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TMI Blog2021 (10) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 by which he rejected the application filed by the petitioner under Section 167 Cr.P.C. for grant of default bail. 2. Learned counsel for the petitioners would submit that the petitioners have been arrested for alleged violation of Central Goods and Service Tax Act, 2017 (for short 'the Act of 2017') for offence committed under Sections 132(1)(b) and (c) of the Act of 2017 and produced before the Judicial Magistrate, from where they were sent to judicial custody. The details of date of arrest as well as date of judicial custody are given below:- Name of the Petitioner Date of arrest Date of Judicial Custody Day of filing of complaint on 25.03.2021 Paritosh Kumar Singh 25.01.2021 25.01.2021 59th Ravi Kumar Tiwari 25.01.2021 25.01.2021 59th Munna Tiwari 25.01.2021 28.01.2021 59th Kaushal Tiwari 25.01.2021 28.01.2021 59th 3. Learned counsel for the petitioners would submit that the petitioners have been arrested and produced before the Magistrate concerned on 25.01.2021 from where they have been remanded in judicial custody and as per Section 132 (1)(b) and (c) of the Act of 2017 maximum punishment is 5 years with fine. As per Section 167( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which accused can be arrested without warrant. He would further refer to the definition of 'complaint' as defined under Section 2(d) 'inquiry' as defined under Section 2(g) and 'investigation' as defined under Section 2(h) of the Cr.P.C. which reads as under:- "2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 2(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; 2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf." 8. learned counsel for the petitioners would submit that as per the provisions of Section 167(2) of the Cr.P.C. if charge-sheet is not filed within 60 days, the accused is entitled to be released on bail. In case of Section 132 (1)(b) and (c) of the Act of 2017 alleged to have been committed by the petitioners, maximum punishment is 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of taxable value to the tune of Rs. 1400 Crores. The petitioners, by way of, creation of several fictitious and physically nonexistent trading company firms in Chhattisgarh, Jharkhand, Madhya Pradesh, West Bengal, Maharashtra and registered them in GSTN portal online, using identity credential of several persons using forged PAN and had issued fake bills to transmit fake ITC to several other traders. The petitioners, for the purpose of such fictitious trading had fraudulently shown in their GST returns to have procured several kinds of goods from within and across the State. The Directorate General of Goods and Service Tax Intelligence, Raipur Zonal Unit, Raipur had cracked this racket on the basis of intelligence against a taxpayer named M/s Manoj Enterprises who during the month of July-2020 and August-2020 claimed Rs. 44.72 crores from ITC by way of trading activities even when their statutory returns did not indicate the purchase of any such goods for trade. On the basis of the information gathered, petitioners No. 1 and 2 were arrested on 25.01.2021 from Raipur and produced before the learned Chief Judicial Magistrate, Raipur on the same day and petitioners No. 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for respondent No. 2 to substantiate his submission would rely upon the judgment passed by Hon'ble Supreme Court in case of Directorate of Enforcement vs Deepak Mahajan and Another AIR 1994 SC 1775 Badaku Joti Svant vs State of Mysore AIR 1966 SC 1746 Mohd. Yousuf vs Afaq Jahan (Smt.) and Others (2006) 1 SCC 627 and Mahendra Prasad Sharma and Others vs. The State of Bihar 1977 CrLJ 1025. He would further relied upon the judgment passed by the High Court of Talangana in P.V. Ramana Reddy vs Union of India 2019 SCC Online TS 2516, order dated 27.05.2019 passed by Hon'ble Supreme Court in case of P.V. Ramana Reddy vs Union of India and Others in Special Leave to Appeal (Cr.) 4430/2019 and order dated 29.05.2019 passed by the Hon'ble Supreme Court in case of Union of India vs. Sapna Jain and Others in Special Leave to Appeal (Cri.) 4322-4324/2019. 15. He would further submit that the complaint has been filed on 25.03.2021 and since petitioners have been arrested on 25.01.2021, therefore on 59th day complaint has been filed. Since, the complaint has been filed within 60 days, therefore, petitioners are not entitled to get benefit of Section 167(2) Cr.P.C. Therefore, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C., default bail is right of an accused. The object of the provisions of Section 167(2) of Cr.P.C. is that State authority should not take any malafide belated action against accused persons. Right of the accused is an integral part of personal liberty, as per the provisions and is an indefeasible link to safeguard under Article 21 of the Constitution of India. Hon'ble Supreme court is very recent judgment in case of M. Ravindran vs Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485 has held in para 20, 24, 24.2 and 25.2 as under :- "24.In the present case, admittedly the Appellant-accused had exercised his option to obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e., immediately after the court opened, on 01.02.2019. It is not in dispute that the Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 p.m. on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. (2) Where a person is arrested under sub-section (1) for an offence specified under subsection (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,-- (a) where a person is arrested under subsection (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. Section 70 - Power to summon persons to give evidence and produce documents (1) The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he commission of any of the offences mentioned in clauses (a) to (k) of this section, shall be punishable-- (i) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine; (ii) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds two hundred lakh rupees but does not exceed five hundred lakh rupees, with imprisonment for a term which may extend to three years and with fine; (iii) in the case of any other offence where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds one hundred lakh rupees but does not exceed two hundred lakh rupees, with imprisonment for a term which may extend to one year and with fine; (iv) in cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause (j), he shall be punishable with imprisonment for a term which may extend to six months or with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "115. It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61(ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code upon which the Magistrate may take cognizance of any offence disclosed in the report under Section 190(1)(b) of the Code whereas the empowered or authorised officer of the special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence under Section 190(1)(a) of the Code. After taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure prescribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, certain powers enjoyed by the police officer during the investigation are vested on the specified officer of customs as indicated in the table given above. However, in the FERA the word 'investigation' is used in various provisions, namely Sections 34, 36, 37, 38 and 40 reading, "... any investigation or proceeding under this Act....... though limited in its scope. 119. From the above discussion it cannot be said that either the Officer of Enforcement or the Customs Officer is not empowered with the power of investigation though not with the power of filing a final report as in the case of a police officer." 23. The Hon'ble Supreme Court in Badaku Joti Savant (supra) has held that Central Excise Officer can only file complaint as per Section 190 of the Cr.P.C. and cannot submit final report. The Hon'ble Surpeme Court in para 9 has held as under : "9.Strong reliance has however been placed on behalf of the appellant on S. 21 of the Act, the material part of which runs thus: "21. (1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate to take cognizance of an offence, for "ample, under s. 9 of the Act. Thus though under sub-section (2) of s. 21 of the Central Excise Officer under the Act has the powers of an officer-incharge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub-s. (1) of s. 21. Section 21 is in terms different fro s. 78(3) of the Bihar and Orissa Excise Act,1915 which came to be considered in Raja Ram Jaiswal's case(1) and which provided in terms that "for the purposes of section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under section 77, sub-section (2) , is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer-in-charge of such station". It cannot therefore be said that the provision in s. 21 is on par with the provision in s. 78(3) of the Bihar and Orissa Excise Act. All that s. 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officerin-charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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