1. Pankaj Agarwal 2. Ravi Agarwal 3. Smt. Suman Agarwal 4. Pradeep Kumar Agarwal v. 1. Union of India 2. Senior Intelligence Officer, Directorate General of Goods & Service
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 4156 of 2022 ------ 1. Pankaj Agarwal 2. Ravi Agarwal 3. Smt. Suman Agarwal 4. Pradeep Kumar Agarwal @ Pradeep Agarwal 5. Pramod Agarwal .... .... …. Petitioners Versus 1. Union of India 2. Senior Intelligence Officer, Directorate General of Goods & Service Tax Intelligence, Regional Unit, Jamshedpur .... .... .... Opp. Parties
Legal Reasoning
Production warrant issued, was stayed by this Court in W.P. (Cr.) No.208 of 2019 vide order dated 12.07.2019. The stay inter alia on the ground that Special Court had not taken cognizance of the offence of the petitioner however, it was observed that the stay of order dated 02.07.2019 did not preclude the Court below from passing any order on the point of cognizance any subsequent order in accordance with law. 15. After the passing of order, cognizance was taken and issued summons to the accused named in the complaint including the petitioners herein. Petitioner No.1 was directed to be released from custody by Chhattisgarh High Court at Bilaspur vide its order dated 30.07.2019 in W.P.(Cr.) No.546 of 2019. 16. The legality of the order passed by the Trial Court, Raipur transferring the case along with the records to Jamshedpur, is under challenge in writ petition and during the pendency of it, the summons have been issued. 17. The main contention is that without receipt of the service report issued on 07.05.2022, bailable warrant and vide order dated 17.08.2022, non bailable warrant have been directed to be issued which is under challenge in the instant petition. It is submitted that it is settled position of law that warrant of arrest cannot be issued against the accused without receipt of service report of the summons earlier issued. Reliance is placed on Satender Kumar Antil Versus Central Bureau Of Investigation, (2022) 10 SCC 51. 18 . Learned counsel on behalf of CGST submits that this is not a case where the accused was being summoned for the first time. After search and seizure, summons were issued for appearing before investigating agency, umpteen number of times which was deliberately avoided and the petitioners did not co-operate during investigation. Despite direction of this Court passed in W.P. (Cr.) Nos.415, 416, 417, 418, 419 of 2018 to appear before the respondent, they avoided appearance before the Court to deliberately delay and avoid the investigation of the case. The petitioner No.1 was remanded to custody in the related case and after issuance of process, was released under the direction of Chhattisgarh High Court. Despite the summons being issued by the Jamshedpur Special Court, the petitioners did not appear and consequently, warrant of arrest was issued. This is a case of tax fraud committed to the tune of more than 100 Crore and the petitioners deliberately avoided the due 4 process of law. There is no quarrel with the legal position that in a warrant triable case, after cognizance, the Court has power to issue warrant of arrest under Section 204 of the Cr.P.C. The Court has power to issue summon even in a warrant case, but there is no mandate of law that in all circumstance, even in warrant cases, the Court is bound to issue summons. What has been stated in the case of Santender Kumar Antil (supra) by Hon’ble Supreme Court that the Court need to record special reason while issuing warrant in such cases. 19. In the present case, processes have been issued post-cognizance and it has been rightly contended on behalf of petitioners that once the summons had been issued, the Court could issue warrant only after receipt of the service report. Had such a warrant been issued in the pre-cognizance stage during the investigation things would have been different, as the petitioners had been served summons several times, but they deliberately avoided appearance before the investigating agency, despite the direction of this Court to appear before the said agency. 20. Under the aforesaid facts and circumstance of the case, the impugned order of issuing the warrant of arrest is set aside. The petitioners are however directed to appear before the learned Court below within two weeks, failing which the learned Court below shall be at liberty to take all coercive measure to ensure appearance of the accused before Court. Criminal miscellaneous petition is accordingly allowed. Anit (Gautam Kumar Choudhary, J.)
Arguments
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners : Mr. Indrajit SInha, Advocate Mr. N.K. Pasari, Advocate : Mr. Ratnaesh Kumar, Advocate For the O.P. No.2 ------ Order No.08 Dated : 19.07.2023 Order dated 07.05.2022 and 17.08.2022 in connection with Complaint C/1 Case No.1853 of 2019 passed by learned Special Judge, Economic Offences, Jamshedpur, is under challenge. By the impugned order, bailable and non-bailable warrants have been issued against the petitioners. 2. Petitioner Nos.1 & 3 are the Directors of M/s Mangal Commercial Private Limited and petitioner No.2 is proprietor of M/s Ganga Metals and Karta of M/s Yamuna Trading Company. Petitioner Nos.4 & 5 are the Directors of M/s Salasar Tradeco Private Limited. These companies/firms are situated at Bilaspur, Chhattisgarh. Petitioners are engaged in the trading of iron and steel products in the State of Chhattisgarh and the business is registered under the provisions of Central Goods and Service Tax Act, 2017 in the State of Chhattisgarh under Section 22 read with Section 25 of the said Act. The petitioners are not registered in the State of Jharkhand or in any other State. PROSECUTION CASE 3. Petitioner No.1 with the help of petitioner Nos.2–5, had created a web of fake entities with the sole intent to defraud the Government exchequer by availing and utilizing the fake ITC to the tune of Rs.101,91,14,980/- (Rs. One Hundred One Crore Ninety One Lakhs Fourteen Thousand Nine Hundred and Eighty only) resulting in the loss of Government revenue for this amount. 4. The detailed role of each petitioner has been discussed in Complaint Case No.1853 of 2019 corresponding to GRN No.JH JR 03-010203-2019. It is submitted that the petitioners were fully cognizant about the pendency of the case before the Special Court, Jamshedpur and were deliberately avoiding the summoning orders in which specific direction was given to the petitioner vide order dated 21.02.2019 to 2 appear before the Enquiry Officer. Despite this, they are feigning ignorance about the issue of process against them. ARGUMENT ON BEHALF OF PETITIONER 5. It is submitted that the petitioners have been furnishing returns under the provisions of Central Goods and Service Tax Act, 2017 in the State of Chhattisgarh and had been discharging tax liabilities in accordance with law. On 02.11.2018, a search and seizure operation was carried by the officers of Directorate of General of Goods and Service Tax Intelligence, Jamshedpur, Jharkhand in exercise of power conferred under Section 67 of the Central Goods and Service Tax Act, 2017. After the conclusion of search and seizure, the petitioners were served with summons dated 05.11.2018 by the respondents requiring the petitioners to appear in person on 09.11.2018 with the documents enumerated in the said summon. 6. The petitioners, in response to the said summons, vide order dated 09.11.2018, stated that after the seizure of the documents by the officers of the Directorate General of Central Goods and Service Tax Intelligence, Jamshedpur, there was no further documents left with them. 7. On 09.11.2018, another summon was issued for appearance on 19.11.2018 which was replied vide letter dated 19.11.2018. Similar letter was issued on 22.11.2018 which was replied vide letter dated 10.12.2018. 8. The petitioners being aggrieved by the said summons, moved this Court in W.P. (Cr.) Nos.415, 416, 417, 418, 419 of 2018. This Court vide order dated 21.02.2019, was pleased to dispose the said writ petitions with a direction that the petitioners shall appear before Senior Intelligence Officer who has issued the summons to them as and when called and they shall not be arrested on the first day when they appear before him. It needs no reiteration that the Senior Intelligence Officer shall act fairly and his actions must demonstrate fairness in action. 9. Respondent No.2, on 11.03.2019, issued yet another summon in exercise of power under Section 70 of Central Goods and Service Tax Act, 2017 directing the petitioners to appear on 18.03.2019 to give evidence or make statement and produce documents pertaining to the period November, 2018 to February, 2019. The petitioners, in reply, challenged the jurisdiction of respondent No.2 for exercise of power under Section 70 of Central Goods and Service Tax Act, 2017. 10. In sum and substance, the unending of process of summons and reply continued, but the petitioners did not appear in compliance to the summoning order. 11. On 07.05.2019, the house of petitioner No.1 was raided and he was arrested from there and produced before Chief Judicial Magistrate, Raipur and was remanded the judicial custody by Chief Judicial Magistrate, Raipur and he was in custody from 07.05.2019 to 24.06.2019. The regular bail petition was rejected by Chhattisgarh High Court. 3 12. On 01.07.2009, the respondent preferred a complaint case being Complaint Case No.1853 of 2019 before Special Judge, Economic Offence, Jamshedpur and the matter was fixed for hearing on the point of cognizance on 12.07.2019. 13. The learned Trial Court allowed the petition of respondent for remand of petitioner No.l and on 12.07.2019, issued production warrant against petitioner No.1. The application of respondent No.2 seeking transfer of case proceeding from Raipur (Chhattisgarh) to Jamshedpur (Jharkhand), was allowed. 14.