- (1.) This is a case where the present petitioner has been charged for commission of offence punishable under Section 89(1)(d) of the Finance Act, 1994 (as amended). While canvassing the prayer for bail, the learned lawyer of the petitioner contended on the following points:-- "(i) The alleged offence was born not on a solitary date. It took birth on several dates in between the period ranging from 2008 till 2012. (ii) Any sort of offence committed in between that period, previously was bailable in view of the decision as propounded in the decision : AIR 2012 SC 545 : 2011 (24) S.T.R. 257 (S.C.) : 2011 (272) E.L.T. 321 (S.C.) wherein it was held by Their Lordships of the Hon'ble Apex Court that the offence was bailable one. But the offence has become non-bailable on the basis of amendment of the provisions of the Financial Act, 2013 which came into force from 1-4-2013. So, saying the learned lawyer of the petitioner interpreted that if any offence taken place well ahead is taken cognizance of then retrospective effect cannot be carried so as to infringe the right as guaranteed under Article 20 sub-clause (1) coupled with Article 21 of the Constitution of India. (iii) The learned lawyer of the petitioner attempted to make a distinction between the instant section under which the petitioner was arrested in the light of Section 41A of the Code of Criminal Procedure. In support of his contention, he placed before me a decision as Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., 2011 1 SCC(Cri) 514wherein the consideration of Articles 21 & 22 of the Constitution of India was related to the prayer for bail application. (iv) The person authorized to arrest the accused is not the person who has arrested the accused in view of the provision of Section 91 of the amended Financial Act. (v) The random assessment of the tax appears to be Rs. 67 lakhs and odd and so far the petitioner has paid Rs. 12 lakhs and odd, although the petitioner disputes the random calculation so arrived at by the authority concerned. (vi) The accused was summoned from time to time and departmental enquiry was going on in full swing and according to last summons, the petitioner was supposed to attend the call of the authority concerned on 5-8-2012 but instead the petitioner was hauled up on 2-8-2012 for the reasons not known to him. (vii) Last but not the least contention of the learned lawyer of the petitioner is that since the very arrest of the petitioner has not been done strictly in accordance with the provisions of Section 91 of the amended Financial Act, so the very foundation of the detention even for a second, is not sanctioned by law as prescribed.
(2.) So saying the learned lawyer of the petitioner submits that the petitioner has fixed abode at Calcutta and he is not likely to abscond and, therefore, he may be favoured with an order of bail.
(3.) The learned lawyer of the Union of India strongly resisted the prayer for bail and drew my attention to the following facts:-- "(i) In Section 83 of the old Act the arresting authority is the same as stated in Section 91 of the Amended Act, 2013. (ii) The alleged offence is a continuing one and is alive even today. (iii) So, the question of bailability' or 'non-bailability' is not applicable here. (iv) Practically the present petitioner has evaded tax not to the extent of Rs. 67 lakhs and odd overnight. Initially he collected Rs. 8 Crores and odd and by decrees thereafter, paid some amount rendering the last calculated amount as Rs. 67 lakhs and odd due. (v) Some other concerns are also required to be tagged with the help of the present petitioner to unearth further particulars about the offence.";