TIOL-DDT 255 · the untouched capture
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<p><b><font color="#663399" size="3" face="Verdana, Arial, Helvetica, sans-serif">TIOL-DDT
2</font></b><font color="#663399" size="3" face="Verdana, Arial, Helvetica, sans-serif"><b>55</b></font><br>
<font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>06 12 2005<br>
</b></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Tuesday</b></font></p>
<p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Kolkotta
Customs Custodial Death - FM deprecates</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Since
we broke the news of the sad demise of a young man in the Customs office at
Malda, a lot of whitewashing activities have been going on – the dead boy
is not important, finding a scapegoat is, especially since the matter has
reached the FM because of irresponsible journalists! Board has last week
communicated to the field the anguished feelings of the Finance Minister.
The observations of the FM as communicated in the Board letter are,</font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">“I
deprecate the practice of the Department of taking effective custody of a
person and not arresting him and not showing the arrest in the records. From
the human rights point of view, there is no distinction between effective
custody and arrest. While a person can certainly be asked to go over to an
office or Police Station for inquiry/interrogation, after two or three hours,
when it is prima facie felt that the person has committed an offence and that
he should be arrested, then the accused person should be formally arrested
and produced before the Magistrate. <b>I think these safeguards are normally
honoured more in the breach than in the observance, and this deserves to be
deprecated.”</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It
is heartening that the Finance Minister of the country understands that the
safeguards are breached and this is to be deprecated, but the brilliant lawyer
that Mr. Chidambaram is, it is surprising that the administrator in him has overshadowed the lawyer. Every person summoned
by the department and religiously beaten up is not an accused and they are
not interesting in arresting him. They only want to obtain a confession from
him by plain beating and unethical threats. It is only an accident that once
in a while one of these victims are so stupid that they have no respect for
customs and instead of boldly withstanding torture they go and die, causing
untold misery to the great customs officers especially at the top, who will
have to answer embarrassing questions from a Finance Minister who again sadly
knows his law. The FM wants the formal arrest to be made within three or
four hours of interrogation. But who wants to arrest and follow the entire
accompanying nuisance? And once you arrest him you lose your exclusive right
over him and further a statement obtained in custody has no significance.
So any torture and statement has to be before the formal arrest. And here
nobody has respect for the 24 hour requirement. The person is produced before
a magistrate only after his statement is recorded and until then he is under
illegal detention and many times, he is not even arrested officially. </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The
FM should have deprecated the practice of obtaining statements by using third
degree and all investigation depending on statements alone obtained through
third degree. The officers especially those working in the premier investigation
agencies like DRI and DGCEI should be sensitized to the fact that recording
statements is only part of an enquiry and that is not the whole investigation
and every person summoned is not a criminal and not yet an accused. The problem
with beating another human being is, after some time you start enjoying it
and with good results produced, it becomes a habit, a pastime, a hobby turning
otherwise reasonably good people into monsters but ultimately you will realize
that it is the symptom of a deep sickness which will eventually take its toll.
</font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Incidentally
in this Malda case, the Board has agreed that a person had been detained for
more than the mandatory 24 hours and the Board further concedes that he was
nor shown as arrested. The opening lines of the Board letter states,</font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>An
instance of demise of a person under Customs custody has come to the notice
of the Board. In this case, the person was detained by the officers of the
Customs for more than 48 hours, but he was not shown arrested nor was he produced
before the Magistrate</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">There
is a concept called vicarious liability. Will the Board pay compensation?</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>“Everything
has been said already, but as no one listens, we must always begin again.”
Andre Gide, French thinker and writer </b>as quoted on the first page of the
report of <b>Dr. Justice V.S. Malimath Committee on Reforms of Criminal Justice
System ( 2003)</b></font></p>
<table width="450" border="1" align="center" cellpadding="0" cellspacing="0">
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<td ><p align=center><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Experience
before legislation</b></font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">From the
debate in the CONSTITUENT ASSEMBLY OF INDIA <b>- Friday, the 16th September
1949</b></font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Shri
Mahavir Tyagi </b>(United Provinces: General) : Sir, Dr. Ambedkar will
please pardon me when I express my fond wish that he and the other members
of the Drafting Committee had had the experience of detention in jails
before they became members of the Drafting Committee. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>The
Honourable Dr. B. R. Ambedkar</b>: I shall try hereafter to acquire
that experience. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Shri
Mahavir Tyagi</b>: I may assure Dr. Ambedkar that, although the British
Government did not give him this privilege, the Constitution he is making
with his own hands will give him that privilege in his life-time</font></p>
</td>
</tr>
</table>
<p align=center><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Duty
Free Entitlement Certificate for Status holders and target plus Scheme on
supply to SEZ </b></font></p>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DGFT
has clarified that supplies from DTA to SEZ are eligible for benefits under
DFEC and Target Plus Scheme subject to the conditions specified in para 7.1
(b) of Foreign Trade Policy provided the payments are realized in free foreign
exchange.</font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=46&filename=notification/dgft/2005/dgft05cir036.htm"> <strong><u>POLICY
CIRCULAR NO. 36 (RE-2005)/2004-2009 : Dated Dec 5, 2005 </u></strong></a></font></p>
<p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Reimbursement
of excise duty paid on Fuels procured from Depots of Domestic Oil Companies.</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It
has been more than a year since the warehousing facility had been withdrawn
for petroleum products and the worst sufferers had been EOUs who used to get
their fuel from the depots of oil companies under CT3 without payment of duty.
Board had clarified by Circular No. 799/2004 that EOUs can take cenvat credit.
But the Board did not realize that no cenvat credit is available for most
of the petroleum products especially the fuel. Finally it is left to the DGFT
to solve the problem and he has solved it rather well. DGFT has decided <b>that
fuels procured from the depots of domestic oil companies on payment of excise
duty by EOU/EHTP/STP/BTP will be eligible for reimbursement in the form of
terminal excise duty in addition to drawback rates notified by DGFT from time
to time provided the recipient unit does not avail CENVAT credit/rebate on
such goods. Supplies taken directly from the refineries will continue to get
exemption from payment of excise duty under CT3.</b></font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=46&filename=notification/dgft/2005/dgft05cir037.htm">POLICY
CIRCULAR NO . 37 (RE-2005)/2004-2009
: Dated : Dec 5, 2005 </a></u></strong></font></p>
<p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Nearly
Three Crores cases pending in courts</b></font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The
pendency of cases in the Supreme Court is 33,635 cases, in High Courts is
33,41,040 cases and in Subordinate Courts is 2,53,06,458. As per the information
available in the Department of Justice, at present 5359 criminal cases in
Supreme Court, 6,37,821 criminal cases in High Courts and 1,80,95,301 criminal
cases are pending in Subordinate Courts. This information was given by the
Minister of State for law and Justice, Shri K. Venkatapathy in a written reply
in the Rajya Sabha yesterday. </font></p>
<p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Please</b>
<b>see our Special Column on Custodial dignity by Justice Abichandani, Hon’ble
President, CESTAT.</b></font></p>
<p align="justify" ><font color="#800080" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>
What could be the fee for Subhas Bhowmick from the East Bengal Club? According
to The Telegraph, it is Rs. 11 Lakhs a year, or rather it was!</b></font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b> <font color="#FF6666">Until
tomorrow with more DDT</font></b></font></p>
<p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Have
a nice day. </b></font></p>
<p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Mail
your comments to</b></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<a href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></font></p>
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