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TMI Blog2020 (6) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the CGST Act and the SGST at Shivamogga, dealing in both ferrous and non3 ferrous scrap. During his regular course of business, he has purchased goods from various registered and unregistered dealers and issued tax invoices as per law. He has collected the taxes and remitted to the Government as per the CGST and the SGST Act. 2. Further, it is contended that on 08.02.2020, the respondent has issued a summon to appear before an Officer by name D. Bhaskar at 3:15 p.m., and prior to that on the same day, the respondent has conducted inspection of the business premises and drawn a mahazar. Another notice issued by the respondent to appear before K. Venumadhava Reddy on 10.02.2020. The petitioner is ready to appear before the respondent and co-operate with the investigation. However, the respondent has already collected all the documents and completed their investigation and the petitioner has apprehended his arrest in the hands of the respondent for the offence punishable under Section 132(5) of the CGST Act. In case, if he is arrested and sent to judicial custody, he will be put into hardship and irreparable loss as he is having a old age mother and also a daughter and due t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld by the Hon'ble Supreme Court by dismissing the SLP and the Hon'ble Supreme Court has reaffirmed P.V.Ramana Reddy's case in the case of Union of India vs. Sapna Jain and Others in SLP (CRL.)Nos.4322-4324/2019, dated 29.05.2019 and hence, prayed for dismissing the bail petition. 4. I have heard the arguments of the learned counsel for the petitioner as well as the learned State Public Prosecutor and perused the records. 5. Before adverting to the case of the petitioner, it is worth to consider the judgment of the Telangana High Court and the judgment of the Hon'ble Supreme Court which were relied by the respective learned counsel. 6. The main objection raised by the learned Special Public Prosecutor for the respondent is that the anticipatory bail is not maintainable. The petitioner is required to file only writ petition for seeking relief under the CGST Act. In support of his arguments, he has relied upon the judgment of the Telangana High Court in the case of P.V.Ramana Reddy stated supra and the Hon'ble Supreme Court has upheld the order of the Telangana High Court in the Special Leave Petition and the same was reaffirmed by the Hon'ble Supreme Court in Sapna Jain's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the ratio laid down by the Constitution Bench in Kartar Singh and the ratio laid down in Km. Hema Mishra that the jurisdiction under Article 226 of the Constitution of India to grant protection against arrest, should be sparingly used. Therefore, let us see prima facie, the nature of the allegations against the petitioners and the circumstances prevailing in the case, for deciding whether the petitioners are entitled to protection against the arrest. We have already extracted in brief, the contents of the counter affidavits. We have summarized the contents of the counter affidavits very cautiously with a view to avoid the colouring of our vision. Therefore, what we will now take into account on the facts, will only be a superficial examination of facts. xxx xxx xxx 58. Therefore, all the technical objections raised by the petitioners, to the entitlement as well as the necessity for the respondents to arrest them are liable to be rejected. Once this is done, we will have to examine whether, in the facts and circumstances of these cases, the petitioners are entitled to protection against arrest. It must be remembered that the petitioners cannot be placed in a higher pedestal th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on so as to allow the appeal being filed (ii) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications- Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Art.141 of the Constitution- Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country-But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties." 11. Further, the Hon'ble Supreme Court in the case of Sapna Jain stated supra has held as under: "As different High Courts of the country have taken divergent views in the matter, we are of the view that the position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly for entertaining the bail petition under section 438 of the Cr.P.C. Unlike, the anticipatory bail has been prohibited in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and there was bar for anticipatory bail in the State of Uttar Pradesh. It is relevant to mention that as per the provisions of Section 70 of the CGST Act, the Officer has power to summon any person whose attendance is considered as necessary either to give evidence or to produce document or any other thing in any inquiry in the same manner as provided in the case of Civil Court under the provisions of the Code of Civil Procedure, 1908, and every such inquiry referred to subsection (1) shall deemed to be "judicial proceedings" within the meaning of Section 193 and Section 228 of the Indian Penal Code. 14. It is also relevant to mention that Section 69 of CGST Act empowers the Commissioner to authorize any Officer of central tax to arrest a person, if the Commissioner has reasons to believe that a person has committed any offence specified in Clause (a) or (b) or (c) or (d) of sub-section (1) of Section 132. Sub-section (2) of Section 69 of the CGST Act empowers that where a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, when the offences punishable under sub-section 1 Clause (a) or (b) or (c) or (d) of Section 132 of the CGST Act which falls under the provisions of sub-section 5 of Section 132 of the CGST Act is a cognizable and non-bailable offence punishable with imprisonment up to 5 years and fine. Once a person apprehends his arrest in the hands of the Commissioner under Section 69 of the CGST Act, the assessee has statutory right to seek anticipatory bail under Section 438 of the Cr.P.C. At this juncture, it is relevant to mention Section 438 of the Cr.P.C. which is as under: 438 - Direction for grant of bail to person apprehending arrest (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on convict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences are not punishable with death or imprisonment for life. There is no statutory bar in the CGST Act for granting anticipatory bail by exercising power under Section 438 of the Cr.P.C. Merely, there were number of notices/summons issued by the respondent during the lockdown for COVID-19 that itself is not a ground to reject the bail petition. Considering the fact and circumstances of the case, if an anticipatory bail is granted, no prejudice would be caused to the respondent. Accordingly, I proceed to pass the following O R D E R Petition is allowed. The petitioner is ordered to be enlarged on bail in the event of his arrest under Section 69 of the CGST Act by the respondent-Authorised Officer, after enquiry under Section 70 of the CGST Act, in summon dated 12.05.2020 in No.CBIC-DIN- 202005DSS000006QFF52 and corrigendum dated 18.05.2020 in No.CBIC-DIN-202005DSS000001W4CCE, subject to following conditions: i. Petitioner shall execute a personal bond for Rs. 10,00,000/- (Rupees Ten lakh) with two sureties to the Apprehending Authority or Authorized Officer; ii. Petitioner shall appear before the Authorized Officer within one week, after receipt of this order, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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