Miranda Limited and anr. Vs. Union of India (Uoi) and ors.

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........deductions were permissible, he rejected the appellants' claim for refund of the excise duty paid thereon because it was not filed within 6 months, which was the period of limitation prescribed under section 11b of the central excises and salt act. the learned judge noted that the question before him was whether the claim, though time-barred by section 11b, should be allowed in the appellants' writ petition since it was filed within 3 years of the accrual of the claim. the learned judge was of the view that the appellants were not entitled to the refund of any amount even if the court had power to grant the claim since the appellants had, admittedly, recovered the amount of excise duty from their customers. to grant the appellants' claim in such circumstances would amount to permitting them to enrich themselves unjustly and to misappropriate moneys which properly belonged to their customers and the ultimate consumers. in the equitable and discretionary writ jurisdiction under article 226, the court should not countenance such claim. the learned judge cited authorities in support of his conclusion. these authorities included his dissenting judgment in the case of i.t.c. ltd. v. m.k. chipker, : 1985(19)elt373(bom) .2. the difference between lentin j. and sawant j. in the i.t.c. case was referred to a third judge. by his judgment [reported in : 1985(22)elt334(bom) ] shah, j. took the view that had found favour with lentin, j. we are bound to follow the view taken by the majority in the i.t.c. case.3. we find that this was also done by a division bench of this court sitting at goa in the case of rapidur (india) ltd. v. union of india, : 1987(27)elt222(bom) . the learned judges based their judgment upon the majority view in the i.t.c. case and upon the supreme court judgment in d. cawasji and co. v. state of mysore, : 1978(2)elt154(sc) the learned judges found the latter judgment to be squarely applicable to the controversy and not a subsequent judgment of the.....