Department cannot arrest without issuing a notice for recovery of GST
The Hon’ble Allahabad High Court in Ravinder Nath Sharma v. Union of India [Criminal Misc. Bail Application No. 26376 of 2023 dated July 10, 2023] granted the bail to the assessee on some conditions and held that the arrest was made without justifiable reasons and no GST recovery notice was issued.
Ravinder Nath Sharma (“the Applicant”) has been arrested without assigning any reason and no notice for recovery of GST had been issued against him, making the arrest as illegal and till the date, no penalty or taxes has been ascertained as per the Central Goods and Services Tax Act, 2017 (“the CGST Act”). The Applicant was in jail since February 09, 2023.
The Revenue Department (“the Respondent”) submitted that the allegations imposed are very serious in nature and if the Applicant is released on bail, the Applicant will again indulge in similar activities and will misuse the liberty of bail.
The Applicant contended that the alleged offences were compoundable in nature.
The Applicant relied upon the Judgement in Satender Kumar Antil v. Central Bureau of Investigation & Another, (2021) 10 SCC 773 wherein the Hon’ble Supreme Court held that till date penalty or taxes has not been ascertained as per the CGST Act the offences are compoundable in nature and triable by Magistrate.
The Respondent contended that the grant of bail could potentially misuse the liberty granted by bail.
The Applicant contended that there is no previous criminal history so he shall not misuse the liberty of bail.
The Applicant filed bail application before the Hon’ble Meerut Session court which was rejected vide an order dated May 26, 2023 (“the Order”).
Aggrieved by the order, the Applicant filed bail application before the Hon’ble Allahabad High Court praying for granting the bail application.
Whether the Revenue Department has right to arrest the Applicant without assigning any reason or without issuing of notice for Recovery of GST?
The Hon’ble Allahabad High Court in Criminal Misc. Bail Application No. 26376 of 2023 held as under:
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
Heard Sri Anup Trivedi, learned senior counsel assisted by Shri Vineet Bhatia and Shri Abhinav Gaur, learned counsels for the applicant and Sri Dhananjay Awasthi, learned counsel for Union of India and perused the material on record.
The present bail application has been filed on behalf of applicant Ravinder Nath Sharma@ Ravubder Sharma under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 1 of 2023 for offense punishable under Sections 132(1)(I) of the Central Goods and Services Tax Act, 2017, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Meerut vide order dated 26.05.2023.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. It is further submitted that the applicant has been arrested without assigning any reason to believe nor any satisfaction to justified his arrest as provided in the Code. It is further submitted that offences as alleged are punishable up-to 5 years imprisonment. It is further submitted that no notice for recovery of G.S.T. has been issued against the applicant and he is illegally arrested. It is further submitted that till date penalty or taxes has not been ascertained as per Act. It is further submitted that the offences are compoundable in nature and triable by Magistrate. The applicant is languishing in jail since 09.02.2023. In support of his submission, he relied upon the judgment of Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773.
He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.
Per contra, learned counsel for Union of India has supported the order passed by the Session court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) The applicant has been arrested without assigning any reason to believe nor any satisfaction to justified his arrest as provided in the Act;
(b) Offences as alleged are punishable up-to 5 years imprisonment;
(c) No notice for recovery of G.S.T. has been issued against the applicant and he is illegally arrested;
(d) Till date penalty or taxes has not been ascertained as per Act;
(e) Offences are compoundable in nature and triable by Magistrate;
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court’s judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Ravinder Nath Sharma@ Ravubder Sharma be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the
(ii) The applicant shall not pressurize/intimidate the prosecution
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.
The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
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