9911796707
TMI Blog2019 (12) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the other accused persons, namely, Sanjay Kumar Pandit, Nagendra Kumar Dubey alias Sandip Dubey, and Mr. Vijay Rajpuriya along with other persons had allegedly issued GST invoices without any supply of the goods to the buyers on commission basis causing loss of more than 98 crores approximately. It is submitted that the petitioner was arrested and produced on 6.06.2019 before the Learned Chief Judicial Magistrate, Alipore, who vide order dated 6.06.2019 rejected his prayer for bail remanding him to judicial custody, although, he was rendering his cooperation with the investigating agency prior to his arrest. Then the petitioner moved an application under Section 439 Cr.P.C. for his release on bail before learned Sessions Judge Alipore, but by order dated 20.08.2019 the bail prayer was rejected on considering the nature and magnanimity of unlawful act done by the accused persons including the petitioner as revealed from the final report of the investigating agency and on consideration that there shall have every possibility to influence the witness to destroy the evidence or evade the process of further investigation and trial. Being aggrieved by the order of rejection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar -Vs- State of Bihar & Anrs, reported in 2014 (8) SCC 273 as well as the observation in the case of Rini Johar & Anrs - Vs- State of Madhyapradesh & Ors, reported in 2016 (11) SCC 703 is required to be complied with? 3) Whether the offences mentioned under Section 132 of the CGST Act, 2017 is bailable? 4) Whether the Commissioner can issue the order for arrest on the basis of commitment of offence by the petitioner? 5) Whether any previous sanction has been issued by the Commissioner for filing Charge Sheet has not been disclosed? On the point no. 1, it is argued that the learned Magistrate has failed to comprehend the significance and purport of Section 167 (2) of the Code of Criminal Procedure, thereby acting in a manner which annuls the rudimentary requirements stipulated in Section 167(2) of the Code of Criminal Procedure which provides that the Magistrate to whom an accused is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive command and not Court's discretion. If the investing agency fails to file charge sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. At that stage, merits of the case are not to be examined. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds. A Full Bench decision in case of Uday Mohanlal Acharya vs State Of Maharashtra reported in (2001) 5 SCC 453 has been referred and reliance is placed on majority view of the Hon'ble Apex to urge that the accused is entitled to statutory bail and as long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi case [(2012) 12 SCC (Cri) 488] which is based on three- Judge Bench decision in Uday Mohanlal Acharya case [(2001) 5 SCC 453: 2001SCC(Cri) 760] and contended that the principle laid in case of Pragyna Singh Thakur case [(2011) 10 SCC 445: (2012) 1 SCC (Cri) 311] does not state the correct principle of law. In rebuttal Mr. K.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of liberty of a person arrested and therefore infringes the basic human right of liberty. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution and further submitted that in the instant case , even though the offence stipulates a maximum term of imprisonment upto five years, yet, none of directions enshrined in para 11 of the decision in case of Arnesh Kumar vs State of Bihar (supra) has been adhered thereto which reads thus: "Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C. All police officers be provided with a check list containing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a mechanical manner, without having any regard to the law laid down by the Hon'ble Apex Court. It is further submitted that in spite of the petitioner joining the investigation, and rendering his cooperation to the investigating agency yet he was arrested and such conduct manifest the malicious determination of the investigating agency. A reference to a decision in case of Sidhharam Satlingappa Mhetre Vs. State Of Maharashtra reported in (2011) 1 SCC 694 has been relied on to argue that the conduct of the Investigating Officer speaks a volume so far as the malicious intention of the investigating agency. It has been held that in cases where the Court is of the considered view that the accused has joined investigation and he is fully cooperating with investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. In the said judgment the direction has been laid down to the following effects - "In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the petitioner is that Section 70 is not pari materia with Section 41A of Cr.P.C. but pari materia with section 91 of the Cr.P.C. The provision of Section 91 of Cr.P.C. provides for summons to produce document or other thing whereas Section 70 of the CGST Act provides power to summon persons to give evidence and produce documents. Therefore, the said Section 70 of the CGST Act, 2017 is not pari materia with Section 91 of Cr.P.C. In reply Mr. Basu invited my attention to term pari materia as per Blacks Law Dictionary 6th edition which means, of the same matter, on the same subject; as laws pari materia must be construed with reference to each other and argued that on a reading of the aforesaid definition of pari materia it becomes evident that Section 41A of the Code of Criminal Procedure can by no stretch of imagination be treated as pari materia to Section 70 of the CGST Act and further submitted that on a bare reading of the aforesaid sections it would become absolutely clear that the subject matter envisaged in the respective sections are not the same and the structural edifice of the aforesaid sections are completely different from one another. Instead Section 70 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Vaidika Impex Pvt. Ltd. and filed the GST Returns on the direction of the petitioner. He also admitted that there was no supply of goods or service in cases of bills issued by him and he just printed the bills and placed the stamp of the parties and signed and issued the bills and also admitted about receipt of huge cash related to fake invoice transaction and they used cash counting machine to count the cash. The cash is paid after deducting the commission by the petitioner to various parties. The petitioner on 29.05.2019 appeared in terms of summons under Section 70 of CGST Act, and tendered his statement. He admitted that audit file, PAN Card, Digital Signature for filing documents, Cheque Books of parties, GST Invoices of the parties are kept in his office and that he had issued bills to various parties from M/s. Alvina and M/s. Vaidika. In this two companies GST Bills for ITC (Input Tax Credit) has been given from various firm. He also admitted that he did not register any parties as mentioned in the Charge Sheet and invoices were issued for goods and service but there was no movement/supply of goods or services in cases of Bills issued by him without movement of goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the challan and does not survive or remain enforceable on the challan being filed, if already not availed of. As regards point nos. 3, 4 and 5, Mr. Basu adverted to the provision of Section 132 of the CGST Act, 2017 contending that offence alleged is bailable in nature for the reason that prima facie there is allegation of attempt to issue fake invoices without the supply of goods or services as the petitioner is by profession a Chartered Accountant who only works for the companies as his clients. It is pointed out that preceding the application of Section 134 of the CGST Act, is the provisions of law contained in Section 132(6) of the Act, which enjoins that a person shall not be prosecuted for any offence under this section except with the previous sanction of the Commissioner. The legislative intent as stemming from the aforesaid section is clear, distinct and leaves nothing to supposition except that the authority who is empowered to interfere with the liberty of a person by issuing an order of arrest on reasonable belief about necessity of arrest under Section 69(1) of the CGST Act, is also statutory obligated to decide, albeit on logical assessment of facts, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that in regard to Section 134 and 138 of CGST Act, the object and reason of this Act is obviously to realize the revenue to the government exchequer and bearing in mind the provision of compounding nature of the offence under Section 138 of the Act, this Court relaxed the bail condition to deposit Rs. 39 Crore to the Government Exchequer but, in particular, on the finding that the prosecuting agency had failed and neglected to submit final report/charge sheet against the petitioners and even no extension of time to complete the investigation was sought for by them. Therefore, the bail privilege was granted in favour of the petitioners in the cited case adhering to the principles laid down by the Hon'ble Apex Court in respect of proviso to Section 167(2) of the Code of Criminal Procedure. Thus, I find that the judgment in case of Sanjay Kumar Bhuwalka (supra) is distinguishable from the facts and circumstances of the instant case. For the reasons stated above and in consideration of the gravity of the economic offence and bearing in mind the principle laid down in case of P.V. Ramanna Reddy (supra), the petitioner is not entitled to be enlarged on bail, however, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
