Delhi High Court
Jcb India Limited And Anr. vs The Competition Commission Of ... on 5 October, 2015
Author: V.P.Vaish
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05th October, 2015
+ W.P.(C) 2244/2014
JCB INDIA LIMITED AND ANR. ..... Petitioners
Through: Mr. Rajiv Nayar, Sr. Advocate with
Mr. G.R. Bhatia, Mr. Abdullah
Hussain, Advocates.
versus
THE COMPETITION COMMISSION
OF INDIA AND ANR. ..... Respondents
Through: Mr. Sandeep Sethi, Sr. Advocate with
Mr. Vaibhav Gaggar, Mr. Abhimanyu
Chopra and Mr. Nitish Sharma,
Advocates for R-1.
Mr. Udayan Jain, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
C.M. Appl. No.20533/2015
1. By way of the present application filed under Section 151 CPC the
applicant/ respondent No.1 seeks the following prayers: -
a) allow the respondent No.1 to proceed with the investigation;
b) allow the respondent No.1 to make clone, copies of the hard
disk, the laptop and the documents therein;
c) pass any other orders as may be deemed to be just, fair and
equitable law.
2. At the outset, Mr. Sandeep Sethi, learned senior counsel for the
applicant/ respondent No.1 submits that he does not want to press prayer (a)
of the instant application.
3. The reply to the present application on behalf of petitioners is on
record.
4. The brief facts germane to the present petition are that on 19.09.2014
Director General of the Competition Commission of India/ respondent No.1
had conducted search and seized hard disks, one laptop and materials critical
to the investigation from the premises of the petitioners.
5. The petitioners moved an application bearing C.M. Application
No.15787/2014 praying, inter alia, for quashing the search and seizure
conducted by the Director General and also to return all the documents,
cloned hard drives and laptop seized during the search and seizure from the
premises of the applicant/ respondent No.1. Vide order dated 26.09.2014, it
was directed that all hardware seized by the respondent shall be kept in a
sealed cover in safe custody by respondent No.1.
6. Thereafter, the petitioner moved an application seeking clarification
of order dated 26.09.2014 and prayed, inter alia, that any copy/ print made
by the Director General, Competition Commission of India including the
documents seized and/ or cloned hard drives and laptop be destroyed and an
affidavit be filed by the Director General of respondent No.1 to that extent.
By order dated 13.10.2014 this Court clarified that the documents and
records seized by the respondent would also be kept in safe custody.
7. Learned senior counsel for the applicant/ respondent No.1 submits
that during the course of investigation the investigating officer, Director
General had seized hard disks, one laptop and material critical to the
investigation as per provisions of Section 36 and 41 of the Competition Act,
2002. The evidence so stored and lying in sealed cover with respondent
No.1 contains crucial evidence.
8. Learned senior counsel for the applicant/ respondent No.1 further
submits that there is apprehension that the seized article i.e. hard disks,
laptop may get corrupted and in case the respondent No.1 is permitted to
make clone and copies of hard disks and laptop and the documents therein
no prejudice would be caused to the petitioner.
9. Learned senior counsel for the petitioners contends that the relief
sought by respondent No.1 is identical to the relief sought by them on
multiple occasions. He also submits that mere storage of hard disks would
not render the data corrupted.
10. Learned senior counsel for the petitioners further submits that the
sealed envelope would have no sanctity left, if it is opened. He also submits
that if the drive is unused the data can be reasonably expected to last for
many years. In support of his submission, he has referred to an article
written by Andy Betts published on 11.03.2015.
11. Learned senior counsel for the petitioners has relied upon judgment of
Division Bench of this Court dated 27.05.2009 in W.P.(C) No.9479/2007
„S.R. Batliboi & Co. Vs. Department of Income Tax (Investigation)‟.
12. At this stage, it would be appropriate to reproduce Section 41 of
Competition Act, 2002, which reads as under: -
"41. Director General to investigate contravention. - (1)
The Director General shall, when so directed by the
Commission, assist the Commission in investigating into any
contravention of the provisions of this Act or any rules or
regulations made thereunder.
(2) The Director General shall have all the powers as are
conferred upon the Commission under subsection (2) of section
36.
(3) Without prejudice to the provisions of sub-section (2),
sections 240 and 240A of the Companies Act, 1956 (1 of 1956),
so far as may be, shall apply to an investigation made by the
Director General or any other person investigating under his
authority, as they apply to an inspector appointed under that
Act.
[Explanation.--For the purposes of this section, -
(a) the words "the Central Government" under section
240 of the Companies Act,1956 (1 of 1956) shall be
construed as "the Commission";
(b) the word "Magistrate" under section 240A of the
Companies Act, 1956 (1 of1956) shall be construed as
"the Chief Metropolitan Magistrate, Delhi".]"
13. Undisputedly, the Director General of Competition Commission of
India conducted a search and seized hard disks, one laptop and materials
during the course of investigation on 19.09.2014. The legality and validity
of the search will be determined at an appropriate stage.
14. The article written by Andy Betts on 11.03.2015 suggests that
magnetism over time putting this data at risk but this can be restored by
powering on and reading or writing the data and this should be done every
few years if one is using a hard drive for long term storage. The judgment in
S.R. Batliboi & Co.'s case (supra) relied upon by learned senior counsel for
the petitioner is of no help to the petitioner.
15. The seized articles are lying in a sealed cover with the investigating
officer in terms of order of this Court dated 26.09.2014.
16. In my view, the hard disks and laptop are crucial evidence and in case
the same gets corrupted or damaged, the investigation would be seriously
prejudiced. Moreover, in case the investigating officer is permitted to clone
and get the copies of the hard disks and the laptop, no prejudice will be
caused to the petitioner. However, to safeguard the interest of the petitioner,
it is directed as under: -
(i) The Director General of respondent No.1 is permitted to make
clone/ copies of hard disks, laptop and documents therein so
seized in the presence of Registrar General of this Court within
a period of one week;
(ii) The hard disks, laptop and the documents seized on 19.09.2014
shall be re-sealed by the Director General of respondent No.1 in
the presence of Registrar General;
(iii) The clone/ copies of the hard disks, laptop and the documents
therein seized shall also be sealed by the Director General of
respondent No.1 in the presence of Registrar General; and
(iv) The sealed covers shall be kept in safe custody by respondent
No.1.
17. At this stage, learned senior counsel for respondent No.1 seeks
permission to move an application before the Registrar General to get the
documents cloned in the office of Director General of respondent No.1. In
case respondent No.1 moves an application before the Registrar General, the
Registrar General will consider the same as per his convenience.
18. The application stands disposed of.
W.P. (C) No.2244/2014
Renotify on 07.10.2015, the date already fixed.
(VED PRAKASH VAISH)
JUDGE
OCTOBER 05, 2015
hs
