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TMI Blog2024 (12) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... of this section is referred to. Under Section 132 (1) (c) whoever commits or causes to commit and retain the benefits arising out of input tax credit using invoice and bill referred to in Clause (B) or fraudulently avails input tax credit without any invoice or bill shall be punishable - in cases where the amount of tax evaded or the input tax credit wrongly availed or used the amount of refund wrongly taken exceeds Rs. 500 Lakhs, with imprisonment for a term which may extend to 5 years and with fine. The records produced before this Court by the learned Standing Counsel of the respondent reveals that pursuant to the summons issued the petitioner had appeared before the investigating authority and his statements have also been recorded. The records also reveal that the authorization as required under provisions of Section 69 has been issued by the Commissioner and the petitioner also does not deny that the grounds of arrest have been supplied to them within the prescribed period under the statute. The investigation still underway and therefore, the respondents have have sought for extension of the remand before the competent court of criminal jurisdiction. The power of writ court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond to summons issued. There is also no material which prima facie suggests that the determination of the liability has been arrived that by the Commissioner or the investigating officer. Under such circumstances this court of the view that continued detention of the petitioner at the stage of investigation is not required. This therefore court considers that the petitioner can be released on interim bail until further orders. The petitioner is directed to be released on interim bail subject to furnishing personal bond of Rs. 1 Lakh as well as execute a bail bond of Rs. 1 Lakh with two local sureties of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Kamrup (M) and the subject to fulfilment of conditions imposed - bail application allowed. - HONOURABLE MR. JUSTICE SOUMITRA SAIKIA For the Petitioner : Dr. A Saraf, Mr. A Goyal, Mr. A Choudhury Advocate. For the Respondent : SC, GST, Advocate. ORDER Heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. A. Goyal, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned Standing Counsel, GST for the respondent. 2. This writ petition is directed against the proceedings initiated against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Apex Court rendered in State of the Gujarat Vs. Choodamani Parmeshwaran Iyer Ors, reported in 2023 0 Supreme (SC) 1154 to submit that powers under Article 226 of the Constitution of India is ordinarily not required to be invoked seeking release of a person from detention. He further submits that the petitioner was produced before the competent Court who had remanded him to custody for 14 (fourteen) days and an application has also been filed praying for extension of the detention. The learned Standing Counsel, GST has also relied upon a Judgment of the Delhi High Court rendered in Dhruv Krishan Maggu Others Vs. Union of India Others reported in 2021 0 Supreme (Del) 17 to submit that in a similar matter the Division Bench of Delhi High Court had rejected such prayers made. The learned Standing Counsel, GST has also placed before the court the relevant records available to show that there was an authorization duly issued by the Commissioner towards the arrest and detention of the petitioner and the grounds of arrest has also been communicated to the petitioner. 5. The learned counsel for the parties have been heard. Pleadings available on record in the writ petition are caref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary for the purposes of this proceedings. Only the relevant portion of this section is referred to. Under Section 132 (1) (c) whoever commits or causes to commit and retain the benefits arising out of input tax credit using invoice and bill referred to in Clause (B) or fraudulently avails input tax credit without any invoice or bill shall be punishable - in cases where the amount of tax evaded or the input tax credit wrongly availed or used the amount of refund wrongly taken exceeds Rs. 500 Lakhs, with imprisonment for a term which may extend to 5 years and with fine. 12. Having taken note of provisions under the GST Act, 2017, it is seen that the allegations against the petitioner is that he has availed of input tax credit by without actual receipt of the good and thereby availing the benefit of input tax credit by using false or forged bill and is therefore, guilty of the offences prescribed under Section 132 (1) (c) and therefore punishable under Clause (I) of the said section. 13. The records produced before this Court by the learned Standing Counsel of the respondent reveals that pursuant to the summons issued the petitioner had appeared before the investigating authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n determination of the liability along with an interim prayer for enlarging the petitioner since he was under judicial custody, after elaborate examination of the matter and various judgments of the several High Courts as well as Apex Court held that the requirement under Section Sub-section 1 of Section 69 of the GST Act is to have reasons to believe that the person has committed an offence under Section 132.. 16. The requirement under Sub-section (1) of Section 69 is to have reasons to believe that not only a person has committed any offence as specified but also as to why such person needs to be arrested. From a perusal of the reasons recorded by the Principal Additional Director General, we find that other than the reference to the requirements of Section 41 of the CrPC, no concrete incident has been mentioned therein recording any act or attempts of tampering of evidence by the petitioner or threatening/inducing any witness besides not co-operating with the investigation. In such circumstances, we are of the view that the Principal Additional Director General could not have formed a reason to believe that the petitioner should be arrested. 17. The Division Bench of the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 132. 22. That apart it is seen from the records stated that the petitioner was summoned and he had been extensively questioned and his statements are also recorded by the investigating authority. There is no prima facie finding seen from the records produced at this stage that the detention of the petitioner is necessary to prevent tampering of the evidence or that he is likely to cause any interference with the investigations carried on. The only ground seen is that the petitioner is a partner of M/s Yash Associates and since the investigation is still at the preliminary stage there is a need to recover other persons namely brokers, suppliers, recipients involved in the purported forged claim of ITC. The authorization also reflects that it is stated that the quantum of tax evasion may also increase later. From the statements recorded before the investigating authority it is seen that there are other partners in the partnership besides the petitioner and at this stage of investigation there are no materials to suggest that the petitioner will tamper with the evidence or have evaded the summons or did not respond to summons when served. The question of whether the directions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n custody. The Apex Court held that the term of custody within the meaning of Section 170 of the CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the charge sheet. 27. The Apex Court went on to hold that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or where the accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation there is no reason as to why there should be a compulsion on the officer to arrest th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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