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TMI Blog2024 (9) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of recording his statement, the provisions of Section 438 of Cr.P.C. cannot be invoked, but however in the case in hand summons have been issued not under Section 69 of the CGST Act but under Section 70 of the CGST Act. This Court finds hardly any difference between the two. It has been clarified above by quoting the provisions of Section 69 and Section 70 of CGST Act that Section 70 deals with the power of appropriate officer to summon any person to give evidence or to produce documents or any other thing only in any inquiry whereas Section 69 deals with the power of commissioner to authorize any officer of the Central Tax to arrest a delinquent person as explained under Section 69 (1) CGST Act, 2017. This Court is not hesitant to hold that the present application for grant of anticipatory bail moved by the applicants is not maintainable under Section 438 of the Criminal Procedure Code (Section 482 of of Nagrik Suraksha Sahinta, 2023) - the present application for grant of anticipatory bail being not maintainable is liable to be rejected and is hereby rejected. - Hon'ble Nalin Kumar Srivastava, J. For the Applicant : Rishabh Agarwal, Tarun Agrawal For the Opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal presence whereby a reasonable apprehension arises to the applicants for any coercive steps or even the arrest of the applicants to be made by respondent nos. 2 and 3. It is further questioned that to make a weight of a quantity of 5455 tons of material physically only in a span of 22 hours is not possible even by any stretch of imagination, hence, the panchnama which is the basis of all the proceedings is a sham document. The applicants have been cooperative to the department throughout the proceedings. They are having no criminal antecedents to their credit but the conduct of the CGST department by sending summons for their personal appearance is no doubt creates a reasonable apprehension in the mind of the applicants for their arrest in this matter. Hence, the anticipatory bail has been sought for in the instant matter. 7. Reliance has been placed on Mahdoom Bava Vs. Central Bureau of Investigation . 2023 SCC OnLine SC 299 and Priya Indoria Vs. State of Karnataka and Ors (2024) 4 Supreme Court Cases 749. 8. Per contra, learned counsel appearing on behalf of the Directorate General of Goods and Services Tax Intelligence (DGGI), Lucknow Zonal Unit (LZU), Lucknow vehemently o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of sub-section (1), or sub-section (2) of the said section, he may, by order, authorise any officer of central 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 (2 of 1974).- (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. Power to summon person to give evidence and produce documents. 70. (1) The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the admissibility of the anticipatory bail application in case summons is issued to a person under the CGST Act, 2017 has been summarized by the Hon ble Supreme Court like this: 16. Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India . 16. In a recent decision the High Court of Delhi in Directorate General of GST Intelligence Vs. Chaman Goel and Ors. (2024) 1 High Court Cases Del 277 whiling dealing with the applicability of Section 438 of Criminal Procedure Code i.e. Section 482 of Nagrik Suraksha Sahinta, 2023 relied upon the judgement of Hon ble Apex Court in St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voked, but however in the case in hand summons have been issued not under Section 69 of the CGST Act but under Section 70 of the CGST Act. This Court finds hardly any difference between the two. It has been clarified above by quoting the provisions of Section 69 and Section 70 of CGST Act that Section 70 deals with the power of appropriate officer to summon any person to give evidence or to produce documents or any other thing only in any inquiry whereas Section 69 deals with the power of commissioner to authorize any officer of the Central Tax to arrest a delinquent person as explained under Section 69 (1) CGST Act, 2017. Hence if the law forbids to move an application for grant of anticipatory bail in case summons is issued to a person under Section 69 of the CGST Act obviously the same principle shall apply to a case where a person is summoned under Section 70 of the CGST Act to give evidence or to produce a document or any other thing in any inquiry and the analogy would be the same. 21. Hence, this Court is not hesitant to hold that the present application for grant of anticipatory bail moved by the applicants is not maintainable under Section 438 of the Criminal Procedure Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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