Delhi District Court
Sandeep Thapliyal & Ors. Vs Vinay ... vs . Vinay Kanodia (Cr No.20/2014) on 24 May, 2014
IN THE COURT OF SH. DAYA PRAKASH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0022542014
Criminal Revision No. 21/2014
1. Sandeep Thapliyal
Intelligence Officer
2. Veerender Kumar
Senior Intelligence Officer
3. G. Shiril Saroj
Dy. Director
4. Sunil Joshi
Intelligence Officer
5. Rakesh Mohan
Intelligence Officer
6. Sandeep Jain
Intelligence Officer
7. J.P. Singh
Intelligence Officer
8. Khajan Singh
Peon
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014)
In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi
1/50
9. Jaspal Chauhan
Driver
..... Revisionists
Versus
Vinay Kanodia
S/o Sh. Hanuman Prashad
R/o 26/21, Birhana Road,
Kawnpur (U.P.)
.....Respondent
AND
Case ID No. 02403R0022532014
Criminal Revision No. 20/2014
DGCEI
West Block-VIII, Wing No. -VI,
Sector-1, R.K. Puram, New Delhi.
.... Revisionist
Versus
Vinay Kanodia
S/o Sh. Hanuman Prashad
R/o 26/21, Birhana Road,
Kawnpur (U.P.)
.........Respondent
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014)
In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi
2/50
Date of institution of the case : 10.02.2014
Date when the case reserved for orders : 17.05.2014
Date of announcement of order : 24.05.2014
ORDER
24.05.2014
1. By this order, I shall dispose off the above mentioned two revision petitions bearing CR No. 20/14 filed by revisionist Director of General Central Excise Intelligence (DGCEI) and CR No. 21/14 filed by revisionists/accused persons as both consisting of mix questions of facts and law and have arisen out of order on charge dated 10.12.2013 and charge dated 04.01.2014 passed by the Ld. MM in CC No. 273/01/13 titled 'Vinay Kanodia vs. Sandeep Thapliyal & Ors'.
2. Brief facts which are relevant for the disposal of revision petition bearing CR No.21/12 titled Sandeep Thapliyal & Ors. vs Vinay Kanodia are that the complainant filed the complaint before the Ld. Trial Court on the allegations that he is the director of M/s Vinay Wires and Poly Products Pvt. Ltd at 16/40, Civil Lines, Kawnpur, UP and factories at UPSIDC, Indl. Area -II, Rania, Kanapur-Dehat and are Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 3/50 manufacturers of Poly Films (plan and printed), flexible laminates and are also doing trading of granule. Accused persons conducted search operations on 30.06.09 on all the various business premises belonging to the respondent, residential premises of directors and staff of respondent including residential premises of the respondent/complainant. Accused persons lifted the respondent from his residential premises on 30.06.09 and after the completion of search operations no incriminating information was found from respondent. Respondent was illegally detained for more than 48 hours by accused persons. The wife and father of respondent made several complaints/ communications to the office of Director of General Central Excise Intelligence (DGCEI), subsequent to which the complainant was released on 02.07.09. Respondent was subjected to both physical and mental torture in the detention. It has been further alleged that respondent was forced to write his statement under dictation of accused persons and was also forced to sign on certain documents and invoices during the above mentioned illegal detention. After being released from DGCEI, Regional Officer, Kawnpur, the respondent had to be admitted to hospital by his family members. Respondent thereafter informed the senior officers of DGCEI regarding excesses committed on him and also wrote a letter in Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 4/50 that respect on 19.07.09 to Chairman, Central Board of Excise and Customs but to no avail. It has been further stated that respondent also filed one criminal writ petition before Hon'ble High Court of Allahabad regarding his apprehension of being further harassed and detained by DGCEI officials, which was dismissed on 12.10.09 with observation that if any illegality is committed against respondent, he may seek appropriate remedy. Respondent reported to have also approached the National Human Rights Commission regarding his alleged ill treatment by officials of DGCEI.
It has been further alleged that due to above mentioned actions initiated by the respondent, accused persons in connivance and in criminal conspiracy with each other illegally picked up the complainant on 10.11.09 at 10/11pm from Balaji Deluxe Hotel, Paharganj, New Delhi and forcibly took him to the office of DGCEI, R.K. Puram, New Delhi and confined the respondent from 12 midnight of 10/11.11.09 till 1:30pm on 11.11.09. Respondent was restrained from going out from the office of DGCEI, R.K. Puram. Respondent was tortured alongwith one Siddharth Dixit, who was already present in the custody of officials of DGCEI. Both of them were mercilessly beaten in order to extort confession from them. Their clothes except underwear Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 5/50 were removed and naked photographs were taken. Questions and answers were dictated to them by accused person in connivance with each other. Their objection to the dictation, met with the merciless beatings with wooden logs on the vital parts of their body which could have caused the death of respondent. Thereafter, both accused persons were shown to be arrested on 11.11.09 at about 1/1.30pm. They were taken to Safdarjung Hospital and their MLCs were prepared at 3.18 and 3.20pm. They were thereafter, produced before the Duty Magistrate at about 7.30pm on 11.11.09, who directed their custody as well as further production before the concerned Court on 12.11.09 in the morning. Both respondent and Siddharth Dixit were then produced before the concerned Court of Ld. ACMM, before whom both of them stated that they were mercilessly beaten by the officers of DGCEI after lifting them on 10.11.09. Both the respondent and Siddharth Dixit showed their injury marks to the Court concerned pursuant to which Court initialed all the necessary documents in the case file and also observed that the file did not contain any summons issued to either of them. The court further directed to conduct medical examination of both respondent and Siddharth Dixit on 12.11.09. Consequent to which both of them were medically examined at RML Hospital on the same day.
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 6/50 On receipt of complaint, the Ld. Trial Court recorded the pre-summoning evidence which was led by the complainant and after hearing arguments on the point of summoning, the Ld. Trial Court issued summons u/s. 323/348/365/368/506/34 IPC r/w Sec. 120B IPC against all accused persons on 01.12.09. This summoning order passed by the Court was set aside by Hon'ble Delhi High Court vide order dated 01.03.2011. Thereafter, the complainant went in appeal against the order of Hon'ble Delhi High Court before the Hon'ble Supreme Court. Vide order dated 10.01.2013, the Hon'ble Supreme Court allowed the criminal appeal no. 89-90/2013 moved by the complainant and set aside the impugned judgment dated 01.03.2011 vide which summoning order of accused persons was set aside. The case was then remanded back to the concerned Ld. Trial Court.
Thereafter, summons were issued against all accused persons. Consequent to which accused persons appeared and were admitted to bail. After leading of pre-charge evidence by the complainant, the Ld. Trial Court heard the arguments on the point of charge. Vide impugned order dated 10.12.2013 and 04.01.2014, the Ld. Trial Court framed charges under Sections 323/348/365/368/506/34 and Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 7/50 120B IPC against all accused persons/revisionists. Aggrieved by the impugned orders dated 10.12.2013 and 04.01.2014, revisionists/accused persons have preferred the revision petition bearing CR No. 21/12.
3. Grounds revisions of CR No.21/12 titled Sandeep Thapliyal & Ors. vs Vinay Kanodia: It is stated that finding of Ld. MM in para no.18 of the impugned order dated 10.12.2013 seems to imply that it is possible to frame an order on charge for conspiracy without having jurisdiction to entertain the very facts that establish the conspiracy theory. If the 'scheme of things reportedly started from Kawnpur', and that it is the basis for concluding that a charge for conspiracy is in order, it is impossible to understand how action is being taken against accused for their alleged actions in Kawnpur. Hence, this observation of the Magistrate is internally contradictory and does not hold ground logically. Further, the Magistrate cannot be allowed to indirectly assume jurisdiction over the events in Kawnpur, when no such authority is vested in him.
It is further stated that complaint made by the complainant regarding the alleged incident in Kawnpur is baseless and without any evidence and Ld. Magistrate erred in taking cognizance of the incident Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 8/50 at Kawnpur and making it the basis of his conclusion that a criminal conspiracy was hatched by accused officials. Seven accused persons were in Kawnpur but statement of complainant was recorded by another officer Sh. D.S. Chauhan.
It is further stated that the observation given by Ld. Trial Court in para no.17 goes against the concept of 'improvements' in testimony. On 11.11.09, before Ld. Duty Magistrate neither respondent nor Siddharth Dixit made any grievance of any detention, wrongful confinement, torture, injuries and/or involuntary character of the statements but that forms the sole ground of his complaint before Ld. ACMM. Further, the extent of improvements can clearly be culled out from the cross-examination of the witnesses. PW1 and PW2 admitted in their cross-examination that substantial parts of their statements had never been mentioned earlier in any of their complainants or in their previous statements to the Court.
It is further stated that Ld. Trial Court has wrongly observed in para no. 9 that accused though during pre-charge evidence took a somersault since nowhere in the reply to the bail applications, which is part of the complaint, was it mentioned that the officer had not visited Hotel Balaji Delux. It is further stated that impugned order seems Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 9/50 to imply that it was for accused to prove that they did or did not commit the alleged act.
It is further stated that Ld. Trial Court in para no.20, has taken great pains to reproduce the assertions of complainant, taking them at face value as good evidence. There is not an iota of admissible evidence that accounts for these claims. The contents of MLC have not been examined properly by Ld. MM.
It is further stated that Ld. Trial Court has relied on the statements of PW2, the father of complainant who is not only an interested witness and he provided copybook evidence in the entire matter but his version of events is entirely hearsay and cannot be admitted as evidence against revisionists.
It is further stated that Ld. Trial Court has relied heavily on the evidence produced via the CCTV footage, without taking into account the fact that in absence of a certificate u/s. 65 B of the Indian Evidence Act, electronic documents cannot be admitted as evidence. Ld. MM has wrongly relied on the judgment in State (NCT) of Delhi vs Navjot Sandhu.
It is further stated that Ld. Trial Court seems to have already found that an offence of criminal conspiracy is made out against Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 10/50 accused and the finding given in para no.25, falls beyond the mandate at the stage of charge.
It is further stated that Ld. Trial Court has failed to appreciate that respondent in his examination in chief admitted that he had willingly gone with revisionists and hence, no possibility of abduction of respondent can be ruled out.
It is further stated that Ld. Trial Court has failed to appreciate that very purpose of conducting pre-charge evidence would be defeated, if even after bringing a fact on record by way of evidence, the same was not considered at the stage of framing of charge and was kept to be considered at later stage.
It is further stated that explanation rendered by revisionist is already proved by the fact that Department had with the permission of the Court impleaded as a party and stating that actions were done by the officers while discharging their official duty.
Revisionists cited State of Orissa vs Debendra Nath Padhi [(2005) 1 SCC 568] and State of Bihar vs. Ramesh Singh [(1977) 4 SCC 39].
In view of above, it is prayed that impugned order dated 10.12.2014 be set aside and charges framed against revisionist be Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 11/50 quashed.
4. Brief facts which are relevant for the disposal of revision petition bearing CR No.20/12 titled DGCEI vs Vinay Kanodia are that DGCEI is responsible for detection of cases related to evasion of Central Excise duties and Service Taxes all over in India. The officers named by the complainant in complaint case bearing No. 273/1/13 were serving at different posts at relevant time under DGCEI.
It is further stated in the petition that respondent is the Director of M/s Vinay Wires & Poly Products Pvt. Ltd., having its units i.e. Unit-I & II at Rania, Kawnpur Dehat. This company during the period of 2005 to 2009-10 (upto June 2009) had sold finished goods involving duty of excise without accounting for the same in their record and without payment of central excise duty. The unaccounted finished goods sold by the company to various manufacturers was used in clandestine production and clearance of finished goods by those manufacturers on which again duty was evaded and thus, the clandestine clearances of goods being done by the aforesaid company's Unit I & II have resulted in multifold evasion of duty which goes to the tune of more than Rs.7.5 crores.
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 12/50 It is further stated that after receiving the specified intelligence regarding this tax evasion the above mentioned DGCEI Officers promptly acted to recover the loss of public exchequer and after following due process of law brought the tax evaders i.e respondent before the Court of law. This bonafide legal action on the part of these Government servants irked the respondent who for taking the revenge and to create his defence against the prosecution under CEA lodged the false and frivolous complaint before the Ld. ACMM.
It is further stated in the petition that the Ld. ACMM despite the fact that the complainant neither obtained nor applied for any sanction as required u/s 197 Cr.P.C. r/w. Sec. 40 Central Excise Act took the cognizance. Even after taking of this cognizance when the proceedings remained continued the DGCEI brought this fact before the Ld. MM but Ld. MM in sheer violation of law propounded by Hon'ble Supreme Court in General Officer Commanding vs. CBI 2012 (6) SCC declined the prayer of DGCEI for stopping the proceedings and directed for framing of charge against the officers of DGCEI vide impugned order dated 10.12.2013 whereby the Ld. MM decided to proceed with the trial of above mentioned case despite the fact that no sanction under Section 197 Cr.P.C. read with Section 40 of the Central Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 13/50 Excise Act, 1944 was obtained before launching the prosecution against above named DGCEI officers for the acts done by them in discharge of their official duties.
5. Grounds of revision of revision petition bearing CR No.20/12 titled DGCEI vs Vinay Kanodia: It is stated that Ld. MM has failed to appreciate that action taken by DGCEI officers before 12.10.2009 was scrutinised by Hon'ble Allahabad High Court in petition filed by Vinay Kanodia quashing of the summons and stay of his arrest in the proceedings undertaking against him by DGCEI officers from 30.06.2009 and hence, there was no occasion for Ld. MM to say that the act of DGCEI officers was a conspiratorial act.
It is further stated that Ld. MM failed to appreciate that within the statutory period Vinay Kanodia was produced before Ld. MM for his remand and thereafter from judicial order, he remained in custody from 11.11.09 till 10.01.10. In view of gravity of offence his bail application were dismissed by different Courts. Further, the respondent after receiving the show cause notice has filed the application before the Settlement Commission admitting his fault and correctness of the proceedings conducted by DGCEI officer. Not only this, he has owned Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 14/50 his statement given before the Competent Authority during the proceedings. Hence, the Ld. MM was not justified in holding that there was nothing on record to show the fact that these DGCEI officers were acting in discharge of their official duties.
It is further stated that incidence of Kawnpur was held to be justified by the Hon'ble Allahabad High Court in order dated 12.10.2009 and respondent himself admitted the correctness of proceedings conducted at Kawnpur and thus, there was no occasion for Ld. MM to declare this act of the department as conspiracy.
It is further stated that Ld. MM has failed to appreciate that the proper record was maintained regarding whole of the operation from receipt of the information regarding tax evasion till issuance of show cause notice and whole of these proceedings were accepted to be correct by respondent in the petition filed before Settlement Commission under Central Excise Act. In these circumstances when all the proceedings regarding search and seizures was being done as per the directions of the superior officers and all the movements were in the knowledge of superior officers, the act of conducting search at the premises of respondent at Kawnpur, Ghaziabad, Lucknow and Noida cannot be termed as acts done after hatching conspiracy. For keeping Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 15/50 the above named DGCEI officers out of protection of Section 197 Cr.P.C., Ld. MM made this conspiracy a sole basis.
It is further stated that Ld. MM did not consider the rejection of plea of illegal search by Hon'ble Allahabad High Court. Further, the proceedings which started from 30.06.09 at Kawnpur culminated in the arrest of Vinay Kanodia and 11.11.09 and serving of Show Cause Notice on 06.09.11. The whole of the proceedings got its genesis after receipt of information regarding tax evasion.
It is further stated that that statute itself makes the duty of serving of summon by the officers working under Superintendent as their official duty and hence, there was no occasion for Ld. MM to form the opinion that the acts done were not in discharge of the official duty.
It is further stated that Ld. MM has failed to appreciate that Section 23 of Central Excise Act, 1944 cast a duty on all the officers to diligently perform their duties.
It is further stated that Ld. MM has failed to appreciate that it is not on accused to establish that he was acting in discharge of official duty rather it is the department who always remain in the position to say that the particular act done by the Govt. Servant was done in discharge of this official duty. In this case DGCEI itself Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 16/50 impleaded as party and marked its presence before Hon'ble Supreme Court and subsequent to it before the court of Ld. MM. In all the stages DGCEI took one stand that these persons were acting in discharge of their official duties. The Ld. MM was having no jurisdiction to disbelieve this contention of DGCEI.
It is further stated that summons could not be served upon respondent and on 10.11.2009, the officers responsible for serving the summons gathered the information about presence of complainant at Hotel Balaji Deluxe and upon checking, complainant was found staying there and complainant only arrived around 11 pm. The Ld.MM failed to appreciate that information gathered by summons serving officers proved to be true. The Ld. MM has failed to appreciate that complainant did not come forwarded with any explanation as to why he did not joined the enquiry desptie dismissal of writ and why he, his family member or his staff was hesitant in giving the whereabouts of the complainant. In these circumstances the only option remained was to serve the summons personally and it was done and the service was affected.
It is further stated that Ld. MM has failed to appreciate that Hon'ble Supreme Court order dated 10.01.2013 set aside High Court Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 17/50 order only by saying that High Court on technical ground quashed the summoning order and granted liberty to the parties to take all the legal pleas before the concerned Court.
Revisionist cited General Officer Commanding (Supra); Mohd. Hadi Raja vs. State of Bihar & Anr. (1998) 5 Supreme Court Cases 91, Sankaran Moitra vs. Sadhna Dass & Anr. in Crl. Appeal No. 330/06; State of HP vs MP Gupta (2004) 2 SCC 349; K. Kali Muthu vs State; Anjani Kumar vs. State of Bihar & Anr. AIR 2008 SC 1992 and Anil Kumar & Ors. vs. M.K. Aiyappa & Anr. in SLP (Crl.) 6652-6653 of 2013.
In view of above, it is prayed by the revisionist DGCEI that the order dated 10.12.2009 of Ld. MM is bad in law in as much as it is based on incorrect facts.
6. Respondent/complainant Vinay Kanodia filed reply to the present revision stated therein that after filing of the present complaint case by the father of the respondent herein before the Ld. ACMM, evidences were led by the complainant.
It is further stated that vide order dated 01.12.2009, the Ld. ACMM-01 summoned all accused/revisionists u/s. 323/348/365/368/ Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 18/50 506/34 IPC r/w Sec. 120B IPC and in said order, the Ld. ACMM-01 held that in the given facts of the case the protection u/s. 197 is not available to the revisionists herein as the act committed by them did not form part of the official duty nor the same was remotely connected with such official duty.
It is further stated that revisionists are delaying the trial which is against the mandate/directions given by Hon'ble Supreme Court in its order dated 10.12.2013 whereby the Ld. Trial Court has been directed to complete the criminal proceedings as early as possible, at any rate, within 6 months from the date of receipt of copy of said order.
It is further stated that DGCEI has been improperly, illegally and in an unjustified manner is trying to protect accused persons and are providing them all assistance.
It is further stated that in the impugned order the Ld. Trial Court has dealt with each and every aspect of the case including the issue of sanction u/s 197 Cr.P.C. read with Section 40 Central Excise Act.
It is further stated that during course of pre-charge evidence, revisionists failed to place on record any evidence to suggest that on 10.11.09, they were present in Balaji Deluxe Hotel in discharge Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 19/50 of their official duties nor even any suggestion was put forward by them to the respondent on this issue.
It is further stated that revisionists have not challenged the impugned order on the issue of sanction and revisionists have failed to point out any impropriety, irregularity or illegality or any incorrectness in the impugned order.
It is further stated that perusal of present petition shows that the present petition has been filed by on Sandeep Thapliyal i.e. revisionist no.1, there is no averment in the content of the petition/pleading that revisionist no.1 has filed the present petition for and on behalf of petitioners no. 2 to 9 also or that he was authorized to file the present petition.
It is further stated that at the stage of framing of charge the scope is very limited and the Court has only to see a whether there is a prima facie case made out and if yes, then the charges are to be framed.
It is further stated that DGCEI is not a party in the present criminal case nor DGCEI has been impleaded in the present case as a party but despite that the revision petition bearing No. 20/14 has been filed by DGCEI. It is further stated that counsel for DGCEI had been representing accused/revisionists in the present matter which is against Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 20/50 the settled principles of law, rule of law and equity.
Respondent cited Ramesh Kumar vs. State of Bihar, Praful Samant vs State of Orissa, Amit Kapoor vs. Ramesh Chander & Ors. 2012 (3) JIC 772 SC, State of UP vs. Man Mohan, 1986 Cri. L.J. 1245, Amar Singh vs. State 1987 (31) DLT 64.
7. Arguments heard. Revisionist/DGECI also filed written arguments.
8. In the arguments, it is stated by counsel for the revisionists that whatever act was done by the revisionists/DGCEI officials were done in discharge of their official duties and in good faith. Once an act has been done in discharge of official duties and in good faith, Section 197 (1) Cr.P.C. comes into picture and actions of DGCEI officials are protected.
It is further stated by counsel for revisionists that on 18.05.2009, DGCEI has issued notice to the respondent Vinay Kanodia for assessment. The statements were recorded. Show cause notice was issued and there was an order to the respondent to join the proceedings and despite service of the summons, the respondent Vinay Kanodia Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 21/50 failed to join the proceedings before the DGCEI. Thereafter, a penalty of more than Rs. 7 crores was imposed upon the respondent which was not paid and the DGCEI has no option except to lodge the prosecution. Thereafter, respondent Vinay Kanodia moved an application for settlement before the Settlement Commissioner and an offer for payment of about Rs.4.30 crores was made.
It is further stated by counsel for the revisionists that proceedings were initially started at Kawnpur. When all the actions of DGCEI were judicially scrutinised and once the fact and an incident has been judicially scrutinised without any allegations regarding illegality and irregularity on the part of DGCEI officials, the same cannot be the basis of a criminal complaint in Delhi. Criminal prosecution if any, can be lodged by the respondent only at Kawnpur with respect to act/ omissions at Kawnpur. Thereafter, whatever was done, was done in pursuance of proceedings at Kawnpur. Hence, neither the respondent or any other has locus standi to lodge any criminal prosecution in Delhi.
It is further stated by counsel for the revisionists that basis of present complaint is assault, torture, illegal confinement but the MLC of the respondent has not been filed as per law. Nor any doctor has been examined.
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 22/50 It is further stated by counsel for the revisionists that some electronic evidence has been filed on behalf of the complainant during evidence but these electronic evidence cannot said to be legal for the purpose of framing of charge or notice as these were not filed with certificate under Section 65 (B) of Indian Evidence Act.
It is further stated by counsel for the revisionists that complainant has taken several U-turns to the facts which are not the relevant facts and made many improvements.
It is further stated that facts not stated in the complaint were stated in the pre-charge evidence which is not allowed at all.
Counsel for the revisionists further stated that acts of accused/revisionists were in discharge of their officials and color of duties and hence, protected under Section 40 Central Excise Act.
It is further stated that in one of the bail application, it was stated by the complainant that he himself came with officials and there was no abduction. Mark-1 in the document has not been put. Document has not been examined. All the acts and activities were under the color of official duties and within the knowledge and approval of senior officers of the department. Despite several notices, respondent Vinay Kanodia was avoiding to join the investigation being conducted at that Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 23/50 time by the DGCEI.
9. In the arguments, it is stated by Ld. APP for the State, representing the DGCEI that no cognizance of the offence can be taken when the act is done in good faith and under color of office.
It is further stated by Ld. APP that when complainant moved before the Hon'ble Allahabad High Court, there was no allegation as shown in para no.16 of the impugned order of the Ld. MM and once there is judicial scrutiny on 12.10.2009, no action of the alleged incident can be taken. Perusal of order of the National Human Rights Commission shows that there is no adverse order or entry against officials of DGCEI. The officials of DGCEI were different at Kawnpur as well as in Delhi. Both acted differently, however, in pursuance of directions of Director General, CEI. Under Section 23 of Central Excise Act, the officials of DGCEI are entrusted with power to arrest if a person failed to join the investigation despite receipt of summons.
10. In the arguments, it is stated by counsel for respondent/ complainant Vinay Kanodia that revisionist DGCEI has no locus standi Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 24/50 to file the present revision. The complaint is purely a simple private complaint and State is not a party. Even otherwise, in the original complaint filed by the complainant, revisionist DGCEI is not a party. However, when the matter was before the Hon'ble Supreme Court of India, revisionist DGCEI filed impleadment application which was allowed in terms of relevant Supreme Court Rules which are not there in Cr.P.C.
It is further stated by counsel for the revisionist/ complainant that there is no provision in the Cr.P.C. for impleading the DGCEI and even otherwise, the DGCEI has been allowed to implead only on the ground of sanction only.
It is further stated that charges have already been framed and present revision on behalf of revisionist DGCEI be dismissed.
In the arguments, it is also stated by counsel for the respondent/complainant that pre-summoning order dated 01.12.2009 is very clear. At the time of visit Hotel Balaji Deluxe, the officials of DGECI were not on official duty. Cognizance was taken on 01.12.2009. Thereafter, matter was taken up to the Hon'ble High Court and thereafter, the matter was again taken before the Hon'ble Supreme Court whereby the order dated 01.12.2009 has justified the continuation of the Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 25/50 complaint case.
It is further stated by counsel for the respondent Vinay Kanodia that during the course of examination of PWs, there is no suggestion or question to the PWs that accused had come to Hotel Balaji Deluxe in discharge of their official duties.
It is further stated by counsel for respondent that wrong facts are being given by the revisionists to distort the case of the complainant.
It is further stated that the case diary was blank and accused persons had done some hanky-panky in order to coverup their misdeeds.
It is further stated that the present case is the glaring example of the atrocities inflicted by the DGECI officials upon the person of respondent and innocent persons.
Counsel for respondent Vinay Kanodia further stated that CCTV footage is very clear which shows the manhandling and using of force by accused persons upon the person of respondent.
It is further stated by counsel for the respondent Vinay Kanodia that revisionists have made several false statements in para no.11, 12, 20 and 30 with respect to performance of official duties. Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 26/50 It is further stated that evidence has been started and no interference at this stage is called for.
11. I have seen both the revisions, grounds of revisions, trial court record, impugned order, judgments cited, written arguments and considered the arguments advanced and my inference is that both the revision petitions be allowed and charge framed against revisionists in pursuant to order dated 10.12.2013 be set aside including the charge dated 04.01.2014 and file be sent back to the concerned Ld. Trial Court for further proceedings as per law, on the following grounds:-
firstly, PROCEEDINGS AT KAWNPUR (A) Initially the officials of DGECI started the proceedings finding irregularities in payment of excise and custody duties in the business of respondent company M/s Vinay Wires & Poly Products Pvt. Ltd., Kawnpur. On 30.06.2009, searches were conducted in various premises related to aforesaid company including residence of its director Vinay Kanodia but none of revisionists/accused persons were Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 27/50 visited his residence for search. At that time statement of various persons were recorded pointing evasion of tax by company, however, none of the statement was recorded by any of accused officials. From 30.06.2009 till 12.10.2009, all the actions were taken up at Kawnpur by accused persons on behalf of DGECI. Ultimately, a writ petition was filed by Vinay Kanodia before the Hon'ble Allahabad High Court seeking that he may be given protection as he has apprehension of arrest and detention at the hands of officials of DGECI.
(B) From 30.06.2009 till 12.10.2009 by which ultimately the Hon'ble Allahabad High Court passed the order on the incident or facts happened in Kawnpur, were judicially scrutinised by the Hon'ble Allahabad High Court, hence, any fact or wrong which is subsequently has been alleged cannot be the basis of prosecution against accused persons/revisionists.
(C) It may be noted that before the Hon'ble Allahabad High Court, Vinay Kanodia had signed the writ petition where many of the facts mentioned in the present complaint before the Sh. Ajay Pandey, the then Ld. ACMM were admittedly not mentioned.
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 28/50 Secondly, Improvements and contradictions in the statement/deposition of PW1 and PW2 (A) PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "accused Sandeep Thapliyal and accused Sunil Joshi were dictated me some statements upon which I had objections. As I had objections, therefore, I stopped writing, however, the accused Sunil Joshi stated that start writing or they will start giving beatings to me. The accused Sunil Joshi even did not listed to my request properly and straight away gave a slap on my face", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has further admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "accused Sunil Joshi also directed his staff i.e. co-accused Khajan Singh to keep Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 29/50 standing at the spot with a wooden rod and in case I stop writing then to hit the said rod on my head. Due to the fear of beating, I again started writing on dictated terms. As and when I objected to the writing on dictated terms, the same treatment was given to me time and again due to which I wrote the statement on dictated terms", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his said cross-examination also admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "accused G. Saril Saroj directed his staff to keep me awake the entire night and in case I go to sleep to wake me up by hitting me with a danda", is not mentioned in original complaint or in my statements stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 30/50 PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 also admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "accused Sunil Joshi and Sandeep Thapliyal also made me write in the statement that I had given the statement voluntarily in full senses and without any force or coercion. They also threatened me that in case I retracted my statement, they will against lift me, beat me and will again make me write the statement in similar manner", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has also admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "Thereafter, accused Sandeep Jain (correctly identified as present in the Court) came to me in the office itself and stated that 'ye sab shaittan hein, tum inki baat maan lo, aur yahan se niklo, ye jagah tumhare liye theek nahin hain". Accused Sandeep Jain and accused Sandeep Thapliyal thereafter Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 31/50 stated to me bring Rs.50 lacs as Excise Duty immediately in case I wanted be released. I expressed my inability to arrange Rs. 50 lacs immediately stated that it is a very huge amount", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has also admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "accused Sandeep Jain in a very polite tone, thereafter, told me that notwithstanding any thing I have to cough up the said amount, otherwise he will not be able to help me and the officials can do anything to me. After hearing this, I got frightened, started weeping and requested them to permit me to have a talk with my family", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 32/50 the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has also admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "thereafter, some official of DGCEI with his mobile phone gave ring to my elder brother Mr. Brijesh Kanodia and made me speak to him. I intimated everything which had happened with me to my elder brother on phone. Before I could finish my talk with my elder brother someone snatched the phone from my hand and told my brother that in case he wanted to see me in good health and body then immediately arrange for Rs.50 lacs", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has further admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "after that some official stated that these brother will not pay the money and keep continue to beat me. This episode of giving me repeated beatings and Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 33/50 thereafter making me speak to my family continued for numerous times and such type of atmosphere was created by the officials to compel my family to arrange for and make payment of Rs. 50 lacs", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has further admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "accused officials i.e Sunil Joshi, Rakesh Mohan, Sandeep Thapliyal and G. Saril Saroj also did not allow me to sleep for the entire night of 1.7.2009 and kept me beating throughout the day and night to compel me to make the payment of Rs. 50 lacs as Excise Duty", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 34/50 PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has further admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "my elder brother Brijesh Kanodia arrange a sum of Rs. 30 lacs by breaking the FDRs and deposited Rs. 30 lacs in the Account of Excise Duty/PLA account and sent the slip of the same to the office of DGCEI at Sarvodaya Nagar, Kawnpur through our employee Shri Deepak Poddar", is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has further admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "after verification of the receipt of payment of excise duty to the tune of Rs. 30 lacs, I was allowed to leave the office at Kawnpur with the instructions that I would never retract my statement as recorded by the DGCEI officials, is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above said fact Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 35/50 was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has further deposed that "There were two cheques. I do not remember the dates written on the cheques but the funds were transferred qua said cheques on 2.7.2009. at this stage, on reminding of counsel for accused persons, it is stated by the witness that out of the two cheques, one cheque was dated 2.7.2009 and the other cheque was dated 6.07.2009. It is correct that the statement given by me that total funds of Rs.30 lacs were transferred to the account of department on 2.7.2009 is false."
PW1 Vinay Kanodia in his cross-examination dated 31.05.2012 has further admitted the fact that "It is correct that the fact stated by me in my statement on 7.5.2013 before Court that "thereafter I left the office at Kawnpur, I started walking, I was not in good physical condition and after walking for sometime I found my brother Mr. Birjesh Kanodia who after seeing my condition took me in his car to Ursala Hospital at Kawnpur, is not mentioned in original complaint or in my statement stated on 27.11.09 and 01.12.09. It is also correct that above Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 36/50 said fact was not mentioned in the writ petition filed before Allahabad High Court. Vol. At that time I was in JC and the complaint was filed by my father who could not give the complete account."
The above shows that subsequent to the proceedings before the Hon'ble Allahabad High Court, complainant has given false facts before the Ld. Trial Court while deposing on 31.05.2012.
(B) Whatever has been stated by the complainant i.e. father of Vinay Kanodia is heard by him which is not admissible under Section 3 of the Indian Evidence Act. Under Indian Evidence Act any person is competent to give evidence who know about the facts of the case provided he must be acquainted with the facts of the case. PW2 Sh. Hanuman Prasad Kanodia who is complainant in the present case, admitted that "he came to Delhi on 12.11.2009 and visited Patiala House Court in the morning at about 10 am." Hence, whatever facts PW2 has stated about the incident or happening before 10am on 12.11.2009 are not form of his knowledge directly and these facts, he may either heard from someone else whose name he has not disclosed. Hence, the complaint has been filed on the basis of facts which are truly not known to the complainant i.e. Hanuman Prasad Kanodia, father of Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 37/50 Vinay Kanodia. The mind of this Court stops working once this fact surfaces.
Hence, there is lot of improvements and contradictions in the original complaint as well as in subsequent deposition of PW1 and PW2.
Thirdly, PROCEEDINGS AT DELHI
(A) The proceedings were started in Delhi from
26.10.2009 onwards. Uptill 10.11.2009, the directions were issued to issue summons to Vinay Kanodia about his location and presence. On 10.11.2009, Vinay Kanodia was located and served with summons by Veerender Kumar, SIO who was for the first time involved in service of summon and not involved or contacted Vinay Kanodia previously at any time. On very said date, there was willingness of Vinay Kanodia to join the proceedings. It is an admitted fact before the deposition before the Ld. Trial Court.
(B) All acts in Delhi were done after proceedings in Kawnpur. A fact has further been surfaced during arguments in one of the bail application that accused Vinay Kanodia himself turned up in the Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 38/50 office of DGECI.
(C) During this period, on 31.08.2009, Vinay Kanodia filed a complaint to National Human Right Commission. On 16.09.2009, the matter was transferred to Uttar Pradesh National Human Right Commission. On 17.09.2009, notice was issued by Uttar Pradesh National Human Right Commission to DGECI. It is submitted that DGECI replied that the notice on 16.11.09 stating that respondent is making baseless allegations against the officers in order to thwart the course of the investigation. Ultimately, the writ petition filed by Vinay Kanodia was dismissed by the Hon'ble Allahabad High Court on 12.10.2009.
(D) After dismissal of writ petition, the proposal of arrest of Vinay Kanodia and others was moved on 26.10.2009. On 28.10.2009, the Deputy Director of DGCEI directed to issue further summons for tendering statement of Vinay Kanodia. It was noted by Deputy Director of DGCEI that since the persons are not complying with summons and are not receiving summons on one pretext or another, efforts may be made to locate them and service of summons in Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 39/50 person. Ultimately, on 10.11.2009, Veerender Kumar, SIO who was first time involved in the case, served the summons to Vinay Kanodia at Balaji Deluxe Hotel Paharganj at around 11:30pm. It is an admitted fact that Vinay Kanodia himself came with officials of DGECI as per his cross-examination before the Ld. Trial Court.
(E) On 11.11.2009, Veerender Kumar, SIO recorded the statement of Vinay Kanodia. The arrest of Vinay Kanodia was approved by DG, CEI in file. As per direction, he was arrested at around 1.30pm and he was medically examined in Safdarjung Hospital in which certain injuries were reflected, however age of injury was not recorded. He was produced before the Ld. Duty Magistrate who sent him to one day Judicial Custody. It may be noted that no complaint was made before the Ld. Duty Magistrate and he was handed over to Tihar Jail officials.
(F) I have seen the Remand papers which is an application for extension of judicial remand. Once accused appears before a Magistrate, the noting of the Magistrate and observation is Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 40/50 final. It is a fact that there is no observation by the Duty Magistrate that accused Vinay Kanodia has suffered any injury, beating, assault or pressure etc. Hence, this shows that there was no merciless beating, assault, beating, assault or pressure etc. on the part or upon person of accused Vinay Kanodia as alleged in the complaint. Since his physical appearance was noted and observed by the Ld. Duty Magistrate and beyond observation of Ld. Duty Magistrate, no proceeding can be initiated.
(G) It is well established procedure that before handing over of an accused to the officials of Tihar Jail, they make observation about physical condition of accused. It is a fact that there is no report or any adverse condition with respect to accused Vinay Kanodia. Otherwise, the official of Tihar Jail never accept an accused with injuries unless recorded by the competent Authority. Hence, respondent Vinay Kanodia cannot say anything about his torture, beating etc. against a judicial observation.
(H) It is not clear whether all revisionist/accused persons Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 41/50 took the remand; it is also not clear whether all accused persons were present at the time of remand; it is also not clear whether all accused persons were present at the dead night of 10/11.11.09 when they were alleged to give merciless beatings to Vinay Kanodia; keeping in view the peculiarity of facts that he has stated that he himself came with customs officials.
(I) These clearly show that till 12.11.2009, there was no allegations of merciless beatings, torture etc. and till this time, there was judicial observation upon the person of respondent and scrutiny of case of respondent and there was nothing adverse against accused/ revisionists. It was only on 12.11.2009 when respondent Vinay Kanodia was produced before the Court of Sh. Ajay Pandey, the then Ld. ACMM, he made the complaint of merciless beatings, torture etc. At that time, he was brought and then sent to JC. Whatever happened between the period when Vinay Kanodia was sent to JC/Tihar Jail and handed over to Tihar officials by officers of revisionist DGCEI and till production of Vijay Kanodia before Sh. Ajay Pandey, the then Ld. ACMM can only be the subject of inquiry for which complainant has not made any allegation. Not more that it is stated by custom officials that Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 42/50 some files were signed by Sh. Ajay Pandey, the then Ld. ACMM which is alleged to be not relevant and signed file was related to summons which was signed by the Sh. Ajay Pandey, the then Ld. ACMM was of a file of complaints of non-compliance of summons by DGCEI to show the Ld. ACMM the non co-operation of the complainant during investigation which was the basis on which further remand was granted.
(J) On 20.11.2009, a complaint was filed by Sh.
Hanuman Prasad Kanodia, father of Vinay Kanodia against 4 officials of DGCEI namely Sandeep Thapliyal, Sunil Joshi, Rakesh Mohan and G. Saril Saroj. On 23.11.2009, the bail of application of Vinay Kanodia was rejected. On 01.12.2009, am addendum of inclusion of 5 more officials was filed by the complainant before Sh. Ajay Pandey, the then Ld. ACMM. Sh. Ajay Pandey, the then Ld. ACMM took the cognizance of complaint and issued summoning order against 9 officers for 07.12.2009 and added officers are Sandeep Jain, Virender Kumar, Khajan Singh, Driver/ DGCEI (as visible in at point-X, in photo Mark-M) and officer/ DGCEI (as visible at point-Y in photo Mark-N). It is very strange that there is no provision in whole of the Cr.P.C. for amendment or inclusion of accused at the initial stage. It is further very strange that unknown Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 43/50 person is made accused which is to my mind appears to be very serious flaw in the complaint.
(K) On 04.12.2009, the second bail application of Vinay Kanodia was rejected by the Ld. Additional Session Judge. Subsequently, the revisionist filed an application under Section 482 Cr.P.C. before the Hon'ble High Court of Delhi for quashing of summoning order. On 18.12.2009, the Hon'ble High Court stayed the summoning order till further orders. In between November, 2009 to August, 2010, statements of various persons were recorded, however, none of the employee of M/s Vinay Wires and Poly Products Pvt. Ltd appeared.
(L) On 30.08.2010, Sh. Brijesh Kanodia, one of the brother of Vinay Kanodia and Managing Director of M/s Vinay Wires and Poly Products Pvt. Ltd. filed an anticipatory bail application before the Hon'ble High Court of Allahabad which was disposed of vide order dated 30.08.2009 directing him to appear before DGCEI on 01.09.2010. It is alleged by the revisionists that on 01.09.2010 Sh. Brijesh Kanodia appeared and his statement was recorded by Sh. Anil Chandela, SIO Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 44/50 who is not an accused in the present case. He is also alleged to be not co-operative and gave evasive reply. The arrest of Sh. Brijesh Kanodia was approved by DG, CEI and was arrested by Sh. Rohilt Issar, IO who is not an accused in the present case, on 01.09.2010.
On 17.09.2010, while Brijesh Kanodia was in JC, an application was moved to make enquiries from him at Tihar Jail. The Ld. ACMM Sh. Ajay Pandey ordered that enquiries may be made before the Court on 17.09.2010. His statement was recorded in the Court by Sh. Anil Chandela, SIO. It has been alleged that he did not co-operate in the inquiry and Ld. ACMM further ordered that enquiry may be conducted on 18.09.2010. On 18.09.2010, Brijesh Kanodia has refused to sign the statement before the Sh. Anil Chandela and thereafter, Ld. ACMM Sh. Ajay Pandey granted bail to Brijesh Kanodia. Subsequently, department filed application for cancellation of bail of Brijesh Kanodia before Hon'ble Delhi High Court and vide order dated 22.02.2011, Hon'ble Delhi High Court set aside the bail order dated 18.09.2010 of Ld. ACMM Sh. Ajya Pandey and ordered Brijesh Kanodia to surrender before the Ld. ACMM who shall decided the bail application afresh.
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 45/50 (M) All these shows that it was only on 12.11.2009 for the first time when Vinay Kanodia made allegations in the Court of Ld. ACMM. Initially 4 officers of the department were arrayed. Subsequently, 5 more officers were added and two were still unknown/ unnamed.
(N) Under Cr.P.C. whenever a crime is alleged to have been committed by a person usually complaint is by that person. However, in the present case, the complainant is father of Vinay Kanodia. Surprisingly, Vinay Kanodia has not been cited as a witness in the complaint still he deposed in the pre-charge evidence.
(O) During the course of deposition Vinay Kanodia deposed that accused Sunil Joshi whispered something into the ears of the doctors and also shown some documents to him at the time of his medical examination. This shows that Vinay Kanodia is making allegations against the doctor of hospital pointing towards the manipulation done the doctor in the MLC. If Vinay Kanodia suspected that doctor has manipulated the MLC then he should have arrayed the Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 46/50 said doctor in the present complaint case as accused as part of conspiracy. Since, Vinay Kanodia has not arrayed the said doctor as accused that means he has not manipulated the record/MLC. The MLC is a public document and Court is to take judicial notice of whatever written in the MLC and there is nothing adverse against the present revisionists/accused persons in that MLC.
(P) It may also be noted that electronic evidence filed by the respondent Vinay Kanodia is not certified as per Section 65 (B) of Indian Evidence Act.
Fourthly, STAND OF DGCEI
(A) While all these proceedings were going on the
DGCEI came forward with an official statement/explanation that all the actions done by their officers who are accused, were done in their official capacity and as per the directions of the superior officers who were watching action of their officers. It was further stated as a fact that they were acting in good faith.
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 47/50 (B) Once a department affirmed that action of the officers is an official act and they did the same in good faith, in my view the alleged allegation of criminal conspiracy imputed upon the revisionists officers elopes and matter becomes the matter of damages, if any wrong is done to the complainant by accused persons.
(C) Respondent Vinay Kanodia was repeatedly not joining the inquiries and investigation being done by officials of DGCEI which they were bound to carry out under Section 40 of Central Excise Act.
(D) The department i.e. DGCEI formally approved all inquiries and investigation of their officers including the present revisionists. The Ld. Trial Court has framed the charge on the basis of criminal conspiracy. Once the department comes forward and stated that action of the officer was in pursuance of their directions, no point of criminal conspiracy can at all be made out.
(E) It may be noted that there is no fact that all officers who have been arrested in the present complaint were present at the time Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 48/50 of incident. When all the officers were not present at the place of incident or were not connected for which there is no fact or record, how they acted in furtherance of criminal conspiracy. When an act is approved by the department then there can be no criminal conspiracy.
(F) If a person is continuously avoiding the process of law, summons are issued. He being not honouring any inquiry or investigation, evasive replies then Act required that officers of the department to apprehend the said person. If an officer knows the place of stay of a person against whom inquiry or investigation is being ordered, has not apprehend then there is penalty on the inactions of that officers.
(G) Revisionists in the present case, are under lawful duty to apprehend such person moreso, when senior officers of department approved the same.
12. In view of above, both the revision petitions are allowed. Order on Charge passed by the Ld. Trial Court dated 10.12.2013 is set aside. Consequently, the charge framed on 04.01.2014 on the Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 49/50 basis of Order on Charge dated 10.12.2013, is also set aside. File is send back to the concerned Ld. Trial Court for further proceedings as per law, in view of above observations.
13. Trial Court Record be sent back to the Ld. Trial Court alongwith copy of order.
14. Parties are directed to appear before the Ld. Trial Court on the date already fixed i.e. 05.06.2014.
15. Revision file be consigned to record room.
Announced in the open court (Daya Prakash)
on 24th May, 2014 ASJ-02/FTC, PHC/ND
24.05.2014
Sandeep Thapliyal & Ors. vs Vinay Kanodia (CR No.21/2014) & DGCEI vs. Vinay Kanodia (CR No.20/2014) In the Court of Additional Sessions Judge02/FTC, New Delhi District Patiala House Courts, New Delhi 50/50