- (1.) THROUGH this writ application, extraordinary jurisdiction of this Court, as enshrined under Article 226 of the Constitution of India, has been invoked on behalf of the petitioner for declaring his arrest made by the respondent no. 3 in purported exercise of power conferred under Section 13 of the Central Excise Act, 1944 (hereinafter referred to as the 'said Act') as unconstitutional and unlawful, as he in absence of any warrant of arrest, issued by the court of competent jurisdiction, is not competent to arrest a person for contravention of provision of Section 9 of the said Act, as the offences, under the said provision in terms of Section 9A of the said Act, are non -cognizable. At the same time, proceeding of a case bearing CO. No. 1 of 2009, pending in the Court of Sub -Judge -ll -cum -Special Judge (Economic offences), Dhanbad, has also been sought to be quashed, as neither the said proceeding has been initiated on a complaint, as defined under Section 2(d) of the Code of Criminal Procedure nor it has been initiated upon an F.I.R.
(2.) THAT apart, the petitioner through an Interlocutory Application bearing I.A. (Cr.) No. 1170 of 2009 has also sought to quash the order dated 18.5.2009, passed by the Special Judge (Economic Offences), Dhanbad, whereby he directed the prosecution to take out printouts from the Laptop seized in presence of the parties and the petitioner was directed to authenticate the printouts to be taken out from the Laptop failing which his bail bond shall be cancelled. Before adverting to the submissions made on behalf of the parties, the facts, which have given rise to this application, are that the petitioner is one of the Directors of M/s Bihar Foundry and Castings Limited (hereinafter referred to as the 'Company'), engaged in manufacturing of Silico Manganese and other ancillary products. On 16th/17th October, 2008, the premises of M/s Bihar Foundry and Casting Limited and its other Units, being run as M/s Gautam Ferro Alloy, were searched by the team of the officials of Director General of Central Excise Intelligence, Jamshedpur and Raurkella. During the search operation, some documents were recovered which were seized in presence of the petitioner who was all along present over there and his statement was recorded under Section 14 of the Central Excise Act. In course of search, a Laptop was recovered from the factory premises, containing Datas in Tally -9, which was having seven files out of which three files were found corrupt. When those four files were opened, two were related to accounted sale of the said Company, but two files were not found to have been tallying with the statutory records, rather they appeared to have contained total actual accounted sale as well as non -accounted sale. Thereafter with the help of CD. Rom printouts were taken out over which it was certified by the petitioner that those documents related to B.F.C.L and as per the case of the prosecution, the petitioner also made statement on seeing some files that in certain cases Central Excise Duty might have not been paid and, therefore, cheques of Rs. 2.5 Crores were given for its deposit as advance payment. However, it has been denied by the petitioner that he voluntarily gave the cheques, rather he was forced to give cheques of that amount. Further, case of the prosecution is that the petitioner also made statement that after examining the file, he may find the reason for the difference in sale value and other details which are there in those two files. After taking out the printouts from the Laptop, it was duly sealed for further investigation. The petitioner was summoned at several occasions, but he appeared on 14.11.2008 alongwith his Advocate and when the presence of his Advocate was disallowed, the petitioner sought adjournment of the proceeding so that he may move a court of law for redressal of his grievance. On the same day, one Satyanand Jha, friend of the petitioner, who had also been summoned, sent a FAX claiming ownership of the Laptop.
(3.) MEANWHILE , the petitioner filed a writ application before this Court bearing W.P.(T) No. 5522 of 2008, challenging the search and seizure operation, which was admitted, but the investigation was allowed to be carried out with the cooperation of the petitioner.;