1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2895 OF 1992 T.N.Krishna Iyer .. Applicant Versus A.K.Baig, Asstt.Collector of Central Excise & Ors. .. Respondents WITH CRIMINAL APPLICATION NO.2896 OF 1992 Yunus Ahmedbhai Hakimuddin .. Applicant Versus A.K.Baig, Asstt.Collector of Central Excise & Ors. .. Respondents Mr.Y.H.Muchhala, Senior Advocate with Ms.Hansa I. Advani, Mr.Sagheer A. Khan, Mr.Mahesh Patane i/b. Mr.A.A.Bhore for applicants Mr.J.C.Satpute, for respondent No.1 Mr.R.Y.Mirza, A.P.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 14th December 2005. ORAL JUDGEMENT: . These applications under section 482 of 2 Cr.P.C. seek quashing of criminal case No.568 of 1982 pending on the file of learned Chief Judicial Magistrate, Thane. Since the complaint is common and submissions are identical, it would be convenient to dispose of these applications by a common judgement. 2. Criminal case No.568 of 1982 has been filed by the Assistant Collector of Central Excise (Preventive). He is first respondent to these applications. Said complaint is filed against the applicants as well as the company M/s.Asian Electronics Ltd. Averments in the complaint are that M/s.Asian Electronics carries on business of manufacture of electronic components viz., Carbon Film Resistors, Wire Wound Resistor and Capacitors falling under Tariff Item No.63 of Central Excise Tariff. On 8th May 1978, during the course of transit check on Eastern Express Highway Octroi post at Mulund officers of the Central Excise Thane came across 3 a vehicle bearing Registration No.BYL 3191. On enquiry it was found that the goods loaded in the vehicle were being transported from M/s.Asian Electronics Ltd. Thane. In the challan description of the goods is "Scrap Resistors" and 202 packets of this material was packed in cardboard boxes. Same were despatched to M/s.Nav Bharat Radio Agencies, Mumbai. In the octroi form name of consignee was shown as M/s.Jetking Electronics. Vehicle, therefore, was taken to factory and it was detained for investigation along with goods. It is stated in the complaint that at the relevant time lock out was declared in the factory and only security staff was attending the same. Seizure proceedings were, therefore, postponed. Ultimately, same were completed on 18th/19th September 1978. Each box came to be opened. It was found that the same was containing the goods in seal pack condition in small boxes. Markings on the said boxes were noted. It is contended that detailed inventory 4 of the goods packed in the said 202 cartoons reveal that there were 27,89,236 pieces of resistors valued at Rs.6,97,500/-. Panchanama was drawn. Goods were not found accompanying a valid Central Excise gate pass. Thus, it is evident that duty was not paid. Goods were handed over to the factory for safe custody under Supurtnama. 3. It is not necessary to go into other averments in the complaint, save and except stating that the complaint records in great details the version of each of the officer whose statements came to be recorded by the first respondent. As far as the Works Manager is concerned, his statement came to be recorded on 8th/9th May 1978. There is a subsequent statement recorded on 26th September 1978. It is primarily recorded that as Works Manager he points out that goods in the vehicle were cleared from pre-excise stock treated as scrap. He 5 deposes that such stock was of 1,50,15,697 pieces of electronic components falling under Tariff Item No.63 as on 2nd March 1976, out of which clearance of 79,84,049 pieces was made in the month of March 1976. Balance was taken for re-process. It is also deposed by him that challans were prepared with regard to subject consignment. The Assistant Works Manager had the authority to sign the said delivery challan. Statement of the Secretary who is applicant in other application is also referred to in this complaint, in details. 4. It is in these circumstances that the complaint proceeds to allege that when the scrap has been shown in the books as NIL, then what was removed from the factory was not a pre-existing stock of scrap but goods which are excisable and upon which duty levied under the Central Excise and Salt Act has to be remitted and paid. Since, such duty was not paid and the goods came to be 6 removed from the factory without payment thereof, offences punishable under section 9(1)(b), 9 (1)(bb) and 9(1)(bbb) of the Central Excise and Salt Act have been committed and these are punishable under the said enactment. The specific averment with regard to the role of applicants herein is that at the relevant time, they were Secretary and Works Manager. That their statement clearly shows that they have contravened the provisions of Rules viz., Central Excise Rules inasmuch as 202 cartoons containing 27,89,237 pieces of electronic resisters falling under Tariff Item No.68 valued as above were removed without determining central excise duty, prior to their removal. There is non-compliance with the mandate of making entries in the Personal Ledger Account (PLA) prior to their removal. They also contravened the sub-rules because the said goods were removed without cover of a valid central excise transport document which is form G.P.-I. Further, contravention of 7 the rules is pertaining to accounting of goods in the presceribed Central Excise Accounts viz., RG-I Register. Accused Nos. 2 and 3, who are applicants herein, have been, therefore, held responsible for evasion of central excise duty on the goods. It is further averred that they are in possession of and/or some way concerned in transporting, depositing, keeping or dealing with the goods which they know or had reason to believe are liable for confiscation under the Excise Rules. It is in these circumstances that the complaint which is filed on 1st December 1982 alleges commission of offences under the aforesaid provisions of the Excise Act. 5. It appears from the record that upon this complaint being filed, proceedings did go on before the concerned Magistrate. Averment in the applications is that the complaint came to be filed after a period of 4 and half years from the date of completion of investigation. Despite the 8 delay and lapse in filing the complaint, trial court on the date of filing of the same, issued process. Case was made returnabnle on 15th January 1983. Thereafter, copies of the complaint came to be forwarded to the applicants and proceedings came to be adjourned. 6. In the application it is specifically stated that between 19th February 1983 and 24th October 1985, the case was adjourned. However, examination in chief of P.W.1 was recorded. The statement of the present applicants came to be taken on record. Then there was a gap and once again proceedings resumed and this time P.W.2 was examined. Thereafter, depositions of P.W.3 came to be recorded on 30th July 1986. 7. It is contended that after evidence of witnesses as above, on several occasions complainant (first respondent herein) obtained orders for witness summons but did not bother to 9 serve them or keep witnesses present for further evidence before charge. Consequently, on several dates case had to be adjourned to enable first respondent to keep witnesses present. The trial court had also issued warrant to secure the presence of the company (M/s.Asian Electronics). It is contended that the warrant of arrest was not executed. Concerned police station did not submit report on each occasion. Fresh warrants were issued by the court but the presence of respondent No.2 could not be secured for a considerable period of time. 8. Ultimately, on or about 19th January 1991, Mr.D.J.Shah appeared on behalf of respondent No.2. He was released on bail. It is contended that 15 months time was taken to secure presence of respondent No.2 company. Upon his release on bail, Mr.Shah made an application for discharge. That application was granted by the trial Court by order dated 30th November 1991. 10 Case was adjourned on several occasions during the pendency of discharge application. Copy of the Roznama maintained from 1st December 1982 to 1st October 1992 is produced. It is thereafter pointed out that the head office of second respondent company was gutted in fire which destroyed the building in which it was located. On account of fire at Handloom house, the records have been destroyed and are not available. It is pointed out that the offence is committed on 8th May 1978. Investigations have been completed in October 1978. The complaint is filed on 1st December 1982. There is a delay of about 4 and half years. 9. In the meanwhile, there is a change in management. Applicants herein have ceased to be employees of second respondent company. They are, therefore, prejudiced inasmuch as the necessary records to support their pleas and defences are not available. 11 10. It is in these circumstances that the mandate of Article 21 of the Constitution of India is violated. There is no explanation for delay. Thus, the proceedings deserve to be quashed for breach of the mandate of Article 21 of the Constitution of India. The proceedings should also be quashed as against the applicants because no offence is disclosed in the complaint. It is pointed out that the offences alleged are under the Central Excise and Salt Act and more particularly section 9. The applicant in the first matter is the Works Manager whereas the applicant in the second matter is Secretary of the company. Merely stating that they are working as such would not be enough compliance with the mandate of aforesaid provisions of Central Excise and Salt Act. Specific case that accused are in charge of or responsible to the company for its business is necessary. In the absence of such averments, complaint does not 12 disclose any offence punishable under the abovementioned provisions of the Central Excise Act. This is an additional ground for quashing and setting aside the complaint and the orders continuing the proceedings. 11. Mr.Muchala, learned Senior Counsel appearing in support of this application invites my attention to the roznama recording the proceedings upto the date of filing of writ petition and contends that the incident in question has taken place on 8th May 1978. Complaint is filed as stated above after four and half years i.e. on 1st December 1982. He submits that the trial has not proceeded till the year 1992. Thus, 14 years have gone by from the date of incident and more than 10 years from the date of institution of complaint. For this delay, the applicants are not responsible. He submits that it is the first respondent complainant who is responsible for not attending the Court and not taking prompt steps in serving 13 the summons on the second respondent company. Further, he is responsible for the matter not progressing before the trial court. Mr.Muchala invites my attention to the fact that serious allegations are made regarding delaying the matter and, yet, no affidavit in reply is filed to these applications. It is, therefore, clear that the averments stand uncontroverted. 12. Mr.Muchala states that Right of Speedy Trial is part of right to life and liberty guaranteed by Article 21 of Constitution of India. It is the right of accused to be tried speedily and expeditiously. He invites my attention to the judgement of the Supreme Court in the case of Abdul Rehman Antulay and Ors. Vs. R.S.Nayak and Anr., reported in (1992) 1 S.C.C. 225. He then invites my attention to a Seven Judge decision of the Supreme Court in the case of Ramchandra Rao Vs. State of Karnataka, reported in (2002) 4 S.C.C. 578. Applying the 14 tests laid down in these decisions, according to Mr.Muchala there being no justification for the delay, the proceedings deserve to be quashed on this ground alone. 13. Even otherwise, according to Mr.Muchala, the complaint does not disclose commission of any offence by Secretary. No overt act is attributed to him. Mere reproduction of section and an averment that the applicant is Secretary or Works Manager of the second respondent company would not suffice. In any event, according to Mr.Muchala, applicants are not responsible for the delay. On account of supervening incident of fire and destruction of records, serious prejudice is caused to the applicants. For all these reasons, according to him, this Court should exercise its powers under section 482 of Cr.P.C. and quash and set aside the present proceedings. 15 14. In addition to the above decisions, Mr.Muchala, relies upon a decision of a Division Bench of Calcutta High Court in the case of Kedar Nath Goenka and Ors. Vs. Superintendent of Central Excise and Ors., reported in 1979 Cri.L.J. 421, and a decision of a learned Single Judge of this Court in the case of Garda Chemicals Pvt.Ltd. and Ors. Vs. R.Parthasarthy, Assistant Collector, Central Excise Kalyan and Anr., reported in 1984 (15) E.L.T. 18 (Bom). 15. On the other hand, Mr.Satpute appearing for respondent No.1 submits that applications are misconceived and should be dismissed. There is no case made out for quashing of the proceedings. He submits that the accused cannot demand as of right that the trial should be concluded speedily. Ultimately, according to him, the Supreme Court decisions have to be applied in the facts and circumstances of each case and 16 considering the offences alleged against accused. If the offence is an economic offence affecting entire Nation, then, it is not proper to quash proceedings merely because a long time has gone by from the date of institution of the same. Mr.Satpute points out that the offence in these cases is serious. Admittedly, complaint averment would show that what was being removed from the factory was not scrap material but dutiable and excisable goods. It is well settled that before such a removal, duty on the said goods has to be paid in accordance with rate prescribed on the item, under which the goods fall, in the Tariff Schedule. He states that duty was not paid and yet goods were cleared. In these circumstances, it is not a case where there is no offence disclosed. 16. He states that the delay is on account of the system. Judicial system being what it is, it is not open for the accused to apply for quashing 17 of proceedings, more so, when the prosecution has not delayed the matter. He states that stand taken is that second respondent did not represent the company. Management having changed, a fresh summons was directed to be issued against the second respondent company and this took some time. Thereafter, a discharge application was filed by representatives of new management and that also came to be disposed of. Time taken for all this is not on account of prosecution. In fact, he states that prosecution has been lodged expeditiously upon recording of the statements and compliance with other procedural matters. Perusal of the roznama would indicate that the accused was absent on several occasions. They are not arrested becauses offences are non-cognisable. Mr.Satpute was at pains in pointing out that in these circumstances, quashing is not permissible. In any event, the same is not the only alternative available. Ultimately, rights of both accused as well as 18 prosecution have to be balanced. More so, when the offences involved are economic offences. Therefore, this Court can issue appropriate directions for concluding the trial expeditiously. This must be the approach in such cases, after taking into account all factors in a balanced manner. 17. As far as second submission of Mr.Muchala is concerned, Mr.Satpute contends that liability of the applicants is very clear. It is not that a bald statement is made that they are officers of the company. On the other hand, the complaint would have to be read in the light of the statements recorded preceding the same. In the statements so recorded, based upon which allegations in the complaint are made, both Works Manager as well as Secretary have demonstrated that they were aware of the procedure under the Central Excise Act and Rules, that they were aware of the clearances, that they were aware of 19 the duties and obligations to be discharged under the Central Excise law. In these circumstances, by merely reading some paras of the complaint in isolation, it cannot be contended that it does not disclose any offence. All necessary averments are there in the complaint. He submits that no question of prejudice arises at all. As far as fire in the head office is concerned, he states that, that cannot be put forward as a ground of prejudice. More so, when the applicants have stated that the records were not maintained. Records are to be maintained at the factory. In any event fire took place in the year 1982. The incident and violation of the enactment was in 1978. For all these reasons, there is no substance in the plea of prejudice and the applications deserve to be dismissed. 18. In addition to relying upon the decisions cited by Mr.Muchala, Mr.Satpute invites my attention to three decisions (i) in the case of 20 Mangilal Vyas Vs. State of Rajasthan, reported in 1990 (Supp) S.C.C. 21 and (ii) Diwan Naubat Rai and Ors. Vs. State through Delhi Administration and Anr., reported in A.I.R. 1989 S.C. 542 and (iii) Commissioner of Central Excise Bombay Vs. Reliance Industries Ltd., reported in (2004) 7 S.C.C. 23. 19. With the assistance of Mr.Muchala and Mr.Satpute, I have perused the applications and annexures thereto. I have perused the complaint as well as Roznama, a copy of which was placed at my disposal. To me, it appears very clearly that the applicants cannot insist upon quashing of these proceedings because they have been protracted and delayed. Test of delay cannot be applied for quashing proceedings straightaway. 20. In a recent decision, in the case of Jagdish Ram Vs. State of Rajasthan and Anr., reported in A.I.R. 2004 S.C. 1734, the Supreme 21 Court has laid down that in exercise of powers under section 482 Cr.P.C. criminal proceedings cannot be quashed on account of delay. It is laid down that criminal proceedings do not deserve to be quashed merely on account of delay without anything more and without going into the reasons for delay. In considering the question where criminal proceedings deserve to be quashed on account of delay, the first question to be looked into is the reason for delay and also the seriousness of the offence. Regarding reasons for delay, it is held that if the applicant is responsible for the same, then inherent jurisdiction should not be exercised to quash the proceedings at his instance. 21. In the Constitution and Larger bench decision of the Supreme Court, brought to my notice by Mr.Muchala also same tests have been laid down. The guidelines very clearly state that right to speedy trial may be flowing from 22 Articler 21. It may be encompassing all stages but ultimately whether they should be quashed on the ground of delay itself or not depends upon several factors including the nature of the offences. The guidelines have been summed up by the Supreme Court in both desicions. For the present, reproduction of para 86 in the case of A.R.Antulay (supra) as also para 29 of the decision of Ramchandra Rao (supra) would clarify the entire matter. "86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:- 1) Fair, just and reasonable procedure implicit in Article 21 of the 23 Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. 2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view. 3) The concerns underlying the right to speedy trial from the point of view of the accused are: a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; b) the worry, enxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and c) undue delay may well result in impairment of the 24 ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. 4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/ petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex 25 parte representation. 5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. 6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate.". The same idea has been stated by White, J. in U.S. Vs. Ewell in the following words:- "...the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances." 26 . However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. 7) We cannot recognise or give effect to, what is called the "demand rule". An accused cannot try himself; he is tried by the Court at