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TMI Blog2025 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... f packing material in the name of fake firms with an intent to dodge the checking conducted by GST Department and finally offloading the material at M/s Miraj. The said department conducted simultaneous raids at the office of M/s Montage Packaging being situated in Jaipur and office of M/s Miraj Products Private Limited at Nathdwara. During the raid at M/s Miraj Products it was allegedly found that a truck was being unloaded at M/s Miraj with invoices in the name of M/s Shri Balaji Enterprises, Ahmedabad. During the raid it was found that M/s Montage used to provide packaging items to M/s Miraj without valid invoices and invoices were issued by M/s Montake in the name of other firms. The department seized the goods which were being unloaded during the raid. The Department proceeded with the investigation which finally culminated into a complaint being lodged against the present petitioner and by order dated 03.08.2024 the cognizance has been taken against the petitioner by the trial court for offences punishable under section 132(1)(a)(f) (h) (j) (k) and (l) of the Central Goods & Services Tax Act, 2017 (for short 'the Act of 2017') and issued the non-bailable warrants to secure hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the accused petitioner further submitted that ED Officers cannot arrest an accused when the Special Court has taken cognizance on the complaint in money laundering cases. Drawing parallels, the present case is also governed by a Special Stature and the dictum passed by the Apex Court gets squarely applied to the facts and circumstances of the present case. 10. In support of his submissions, learned counsel has placed reliance upon following judgments delivered by the Hon'ble Apex Court:- i) Vikas Vs. State of Rajasthan; (2014) 3 SCC 321; ii) Satender Kumar Antil Vs. Central Bureau of Investigation & Anr.; (2022) 10 SCC 51; iii) Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra; (2012) 9 SCC 791; iv) Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office (Criminal Appeal No. 2608/2024) arising out of Special Leave to Appeal (Crl.) No(s). 121/2024 decided on 16.05.2024; and v) Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., reported in (2007) 12 SCC 1. 11. Mr. Ajatshatru Mina learned Special Public Prosecutor with Mr. Akshay Bhardwaj appearing for the Union of India opposed the submissions advanced by the counsel for the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the Department and his statements were also recorded. 16. Even in the complaint submitted by the respondent - Department, they themselves have not desired to seek arrest / the custody of the accused petitioner. 17. By filing the application under section 72(2) of the BNSS, the petitioner has made a limited prayer that the non- bailable warrants issued against him for securing his personal presence before the court below be converted into bailable warrants and his bail bonds be accepted in view of the fact that he is always ready to appear before the concerned court and he has also cooperated with the investigation in the matter by appearing before the Investigating Officer and got recorded his statements. It is a well settled law that when a cognizance is taken against an accused, at the very first instance for securing his personal appearance before the concerned court, summons or bailable warrants should be issued and the option of issuing non-bailable warrants should only be resorted if such an accused person does not appear before the concerned court even after service of summons or bailable warrants. 18. The Hon'ble Apex Court in the case of Tarsem Lal (supra) has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttend the Special Court on all dates fixed unless specifically exempted by the exercise of powers under Section 205CrPC. The second condition will be furnishing bonds to the Special Court in terms of Section 88 CrPC. 33. Now, we summarise our conclusions as under: 33.1. Once a complaint under Section 44(1)(b) PMLA is filed, it will be governed by Sections 200 to 205CrPC as none of the said provisions are inconsistent with any of the provisions of PMLA; 33.2. If the accused was not arrested by ED till filing of the complaint, while taking cognizance on a complaint under Section 44(1)(b), as a normal rule, the court should issue a summons to the accused and not a warrant. Even in a case where the accused is on bail, a summons must be issued; 33.3. After a summons is issued under Section 204CrPC on taking cognizance of the offence punishable under Section 4 PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88CrPC; 33.4. In a case where the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88CrPC, and the accused will have to apply for cancellation of the warrant; 33.9. After cognizance is taken of the offence punishable under Section 4 PMLA based on a complaint under Section 44(1)(b), ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint; and 33.10. If ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, ED will have to seek custody of the accused by applying to the Special Court. After hearing the accused, the Special Court must pass an order on the application by recording brief reasons. While hearing such an application, the court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44(1)(b), provided the requirements of Section 19 are fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of the non- bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non- bailable warrants." 21. The Hon'ble Apex Court in the case of Vikas (supra) has observed as under:- "17. In the legislative history for the purposes of bail, the terms "bailable" and "non-bailable" are mostly used to formally distinguish one of the two classes of cases viz. "bailable" offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non-bailable offences to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodised by analogy, disciplined by system and subordinated to the primordial necessity of order in social life. Another such instance of judicial discretion is the issue of non-bailable warrant in a complaint case under an application of Section 319 CrPC. The power under Section 319 CrPC being discretionary must be exercised judiciously with extreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editated design. This court finds that the economic offences stand on a different footing and they constituent a class apart and need to be visited with a different approach. The economic offences have deep rooted conspiracies and involving huge loss of public funds and thus, need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. The Apex Court in the case of Y.S. Jagan Mohan Reddy Vs. CBI reported in (2013) 7 SSC 439 has considered the nature of economic offences and the relevant portion of the judgment is quoted hereunder:- "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; गिरफ्तारी वारण्ट के निष्पादन की कार्यवाही स्थगित रहेगी । याचीगण द्वारा एक माह की अवधि में स्वयं को विचारण न्यायालय के समक्ष समर्पित नहीं किया जाता है तो यह माना जावेगा कि याचीगण न्यायालय के आदेश की उपेक् ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 726 and submitted that the non-bailable warrants can be issued in the matters where the accused is charged with the heinous crime. He has also submitted that the present case is covered under the category of heinous offence as it relates to evasion of huge amount of GST. 25. In the case of Tarsem Lal (Supra), the Hon'ble Apex Court has deprecated the practice that after filing of the complaint, the accused appears in compliance with the summons, he is taken into custody and forced to apply for bail that too in a peculiar fact that before filing of the complaint the accused is not arrested. In the present case also the accused petitioner was not arrested before filing the complaint, though he appeared before the Investigating Officer and got recorded his statements. 26. In the case of Sharif Ahmed (supra) referred by the learned Special Public Prosecutor also, the Hon'ble Apex Court has observed that "it is a well settled law that the non- bailable warrants cannot be issued in a routine manner and that the liberty of an accused cannot be curtailed unless necessitated by the larger interest of public and the State". It was also observed in para 46 in the aforesaid judgment that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2351; तथा बिजय केतन व नलिनी पृष्टि के मामले में पश्चात्वर्ती पारित आदेशों से यह स्पष्ट है कि जहां अभियुक्तगण को अनुसंधान अधिकारी द्वारा धारा 19 " अधिनियम 2002" के प्रावधानों का प्रयोग करते हुए गिरफ्तार नहीं करने के व ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 375;तु बंधपत्र निष्पादित करने का जो आदेश दिया है वह जमानत आदेश की श्रेणी में नहीं आता है, अतः ऐसी स्थिति में धारा 437, 439 व 439 (2) दण्ड प्रक्रिया संहिता के प्रावधान आकृष्ट नहीं होते हैं। 16. विद्वान एएसजी का यह निवेदन रहा है ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2375; सुदृढ़ साक्ष्य व सामग्री अभियुक्तगण के विरुद्ध रही तो उन्हें अनुसंधान के दौरान गिरफ्तार नहीं करने का निर्णय क्यों लिया गया इसका कोई स्पष्टीकरण या उचित आधार विद्वान एएसजी बताने में पूर्णतः असफल रहे है ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd further the fact that the accused petitioner is giving assurance to join the process of law and more particularly the fact that the accused petitioner before filing of the complaint appeared before the Investigating Officer and got recorded his statements. The Court feels that the court below while dismissing the application for conversion of non-bailable warrants into the bailable warranats has not appreciated the complete material and also the settled law. 35. The learned court below while dismissing the application for conversion of non-bailable warrants into the bailable warrants vide impugned order dated 31.01.2025 has observed that after the order of taking cognizance dated 03.08.2024 and issuance of non-bailable warrants for securing the presence of the accused petitioner, there is no substantial change in the matter which could persuade the Court to allow the application filed by the accused petitioner under section 72(2) of the BNSS. Section 72(2) of the BNSS clearly empowers the Court below to cancel every such warrant of arrest issued by the Court under the Sanhita. The petitioner has approached the Court below with the assurance that he will not evade the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be innocent unless he is proved guilty by the Competent Court. The Hon'ble Apex Court in the case of Ramesh v. State of Karnataka, reported in 2024(9) SCC 169 has made observations as regards the presumption of innocence. 39. Taking into consideration the overall facts and circumstances of the case and the discussion made above, the Court is of the opinion that it is a fit case to exercise the inherent jurisdiction. 40. Accordingly, the criminal misc. petition filed by the accused petitioner is allowed. The order dated 31.01.2025 passed by the Court of learned Addl. Chief Judicial Magistrate (Economic Offence), Jaipur Metro-II in Criminal Misc Case No. 06/2025 (Union of India Vs. M/s. Miraj Products Limited & Anr.) is quashed and set aside. The application dated 25.09.2024 filed by the accused petitioner under section 72(2) of the BNSS is allowed. The non-bailable warrants issued against the accused petitioner vide order dated 03.08.2024 are converted into the bailable warrants. The accused petitioner shall appear before the Court of Addl. Chief Judicial Magistrate (Economic Offence), Jaipur Metropolitan-II within a period of one month from today. 41. If the accused petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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