9911796707
TMI Blog2019 (12) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the reasons to believe that a person has committed any offence under the Act is cast upon the Commissioner. Whether the said duty could have been delegated by the Commissioner to any officer or not is not gone into by this Court leaving it open to be gone into in an appropriate case, since this Court finds that as a matter of fact, no delegation is made by the Commissioner in that regard vide order dated 23.06.2017 Entry No.49. If any citizen is deprived of his personal liberty, without following the procedure established by law, it would be violative of Article 21 of the Constitution of India, the High Court does have power under Article 226 of the Constitution of India to examine the issue and pass appropriate order. Even if a person is in judicial custody and even if the bail is asked for by him and is rejected, either by the Magistrate or even by the Sessions Court, that itself may not be the deciding factor to form an opinion, whether the judicial custody is otherwise legal or not. Thus, this petition can not be said to be not maintainable. It is attempted on behalf of the respondent Authorities to demonstrate before this Court how the corpus can be said to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement, DIV-2, Ahmedabad vide Arrest Memorandum Dated 06.12.2019, is without authority of law. The foundation of this petition is that the father of the applicant has been deprived of his personal liberty, without following the procedure established by law, which is violative of Article 21 of the Constitution of India. 2. The prayer clause of this petition reads as under. 9 A. This Hon ble Court may be pleased to issue the writ of habeas corpus or any other writ, order or direction in the nature of habeas corpus directing the Respondent No.4 to physically produce the petitioner s father, namely, Suresh Gadhecha from the custody of the Respondent Nos.2 and 3 as they have wrongfully confined the father of the petitioner, in violation of the provisions of the Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Act, 2017 and be further pleased to handover the custody of the petitioner s father to the petitioner; B. That during the pendency of the present petition, this Hon ble Court may be pleased to direct the Respondent No.4 to secure the presence of the petitioner s father namely, Suresh Gadhecha, from the custody of Respondent Nos. 2 and 3 and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corpus. Therefore, against this backdrops, we expect the respondents to come forward with the following on the next date of hearing namely : (i) the order of authorization, which has been referred to by the arresting officer in the arrest memo, whereunder, he has been authorized to arrest the father of petitioner; (ii) the documentary evidence and/or the circumstances indicating the due deliberation and application of mind on the part of designated statutory authority for ordering arrest of the father of petitioner the corpus; (iii) The gist of material which might have been forming part of consideration for arriving at a circumstances stated so as to satisfy the statutory provisions of Section 69 by the statutorily designated authority to arrest; (iv) any other material that may support and justify the arrest especially when emphatic statement is made qua lack of consideration on the part of designated statutory authority rendering the entire arrest questionable. Direct service permitted today. 4. Thereafter, under the orders of Hon ble the Chief Justice, this petition is listed before this Bench. On 12.12.2019, this Court had passed the following order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corpus) has committed such offences under the said Act warranting his arrest. (iv) The ONLY point for consideration before this Court in this petition is, whether the exercise of powers by the State Tax Officer of arresting the accused / corpus (Sureshbhai Ugarchand Gadhecha) vide Arrest Memorandum dated 06.12.2019, even with the authorisation in that regard by the Joint Commissioner of State Tax vide order dated 05.12.2019 is legally sustainable, OR the said arrest is without authority of law, keeping in view Article 21 of the Constitution of India, as claimed by the petitioner on behalf of the accused / corpus. 7. Rule. Mr. Soni, learned Additional Public Prosecutor waives service of rule on behalf of the respondent Authorities. 8.1 Mr. Shalin Mehta, learned senior advocate assisted by Ms. Niyati Shah, learned advocate for the applicant has submitted that, the father of the petitioner corpus was summoned by the State Tax Officer on 05.12.2019 at 2:30 pm to give statement under Section 70 of the Act. He had accordingly remained present. He was questioned till late night - 1:00 a.m. of 06.12.2019. When the father of the petitioner requested to the officer that he be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in (2014) 16 SCC 248. 8.3 Learned senior advocate for the petitioner has also referred to the contents of the affidavit in reply to contend that, even if the order dated 23.06.2017 is read with the corrigendum dated 17.12.2018, the notification dated 05.07.2017 tilts the balance in favour of the corpus. It is submitted that the harmonious reading of these orders / notification would make it clear that the powers delegated vide order dated 23.06.2017 cannot be said to be the delegation of power by the Commissioner under Section 69(1) of the Act for both the functions contained therein. It is submitted that the impugned action being illegal and is without authority of law be interfered with. Mr. Mehta, learned senior advocate for the petitioner has also taken this Court, extensively through the different sections of the Act and the decision of the Supreme Court in the case of Sidhartha Sarawgi (supra) with specific emphasis that the satisfaction to be arrived at by the Commissioner is not the function which otherwise could be delegated by him. However, he has made it clear that since even according to him, order dated 23.06.2017 does not delegate the power of arriving at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the affidavit in reply dated 12.12.2019 to support the case of the respondent authorities. It is further submitted that the officers are present with the files and the same be made available to the Court if the Court so desires. 9.6 Heavy reliance is placed on Section 69(1) of the Act. It is vehemently contended that the language of Section 69(1) of the Act makes it clear that there is only one contemplation in it and there is no dis-juncture at any stage in the said subsection and therefore the exercise of power to arrest the person is not independent of recording satisfaction. Attention of this Court is invited to the order dated 23.06.2017 and the Corrigendum dated 17.12.2018, the copies of which are annexed with the affidavit in reply. For the purpose of explaining these two orders, learned Public Prosecutor has read, line-by-line different provisions of the Act, more particularly, Sections 2(91), 5(1), 5(3) and 67 and 69. While referring to the orders dated 23.06.2017 and 17.12.2018, it is contended that, the delegation of power by the Commissioner, in the present case, to the Joint Commissioner, can not be said to be incomplete in any manner keeping in view the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, this Court finds as under. 11. Though it is already noted in Para : 6 above, before recording any finding by this Court, it is noted again at this stage that :- (i) This Court is NOT examining the issue whether the accused / corpus, who is in judicial custody and is present before this Court, should be granted bail or not. (ii) This Court is also NOT examining the issue, had the accused / corpus approach this Court in time, whether he would have been granted protection against his arrest or not. (iii) This Court is also NOT examining the issue whether the accused / corpus has in fact committed any offence under the provisions of the Gujarat Goods and Services Tax Act, 2017 and / or the Central Goods and Services Tax Act, 2017, as claimed and recorded by the State Tax Officer and the Joint Commissioner of State Tax that, they have reasons to believe that he (the accused / corpus) has committed such offences warranting his arrest. (iv) The ONLY point for consideration before this Court in this petition is, whether the exercise of powers by the State Tax Officer of arresting the accused / corpus (Sureshbhai Ugarchand Gadhecha) vide Arrest Memorandum dated 06.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what authority is making the order. 17. It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of Police. It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the rules. But the power to do so is vested in him and not in the State Government and can only be exercised by him at his discretion. No other person or authority can do it. 12.3 Following the above principles, the Constitution Bench of the Supreme Court of India in the case of Mohinder Singh Gill versus the Chief Election Commissioner reported in AIR 1978 SC 851 observed (in Paragraph 8 of the said decision) as under. 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (c) or clause (d) of sub-section (1) of section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may, by order, authorise any officer of State tax to arrest such person. (2) Where a person is arrested under sub-section (1) for an offence specified under sub-section (5) of section 132, the officer authorised to arrest the person shall inform such person of the grounds of arrest and produce him before a Magistrate within twenty four hours. (3) Subject to the provisions of the Code of Criminal Procedure, 1973, (a) where a person is arrested under sub-section (1) for any offence specified under sub-section (4) of section 132, he shall be admitted to bail or in default of bail, forwarded to the custody of the Magistrate; (b) in the case of a non-cognizable and bailable offence, the Deputy Commissioner or the Assistant Commissioner shall, for the purpose of releasing an arrested person on bail or otherwise, have the same powers and be subject to the same provisions as an officer-in-charge of a police station. 13.2 Section 69(1) of the Act stipulates two functions. One is the obligation cast upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhai Gadhecha (the father of the petitioner). The said arrest order further reads that, ...I have reasons to believe that you had committed offence..... . This would mean that, the satisfaction leading to arrest is arrived at by the State Tax Officer, but the arrest is ordered by the Joint Commissioner. Going by the order under scrutiny, the Court may only inquire whether the State Tax Officer, in the present case, was authorised to arrive at any such satisfaction which is condition precedent of ordering arrest of any person. That answer is certainly NO. The respondent Authorities also agree with this. The case of the respondent Authorities however is that, the said satisfaction was arrived at, at the level of the Joint Commissioner of State Tax. As already noted above, since there is reference in the Arrest Memorandum dated 06.12.2019 to the authorisation in that regard by the Joint Commissioner of State Tax vide order dated 05.12.2019, we have taken into consideration the said authorisation dated 05.12.2019 as well. Over and above the satisfaction claimed to have been arrived at by the State Tax Officer as reflected in the order dated 06.12.2019, the authorisation order of the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCHEDULE -A Sl.No. Section Functions Assigned Designation of Proper Officer (1) (2) (3) (4) 1 10(5) To determine tax and penalty referred to in this section Deputy Commissioner Assistant Commissioner State Tax Officer 49 69(1) To authorize any officer of State Tax to arrest a person committed any offence Joint Commissioner (P D Vaghela) Commissioner 13.6 The relevant part of the Corrigendum dated 17.12.2018 reads as under. For the words, figures and brackets sub-section (1) of Section 5 read subsection (1) and (3) of Section 5. 13.7 With the aid of the Corrigendum dated 17.12.2018, the State Authorities want us to accept that the order dated 23.06.2017 which was issued in exercise of powers under Section 5(1) of the Act, be read as having been issued in exercise of both the powers under Section 5(1) and 5(3) of the Act. We accept this. Even then, the non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted any offence). (vide 13.3) The occasion for the Commissioner or even any officer of the State Tax to arrest any person would arise only after the Commissioner arrives at the conclusion / is satisfied that he (the Commissioner) has reasons to believe that a person has committed any offence under the Act. Thus the satisfaction to be arrived at with regard to the concerned person (assessee / accused) having committed any offence under the Act is condition precedent for ordering arrest. There is no doubt that even the Commissioner himself can also not order arrest of any person under the Act, if he has not arrived at the conclusion or is satisfied that he (the Commissioner) has reasons to believe that a person has committed any offence under the Act. 14.2.2 By the order dated 23.06.2017 read with Corrigendum dated 17.12.2018, one of the two functions envisaged under Section 69(1) of the Act, being the second one i.e. he (the Commissioner) may, by order, authorise any officer of State tax to arrest such person (who is believed by the Commissioner to have committed any offence) stands delegated to the Joint Commissioner vide Entry No.49. The case of the respondent Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Authorities as vehemently contended by the learned Public Prosecutor that, delegation of power by the Commissioner to the Joint Commissioner vide order dated 23.06.2017 Entry No.49 is the complete delegation under Section 69(1) of the Act. According to him, the said Sub-section [being Section 69(1)] should not be read by putting dis-juncture in it, which is not provided by the statute. We reject this argument. As already held above, Section 69(1) of the Act stipulates two functions, which is already discussed in detail above. Further, even qua one section or even one sub-section, the Commissioner has, by the very order dated 23.06.2017, delegated different functions to different authorities / officers. Reference in this regard needs to be made to Entry Nos.39 to 46 of Schedule A of the said order dated 23.06.2017. They are as under. SCHEDULE -A Sl.No. Section Functions Assigned Designation of Proper Officer (1) (2) (3) (4) 1 10(5) To determine tax and penalty ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner Assistant Commissioner State Tax Officer 49 69(1) To authorize any officer of State Tax to arrest a person committed any offence Joint Commissioner 50 70(1) Power to summon persons Joint Commissioner Deputy Commissioner Assistant Commissioner State Tax Officer 51 71(1) To authorise any officer to have access to any place of business of a registered person to inspect books of accounts etc. Joint Commissioner 15.2 The above would make it further clear that, even while referring to different functions under the same Subsection, the Commissioner has delegated powers to different officers, as per his discretion and wisdom. The delegation has to be specific and the said order dated 23.06.2017 also, according to us, is very specific as to, the Commissioner has delegated what to whom. The Court can not, and we do not intend to read in Entry No.47 of the order dated 23.06.2017, what is consciously excluded by the Commissioner, from being delegated to any other off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be maintainable. To support this argument, he has relied on the decision of the Supreme Court of India in the case of State of Maharashtra versus Tasneem Rizwan Siddiquee reported in (2018) 9 SCC 745 and the decision of the Telangana High Court in the case of P.V. Ramana Reddy versus Union of India reported in (2019) 14 taxmann.com 407 (Telangana), as confirmed by the Supreme Court of India in SLP (CRL.) No.4430 of 2019 dated 27.05.2019. 17.2 So far the decision in the case of State of Maharashtra versus Tasneem Rizwan Siddiquee (supra) is concerned, there can not be any dispute with regard to the proposition of law annunciated in the said decision, however it needs to be noted that, what is cautioned by the Supreme Court of India is filing of petition under Article 226 of the Constitution of India before High Court as an alternate to filing bail application before the competent Court. We have already noted that, the point at issue before this Court in this petition is not whether the corpus is entitled to bail or not. The said decision would therefore not come to the help of the State Authorities. 17.3.1 So far the decision of the Telangana High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and even if the bail is asked for by him and is rejected, either by the Magistrate or even by the Sessions Court, that itself may not be the deciding factor to form an opinion, whether the judicial custody is otherwise legal or not. Reference in this regard needs to be made to the decision of the Division Bench of this Court in the case of Hansaben W/o. Ishwarbhai Dahyabhai Patani versus State of Gujarat recorded on Special Criminal Application No.3232 of 2011, dated 13.12.2011. 17.5 For the above reasons (Para : 17.1 to 17.4), we hold that, this petition can not be said to be not maintainable. 18. So far the decision of the Telangana High Court in the case of P.V. Ramana Reddy (supra) is concerned, since the point at issue before Telangana High Court was not, which is before this Court, we have not accepted that judgment as a guiding factor in the present case, however since heavy reliance is placed on it by the learned Public Prosecutor, and even copy thereof is annexed with the affidavit in reply filed on behalf of the respondent authorities, it would be relevant to note that, in that very decision, the High Court has observed in Para : 30 that :- ...Under sub-S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
