsuccessful attempt to flee away, but he was apprehended and, therefore, the applicant is not entitled to the benefit of Section 436-A Cr.P.C. His detention is justified for longer period than he has already undergone. I am not inclined to grant default bail to the applicant. The bail application is accordingly rejected.
The trial court is directed to ensure the presence of the witnesses for cross-examination on the date fixed, failing which coercive measure be taken against them. The law does not permit the Court to keep its hand off and refuse to use its power so long the attendance of the witness is required. The trial court is also directed to conclude the trial de die in diem within the time frame fixed by the Hon'ble Supreme Court.
Dated: 21.10.2020 Ishrat