Delhi High Court
J.P.Singh & Anr. vs Vinay Kanodia on 1 March, 2011
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 21st February, 2011
Date of Order: March 01, 2011
+Crl. M.C. 4308/2009
%
01.03.2011
J.P. SINGH & ANR ... Petitioner
Through: Mr Satish Agarwala, Advocate
Versus
VINAY KANODIA ... Respondents
Through: Mr. Pradeep Jain, Advocate
And
+Crl. M.C. 4232/2009
G. SHIRIL SAROJ & ORS ... Petitioner
Through: Mr Satish Agarwala, Advocate
Versus
VINAY KANODIA ... Respondents
Through: Mr. Pradeep Jain, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this petition the petitioner has assailed order dated 1st December, 2009 of learned ACMM taking cognizance of the offence under Section 323/348/365/368/506 read with Section 34 and 120-B IPC on a complaint made by the respondent and summoning the petitioner and other officers of Directorate General of Central Excise Intelligence (henceforth referred to as "DGCEI" for short) to face prosecution and trial of the said offences.
Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 1 of 8
2. The facts necessary to decide this petition are that the office of DGCEI had received information about large scale evasion of excise duty by M/s. Vinay Wires and Poly Products Pvt. Ltd., Unit-I & II at Rania, Kanpur Dehat and other related establishments. The officers of DGCEI, R.K. Puram conducted search of the residential premises of Directors and business/factory premises of the company in June, 2009 and found that company was involved in manufacturing of Poly film, CPP film and Flexible printed laminated rolls and pouches and found that Company, in order to evade payment of excise duty, was using parallel invoices on which finished goods were cleared clandestinely and these invoices were not reflected in their business accounts ultimately. The officers also found various incriminating documents, pen drive and found that the raw material and finished goods did not match with the stock reflected in the books. The two active Directors of the aforesaid Company were Brijesh Kanodia and Vinay Kanodia. Search of premises of one Siddharth Dixit, their marketing agent resulted into seizure of pen drive showing incriminating data reflecting that the finished goods had been sold without payment of excise duty of approximately ` 5.00 crore. After collection of entire evidence from the premises, summons were sent to the Directors and the employees of the Company for recording their statements and seeking information. Despite service of summons, Directors and employees did not appear. Second summons were sent to the Directors and employees by post as well as by fax, still no one appeared. By the time third summons were sent by post, the Company disconnected its fax, so no summons could be sent through fax. The summons sent by post were received by the Accountant, who later on sent back the summons stating that she could not contact the Directors. Field staff of DGCEI served summons at the office of Company by pasting it, for their appearance on 10th August, 2009. None appeared on 10th August, 2009. However, in October, 2009, Brijesh Kanodia, one of the Directors and C.N. Malviya, Manager filed writ petitions before the Allahabad High Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 2 of 8 Court for quashing of summons and stay of arrest making allegations of torture, illegal confinement, beatings and forcible recording of statements etc. The Allahabad High Court, vide order dated 12th October, 2009 dismissed the writ petitions holding that it was well within the scope of Section 14 of the Central Excise Act to issue summons to the Directors and other employees and ask them to make statements concerning the inquiry. Despite the dismissal of the writ petitions, none of the Directors thought it proper to appear before the officers of DGCEI and they absconded.
3. It seems that office of DGCEI got information about the Director/ respondents having lodged themselves in Balaji Delux Hotel in Paharganj, New Delhi and on 10th November, 2009 at about 10.00-11.00 pm they were taken from the said hotel to R.K. Puram office of DGCEI. Their arrest was not shown immediately and their arrest was shown on 11th November, 2009. Accused/respondent Vinay Kanodia filed a complaint before learned ACMM on 20th November, 2009 wherein he alleged commission of offences under Section 341/348/308/324/326/191/192/193/196/ 120-B IPC read with Section 34 IPC against the petitioners. This complaint was filed by him through his father Hanuman Prasad Kanodia. In the complaint he made allegations that he was lifted from hotel premises on 10th November, 2009 at about midnight and was kept in illegal detention for more than 12 hours without authority of law and he was shown arrested only on 11th November, 2009. During this illegal detention he was put to physical and mental torture. He made allegations of recording his statement under coercion. It was submitted that the complainant earlier had approached Human Rights Commission at Delhi about illegal acts of the department and the Human Rights Commission observed that the complaint related to U.P. and transferred his complaint to U.P. State Human Rights Commission. National Human Rights Commission, in the mean time, directed for conducting of inquiry by Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 3 of 8 concerned S.P./S.S.P. It has alleged that due to this complaint, the officers of DGCEI illegally picked him up on 10th November, 2009 from Balaji Delux Hotel, Paharganj, New Delhi and he was forcibly taken to the office of DGCEI and wrongly confined there from 12.00 midnight on 10th November, 2009 till 1.30 pm on 11th November, 2009 and thereafter his arrest was shown. The purpose of wrongly confining the complainant was to harass and torture the complainant because of the complaint filed by him with National Human Rights Commission. Allegations were made that one Siddharth Dixit, Manager (Sales) was already in custody of the officers of DECEI and he was also tortured and Siddharth Dixit and the complainant, both were produced before the Court on 11th November, 2009. Their medical examination was conducted at Safdarjung Hospital. It is submitted that from the MLC it was clear that they had been beaten. It was alleged that the petitioner had committed offences under Section 341, 348, 308, 324, 326, 191, 192, 193, 196 IPC. In support of this complaint, CCTV footage of the Balaji Delux Hotel was produced and Manager of the Hotel was examined and this footage showed that DGCEI officers had picked up the complainant from the Hotel forcibly and taken him to the office at R.K. Puram.
4. Learned ACMM after considering the evidence, came to conclusion that the offences under Section 323, 348, 365, 368, 506 IPC read with Section 34 and 120-B IPC were made out against the accused persons/petitioners and the learned ACMM directed that accused persons be summoned. He rejected the argument that the petitioners were entitled to a protection under Section 40 of Central Excise Act or a sanction would be necessary under Section 197 Cr. P.C. as he considered that the act of forcibly taking the petitioners from Hotel to R.K. Puram office and using force and confinement in R.K. Puram, without showing arrest, and causing injuries were not covered within the duties of the DGCEI officers.
Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 4 of 8
5. It is argued by learned counsel for the petitioner that in this case the complaint was deliberately filed before the Court of ACMM trying custom cases at Delhi though the alleged act was not done within the jurisdiction of court. If the alleged Acts were not within the official duties of the officers and were done by the officers in their individual capacity, exceeding the powers, the learned ACMM, trying custom cases at Delhi, had no right to take cognizance of the offences and the complaint was illegally and deliberately filed before him. According to complainant the incident of forcibly taking the accused from his Hotel had taken place at Paharganj and the offence of wrongful confinement had allegedly taken place at R.K. Puram. The complaint was not filed either before the MM of Paharganj Police Station or before R.K. Puram Police Station. In the complaint, P.S. DGCEI is shown. There is no Police Station of DGCEI. DGCEI is a department and not a Police Station and therefore the learned ACMM committed an illegality in entertaining the complaint.
6. If we consider that the alleged act of forcibly taking the respondent from Balaji Delux Hotel, situated at Paharganj, was an offence, this offence had taken place within the jurisdiction of Police Station Paharganj and a complaint regarding this should have been filed in the District in which Police Station Paharganj was situated and the MM/ACMM of Paharganj Police Station should have taken cognizance of the offence. The complaint shows that on the complaint, P.S. DGCEI was mentioned. There is no P.S. in Delhi in the name of DGCEI. This fortifies the fact that learned ACMM in this case showed personal interest in entertaining this complaint. Although, the offence, if it was at all done, did not fall within his jurisdiction.
7. Even otherwise, since ACMM was dealing with the cases of Central Excise and Customs, he must have been aware of Section 22 of Central Excise Act which reads as under:
Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 5 of 8
"Section 22 - Vexatious search, seizure, etc., by Central Excise Officer. --
Any Central Excise or other officer exercising powers under this Act or under the rules made thereunder who --
(a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place;
(b) vexatiously and unnecessarily detains, searches or arrests any person;
(c) vexatiously and unnecessarily seizes the movable property of any person, on pretence of seizing or searching for any article liable to confiscation under this Act;
(d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty;
shall, for every such offence, be punishable with fine which may extend to two thousand rupees.
Any person willfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall be punishable with fine which may extend to two thousand rupees or with imprisonment for a term which may extend to two years or with both."
This Section shows that the Legislature was aware that while performing their duties the Central Excise Officers may exceed the powers and may take search of suspicious places like house, boat or any other place without reasonable ground and may vexatiously and unnecessarily detain a person or arrest a person. Thus, Section 22 provided penalties for such officers and these penalties can be imposed by the concerned ACMM dealing with the matter as per law and no separate case for these kinds of acts could be registered under IPC offences. However, learned ACMM Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 6 of 8 seemed totally ignorant of the above provision of Central Excise Act. Even otherwise, I find that it was not a case where the Central Excise officers had arrested the accused persons or detained the accused persons for ostensibly any illegal motive and it only seems that they were performing their duties during which it is possible that they had used excess force. Section 46 of Cr. P.C. provides how a police officer or other person can make an arrest. Where a person, who is to be arrested submit to the custody by word or by action, a police officer need not use force. However, sub Section 2 of Section 46 of Cr. P.C. provides that where a person forcibly resists the endeavour of arrest or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. I consider that Section 46(2) of Cr. P.C. gives authority to the arresting person to use necessary force to arrest a man who is not willing to submit to the custody. In the present case, the respondent had gone to Allahabad High Court against issuance of summons. Writ Petitions before the Allahabad High Court were dismissed. Thereafter, it was incumbent upon the respondent/complainant to comply with the summons. Section 13 of the Central Excise Act gives power to Central Excise officers to arrest any person. The provisions of Central Excise Act also give sufficient power to Central Excise Officer to make inquiries and record submissions. If a person was evading summons and instead of staying at home was hiding himself in a hotel, the Central Excise Officers had a ground to presume that the man may resist arrest and in order to arrest him if he had taken a team of officers, he is not acting beyond the scope of his duties.
8. The evidence led before the ACMM by the hotel staff and the complainant himself shows that the respondent was taken from lobby to his room and then along with his belongings from room to outside the hotel. Even if it is presumed that a slap Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 7 of 8 was given, that cannot be considered use of excess force for arresting a person or for detaining a person.
9. I also consider that the action of the officers in taking the respondent from hotel to the office for inquiry and thereafter arresting him after the inquiry were within the scope of duties and the officers enjoyed protection of Section 40 of the Central Excise Act and it cannot be said that their act was not done in good faith merely on the complaint of the complainant and at the most they could be charged under Section 20 of Central Excise Act, by the Court where trial of excise case was going on.
10. It is observed that learned ACMM had acted illegally in entertaining complaint under provisions of IPC and instead he should have been taken action only under Section 20 of Central Excise Act in view of Section 40 of the Central Excise Act and in any case, if he had to take cognizance of the offences under IPC, sanction under Section 197 Cr. P.C. was must.
11. The petition is allowed. The order dated 1st December 2009 is hereby set aside.
March 01, 2011 SHIV NARAYAN DHINGRA, J.
acm
Crl. M.C. 4308 of 2009 and Crl. M.C. 4232 of 2009 Page 8 of 8