2022 (4) TMI 1400 - HC - GST

Grant of Default/statutory Bail - availment of illegal CENVAT Credit - creation of fake firms - offence under Section 132(1)(b) (c) of the Central Goods and Service Tax Act, 2017 - HELD THAT - It is not in dispute that the accused is entitled to an indefeasible right of default bail or statutory bail if the accused is prepared to furnish bail in case the charge sheet being not filed in the Court within 90 days of custody in cases punishable with death, life imprisonment, and imprisonment not less than 10 years, and after 60 days of custody for any other offence. True it is that in this case, there is no FIR lodged by the GST authority and the Magistrate has not taken cognizance of the offence on his own but the cognizance has been taken on the complaint filed by the GST authority/respondent No.2 along with the list of witnesses and relevant documents. Under the Act of 2017, power of inspection, search and seizure is prescribed under Section 67; Section 68 deals with power of inspection of goods in movement; Section 69 relates to power of arrest; Section 70 prescribes the power to summon persons to give evidence and produce documents and Section 71 deals with the power to access to business premises. As regards the contention of the appellants that the complaint filed by the GST authority is not after completion of investigation in view of the complaint, the said argument is not acceptable for the reason that the offence allegedly committed by the appellants is an economic offence; if on further investigation any new relevant fact or document comes within the knowledge of the investigating officer, he can file the supplementary report - So far as the appellants are concerned, the material collected against them during investigation as filed with the complaint are sufficient for establishing a prima facie case against them under Section 132(1)(b) (c) of the Act of 2017 and therefore, on filing of such complaint, the Magistrate has taken cognizance of the offence against them. This Court is of the opinion that though the complaint filed by respondent No.2 cannot be said to have been filed under Section 173 of CrPC but for the purpose of default bail, it can be said that respondent No.2, who is an authorized officer under the Act of 2017 to carry out investigation/enqiury, filed the complaint within the prescribed time limit which satisfies the requirement under Section 167 of CrPC and as such, no right accrues to the appellants to seek default bail under Section 167(2) of CrPC. This Court finds no illegality or infirmity in the impugned judgment of the learned Single Judge - Appeal dismissed.

Summary

Issues:
Challenge to the legality, validity, and propriety of an order dismissing a writ petition for grant of default bail under Section 167 of CrPC.

Analysis:
1. The appellants were involved in creating fictitious trading companies across multiple states to commit GST fraud, leading to their arrest under the Central Goods and Service Tax Act, 2017. The appeal questioned the rejection of their application for default bail after 60 days of judicial custody without a charge sheet being filed.

2. The appellants argued that the offense under Section 132 of the Act of 2017 is cognizable, emphasizing the lack of an FIR, investigation, or charge sheet within the stipulated time. They contended that the complaint filed by the GST authority was insufficient for denial of default bail under Section 167(2) of CrPC.

3. The respondents supported the lower court's decision, citing the Supreme Court's judgment in Directorate of Enforcement Vs. Deepak Mahajan, emphasizing the authority of the GST officer to file a complaint and initiate proceedings without a charge sheet.

4. The court analyzed the provisions of CrPC, including Section 167 for default bail and Section 190 for cognizance of offenses by Magistrates. It also considered Section 134 of the Act of 2017, which mandates prior sanction for taking cognizance of offenses under the Act.

5. Referring to the Deepak Mahajan case, the court clarified that investigation could extend beyond police inquiries and encompass activities by authorized officers. It emphasized the flexibility in interpreting the term "investigation" and upheld the sufficiency of the complaint filed by the GST officer in this economic offense case.

6. Ultimately, the court concluded that the complaint filed by the authorized GST officer within the prescribed time limit satisfied the requirements under Section 167 of CrPC, negating the appellants' right to default bail. The judgment upheld the lower court's decision, dismissing the writ appeal for lack of substance at the admission stage.