TMI Blog2019 (11) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... ensive and self-contained Acts, these coercive actions could have been done by the authorities under the CGST Act or the AGST Act. The AGST Act empowers the proper officer not below the rank of Joint Commissioner to authorise any officer of State Tax to inspect, search, seize, and arrest persons as provided under Chapter XIV of the State Act. This Court is of the view that though the Customs Act or the Central Goods and Services Act, 2017 or the Assam Goods and Services Act, 2017 are self-contained Acts under which forgery or producing false documents are also offences, it cannot be said that the provisions of Indian Penal Code cannot be applicable as there is nothing under the Customs Act or the AGST Act that the provisions of the IPC cannot be invoked. There will be a bar only in respect of offences that are specifically mentioned in the special acts. Applicability of procedural law as contained in the Code of Criminal Procedure - HELD THAT:- Section 4(2) CrPC provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the CrPC, but shall be subject to any enactment for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities as they cannot continue the investigation as far as the allegation of smuggling against the petitioners is concerned. Similarly, for the same reasons, the police authorities would have no jurisdiction and power to investigate as regards violation of the provisions of the taxation laws as the same are governed by the provisions of the CGST Act, 2017 or AGST Act, 2017 under which there are separate investigative agencies. In the present case, unless the investigation already undertaken throws up new leads to other offences under the Penal Code as mentioned above, the Police ought not conduct a roving enquiry, otherwise, it would be susceptible to the charge of misuse of the criminal investigating power. As provided under Sections 154 and 155 of the Code of Criminal Procedure Code, the criminal justice system can be set into motion by the police on getting information as to cognisable/non cognisable offence and proceed accordingly, and not otherwise. This Court is accordingly, of the view that even if the different statutes permit independent and separate investigations, if such investigations involve coercive actions similar to as contemplated under the CrPC, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goods and Services Tax Act, 2017 and according to them, they had been paying the necessary tax as required under the rules. 6. According to the petitioners, since the petitioner firms had paid the necessary tax under the Assam Goods and Service Tax Act, 2017, (AGST Act, 2017) seizure of the trucks and areca-nuts carried therein by the Assam Police, who have nothing to do with the taxation regime, is plainly illegal, and accordingly, these petitions have been filed seeking quashing of the illegal seizures and release of the seized goods. 7. The response of the State Respondents is that on 21.08.2019, the police officers of the Jalukbari Police Station received certain credible information about movement of trucks carrying areca nuts from Cachar towards West Bengal without proper documentations. Based on the said information, the police detained 25 trucks. Thereafter, the police authorities forwarded the tax documents to the State Tax Department for verification. On the next day on 22.8.2019, a police team proceeded to Cachar and Karimganj districts to enquire about the details of the said trucks. It is alleged that on enquiry, the real identity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achar. (GSTIN No. .) Vehicle No. (Silchar to Varanasi, UP) The police team arrived at the address of M/s Sarada .., Dholai Bazar, and found Mr. is the owner of M/s Sarada and on being enquired about the detained trucks carrying areca nuts he expresses his ignorance of the matter. However he admitted that the said GSTIN No. is registered in his name. Sri . in the state alleged that his nephew has prepared GST paper in his name under M/s Sarada but for what purpose used those Tax papers was not known to him. He has also said that he is aware of the fact that . along with .. and ..runs betel nut business and they do not have any godown at Bhaga Bazar and Dholai Bazar area etc. 2. .. 6. Karimganj 1. Ali Trading .. (GSCTIN .) (Vehicle No .) After thorough search and local enquiry the consignor address could not be found. The GP President of that area i.e., Krishnagar .. was also discussed with and he also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and to detain and seize the trucks carrying areca nuts smuggled from a foreign country by the petitioners by manipulating and forging documents, by invoking Sec. 120 B, 420, 468 and 471 IPC. 12. Learned senior counsel for the State submits that as provided under section 4(2) of CrPC, Assam Police has the power and authority to investigate even if the offences are also relatable to a different statute. As a corollary, the police has power to seize goods even if it relates to another statute, viz., Customs Act. Learned senior counsel submits that it has been provided under Sec. 102(1) CrPC that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may have been found under circumstances which creates suspicion of the commission of any offence . Therefore, when the statute itself empowers the police officer to seize any property on the suspicion of commission of any offence , the police had authority to seize the trucks carrying areca nuts on the basis of forged documents. According to the learned senior counsel, the words any offence is of wide connotation including any offence under the Penal Code or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a chaotic situation where the police would continue to investigate an offence which is supposed to be investigated by another agency, thus leading to multiplicity of investigations by different agencies on the same crime. He submits that if according to the Assam Police, as informed by the Department of Revenue Intelligence, the areca nuts transported by the trucks were smuggled from Myanmar without following the legal channel in violation of the provisions of the Customs Act, it is the customs authorities, and not the Assam Police which can investigate and seize the goods and the trucks. 16. Learned senior counsel for the petitioners submits that Section 4(2) of the CrPC provides that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions of CrPC, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiry, trying or otherwise dealing with such offences. It has been submitted that if it is the case of the Assam Police that the petitioners have committed an offence under the Customs Act, since there are specific p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises is given under Section 105. Section 106 empowers stopping and search of conveyance. Under Section 107 power is given to examine persons. Under Section 110 goods, documents which are liable to be confiscated can be seized. Other ancillary powers for investigation are also conferred to the Customs authorities. 19. It has been further submitted on behalf of the petitioners that as the police initially suspected the petitioners of fudging the documents relating to tax, such offences are covered by the Central Goods and Services Act, 2017 and the cognate State Act, the Assam Goods and Services Act, 2017. It has been submitted that CGST Act, 2017 is also a comprehensive and self-contained Act, which empowers the Commissioner to authorise any officer of Central Tax to arrest the person who is believed to have committed any offence as specified under Sec. 132 of the Act. The power of inspection, search, seizure and arrest of persons under the aforesaid Act is to be found under Chapter XIV thereof. Sec. 67 empowers the proper officer, not below the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en done, or where the impugned act is palpably illegal, a writ would lie, even if alternative remedies are available, as follows: 4. For the reasons contained in the said decisions, we hold that the impugned provisions are valid. It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against a highhanded or palpable illegal order which may be passed by the assessing authority. It has been submitted that in the present case, the Assam police have acted with gross illegality by seizing the trucks, though there is no irregularity in payment of taxes or any other irregularity so as to be intervened by the police and if there be any irregularity or illegally that would pertain to other statutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der other special laws are brought to the notice of the authorities, the petitioners can be also proceeded under the special laws, but this will not prevent or divest the police of the power to investigate offences distinctly covered by IPC. Thus, the police has ample jurisdiction and power to investigate the case against the petitioners in the present case. On the other hand, the case of the petitioners is that if the offence alleged are covered by the special laws and can be investigated by the competent officers under the special laws, to that extent, the police cannot have any jurisdiction to investigate on the same offence under the IPC or the CrPC, as otherwise, the constitutional scheme will breakdown. 24. From the rival contentions of the parties in the context of the facts narrated above, the real issue seems to be to whether the state police has power to investigate and effect seizure of goods for alleged forgery of documents in connection with certain transactions which can be relatable either to taxation statutes or Customs Act. The power, scope and jurisdiction of the police in investigating offences which may be cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 5 of the Indian Penal Code: Sec. 5. Certain laws not to be affected by this Act .- Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law. Section 26 of the General Clauses Act: Sec. 26. Provision as to offences punishable under two or more enactments .- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. 27. The Code of Criminal Procedure, 1973 is the basic law providing the procedures to be followed in dealing with offences under the Indian Panel Code as mentioned under Sec. 4(1) CrPC. Sub-section (2) to section 4 CrPC further pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r full force subject to any specific or contrary provisions made by the law under which the offence is investigated or tried. 13. The Constitution Bench which decided A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500) has cautioned that the Code is the parent statute which provides for investigations, inquiry into, and trial of cases and unless there is a specific provision in another statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced. Taking a cue from the said ratio this Court held recently in Gangula Ashok v. State of A.P. (2000) 2 SCC 504) while interpreting Section 4(2) of the Code as follows: (SCC pp. 509-10, para 13) A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions (sic provision) would apply in place of the particular provision of the Code. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Indian Penal Code, and shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both. (7) Whoever knowingly produces incorrect accounts, registers or documents, or knowingly furnishes incorrect information or suppresses material information shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both. 16. The offence envisaged in sub-section (6) is specifically created as supplemental to any other penalty provided by any law for the time being in force. This means, offences falling under the Indian Penal Code and committed by a person while committing the offence contemplated in sub-section (6) cannot get displaced for the sole reason that the accused has committed the offence falling under sub-section (6) of Section 88. 17. Section 7(1) of the Sales Tax Act empowers the State Government to constitute a Bureau of Investigation for discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because of the provisions contained in the special act, the general provisions of the Code will not be affected. Section 5 saves the operation of a special law and does not affect the punishability under the Indian Penal Code. Under the aforesaid condition, a situation may arise when both the Code and the special law can be invoked and a question may arise, as in the present case, how offences covered under both the Penal Code and the special law are to be dealt with. It is to deal with such a situation that legislature has incorporated Section 26 of the General Clauses Act. Incidentally, Sec. 26 of the General Clauses Act also incorporates the principle embedded in Article 20(2) of the Constitution of India, with which we are not concerned directly at this stage as the present situation is confined to the stage of investigation and not punishment. 33. Section 26 of the General Clauses Act provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 26 of the General clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177 of the Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct. Section 26 of the General clauses Act states: 26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (1969) 3 SCR 65 : AIR 1969 SC 701 : (1969) 72 ITR 787 10 Criminal Appeal No. 1195-1207 of 2018, Decided on September 20, 2018 35. In the aforesaid case of Ramchandra Rabidas (supra) the Hon ble Supreme Court further held that, 9. The legislative intent of the MV Act, and in particular Chapter XIII of the MV Act, was not to override or supersede the provisions of the IPC in so far as convictions of offenders in motor vehicle accidents are concerned. Offences under Chapter XIII of the MV Act, cannot abrogate the applicability of the provisions under Sections 297, 304, 304A, 337 and 338 of the IPC. The offences do not overlap, and therefore the maxim of generalia specialibus nonderogant is inapplicable, and could not have been invoked. The offences prescribed under the IPC are independent of the offences prescribed under the M.V. Act. It cannot be said that prosecution of road traffic/motor vehicle offenders under the IPC would offend Section 5 of the IPC, as held by the High Court, in so far as punishment for offences, under the M.V. Act is concerned. 10 15. In our consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. 38. On the other hand, as mentioned above, the case of the petitioners is that the police have been subsequently informed that the seized areca-nuts have been smuggled in violation of the Customs Act. If that is so, the petitioners have committed offence under the Customs Act and since this Act is a self-contained statute and also covers the offence of forgery, which is the main allegation of the police, others being ancillary to it, the police case is illegal and without jurisdiction as it is the Customs authorities who have the jurisdiction to investigate. It has been submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the CrPC further provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. What Sections 4 and 5 provide is that the Code shall continue to be applicable to special laws also, subject to the procedure prescribed under the special laws and if any special procedure is laid down under the special laws, such procedure would not be affected by the provisions of CrPC. Thus, the provisions of CrPC would continue to be applicable to proceedings under Customs Act or CGST Act/AGST Act, subject to the special procedure provided therein. However, this has no relation to the applicability of the provisions of IPC for offences committed under the said Code in the light of the decisions of the Hon ble Supreme Court referred to above. 43. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal activity of smuggling areca nuts. It can, therefore, be said that the principal criminal activity engaged by the petitioners is smuggling of areca nuts from a foreign country, to accomplish which they also committed certain other offences like forgery of documents. Forgery of documents is thus an ancillary act to the principal act of smuggling areca nuts. In such an event, the customs authorities would be primarily responsible for investigation and prosecution of the petitioners. 45. Though the police have seized the trucks and goods carried along with the documents, and since the charges against the petitioners as far as the police are concerned, are essentially for forgery and use of force documents, their investigative role would be primarily confined to forgery of documents and cannot investigate as to whether these areca nuts were smuggled or not, which would be within the domain of the custom authorities under Customs Act, 1962. Under such facts and circumstances as revealed, it would be appropriate for the police to hand over the investigation to the customs authorities as they cannot continue the investigation as far as the allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under the Customs Act is concerned, the police cannot investigate, but only the authorised officers as mentioned in the Act. It is a different matter if the competent officer under the Customs Act seeks the assistance of the police. 48. In the present case, unless the investigation already undertaken throws up new leads to other offences under the Penal Code as mentioned above, the Police ought not conduct a roving enquiry, otherwise, it would be susceptible to the charge of misuse of the criminal investigating power. As provided under Sections 154 and 155 of the Code of Criminal Procedure Code, the criminal justice system can be set into motion by the police on getting information as to cognisable/non cognisable offence and proceed accordingly, and not otherwise. Furnishing/availability of information of cognisable/non cognisable offence is sine qua non for initiation of investigation by the police and not otherwise. The police cannot initiate investigation on mere suspicion or in anticipation unless information is given as provided under Sections 154 and 158 of CrPC. 49. It has to be kept in mind that whenever there is informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers expeditiously to justice. If it is the common offender in respect of multiple offences under a common and or continuous criminal transactions committed by the offender, whether under the same statute or different statutes, more is the requirement for a co-ordinated actions by the different investigative agencies. Otherwise, there may be infraction of the statutory and constitutional rights of the offender, by delaying the investigation, prosecution and trial. If the different agencies take their own time and are allowed to initiate investigations at different time period, though the necessary information for initiating investigation may be available to all the agencies at the same time, the investigations would be prolonged and accused may be subjected to prolonged incarceration, if already under custody. Thus, there could be scope for giving rise to allegations of misuse of coercive powers of the investigative agencies of the State to detain, arrest and seize articles multiple times and prolong the detention. In order to obviate this possibility, it would be desirable that as and when any investigating authority discovers materials or evidences of commission of offences unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, of the view that even if the different statutes permit independent and separate investigations, if such investigations involve coercive actions similar to as contemplated under the CrPC, the investigations ought to be undertaken simultaneously, otherwise, there would be a distinct possibility of infraction of the precious rights of an accused as guaranteed under Article 14, 21 and 22. The accused will be subjected to arrest and detention multiple times for the illegal activities committed by him in a criminal transaction, even if the illegal activities may fall under different statutes. A valuable right has been conferred to an accused under Proviso to Section 167(2) CrPC, whereunder, if the investigation is not completed within sixty/ninety days as the case may be, the accused shall be released on bail if he is prepared to and does furnish bail. This period may be extended under certain special laws. Yet, these are certain benevolent provisions engrafted to safeguard the liberty of citizens, which may be rendered meaningless if multiple agencies detain and arrest the same person for the same criminal transaction involving multiple offences on different dates. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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