TaxTMI 
TaxTMI 
2016 (4) TMI 486
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....ferred to as "IPC"). 2. The common sliver that runs through the various applications under consideration is that the petitioners are being accused of violation of Section 56(4) of the VAT Act for reason that they were found to be either lacking in possession of Form D-IX ( forms used for transportation of goods into the State) or Form X-VII (forms used for movement of goods through the State to another State) or they were found to be in possession of Form D-IX or D-VII which were deficient in details or were alleged to have been forged or interpolated with details and it was alleged that goods accompanying the said Forms D-IX were being transported with intention to cheat the State Government of the revenue that would have accrued to it on account of proper documentation of the goods accompanying Form D-IX. 3. The main thrust of the argument of the petitioners revolve around the jurisdiction of the Taxing Authority to institute a First Information Report. The argument of the petitioners raise the following issues for consideration of the Court: (a) Whether the State Police has the jurisdiction to entertain, institute and investigate offences unde....
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.... non-derogant‟. It is urged on behalf of the petitioners that a provision similar to section 86 of the VAT Act was to be found in Section 51 of its predecessor Act being Bihar Finance Act, 1981 (Bihar Act 5 of 1981) and wherein similar power had been vested with the Bureau of Investigation where too the official of the Bureau of Investigation could have been vested with the power of an Officer-in-Charge of a Police Station. Based on the con-joint reading of Section 86 of the VAT Act and Section 51 of the repealed Bihar Finance Act, 1981 it has been urged, on behalf of the petitioners, that the power of the police to institute and investigate cases under the provisions of the VAT Act as also under corresponding provisions of the IPC stands ousted. 7. The petitioners have urged that the VAT Act and the Bihar Finance Act, 1981 being special Act, issues came to be agitated before this court as to whether in view of the special Act the police have the power to institute and investigate cases under the IPC. The petitioners have agitated, relying on several judgments of this Court, that for violation of provisions of the special Act - being in the nature of VAT Act o....
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....s not barred and that the provisions under the relevant Statute also do not prohibit institution and carrying out of investigation by the police under relevant provision of the IPC. In support of his contention, learned counsel for the State has also placed reliance on an unreported judgment of Nagpur Bench of the Bombay High Court passed in Criminal W. P. No. 396 of 2012 [G. S. Oils Ltd through Its M. D. Shri Manoj Kumar Shrigovind Agrawal and another vs. The State of Maharashtra through PSO Wani, Dist. Yavatmal and others]. 12. In view of the aforesaid controversy it would be relevant to take note of various provisions of the VAT Act and the provisions of the repealed Bihar Finance Act, 1981 :- VAT Act, 2005 "Section 82 - Cognizance of offences.- (1) Save as provided in section 81, the punishments inflicted under the said section shall be without prejudice to any penalty which may be imposed under the provisions of this Act. (2) No court shall take cognizance of any offence under this Act except with the previous sanction of the Commissioner or any officer specially empowered in this behalf and no court inferior to t....
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.... Section 51 - Bureau of Investigation - (1) The State Government may, by an order published in the Official Gazette, constitute a Bureau of Investigation and it shall consist of such personnel and such number of officers and such hierarchy of supervision and control as may be specified by the State Government in the said order: [Provided that if authorities appointed under sub-section (1) of Section 9 are specified as such it shall without prejudice to the powers under sub-section (1) of Section 9, exercise the powers of an authority under Sections 31, 32, 33, 34 and 35 for carrying out the purpose of this part.] (2) An officer of the Bureau of Investigation shall without prejudice to any powers vested in it under sub-section (3) exercise the powers of an authority appointed under Section 9 for the purposes of Sections 33 and 35 of this part. (3) (i) The State Government may, by an order published in the Official Gazette, vest an officer of the Bureau of Investigation with the powers of an officer incharge of a police-station under the Code of Criminal Procedure, 1973 and with such other powers under different A....
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....orized the officers of the Bureau to exercise the power of an authority appointed under Section 9 (1) of the Bihar Finance Act, 1981 for the purposes of Section 31 of the said Act. Further, under sub-section (4) of Section 51 of the Bihar Finance Act, 1981 the State Government by Order No. 2775 dated 20.04.1983, had set up the Bureau of Investigation. In spite of all the inquiries, no notification had been brought to the notice of the court that had been published in the Official Gazette in terms of section 3(i) of Section 51 of the Bihar Finance Act, 1981, whereby the State Government had vested an officer of the Bureau of investigation with the powers of an Officer-in-Charge of a Police Station under the Code of Criminal Procedure, 1973. 17. The Bihar Finance Act, 1981 stood repealed upon promulgation of Bihar Value Added Tax Act, 2005 on 23.06.2005. Section 94 of the VAT Act provides for repeal and savings clause. To quote:- "94. Repeal and savings.- (1) The Bihar Finance Act, (Bihar Act, 5 of 1981) (hereinafter referred to as "the repealed Act") is hereby repealed from the date of commencement of this Act. (2) The repeal shall not affec....
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.... the authority appointed under Section 9 of the Bihar Finance Act, 1981. 21. One may profitably refer to Government Order No. 2775 dated 20.04.1983 :- 22. It is thus clear that no authority as appointed under Section 9 of the Bihar Finance Act, 1981 (corresponding to section 10 of the VAT Act) has been conferred powers of an Officer-in-Charge of a Police Station for investigation of a cognizable offence as has been brought under CrPC. Further, no notification as published under Section 3 (i) of the Bihar Finance Act, 1981 (corresponding to Section 86 (2) (a) of the VAT Act) has been brought to the notice of the court nor has it come to the notice of the court - upon its own inquiry. 23. It has been argued on the part of the petitioners that in view of section 51 of the Bihar Finance Act, 1981 read with Notifications and the Government Orders published thereunder, the Bureau of Investigation has been conferred with the power of the Officer-in-Charge of the Police Station for investigation of cognizable offence and that the said powers have been saved under Section 94 of the VAT Act and thus the Police Authorities stand divested of the powers to inves....
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....can at all be registered for the offences under the IPC where there is an alleged infraction of provision of the VAT Act? 28. It has been argued, on the strength of Sections 4 and 5 of the CrPC that the VAT Act being special Act, it ousts the jurisdiction of CrPC and thus the procedure of investigation as provided under the CrPC and inter alia the registration of the First Information Reports was bad in law and thus the same needs to be quashed. 29. As noted above the petitioners have relied upon some of the previously decided cases as a precedent to fortify the said argument and of the prominence is the judgment passed in the case of Hindustan Lever Limited (supra) and as approved by a Division Bench passed in Om Prakash Sah (supra). A further reference has been made to the case of M/s Torque Pharmaceuticals (supra). There appears to be a basic fallacy in reliance of the petitioners upon these set of judgments to argue that VAT Act would oust the jurisdiction of the police to institute and investigate an FIR as the VAT Act is a special Act and as the same is a complete Code in itself to institute and investigate a case relating to infraction of its provisions - as suc....
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....lt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any 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. Saving.- Nothing contained in this 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." 31. It is apparent from section 4 of the CrPC that the provisions of the CrPC shall be applicable whenever an offence under the IPC or under any other law is committed and the CrPC shall regulate the mode of investigation, enquiry or trial. A conjoint effect of Section 4(2) read with Section 5 of CrPC is that all offences, whether under IPC or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of CrPC....
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....icular qualification for the complainant. Generally speaking, anyone can put the criminal law in motion unless there is a specific provision to the contrary. This is specifically indicated by the provision of sub-section (2) of Section 4 which provides That all offences under any other law - meaning thereby law other than the Indian Penal Code - shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It would follow as a necessary corollary that unless in any statute other than the Code of Criminal Procedure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure." 35. In A. R. Antulay versus Ramdas Srin....
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....the Code for the collection of evidence conducted by a police officer or any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. The said word 'investigation' runs through the entire fabric of the Code. There is a long course of decisions of this Court as well as of the various High Courts explaining in detail, what the word 'investigation' means and is? It is not necessary for the purpose of this case to recapitulate all those decisions except the one in H. N. Rishbud v. State of Delhi, 1955 (1) SCR 1150 : (AIR 1955 SC 196). In that decision, it has been held that: "under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the commission of various persons (including the accused) and the reduction of their statement into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the tria....
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....ales Tax Act. The said complaint was forwarded to Hare Street Police Station, Calcutta and the same was treated as First Information Report and an FIR was registered under Sections 403, 409, 465, 468, 471, 419, 420 read with Section 120-B of the IPC and Sections 88(1)(b), (6) and (7) of the Sales Tax Act, 1994. Upon Challenge, the High Court quashed the FIR stating thus : "Under Section 7 of the West Bengal Sales Tax Act, the Bureau of Investigation constituted under the said Act is the only competent authority to investigate in respect of any offence under the said Act which means no other authority can carry out investigation or hold inquiry into any case of alleged or suspected evasion of tax as well as malpractices connected therewith. It also appears that under the provisions of Section 7(3) no complaint is required to be presented before any authority as has been done in the instant case but only a report is required to be submitted before the Commissioner. Section 7(3) of the West Bengal Sales Tax Act, 1994 clearly says that the Bureau may, on information or of its own motion, or when the State Government or the Commissioner so directs, carry out investigatio....
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....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 discharging the functions referred to in sub-section (3) thereof. It empowers the Bureau to carry on the investigation or hold enquiry into any case or alleged or suspected case of evasion of tax or malpractice created thereof and send a report of it to the Commissioner. A reading of Section 7 makes it clear that creation of a Bureau of Investigation is for the purpose of discharging the function envisaged in sub-section (3) which, of course, includes investigation also. But there is nothing in Section 7 that such investigation can be carried on "only" by the Bureau and not any other investigating agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively....
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....er under Section 86(2)(a) and Section 83(2) of the VAT Act, respectively, it is not open to the petitioners to allege lack of jurisdiction in the police to investigate the offence. 42. One may also refer to celebrated judgment of Mohinder Singh Gill and another versus The Chief Election Commissioner, New Delhi and others reported in AIR 1978 SC 851 for the proposition that a mere silence of the Statute has no exclusionary effect. To quote: "76. We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose. There is no such sequatur. The silence of a statute has no exclusionary effect except where it flows from necessary implication... ... ....". 43. A mere fact that VAT Act speaks of investigation by the Bureau of Investigation or an officer as designated under Section 83 of the VAT Act and that it does not refer to any investigation by the Police would thus oust the jurisdiction of Police is also not an argument that would pass the muster of the test of legality. 44. Thus it cannot but be stated that the reliance of the State up....
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.... the discussion made with regard to the different provisions of the Bihar Finance Act, 1981 and the VAT Act and by virtue of the later judgment of the Apex Court in the matter of Narayan K. Patodia (supra), the earlier judgment of this Court in the matter of Ganesh Kumar Agrawal (supra), which had declared the law differently, would no longer be treated as good law as Article 141 of the Constitution of India enacts that the law declared by the Supreme Court shall be binding on all courts within the territory of India. 46. In the case of M/s. Regent Cinema, Patna vs. The State of Bihar & Ors (supra) relied upon by the petitioners, the petitioners therein had filed writ application for quashing the order passed by the District Magistrate by which he had directed the Licensee of the Regent Cinema to pay a fine of Rs. 1000/- under Section 7(1) of the Bihar Cinema (Regulation) Act, 1954. The argument advanced by the petitioners was that since no provision had been prescribed under the Bihar Cinema (Regulation) Act, 1954 for the trial of the offences under the Act, the provision for trial as provided under the CrPC would apply for the trial of the offences under the Bihar Cinem....
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....the said doctrine is to be invoked only as to whether there is a special conflict between the two provisions of which one is specific with regard to a subject matter while the other is general and covers the same subject-matter apart from other subject matter. "The general/specific canon does not mean that the existence of a contradictory specific provision voids the general provision. Only its application to cases covered by the specific provision is suspended; it continues to cover all other cases" (Blacks‟ Law Dictionary). 49. „Generalia specialibus non-derogant‟ - the specific would govern the general is not an absolute rule of statutory interpretation. An overview of various judgments would show that to invoke the said doctrine one will have to not only examine the subject matter involved in the two statutes/provisions/legal instruments but also if the nature of the Statute is comprehensive and was intended to be a complete code in itself with regard to the subject-matter. Further, one also will have to see if the special Statute or the provision has been introduced with a specific aim to alleviate a mischief that was pre-existing and only then the ....
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.... not provided; 3. What remedy Parliament has appointed; and 4. The reason of the remedy." 51. The Apex Court considered a plethora of judgment on the said doctrine of generalia specialibus non-derogant‟ in the case of Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and Another, reported in (2014) 8 SCC 319 and then concluded - "construction that special governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indication that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions." One may profit from the discussion made with regard to the said doctrine „generalia specialibus non-derogant‟ in the case of Binani Cement (supra) thus : "31. At the outset, we would observe that the High Court has erred in reaching its conclusion by holding that : (a) the respondent Company would fall into all the three categories of industries referred to in the Scheme, that is to say it is a new unit which is a „lar....
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....maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." 34. It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. (Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Eastern Book Company; N. S. Bindra‟s Interpretation of Statutes, 8t....
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.... If, however, it appears from a consideration of the general enactment in the light of admissible circumstances that Parliament's true intention was to establish thereby a rule of universal application, then the special provision must give way to the general." 37. The question in Seward v. Vera Cruz (1884) 10 A C 59 was whether Section 7 of the Admiralty Court Act of 1861, which gave jurisdiction to that Court over "any claim for damage done by any ship" also gave jurisdiction over claims for loss of life which would otherwise come under the Fatal Accidents Act, 1846. It was held that the general words of Section 7 of the Admiralty Court Act did not exclude the applicability of the Fatal Accidents Act and therefore, the Admiralty Court had no jurisdiction to entertain a claim for damages for loss of life. 38. The adoption of the aforesaid rule in application of principle of harmonious construction has been explained by Kasliwal J. while expressing his partial dissent to the majority judgment in St. Stephen‟s College v. University of Delhi, (1992) 1 SCC 558 as follows: "140. ...The golden rule of interpretation is that words ....
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.... not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly (1859) 26 Beav 606 (quoted in Craies on Statute Law at p.. 206, 6th Edn.) Romilly, M.R., mentioned the rule thus: (ER p. 1034) „The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.‟ The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned: De Winton v. Brecon Corpn., (1859) 26 Beav 533, Churchill v. Crease, (1828) 5 Bing 177, United States v. Chase 34 L ED 117 and Carrol....
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....4, 71 still holds the field. It reads: (KB p.71) „.... in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.‟ To this may be added a rider: in a case of reasonable doubt, the construction most beneficial to the subject is to be adopted. But even so, the fundamental rule of construction is the same for all statutes, whether fiscal or otherwise. "The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the court as to what is just or expedient." The expressed intention must guide the court. Another rule of construction which is relevant to the present enquiry is expressed in the maxim, generalia specialibus non derogant, which means that when there is a conflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Craies on Statute La....
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....ecial Act by implication. That this is the law cannot be doubted, and the cases on the subject will be found collected in the third edition of Maxwell is generalia specialibus non derogant - i.e. general provisions will not abrogate special provisions.‟ When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms." (emphasis supplied) 44. In Ashoka Marketing Ltd. v. Punjab National Bank, (1990) 4 SCC 406 this Court has placed reliance upon Bennion, Statutory Interpretation and J.K. Cotton Spig. & Wvg. Mills case, AIR 1961 SC 1170, amongst others, and explaining the rationale of this rule has reiterated the law as under: "52. In U.P. SEB v. Hari Shanker Jain, (1978) 4 SCC 16, this Court has observed: (SCC p. 27, para 9) „9. ... In passing a special Act, Parliament devotes its entire consideration to a particular subje....
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....r endeavour will have to be made to find out whether the specific provision excludes the applicability of the general ones. Once we come to the conclusion that intention of the legislation is to exclude the general provision then the rule "general provision should yield to special provision" is squarely attracted. 47. Having noticed the aforesaid, it could be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject." (emphasis is mine) 52. Thus the judgments relied upon by the writ petitioners in no way furthers their case for quashing the First Information Report as they are all distinguishable or have been passed under the statut....
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....ूरों के गठन का आदेश देते हैं। इस अनà¥à¤µà¥‡à¤·à¤£ वà¥à¤¯à¥‚रो के संचालन के लिये अपेकà¥à¤·à¤¿à¤¤ अतिरिकà¥à¤¤ पदों का सृजन सरकारी आदेश संखà¥à¤¯à¤¾ वि०वि० से० - क० 103 / 82-2578, दिनांक 1, अपà¥à¤°à¥ˆà¤² 1982 दà¥à¤µà¤¾à¤°à¤¾ किया जा चà¥à¤•à¤¾ है । 2. अनà¥à¤µà¥‡à¤·à¤£ बà¥à¤¯à¥‚रो तथा उसके कारà¥à¤¯ कारà¥à¤¯à¤•à¤²à¤¾à¤ª की रूप रà¥....
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....तà¥à¤¯à¤¾à¤ªà¤¨ ; (ख) राजà¥à¤¯ में आनेवाले तथा राजà¥à¤¯ के बाहर जाने वाले मालों के परिमाण का अधà¥à¤¯à¤¯à¤¨ (ग) परिमाण पर आधारित कीमत पर संà¤à¤¾à¤µà¤¿à¤¤ कर की राशि तथा वासà¥à¤¤à¤µà¤¿à¤• पà¥à¤°à¤¾à¤ªà¥à¤¤ कर की राशि के बारे में अधà¥à¤¯à¤¯à¤¨ : (घ) चà¥à¤¨à¥‡ हà¥à¤ नालों का वà¥à¤¯à¤¾à¤ªà¤¾à¤° पà¥à¤°à¤£à¤¾à¤²à¥€ तथा उसमें वà¥à....
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....¤¾ की जो इकाई पà¥à¤°à¤®à¤‚डलीय सà¥à¤¤à¤° पर अवसà¥à¤¥à¤¿à¤¤ रहेगी उसके जिमà¥à¤®à¥‡ पà¥à¤°à¤ªà¤¤à¥à¤° 9 "सी" का सतà¥à¤¯à¤¾à¤ªà¤¨, सà¥à¤¥à¤¾à¤¨à¥€à¤¯ वà¥à¤¯à¤¾à¤µà¤¸à¤¾à¤¯à¤¿à¤• पà¥à¤°à¤¤à¤¿à¤·à¥à¤ ानों का निरीकà¥à¤·à¤£ छापेमारी (रेड) जॉच (सरà¥à¤µà¥‡) और सीजर आदि करना होगा। पà¥à¤°à¤®à¤‚डलीय इकाई दà¥à¤µà¤¾à¤°à¤¾ à¤à¥€ आवशà¥à¤¯à¤•à¤¤à¤¾ पड़ने पर या मà¥à¤–à¥à¤¯....
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....¤¨à¤•à¥‡ जिमà¥à¤®à¥‡ पà¥à¤°à¤ªà¤¤à¥à¤° 28 "बी" के सतà¥à¤¯à¤¾à¤ªà¤¨ का कारà¥à¤¯ रहेगा। उड़नà¥à¤¤ दसà¥à¤¤à¤¾ के कारà¥à¤¯ कà¥à¤·à¥‡à¤¤à¥à¤° में रेलवे सà¥à¤Ÿà¥‡à¤¶à¤¨à¥‹à¤‚ में माल की डेलीवरी पर चौकसी के अलावे मालों के आवागमन पर लगातार चौकसी करना होगा और यह सà¥à¤¨à¤¿à¤¶à¥à¤šà¤¿à¤¤ करना होगा कि बेनामी मालों का आà....
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....…धीन रहेगा। आयà¥à¤•à¥à¤¤ के नियंतà¥à¤°à¤£à¤¾à¤§à¥€à¤¨ अपर आयà¥à¤•à¥à¤¤ दोनों शाखाओं के लिये कारà¥à¤¯-पà¥à¤°à¤£à¤¾à¤²à¥€ निरà¥à¤§à¤¾à¤°à¤¿à¤¤ करेंगे और उनके कारà¥à¤¯ कलाप पर आवशà¥à¤¯à¤• नियंतà¥à¤°à¤£ रखेंगे तथा समय-समय पर यथोचित मारà¥à¤—-दरà¥à¤¶à¤¨ à¤à¤µà¤‚ निदेश देंगे। 9. वाणिजà¥à¤¯ - कर अपर आयà¥à¤•à¥à¤¤ के à....