TMI Blog2019 (12) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... is at liberty to approach the authority for compounding of the offence under Section 138 of CGST Act - petition dismissed. - CRM 10075 of 2019 - - - Dated:- 24-12-2019 - The Hon ble Justice Shivakant Prasad For the Petitioner : Mr. Sekhar Basu Mr. Rajdeep Mazumder Mr. Mayukh Mukherjee For the U.O.I. : Mr. K.K. Maiti ORDER This is an application for bail under Section 439 of the Code of Criminal Procedure, 1973 on behalf of the petitioner who has prayed for his enlargement on bail on any conditions. The petitioner has been arraigned as an accused along with other accused persons in connection with the Case No. C 3179 of 2019 arising out of V(12) 75/AE/CGST/GR-VII/KOL-NORTH/2019 under Sections 69 read with Section 132(1) of the Central Goods and Services Tax Act, 2017, now pending before the learned Chief Judicial Magistrate, Alipore. The petitioner case is that he is a Chartered Accountant and his office is situated at Room 2H, 56 Metcalfe Street, Kolkata-700012 and is no way connected with the instant case and has been falsely arraigned as an accused on the allegation that the petitioner in connivance with the other ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at offences under Section 132 (1) (a), (b) and (c) of the CGST Act, 2017 provides for a maximum punishment for 5 years and is triable by the learned Magistrate of First Class. The petitioner is in custody since 06.08.2019 and no further detention is warranted. He is not a responsible person either as a proprietor or a person responsible for the running of any proprietary concern and no notice was issued under Section 73 of the CGST Act, 2017 and has been falsely entangled in this case. Mr. Basu further submitted that the instant prosecution has been lodged without the sanction of the Commissioner contrary to mandate provided under Section 134 of CGST Act. The Commissioner has only authorized the Investigating Officer to arrest under Section 69 read with Section 132(1) of the CGST Act but has not granted Sanction under Section 134 of the CGST Act and as such the instant prosecution is not maintainable and precisely raised the following points germane to the application for bail:- 1) Whether the learned Trial Court has committed an error by not granting bail on 61st day in terms of Section 167 of the Criminal Procedure Code? 2) Whether the direction made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in case of U.O.I. through C.B.I. vs Nirala Yadav @ Raja Ram reported in AIR 2014 SC 3036 has been placed to submit that the accused acquires statutory right of his release on bail in default of submission of charge sheet by the Investigating Officer on 60 days of judicial custody. It has been precisely held that if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused, then that right would not stand frustrated or extinguished and, therefore, if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 Cr.P.C., makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail. In case of Rajnikant Jivanlal Patel Anr. vs Intelligence Officer Narcotic Control Bureau New Delhi reported in (1989)3 SCC 532 it has been observed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 180 days for completing the investigation or the extended period prescribed by Section 20(4)(bb) of TADA as held in Hitendra Vishnu Thakur is a right of the accused which is enforceable only up to the filing of the Challan and does not survive for enforcement on the Challan being filed in the Court against him. In this context it is submitted that admittedly the petitioner was arrested on 06.06.2019 and on the same date the petitioner was produced before the learned Chief Judicial Magistrate but after considering the gravity of the case, remanded the petitioner to Judicial Custody. On 61st day from the date of arrest a bail application was moved on 06.08.2019 and the very date the prosecution had filed the charge sheet. So the learned CJM by its order dated 06.08.2019 rejected prayer for bail holding that the default bail does not arise and an application under section 439 of the Code was also rejected by the learned Session Judge by the impugned order. In respect of point no 2, Mr. Basu relied in case of Union Of India vs Arviva Industries (I) Ltd. reported in (2014) 3 SCC 159 to contend that the petitioner should not be deprived of his liberty and be released ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of Court to be instituted before High Court having territorial jurisdiction. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. Thus it is contended that the petitioner was neither served with a notice under section 41A of the Code nor did the learned Magistrate record his satisfaction with regard to the arrest while remanding the petitioner to custody which is evident from the order dated 06.06.2019 and further placed reliance in case of Rini Johar Anr. (supra) to submit that the Hon ble Apex Court has taken a stern view with regard to non-compliance to the directions in case of Arnish Kumar (supra). It is pointed out that on the scrutiny of the complaint, it would be apparent that the petitioner on the 29th of May, 2019, had joined the investigation, and cooperated with the investigating agency, which is why after his interrogation, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said contention, Mr. Maity referred to a decision of the Hon ble Supreme Court in the case of P.V. Ramana Reddy Vs- Union of India reported in 2019 (26) GSTL J(175) SC wherein it has been categorically held that though Section 69(1) of CGST Act, 2017 which confers power upon the Commissioner to order arrest of a person for cognizable and non-bailable offence does not contain safeguard incorporated in Section 41 and 41A of the Code of Criminal Procedure, 1973 in view of provision of Section 70(1) of the said Act same must be kept in mind before arresting a person. However, Section 41A(3) of the Code of Criminal Procedure does not provide an absolute irrevocable guarantee against arrest. The High Court held that the enquiry by the GST Commissioner under Central Goods and Services Tax Act, 2017 is a judicial proceedings and not a criminal proceedings. It was held that if the reasons to believe that a person committed any offence under clauses (a), (b), (c) or (d) of Section 132(1) of CGST Act, 2017 warranting his arrest thought found in the file but not disclosed in the order authorising the arrest, the same is enough and is not required to be recorded in order of aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is operating several trading units and the petitioner is also operating two companies under the name and style M/S Alvina Suppliers Pvt. Ltd., and M/S Vaidika Impex Pvt. Ltd. in connivance with Shri Bijay Kumar Agarwal and Shri Ramesh Giri. In the voluntary statement Shri Nagendra Dubey informed that he has provided assistance of various business persons under the GST Laws and provided their registration details to the petitioner and the petitioner used to pay the persons for the same. He also stated that the petitioner was engaged in issuing bills or invoices in the name of the business concerns or persons and payment against invoices are being taken care of by the petitioner. This work related to movement of goods is supervised by petitioner and one Sanjay Pandit and as per Nagendra Dubey s knowledge there was no movement of goods against the invoice issued and the petitioner filed the GST Returns of the Firms. Pursuant to his statement, the business premises of the petitioner was searched and on search various incriminating documents were recovered including PAN Cards of numerous people, Bank Cheque Books of different Banks, Banks Statements, Digital Signature Keys, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of indefeasible right for being released on bail in default in filing challan/final report/charge sheet within prescribed time. In the cited decision, the accused was remanded to judicial custody by order of the Magistrate on 17.6.2000 in a case instituted against him under Sections 406 and 420 of the Indian Penal Code read with MPID Act. So the period of 60 days for filing of charge sheet was completed on 16.8.2000. On the next day on 17.8.2000, an application for being released on bail was filed alleging that non filing of challan within 60 days entitles the accused to be released on bail under proviso to Section 167(2) of the Code of Criminal Procedure but the Magistrate had rejected the bail concluding that the said provision was not applicable to cases pertaining to MPID Act. In the cited case the charge-sheet was filed on 30th August, 2000. In my humble opinion, ratio of decision is not well nigh within the facts and circumstances of the instant case as the accused petitioner was remanded in custody after his arrest on 6.6.2019 and bail application was filed on 6.8.20019, i.e., on the same day of submission of Final report, ergo, indefeasible right under pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ikas Goel Vs- Deputy Director, Directorate General of GST Intelligence, Gurugram, reported in 2019 (28) GSTL (590) wherein it has been held that issuance of bogus invoices/bills without actual sale/transportation of goods and deriving wrong benefit of more than 80/- crores on account of such paper transaction being economic offence of huge magnitude and serious in nature, the petitioner, who was the main accused was not entitled to regular bail. In the present case loss caused to Government Exchequer amounts to ₹ 141,76,46,639/-. Therefore in such a huge economic offence he should not be enlarged on bail. Mr. Basu referred to a decision in case of Sanjay Kumar Bhuwalka vs Union of India reported in 2018(362) ELT 568(Cal) and submitted that this Hon ble Court had enlarged the petitioners on bail on condition on the principle of law that grant of bail is a rule and rejection is an exception and in respectful consideration of the principles laid down in the cited decision and further in view of latest decision of the Hon ble Apex Court that the courts cannot extend investigation period under Section 167 of the Code of Criminal Procedure. Accordingly, this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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