{"id":258176,"date":"2010-04-09T00:00:00","date_gmt":"2010-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sri-purusottam-das-sharma-vs-unknown-on-9-april-2010"},"modified":"2015-04-17T02:02:29","modified_gmt":"2015-04-16T20:32:29","slug":"sri-purusottam-das-sharma-vs-unknown-on-9-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sri-purusottam-das-sharma-vs-unknown-on-9-april-2010","title":{"rendered":"Sri Purusottam Das Sharma vs Unknown on 9 April, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
Sri Purusottam Das Sharma vs Unknown on 9 April, 2010<\/div>\n
THE HIGH COURT OF ORISSA : CUTTACK\nCRLMC NO.937 Of 2010\n\nIn the matter of an application under Section 482<\/a> of the Code of\nCriminal Procedure, 1973.\n\nSri Purusottam Das Sharma .......... .. Petitioner\n\n--VersuS-\n\nSri Manoj Kumar Pattnaik, Inspector,'\nCentral Excise, Customs\n\nand Service Tax and another. ' .......... .. Opp. Parties\nFor Petitioner : M \/ s. Laxmidhar Pangari, S.R.Pani\n85 A.K.Das\n\nFor Opp. Party : Mr. Prasant Kishore Ray,\n. (Central Excise Department)\n\nPRESENT:\n\nTHE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.\n\nDate of Hearing: 08.04.2010 Date of Judgment: 09.04.2010\n\nI.Mahanty, J. In the present application under Section 482<\/a> of the Code of\nCriminal Procedure, 1973, prayer has been made by the petitioner to set\naside certain conditions \ufb01xed by the Inspector (Preventive) Central\nExcise, Customs & Service Tax, Bhubanesv\/ar--Il (Opposite Party vNo.1)\n\nwhile granting bail to the petitioner pursuant to an order dated\n\n\n\n.1.\nJ 2\n\n11.3.2010 passed by this Court in BLAPL No.2887 of 2010, granting\nanticipatory bail to the petitioner.\n\n2. Shorn of unnecessary details, it appears that the Central\nExcise authorities conducted search and seizure on the ipreinises of M \/ s.\nSeeta Integrated Steel & Energy Ltd. on,4th November, 2009 and on the\nbasis of such search and seizure, a proceeding for enquiry for violation of\nthe provisions of Central Excise Act<\/a>, 1944 has been initiated thereunder.\nFrom the pleadings in the present application, it appears that the\npetitioner pursuant -to summons 'issued to him appeared before the\nSuperintendent (Prev.), Commissionerate of Central Excise, Customs and\nService Tax, Bhubaneswar (Opposite Party No.2) on 5.1 1.2009,\n15.1.2010 and 28.1.2010 and also produced\" certain documents and also\nhad his statements recorded.\n\n3. It is stated that the petitioner had been issued with a further\nsummon dated 19.2.2010 by which order, he Was directed to produce\nsome more documents mentioned in the schedule to such summons\nunder Annexure-1. Apprehending arrest by the Central Excise Of\ufb01cers as\nwell as apprehending that he may not be admitted on bail, an application\nunder Section 438<\/a> Cr.P.C. for anticipatory bail was \ufb01led by-the petitioner\nin BLAPL No.2887 of 2010, before this Court and the same came to be\ndisposed of on 1 1.3.2010 with the following directions:\n\n\"Considering the submission of learned\n\"counsel for the parties and keeping in View the nature\nand gravity of the offence alleged against the\npetitioner, it is directed that in the event of arrest of\nthe Petitioner in Central Excise Proceeding\nNo.C.No.IV(6) 15\/CE\/CPU\/BBSR--II\/2009, they shall\nbe released on bail by theiarresting of\ufb01cer on such\nterms an conditions as the arresting of\ufb01cer may deem\njust and proper. It is needless to say that in case of\nviolation of any such terms and conditions, it is open\nor the authorities to proceed against the petitioner, in\naccordance with law. ' i\n\n\n\n,1\u00bb \"\" 0 concerned.\n\nThe petitioner 'shall appear before the\nSuperintendent (Prev.)-- Opposite Party, on 25.3.2010\nat 10.30 A.M. --\n\nThe BLAPL is disposed of.\n\nIssue urgent certified copy as per rules.\"\n\n4. It is further stated that the petitioner appeared before\nOpposite Party No.2 on 25.3.2010 and at about 2.00 P.M. of the said\ndate, Opposite Party No.1 arrested the petitioner and passed orders\ndirecting the petitioner to comply with the following conditions for being\nreleased on bail:\n\n\"(i) Sri Purusotam Das Sharma shall immediately furnish a\nBail bond for Rs.50,000\/-- (Rupees Fifty Thousand)\nonly, along with surety of equivalent amount, before\nthe proper of\ufb01cer.\n\n(ii) Sri Purusotam Das Sharma shall appear before the\nSuperintendent (Prev.), Central Excise, Customes -&\nService Tax, Bhubaneswar-II Cornmissionerate,\nCentral Revenue Building, Rajaswa Vihar,\nBhubanesWar--O7, on all Working days, for 3 Weeks,\nstarting from 26.3.2010 to give evidence and to\nsubmit records\/ documents called for, as being\nrelevant to the enquiry.\n\n(iii) Sri Purosottam Das Sharma shall no_t_leave the of\ufb01ce\nof the Commissioner, Central Excise, Customs 85\nService Tax, Bhubaneswar-II Commissionerate,\nCentral Revenue Building, Rajaswa Vihar,\nBhubaneswar-07 on the aforesaid days, between\n10.30 A.M. and 06.00 P.M. without the prior\npermission of. the Superintendent\/ Inspector\n\n(iv) Sri Surosottam Das Sharma shall not leave the\ncountry Without the prior permission of the\ninvestigating officer.\n\n'' (v) Sri Purosottarn Das Sharma shall cooperate with the\n' investigation in every possible manner.\n\nSd\/--, _\n\n\n\n(Manoj Kumar Pattanayak),\nInspector (Prev.),\nCentral Excise, Customs 85\nService Tax, Bhubaneswar--Il.\"\n\n5. Nlr.L.Pangari, learned counsel for the petitioner, at the out\nset, submitted that the challenge has been made by the petitioner to\nCondition Nos.(i), (ii) 85 (iii), contained' in the order dated 25.3.2010\npassed by the Arresting Of\ufb01cer (O.P. No.1) inter alia, on the ground that,\nthe Opposite Party has imposed such Conditions which are absolutely\nperverse, inhuman, capricious, unreasonable and devoid of justice. He\nfurther states that imposing the aforesaid conditions were actuated by\nmala\ufb01des and vindictive design of the Opposite Parties and was intended\n\nto completely nullify and frustrate the direction of this Hon'ble Court, by\n\n'Which order, the petitioner had been directed to be released on bail.\n\nHe also submitted that the directions to the petitioner to\nimmediate furnish bail bond of Rs.50,000\/-- ai\u00e9fig' with Esurety of\nRs.50,000\/- was imposed with the View that the petitioner would not be\nin a position to arrange the said amount and, therefore, would not avail\nthe benefit of bail. It is stated that the petitioner was imposed with such\nconditions since the Central Excise Authorities considered the\napplication under Section 438<\/a> Cr.P.C. for anticipatory bail as an\naudacious act on the part of the petitioner. It is stated that, it was with a\ngreat amount of difficulty, that the petitioner could arrange the necessary\nfunds 'for the purpose of meeting such requirement as imposed in\nCondition No.(i). 7\n6. In so far as challenge to Condition\" 'Nos.(ii) 85 (iii) are\nconcerned, learned counsel for 'the petitioner submitted that the Whole\n\nobject of the directions requiring the petitioner to be present, on all\n\n3 working days for three weeks starting from 26.3.2010 and a further\n\n1 direction to the petitioner, not to leave the of\ufb01ce of the Commissioner\n\n\n\nbetween 10.30 A.M. and 06.00 P.M.. would itself clearly indicate that they\nare intended to frustrate the order of bail granted by the High Court and\nhave been imposed to cause harassment and physical strain to the\npetitioner, who is the permanent resident of Rajgangpur in the district of\nSundargarh and had to reside at Bhubaneswar, only to comply with the\nconditions under which he wasireleased on bail by the Arresting Officer.\nLearned counsel for the petitioner, therefore, submitted that Condition\nNos.(i), (ii) 85 (iii) may be quashed and such terms may be fixed in the\ninterest of 0 law and justice.\n7. In this respect, learned counsel for the petitioner has placed\nreliance to the following judgments:  v t I .\n\n1.<\/pre>\n
 AIR 1985 SC 1666 (Keshab Narayan Banerjee and<\/p>\n
another v. The State of Bihar<\/a>)\n<\/p>\n
2. 1995 CRI.L.J. 863 (Anwar Hussain v. State of Orissa<\/a>)\n<\/p>\n
3. 86 (1998) C.L.T. 53 (A Kokan Rao V. State of Orissa) =<\/p>\n
The aforesaid judgments cited by the learned counsel for the
\npetitioner was to substantiate the plea that a heavy amount should not
\nbe demanded as surety amount and the guiding principles on which an
\naccused can be released on personal bond Without sureties. The Hon’ble
\nSupreme Court in the case of Hussainara Khateon V. Home
\nSecretaqry, State of Bihar<\/a>, AIR 1979 SC 1360 held that, the decisions
\nregarding the amount of the bond should be an individualized decision,
\ndepending on the individual \ufb01nahcial circumstances of the accused and<\/p>\n
the probability of his absconding and \ufb01xing the surety amount, condition<\/p>\n
. should be taken of family ties and relationship, roots in the community,<\/p>\n
employment, status etc. and in appropriate cases, the Court ought to be<\/p>\n
f- released the accused on his personal bond. While the accused may be<\/p>\n
iirequired to furnish cash security but such conditions of bail should not<\/p>\n
be harsh, oppressive and should not virtually result in denial of bail to
\nan accused.\n<\/p>\n
8. . Mr. Ray, learned counsel for the Central Excise Department,
\non theother hand, opposed the prayer for modification of the conditions
\nof bail granted to the petitioner and relied extensively on the averments
\nmade in the counter affidavit filed on behalf of Opposite Parties 1 and 2.
\nHe essentially contended that the Company, i.e. M \/ s. Seeta Integrated
\nSteel 81; Energy Ltd. has clandestinely removed a huge amount of sponge
\niron produced at their plant, resulting in loss of more than Rs.94 lakhs of
\nCentral Excise duty. He contended that none of the condition imposed by
\nthe Arresting Of\ufb01cer–Opposite Party No.1 could be considered to amount
\nto denying the petitioner the benefit granted to him by the order of this
\nCourt in BLAPL No.2887i of 2010. He further contended that White coller
\ncrime _requires in depth investigation and putting a Witness to
\ncontinuous interrogation is very much required, in order to elicit the true
\nfacts in course of such enquiry.   .\n<\/p>\n
9. In this respect, the learned counsel for the Central Excise
\nDepartment placed reliance on a judgment of the Hon’ble Supreme Court
\nin the case of Dukhishyam Benupani V. Arun Kumar Bajoria<\/a>, AIR 1998
\nA SC 696. Sri P.K.Ray submitted that an Investigating Agency should be
\nfree to fix the venue, time and the manner of question to an accused
\npersons involved in such crimes. Learned counsel also placed reliance on
\nvarious documents appended to_ the counter af\ufb01davit and in particular,
\nAnnexure–D to the counter affidavit. This “statement itself contains the
\ndetails’ of the time at which the petitioner appeared before the
\nSuperintendent (Preventive), Commissionerate of ‘Central Excise,
\nCustoms and Service Tax, Bhubaneswar-II (Opposite Party No.2). It is
\nstated on ‘behalf of the Opposite Parties that since the date when the<\/p>\n
1 order was passed, i.e. 25.3.2010, the petitioner has appeared before the<\/p>\n
authority concerned, only on five Working days indicated therein. Apart
\nfrom the same, my attention was drawn to the endorsement therein, i.e.
\nin AnneXure–D, that the Superintendent’ has been pleased to permit the
\npetitioner to use the “waiting room” and bath room from 10.30 A.M. to
\n6.00 P.M. till closing of the enquiry and was also “granted lunch–break”
\nfrom 1.30 to 2.30 P.M. on the dates he appeared and that the
\ndepartmental canteen has also been instructed to provide him lunch, if
\nso -desired by him, on payment for the same. Learned Counsel for the
\nCentral Excise Department submitted that the authorities have been
\nthoroughly considerate of all the needs of the petitioner. This, according
\nto the learned counsel, is indicative of the concern qfithe department for
\nthe well being of the petitioner. I<\/p>\n
Apart from the above, he contended that the allegation that
\nthe petitioner had faced untold difficulties in furnishing the bail bond of
\nRs.50,000\/– and surety amount of Rs.50,000\/– was baseless. Since the
\ncompany had remitted the requisite amount to the Punjab National
\nBank, Bhubaneswar, on the same day on Which, the Arresting Officer
\nimposed such condition. Therefore, _there existed no basis for the
\npetitioner to contend that the imposition of the condition for providing
\nbail bond of Rs.50,000\/- and surety amount of Rs.50,000\/- could not
\nhave in any’ manner caused any mental or physical strain on the
\npetitioner.  I A\n<\/p>\n
10. In the light of the cpntentions raised by the learned counsel
\nfor both the parties, at the out set, the case of Dukhishyam Benupani
\n(supra) relied upon by the learned counsel for the Excise Department
\nrequires to be dealt with the accused in the aforesaid case had sought for
\nanticipatory bail before the Sessions Judge and the same had been<\/p>\n
granted by the learned Sessions Judge. The Hon’ble Calcutta High Court<\/p>\n
\u00ab had modi\ufb01ed, certain terms therein, by which order, speci\ufb01c directions<\/p>\n
had been issued by the Court \ufb01xing the dates on which the accused was
\nto appear before the Foreign Exchange Regulatory Authorities. The
\nDepartment had challenged the said order granting anticipatory bail
\nbefore the Hon’ble Supreme Court and the Hon’ble Supreme Court had
\nallowed thesaid challenge and had set aside both the orders passed by
\nthe learned Sessions Judge as well as the Calcutta High Court.\n<\/p>\n
11. In the present case, while no challenge has been made by p<\/p>\n
the Department to the order of anticipatory bail granted in favour of the
\npetitioner dated 11.3.2010 in BLAPL No.2887 of 2010, even then the
\norder of anticipatory bail granted by this Court, on the contrary, did not
\nfix any term or condition and instead left it to the Arresting Officer to fix
\nsuch terms and conditions on which the petitioner would be released on
\nbail. The Arresting Officer upon arresting the petitioner imposed some
\nconditions in his order dated 25.3.2010 under Annexure–3 to the present
\napplication, which is the subject matter of challenge.\n<\/p>\n
‘ Therefore, I am of the considered View that the judgment in<\/p>\n
the case of Dukhishyam Benupani (supra) has n_o_’_a_pplication to the
\nfacts of the case.\n<\/p>\n
12. The next issue relates to Condition No.(i), i.e. requirement of
\nthe petitioner to furnish bail bond of Rs.50,000\/ — and surety amount of
\nRs.50,000\/-. In this respect, I have perused the judgments relied upon
\nby the learned counsel for the petitioner. No doubt the said judgments
\nindicate the relevant circumstances which require consideration before
\n\ufb01xing the arnount of surety.\n<\/p>\n
In the case of Keshab Narayan Banerjee (supra), the bail
\namount of cash security of Rs.1 lakh with two sureties residing in the
\nState of Bihar each for the like amount was held to be excessive and the
\nH0n’ble Supreme Court modified the order directing bail bond of
\nRs.25,000\/– with two sureties for the like amount.\n<\/p>\n
KO<\/p>\n
‘ ‘In the case of Anwar Hussain (siipra), the Orissa High Court<\/p>\n
\\ placed reliance upon the judgment of the Hon’ble Supreme Court in the
\ncase of Hussainara Khatoon (supra), wherein the I-Ion’ble Supreme
\nCourt has state.d that, the individual’ \ufb01nancial circumstances of an
\naccused and the probability of his absconding need be taken into
\naccount and condition relates to the sureties should not be excessive as
\nit would virtually amount to denial of bail. Similar was the view in the
\ncase of Anwar Hussain (supra), in which Orissa High Court fixed the bail
\namount of Rs.5000\/– in ‘place of Rs.l0,000\/– that had been \ufb01xed by the
\nlearned S.D.J.M. since the accused-petitioner therein is a an unemployed
\nyouth.”\n<\/p>\n
\\ 13. On consideration of the submissions made by the learned
\ncounsel for the petitioner and the Opposite Party, in so’ far as”. Condition
\nNo.(i) is concerned, it is a fact that the said condition was complied with
\nby the petitioner on the very date in which the order of bail was passed,
\nby furnishing \ufb01xed deposit by Punjab National Bank both towards the
\nbail bond as well as the surety and as stated by the learned counsel for
\nthe opposite parties, the said money was provided by the Company, i.e.
\nM \/ s. Seeta Integrated Steel 85 Energy Ltd. A<\/p>\n
i C I am of the considered view that \ufb01xation of such a condition
\nwas not excessive keeping in View the amount of revenue sought to have
\nbeen evaded by the Company. Therefore, the contention of the learned
\ncounsel for the petitioner for quashin.g Condition N’o.'”(i)’is not’ sustained
\nand, therefore, fails. . i\n<\/p>\n
14. In so far as challenge to Condition Nos.(ii) and (iii) are
\nconcerned, the same are quoted hereinbelow for convenience:\n<\/p>\n
“(ii) Sri Purusotam Das Sharma shall appear before the
\nSuperintendent (Prev.), Central Excise, Customes .&
\nService Tax, Bhubaneswar-II Commissionerate, Central
\nRevenue Building, Rajaswa Vihar, Bhubaneswar~O7, on all
\nworking days, for 3 weeks, starting from 26.3.2010 to give<\/p>\n
10<\/span><\/p>\n
evidence and to submit records\/ documents called for, as
\nbeing relevant to the enquiry.\n<\/p>\n
(iii) Sri Purosottam Das Sharma shall not leave the office of
\nthe Commissioner, Central Excise, Customs 85 Service Tax,
\nBhubaneswar–II Commissionerate, Central Revenue
\nBuilding, Rajaswa Vihar, Bhubaneswar–07 on the
\naforesaid days, between 10.30 A.M. and 06.00 P.M.
\nwithout the prior permission of the
\n‘Superintendent\/ Inspector concerned.”\n<\/p>\n
Apart from the aforesaid conditions, it appears that
\nsome modi\ufb01cation was made thereto by the Superintendent in
\nAnnexure–D to the counter af\ufb01davit which is quoted herein below:\n<\/p>\n
“Granted Bail as per the directions of the
\nHon’ble High Court of Orissa, vide Order No.3 dated
\n11.3.2010 against BLAPL No.2’887 of 2010. You are<\/p>\n
\u00bb requested to be present in the waiting area (room)
\nfrom 10.30 A.M. to6.00 P.M. tomorrow and on all
\nworking days for cross examination and production of
\nrecords as directed, as the conditions imposed or till
\nthe conclusion of enquiry whichever is earlier. You
\nwill be granted lunch break from 1.30 P.M. to 2.30
\n~P.M. on the days you appear. The .department canteen
\nhas been requested to provide you lunch, if desired by
\nyou. You have to pay for the same. This is for your<\/p>\n
.4. g<\/p>\n
information.” ‘<\/p>\n
15. V On a conjoint reading of the aforesaid conditions, I am
\nof the considered view, that since the petitioner has not only been
\ndirected to be present on all working days for three Weeks starting
\nfrom 26.3.2010 and has also been debarred from leaving the office pf
\nthe Commissioner during the period from 10.30 A.M. to 6.00 P.M.
\non ‘every date and during the said period, he has been directed to \u00a7i_t
\nin the waiting room from 10.30 A.M. to 6.00 P.M. and also has been
\nmovided lunch in the department canteen, this Court is of the<\/p>\n
considered View that While the Opposite Party-Central Excise<\/p>\n
 authorities are statutorily vested with the power 136 carry out an<\/p>\n
ll<\/p>\n
enquiry for ‘any infraction of the Central Excise Act<\/a> and no
\ninterference at all by any court is called, yet on a conjoint reading of
\nCondition Nos.(ii) and (iii) as Well as in Annexure-D, it clearly
\nindicates that the Arresting Officer has’ con\ufb01ned the movement of
\nthe petitioner for a period of three weeks starting from 26.3.2010 , I
\nam of the considered View that the same is clearly not only excessive
\nbut also effectively tantamounts to passing an order of detention in
\nthe guise of terms and conditions of bail.\n<\/p>\n
16; At the closure of hearing, the learned counsel for the
\nCentral Excise Department was directed to produce the \ufb01le
\ncontaining the inquiry being conducted and the statements made by
\nthe petitioner. in course of the inquiry. The same wasduly complied
\nwith.\n<\/p>\n
On a perusal of the \ufb01le produced by the Central Excise
\nAuthority, it appears therefrom that pursuant to the order of
\nanticipatory bail dated 25.3.2010 passed by this Court in BLAPL No.
\n2887 of 2010, when the petitioner appeared before the
\nSuperintendent (Opposite Party No.2), on the self–same date, the
\npetitioner was arrested by the Inspector (Opposite Party No.1) and
\nthe following has been noted in the “Grounds of Arrest” dated
\n25.3.2010: ‘<\/p>\n
“5. In spite of repeated summons by the
\ninvestigating of\ufb01cer,__Sri Purusottam Das’ -Slrarma has
\nfailed to produce documents\/records necessary for
\nfurtherance of the_ investigation, without suf\ufb01cient
\nreason, thus have ‘not cooperated with the
\n~ investigation.\n<\/p>\n
6. The above offence of clandestine removal of
\nexcisable goods without payment of Central Excise<\/p>\n
( duties and non–cooperation with the investigation, is _
\npunishable under clauses (b), (bb) and (bbb) of Section
\n9(1)<\/a> of the Central Excise Act, 1944. It is evident from
\nthe above that this offence has happened with the
\nknowledge, concern and active involvement of Sri<\/p>\n
12<\/span><\/p>\n
Sharma, the employee in–charge of the Central Excise
\nmatters of SISEL, Such acts and omissions are also
\npunishable under Section 9AA<\/a> of the Act ibid. ,<\/p>\n
7. Taking into consideration the gravity of the
\noffence and the fact that Sri Purusottam Das Sharma is
\nthe person in–charge of Central Excise matters of
\nSISEL, I have reasons to believe that Sri Purusottarn
\nDas Shanna was actively involved in the offence of
\n‘clandestine removal as well as undervaluation of
\nsponge iron, as discussed above, to evade payment of
\nCentral Excise, Customs and Serviace Tax,
\nBhubaneswar-II Commissionerate, Bhubaneswar, place
\nSri Purusottam Das Sharma, under arrest under
\nSection–13 of Central Excise Act, 1944 at 14.00 hrs. on
\n25.3.2010.”\n<\/p>\n
From the aforesaid facts, it would be clear therefrom
\nthat the Excise Authorities after reaching a prima facie conclusion
\nthat the petitioner is responsible for the clandestine removal of
\nexcisable goods and such offence is with the knowledge \/ connivance
\nof the petitioner (the ’employee in-charge of the Central Excise
\nmatters of the said Company) and is liable for punishment under
\nSection 9AA<\/a> of the Central Excise Act, 1944.\n<\/p>\n
17. In this respect, it becomes extremely impoitant to take
\nnote of Article–20(3)<\/a> of the Constitution of India:
\n“Art.20(3) – No<\/a> person accused of any offence
\nshall be compelled to be a witness against himself.”\n<\/p>\n
In this regard it has become relevant to note of the
\njudgment of the Hon’ble Supreme Court in the case of M.F.Sharnia
\nand others V. Satish Chandra, District Magistrate, Delhi and
\nothers<\/a>, AIR 1954 SC 300, in which Hon’ble Supreme Court came to<\/p>\n
V hold that, if a person has been named by the of\ufb01cers who are<\/p>\n
competent to launch a prosecution against him, as having
\n‘committed an offence, the accused comes Within ‘the’ meaning of<\/p>\n
Clause–3 of Article 20<\/a> of the Constitution of India.\n<\/p>\n
13<\/span><\/p>\n
The petitioner has been narned by the Inspector of
\nCentral Excise (in the ground of his arrest), as a person Who is liable
\nfor punishment under Section 9AA<\/a> of the Central Excise Act and is
\ntherefore, clearly a person who is entitled to the protection
\nguaranteed by the Constitution of India. ‘<\/p>\n
While, it is also a fact that in the judgment of the
\nHon’ble Supreme Court. in the case of Poolpandi v.
\nSuperintendent, Central Excise and others<\/a>, AIR 1992 SC 1795,
\nthe Hon’b1e Supreme Court came to hold that the protection of
\nArticle 20(3)<\/a> of the Constitution of India is not available to a person
\nwhile being 5’interrogated during investigation”, under the provisions<\/p>\n
of the Customs Act<\/a> or the Foreign Exchange Regulation Act<\/a> (FERA),<\/p>\n
\\ since such a person is not an “accused of an offence” and is<\/p>\n
therefore, not entitled to the protection under Article 20(3<\/a>), yet, in
\nthefacts of the present case, since the Arresting Of\ufb01cer (O.P. No.1)
\nhas already stated in the grounds of arrest that the petitioner was
\nliable for punishment under Section 9AA<\/a> of the Central Excise Act,
\nthe ‘petitioner is entitled to the bene\ufb01t of protection guaranteed by
\nArticle–20(3)<\/a> of the Constitution of India. ‘ I i<\/p>\n
It is also Well settled by the Hon’ble Supreme Court that
\nfor the operation of Article–2O (3<\/a>), no “formal” accusation by the<\/p>\n
issue of process of the Court is required and the immunity Article<\/p>\n
\\ 9 20(3) of the’ Constitution of India would commence, from the<\/p>\n
moment the person has been named by the officers who are
\ncompetent to launch the prosecution against him as having
\ncommitted of an offence and from that moment, such a person
\nbecome the “accused of an offence” within the meaning of Article<\/p>\n
I 20(3) of the Constitution of India.\n<\/p>\n
14<\/span><\/p>\n
In the Case of Rarnanilal lihogilal Shah and another v.
\nD.K.Guha and others<\/a>, AIR 1973 SC 1196, a Five Judge Bench of the
\nHon’ble Supreme Court, has taken into consideration the fact that the
\npetitioner in the said case had been served with the “grounds of arrest”
\nunder the Foreign Exchange Regulation Act<\/a>, 1947 and on perusing the
\nsaid ground of arrest, While placing reliance on an earlier judgment in
\nthe case of IVI.P.Sharma and others (supra), the I-Ion’ble Supreme Court
\ncame to hold that the petitioner therein was a person “accused of an
\noffence” within the meaning of Article 20(3)<\/a> of the Constitution of India
\nand that the only protection in Article 20(3)<\/a> gives to him is that he
\ncannot be compelled to be a witness against himself. But, this does not
\nmean that he need not given information regarding matters which do not
\ntend to incriminate him. Having so concluded, the I-Ion’ble Supreme
\nCourt refused to set aside the summons challenged before it and directed
\nthe petitioner to appear before the Deputy Director and answer such
\nquestions, as do not tend to incriminate him as explained by the Hon’b1e
\nSupreme Court in the case of State of Bombay v. Kathi Kalu Oghad<\/a>,
\nAIR, 1\u00e961 so 1808 is as follows: ‘<\/p>\n
“In order that a testimony by an accused
\nperson may be said to have been self–ii1criininatory the
\ncompulsion of which comes Within the prohibition of the
\nconstitutional provision, it must be of such a character
\nthat by itself it should have the tendency of incriminating
\nthe accused, if not also of actually doing so. In other
\nWords, it should be a statement which makes the case
\nagainst the accused..person at least probable, considered
\nby itself.”\n<\/p>\n
18. Therefore, considering the facts of the present case and in
\nparticular, since the petitioner has been “arrested” and the “grounds of
\narrest”‘ as has been noted in Paragraph–16 hereinabove, have been<\/p>\n
served on him the mandate of law as settled by the Hon’ble Supreme<\/p>\n
Court referred to above, Condition Nos.(ii) and (iii) ,imposed by the<\/p>\n
15<\/span><\/p>\n
Arresting Officer (Opposite Party No.’1) under Annexure–3 to the present
\napplication, are set aside and it is directed that the petitioner shall
\nappear before the authorities concerned as and when summons are
\nissued to him and answer all questions as. do not tend to incriminate
\nhim, as explained by the Hon’b1e Supreme Court in the case of State of
\nBombay v. Kathi Kalu Oghad<\/a> (supra).\n<\/p>\n
19. With the aforesaid modi\ufb01cation to the terms and conditions
\nof bail granted to the petitioner noted hereinabove, the Criminal
\nMiscellaneous Case is disposed of.\n<\/p>\n
Nothing stated in this order shall be deemed to be an
\nexpression of any opinion of this Court on the merits of the proceeding
\nagainst the petitioner and the authorities are free to proceed against the<\/p>\n
petitioner and other accused persons, in accordance with law.\n<\/p>\n
I __ _,,_ ._ ._ .,.r–., ”—‘?”””7”<\/p>\n
91 ~,3 . Mc1\u00abkcms’:7,j’.\n<\/p>\n
ORISSA HIGH COURT; CUTTACKK
\n9th April, 2010\/ RKS.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Sri Purusottam Das Sharma vs Unknown on 9 April, 2010 THE HIGH COURT OF ORISSA : CUTTACK CRLMC NO.937 Of 2010 In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. Sri Purusottam Das Sharma ………. .. Petitioner –VersuS- Sri Manoj Kumar Pattnaik, Inspector,’ Central Excise, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-258176","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nSri Purusottam Das Sharma vs Unknown on 9 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sri-purusottam-das-sharma-vs-unknown-on-9-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sri Purusottam Das Sharma vs Unknown on 9 April, 2010 - 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