LexOM PRAKASH & ANR. versus UNION OF INDIA & ANR.
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A B (2011] ·14 lADDLJ S.C.R. 240 OM PRAKASH & ANR. V. UNION OF INDIA & ANR. (Writ Petition (Crl.) No. 66 of 2011) SEPTEMBER 30, 2011 [ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER SINGH NIJJAR, JJ.] Central Excise Act, 1944/Customs Act, 1962 - ss. 9A! C 104(3) - Duty evasion and other offences under- Held: Are non-cognizable and bailable - Provisions of s. 104(3) of the 1962 Act and s. 13 of the 1944 Act, vest customs officers and excise officers with the same powers as that of a police officer in charge of a police station, which include the power to D release on bail upon arrest in respect of offences committed under the two enactments which are uniformly non-cognizable - If person arrested offers bail, he should be released on bail. The question which arose for consideration in these matters is that whether all offences under the Central E Excise Act, 1944 and the Customs Act, 1962 are non- cognizable and, if so, whether such offences are bailable. F Allowing the Writ Petitions and disposing of the Criminal Misc. Petition, the Court HELD: 1.1 Sub-section (1) of Section 9A of the Central Excise Act, 1944, states in completely unambiguous terms that notwithstanding anything contained in the Code of Criminal Procedure, offences G under Section 9 shall be deemed to be non-cognizable within the meaning of that Code. There is, therefore, no scope to hold otherwise. The expression "bailable offence" has been defined in Section 2(a) of the C.ode to mean an offence which is either shown to be bailable in H 240 OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 241 the First Schedule to the Code or which is made bailable A by any other law for the time being in force. The First Schedule to the Code consists of Part 1 and Part 2. While Part 1 deals with offences under the Penal Code, Part 2 deals with offences under other laws. Accordingly, if the provisions of Part 2 of the First Schedule are to be B applied, an offence in order to be cognizable and bailable would have to be an offence which is punishable with imprisonment for less than three years or with fine only, being the third item under the category of offences indicated in the said Part; An offence punishable with c imprisonment for three years and upwards, but not more than seven years, has been shown to be cognizable and non-bailable. If, however, all offences under Section 9 of the 1944 Act are deemed to be non-cognizable, then, in such event, even the second item of offences in Part 2 0 could be attracted for the purpose of granting bail since all offences under Section 9 of the 1944 Act are deemed to be non-cognizable. [Para 24] [259-F-H; 260-A-E] · 1.2 Section 2(i) Cr.P.C. defines a "non-cognizable offence", in respect whereof a police officer has no E authority to arrest without warrant. The said definition defines the general rule since even under the Code some offences, though "non-cognizable" have been included in Part I of the First Schedule to the Code as being non- bailable. In the instant case, the concern is with the F offences under a specific Statute which falls in Part 2 of the First Schedule to the Code. However, the language of the Scheme of 1944 Act seem to suggest that the main object of the enactment of the said Act was the recovery of excise duties and not really to punish for infringement G of its provisions. The introduction of Section 9A into the 1944 Act by way of amendment reveals the thinking of the legislature that offences under the 1944 Act should be non-cognizable and, therefore, bailable. From Part 1 of the First Schedule to the Code, it will be clear that as a H 242 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A general rule all non-cognizable offences are bailable, except those indicated above. The said provisions, which are excluded from the normal rule, relate to grave offences which are likely to affect the safety and security of the nation or lead to a consequence which cannot be B revoked. [Para 26) [260-G-H; 261-A-D] 1.3 The definition of "non-cognizable offence" in Section 2(1) of the Code makes it clear that a non- cognizable offence is an offence for which a police officer has no authority to arrest without warrant. The C expression "cognizable offence" in Section 2(c) of the Code means an offence for which a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant
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