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2019 (11) TMI 396
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.... commonality of the issues raised in these petitions. 3. Apparently a routine seizure of certain trucks by the police on suspicion of carrying articles without valid documents has spawned an important question of law by alleging that the police have acted without jurisdiction by usurping the role and jurisdiction of other law enforcing agencies. 4. Since the issues raised are primarily legal in nature, only the minimal facts may be adverted to. 5. In these petitions, most of the petitioners claim to be primarily proprietorship firms carrying on the business of sale and supply of arecanuts (betel nuts). All the petitioner firms are registered under the Assam Goods and Services Tax Act, 2017 and according to them, they had been paying the necessary tax as required under the rules. 6. According to the petitioners, since the petitioner firms had paid the necessary tax under the Assam Goods and Service Tax Act, 2017, (AGST Act, 2017) seizure of the trucks and areca-nuts carried therein by the Assam Police, who have nothing to do with the taxation regime, is plainly illegal, and accordingly, these petitions have been filed seeking quashing of the illegal seizures and release ....
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..... DCP/West Ghty/Reserve/2019/747 dated 26.8.2019 of police team headed by me proceeded to Cachar to make a detail enquiry on the basis of the Challan/E way Bill submitted by the truck drivers. The police team visited all the points from where the areca nuts well loaded and dispatched as mentioned in the Challan. After physical verification of the various loading points under Cachar and Karimganj Districts following anomalies are found: Cachar District 1. M/s Sarada .............., Cachar. (GSTIN No. ................) Vehicle No. ............... (Silchar to Varanasi, UP) The police team arrived at the address of M/s Sarada ........, Dholai Bazar, and found Mr. ......... is the owner of M/s Sarada .........and on being enquired about the detained trucks carrying areca nuts he expresses his ignorance of the matter. However he admitted that the said GSTIN No................... is registered in his name. Sri....... in the state alleged that his nephew ...... has prepared GST paper in his name under M/s Sarada ...... but for what purpose ......... used those Tax papers was not known to him. He has also said that he is aware o....
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....said to be without jurisdiction and the petitioners would be at liberty to approach the concerned Court for custody of the seized articles under Sec. 451/457 of CrPC as had been done by some of the truck owners. As such, these petitions are not maintainable. 11. It has been, accordingly, submitted that the Assam Police had jurisdiction and authority as provided under Sec. 4 CrPC to register the FIR case and to detain and seize the trucks carrying areca nuts smuggled from a foreign country by the petitioners by manipulating and forging documents, by invoking Sec. 120 B, 420, 468 and 471 IPC. 12. Learned senior counsel for the State submits that as provided under section 4(2) of CrPC, Assam Police has the power and authority to investigate even if the offences are also relatable to a different statute. As a corollary, the police has power to seize goods even if it relates to another statute, viz., Customs Act. Learned senior counsel submits that it has been provided under Sec. 102(1) CrPC that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may have been found under circumstances which creates suspicion of the commission....
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.... the petitioners by contending that under our constitutional scheme, different agencies created under special enactments have been assigned and empowered to deal with offences coming under the special laws and the State police cannot encroach upon the jurisdiction of other agencies and usurp their power, as otherwise, it would lead to a chaotic situation where the police would continue to investigate an offence which is supposed to be investigated by another agency, thus leading to multiplicity of investigations by different agencies on the same crime. He submits that if according to the Assam Police, as informed by the Department of Revenue Intelligence, the areca nuts transported by the trucks were smuggled from Myanmar without following the legal channel in violation of the provisions of the Customs Act, it is the customs authorities, and not the Assam Police which can investigate and seize the goods and the trucks. 16. Learned senior counsel for the petitioners submits that Section 4(2) of the CrPC provides that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions of CrPC, but subject to any en....
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....of persons suspected of secreting banned goods. Section 104 empowers the Customs authorities to arrest a person suspected of committing offence under Section 132 etc. Power to search premises is given under Section 105. Section 106 empowers stopping and search of conveyance. Under Section 107 power is given to examine persons. Under Section 110 goods, documents which are liable to be confiscated can be seized. Other ancillary powers for investigation are also conferred to the Customs authorities. 19. It has been further submitted on behalf of the petitioners that as the police initially suspected the petitioners of fudging the documents relating to tax, such offences are covered by the Central Goods and Services Act, 2017 and the cognate State Act, the Assam Goods and Services Act, 2017. It has been submitted that CGST Act, 2017 is also a comprehensive and self-contained Act, which empowers the Commissioner to authorise any officer of Central Tax to arrest the person who is believed to have committed any offence as specified under Sec. 132 of the Act. The power of inspection, search, seizure and arrest of persons under ....
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....where gross injustice has been done, or where the impugned act is palpably illegal, a writ would lie, even if alternative remedies are available, as follows: "4. For the reasons contained in the said decisions, we hold that the impugned provisions are valid. It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against a highhanded or palpable illegal order which may be passed by the assessing authority." It has been submitted that in the present case, the Assam police have acted with gross illegality by seizing the trucks, though there is no irregularity in payment of taxes or any other irregularity so as to be intervened by the police and if there be any irregularity or illegally that would pertain to other stat....
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....e authorities, the petitioners can be also proceeded under the special laws, but this will not prevent or divest the police of the power to investigate offences distinctly covered by IPC. Thus, the police has ample jurisdiction and power to investigate the case against the petitioners in the present case. On the other hand, the case of the petitioners is that if the offence alleged are covered by the special laws and can be investigated by the competent officers under the special laws, to that extent, the police cannot have any jurisdiction to investigate on the same offence under the IPC or the CrPC, as otherwise, the constitutional scheme will breakdown. 24. From the rival contentions of the parties in the context of the facts narrated above, the real issue seems to be to whether the state police has power to investigate and effect seizure of goods for alleged forgery of documents in connection with certain transactions which can be relatable either to taxation statutes or Customs Act. The power, scope and jurisdiction of the police in investigating offences which may be covered by more than one statute or by special statute are matters of consideration before this Court....
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....Sec. 5. Certain laws not to be affected by this Act.- Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law. Section 26 of the General Clauses Act: Sec. 26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. 27. The Code of Criminal Procedure, 1973 is the basic law providing the procedures to be followed in dealing with offences under the Indian Panel Code as mentioned under Sec. 4(1) CrPC. Sub-section (2) to section 4 CrPC further provides that all offences under any other law shall be also investigated, enquired 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 investigation, inquiring into, trying or otherwise....
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....there is a specific provision in another statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced. Taking a cue from the said ratio this Court held recently in Gangula Ashok v. State of A.P. (2000) 2 SCC 504) while interpreting Section 4(2) of the Code as follows: (SCC pp. 509-10, para 13) "A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions (sic provision) would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby." 29. In the said case of Narayan K. Patodia (supra) the Hon'ble Supreme Court was dealing with the case involving offences committed under the Indian Penal Code and the West Bengal Sales Tax Act, 1994. A complaint was made alleging that the respondent submitted applications....
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....to two years or with fine not exceeding ten thousand rupees or with both." 16. The offence envisaged in sub-section (6) is specifically created as supplemental 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 inquiry 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"....
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....ses Act also incorporates the principle embedded in Article 20(2) of the Constitution of India, with which we are not concerned directly at this stage as the present situation is confined to the stage of investigation and not punishment. 33. Section 26 of the General Clauses Act provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. Thus, if the charge of committing offence "X" is made against "Mr. A" under IPC and Prevention of Corruption Act, "Mr. A" can be prosecuted and punished either under IPC or the Prevention of Corruption Act and not under both the statutes. Further if the charge of committing "X" offence is made out against "Mr. A" under four different statutes, namely, IPC, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act, 1985, he may be prosecuted and punished under "any" one of these enactments and not all the statutes. This section will be applicable only when the offences are same, constituted by similar ingredients, as o....
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....iction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case." [emphasis supplied] Similarly, in State of Maharashtra v. Sayyed Hassan [10], the accused was prosecuted under Sections 26 and 30 of the Food and Safety Standards Act, 2006 as well as Sections 188, 272, 273 and 328 of the IPC for transportation and sale of prohibited gutka/pan masala. The High Court held that Section 55 of the Food and Safety Standards Act, 2006 being a specific provision made in a special enactment, Section 188 of the IPC was inapplicable. The Supreme Court did not agree with the view of the High Court and remanded the matter to the High Court, and held that : "8. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to th....
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....nder the IPC are independent of the offences prescribed under the M.V. Act. It cannot be said that prosecution of road traffic/motor vehicle offenders under the IPC would offend Section 5 of the IPC, as held by the High Court, in so far as punishment for offences, under the M.V. Act is concerned. 10 .............................. .............................. 15. In our considered view the position of law is well settled. This Court has consistently held that the M.V. Act, 1988 is a complete Code in itself in so far as motor vehicles are concerned. [13] However, there is no bar under the M.V. Act or otherwise, to try and prosecute offences under the IPC for an offence relating to motor vehicle accidents. On this ground as well, the impugned judgment is liable to be set aside. 13 National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 2 SCC (Cri) 99 : (2008) 1 SCC (Civ) 945; Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd., (2007) 13 SCC 446 : (2008) 2 SCC (L&S) 662 36. Keeping the aforesaid legal principles in mind, we will proceed to examine the issues raised. 37. As mentioned above, the Assam Pol....
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....h is the main allegation of the police, others being ancillary to it, the police case is illegal and without jurisdiction as it is the Customs authorities who have the jurisdiction to investigate. It has been submitted that the charge of forgery and using forged documents as genuine are covered under Section 132 of the Customs Act, 1962 which reads follows: Sec. 132. False declaration, false documents, etc.- Whoever makes, signs or uses, or causes to be made, signed or used any declaration, statements or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. 39. Since the Police initially intercepted and seized the trucks suspecting evasion of tax under the GST regime, and as the Central Goods and Services Act, 2017 and the corresponding State law i.e. the Assam Goods and Services Tax Act, 2017 are also comprehensive and self-contained Acts, these coercive actions could have been done by the authorities under the CGST Act ....
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....nder the said Code in the light of the decisions of the Hon'ble Supreme Court referred to above. 43. For the reasons discussed above, this Court would hold that the Assam Police would have jurisdiction to investigate certain offences under the Indian Penal Code, if made out, even if these may be also offences under the CGST Act, 2017 or AGST Act or the Customs Act,1962. However, as provided under Section 26 of the General Clauses Act, no one will be liable to be punished twice for the same offence. 44. Having held so, however, the submission of the petitioners that the Police cannot conduct a roving enquiry needs consideration of the Court. The Police set the criminal process into motion after having credible information that a number of trucks with areca nuts were proceeding from Cachar towards West Bengal without having valid documents. Based on the said information 25 trucks were detained. The tax documents submitted by the truck drivers were sent to the State Tax Department for verification which suggested the Police to keep certain vehicles under detention for further verification. The police team also visited all the points from where the areca nuts were loaded....
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.... smuggling against the petitioners is concerned. Similarly, for the same reasons, the police authorities would have no jurisdiction and power to investigate as regards violation of the provisions of the taxation laws as the same are governed by the provisions of the CGST Act, 2017 or AGST Act, 2017 under which there are separate investigative agencies. 46. While the Police will have authority to investigate offences committed or suspected to have been committed under the Indian Penal Code, they of course cannot go for a roving enquiry or fishing enquiry. It is a different matter that in course of the investigation of an offence under the Penal Code, it may throw up certain leads to other new offences under a different special law. Once it does throw up leads to other new offences under a different statute which appears to be the main intended offence, as in the present case, the police should hand over the investigation to the appropriate authorities to investigate the new offences revealed. After all, the power of the police to investigate an offence will commence only on getting information either under Section 154 or 155 of the Cr.P.C. Therefore, unless there is informatio....
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.... is identified, the agency responsible for investigation of such principal offence ought to take over, with other agencies including the police to assist, wherever, needed or sought for. Otherwise, there could be duplication of investigation by different agencies on the same offence which is not contemplated under the law. Further, if multiple offences of serious nature are made out during investigation under different statutes, the agencies responsible for investigation in these multiple offences should co-ordinate and if possible, investigate simultaneously and ought not to wait for one agency to complete the investigation of the offence under a particular statute and thereafter, the other agency to start investigation of offence under a different statute, so that the investigation against the accused is not unduly prolonged. 50. This Court holds so for the reason that though a person may commit offences which may be covered by different statutes with different investigating agencies operating, as far as offences committed by the person are concerned, all these are committed against the State. The community at large is the victim as far as criminal justice system is c....
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....nitiate investigation without waiting for the other agency to complete its investigation. 51. It may be noted that if all the multiple and distinct offences committed by an offender during the same or interconnected transactions are covered by the Indian Penal Code, the police cannot investigate these offences separately. These have to be simultaneously investigated by the police. For, example, if a person steals a knife from a store and stabs another person to death by housebreaking, there could be three distinct offences for theft, trespassing and murder under the Indian Penal Code. But the police cannot investigate the offence of theft first, arrest him. Thereafter, on completion of 60 days of investigation for theft, start investigation for the offence of trespassing and arrest the accused again and later investigate the offence of murder separately and arrest him again on the charge of murder as three distinct offences. Such procedure is not contemplated under the law. 52. Will this norm be changed in a situation when a person commits multiple offences under different statutes including Indian Penal Code in the same transaction, where other investigating agencies i....
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....her offence or a different statute in the same transaction and arrests him, thus the detention could be continued for another sixty/ninety days, thus frustrating the intention of the legislature that there should be a cap on the period of investigation for the purpose of consideration of bail. It is for this reason that this Court is of the view that even if the multiple investigating agencies may have right to undertake independent investigations for different offences arising out of the same illegal transaction, the multiple investigating agencies should start the investigations simultaneously as far as possible. 54. In the present case, under the facts and circumstances as revealed in the pleadings, apart from the offences under the Indian Penal Code concerning which the police have already filed the FIR and started the investigation, there is no other offence disclosed, other than the offence alleged under the Customs Act, 1962, which also seems to be main and principal offence as far as the petitioners are concerned. Since the seized areca nuts and the trucks essentially pertain to the main offence of smuggling coming within the purview of Customs Act, 1962, which are liabl....