J.P.Singh & Anr. vs Vinay Kanodia
2011 Latest Caselaw 1220 Del

                 * 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.

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

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

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.

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:

"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

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

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