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Report No. 47

IX. Amendments common to more than one Act1

Section to be inserted in all the Acts except the Wealth Tax Act and the Income-Tax Act

"(1) Offences under this Act shall be tried only be Special Judges under the Act,................19............2 and, subject to the provisions of this Act, the provisions of that Act shall apply in relation to the trial of such offences.

(2) In a trial for an offence under this Act, a Special Judge may, for reasons to be recorded in writing, refuse to summon any witness if satisfied after examination of the accused that the evidence of such witness will not be material3

(3) If, in any trial by a Special Judge for an offence under this Act, it is found that the accused person has committed any offence, which is an offence directed under the..................... Act, 20......................,to be tried by the Special Judge, the Special Judge may, whether such offence was charged or not and provided he is satisfied that the accused has had a fair opportunity of defending himself with reference to that offence, convict such person of such offence and pass any sentence authorised by law for the punishment thereof.4

1. The amendments of a procedural nature here indicated as common to more than one Act, can, if a separate Act creating Special Courts is enacted, be conveniently included in that Act.

2. The reference here is to the separate Act creating Special Courts.

3. See para. 9.14 of the Report

4. See para. 9.15 of the Report.

Section to be inserted in Acts (except the Wealth Tax Act and the Income-Tax Act) where a substantially similar provision does not exist at present.

Power to direct investigation or to implead another person1-

Where, in the course of an inquiry into or trail of an offence under this Act, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may-

(a) proceed against such person for the offence which he appears to have committed, notwithstanding the absence of any sanction or consent for prosecution or complaint required in respect, of that person; and the provisions of section 351 of the Code of Criminal Procedure, 1890, shall thereupon apply2; Or

(b) direct an investigation into the guilt of such other person by the competent officer, and thereupon the officer directed by the Court shall proceed to investigate into the matter, and shall, for the purpose, have the same powers and follow the same procedure as he had or followed for the investigation into the guilt of the accused.

Explanation.-Reference in this section to a sanction or consent for prosecution or complaint required includes reference to any requirement that the prosecution shall be at the instance of a specified authority, or that the complaint shall be by a specified person or with the sanction of a specified person or any requirement of a similar nature.3

1. See para. 11.4 of the Report.

2. Section 351, Criminal Procedure Code, corresponds to Criminal Procedure Code Bill, 1970, clause 326.

3. The Explanation will not be needed in all Acts, but will be needed in Acts in which requirements of different types co-exist. See, for example, the Income-Tax Act.

Burden of proof
Section to be inserted in the Excise Act, the Customs Act and the Gold Control Act
1

(1) In any prosecution for an offence under this Act, which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state, but it shall be a defence for the accused to prove that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.-In this section, 'culpable mental state' includes intention, motive, knowledge of a fact, and belief in or reason to believe a fact.

(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt, and not merely when its existence is established by a preponderance of probability.

1. See-

(a) Paras. 7.12 and 15.6 of the Report for the Excise Act;

(b) Para. 15.34 for excluding the Foreign Exchange Act;

(c) Para. 15.45 for excluding the Prevention of Food Adulteration Act;

(d) Para. 15.50 for excluding the Essential Commodities Act;

(e)&(f) Para. 7.12 for excluding the Wealth Tax Act and the Income-Tax Act.

(g) Para. 15.83A for Customs Act;

(h) Para. 15.95 for Gold Control Act.

Amendment regarding Probation
Section to be inserted in all the Acts, including the Income-Tax Act and the Wealth Tax Act1.

Section 6 of the Probation of Offenders Act, 1958, shall, in relation to offences under this Act, be read as if, for the words "'twenty-one years of age", the words "eighteen years of age" were substituted.

1. See para. 10.4 of the Report.

Admissibility of statements in administrative proceedings
Section to be inserted in all the Acts except the Wealth Tax Act1-2 and the Income-tax Act.

"A statement made and signed by a person in a proceeding under this Act before any officer authorised by law to record it, being an officer of a rank notified by the Central Government in this behalf, shall be relevant, for the purpose of proving, in a prosecution for an offence under this Act, the truth of the facts which it states,-

(a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the cases the Court considers unreasonable;

Or

(b) when the person who made the statement is examine as a witness in the case, and the Court is of opinion that having regard to the circumstances of the case, the statement should bo admitted in evidence in the interests of justice."

1. To be inserted in the Foreign Exchange, Customs, Excise and Gold control Acts.

2. See para. 14.4 of the Report.

Explanation to be added in the provisions relating to minimum punishments in all the Acts providing for minimum punishment except the Wealth Tax and the Income-tax Act.

"Explanation.-The following1 are not, by themselves, special and adequate reasons2 for awarding a sentence of imprisonment for less than six months, namely,-

(a) the fact that the accused has been convicted for the first time of an offence under this Act; or

(b) the fact that in proceeding under this Act other than a prosecution, the accused has been ordered to pay a penalty or his goods have been ordered to be confiscated or other penal action has been taken, against him for the same offence; or

(c) youth of the accused; or

(d) the fact that the person convicted was not the principal offender, and was acting merely as a carrier of goods or otherwise was a secondary party in the criminal transaction:

Provided that nothing in this Explanation shall be construed as affecting in any way the provisions of the Probation of Offenders Act, 1958, or of section 562 of the Code of Criminal Procedure, 1898, or of any enactment relating to children or any, special provision of law applicable to juvenile offenders.

Explanation 2.-The fact that the offence, has caused no substantial harm to the society or to any individual is a special and adequate reason for awarding a sentence of imprisonment less than six months."

1. See para. 7.53 of the Report.

2. This form is suitable for a provision worded like section 13.5, Proviso (i), Customs Act. The form may require change in other cases.



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