TaxTMI 
TaxTMI 
2025 (4) TMI 164
X X X X Extracts X X X X
X X X X Extracts X X X X
....aging Sales Private Limited is supplying of packing material in the name of fake firms with an intent to dodge the checking conducted by GST Department and finally offloading the material at M/s Miraj. The said department conducted simultaneous raids at the office of M/s Montage Packaging being situated in Jaipur and office of M/s Miraj Products Private Limited at Nathdwara. During the raid at M/s Miraj Products it was allegedly found that a truck was being unloaded at M/s Miraj with invoices in the name of M/s Shri Balaji Enterprises, Ahmedabad. During the raid it was found that M/s Montage used to provide packaging items to M/s Miraj without valid invoices and invoices were issued by M/s Montake in the name of other firms. The department seized the goods which were being unloaded during the raid. The Department proceeded with the investigation which finally culminated into a complaint being lodged against the present petitioner and by order dated 03.08.2024 the cognizance has been taken against the petitioner by the trial court for offences punishable under section 132(1)(a)(f) (h) (j) (k) and (l) of the Central Goods & Services Tax Act, 2017 (for short 'the Act of 2017') and iss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estly illegal and contrary to the settled law. 9. Learned counsel for the accused petitioner further submitted that ED Officers cannot arrest an accused when the Special Court has taken cognizance on the complaint in money laundering cases. Drawing parallels, the present case is also governed by a Special Stature and the dictum passed by the Apex Court gets squarely applied to the facts and circumstances of the present case. 10. In support of his submissions, learned counsel has placed reliance upon following judgments delivered by the Hon'ble Apex Court:- i) Vikas Vs. State of Rajasthan; (2014) 3 SCC 321; ii) Satender Kumar Antil Vs. Central Bureau of Investigation & Anr.; (2022) 10 SCC 51; iii) Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra; (2012) 9 SCC 791; iv) Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office (Criminal Appeal No. 2608/2024) arising out of Special Leave to Appeal (Crl.) No(s). 121/2024 decided on 16.05.2024; and v) Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., reported in (2007) 12 SCC 1. 11. Mr. Ajatshatru Mina learned Special Public Prosecutor with Mr. Akshay Bhardwaj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the fact that the accused petitioner during investigation of the matter appeared before the authorities of the Department and his statements were also recorded. 16. Even in the complaint submitted by the respondent - Department, they themselves have not desired to seek arrest / the custody of the accused petitioner. 17. By filing the application under section 72(2) of the BNSS, the petitioner has made a limited prayer that the non- bailable warrants issued against him for securing his personal presence before the court below be converted into bailable warrants and his bail bonds be accepted in view of the fact that he is always ready to appear before the concerned court and he has also cooperated with the investigation in the matter by appearing before the Investigating Officer and got recorded his statements. It is a well settled law that when a cognizance is taken against an accused, at the very first instance for securing his personal appearance before the concerned court, summons or bailable warrants should be issued and the option of issuing non-bailable warrants should only be resorted if such an accused person does not appear before the concerned court even after ser....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bject to the condition of the appellants giving undertakings to the respective Special Courts to regularly and punctually attend the Special Court on all dates fixed unless specifically exempted by the exercise of powers under Section 205CrPC. The second condition will be furnishing bonds to the Special Court in terms of Section 88 CrPC. 33. Now, we summarise our conclusions as under: 33.1. Once a complaint under Section 44(1)(b) PMLA is filed, it will be governed by Sections 200 to 205CrPC as none of the said provisions are inconsistent with any of the provisions of PMLA; 33.2. If the accused was not arrested by ED till filing of the complaint, while taking cognizance on a complaint under Section 44(1)(b), as a normal rule, the court should issue a summons to the accused and not a warrant. Even in a case where the accused is on bail, a summons must be issued; 33.3. After a summons is issued under Section 204CrPC on taking cognizance of the offence punishable under Section 4 PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is not mandatory in every case to direct furnishing of bonds. However, if a warrant of arrest has been issued on account of non-appearance or proceedings under Section 82 and/or Section 83CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88CrPC, and the accused will have to apply for cancellation of the warrant; 33.9. After cognizance is taken of the offence punishable under Section 4 PMLA based on a complaint under Section 44(1)(b), ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint; and 33.10. If ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, ED will have to seek custody of the accused by applying to the Special Court. After hearing the accused, the Special Court must pass an order on the application by recording brief reasons. While hearing such an application, the court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when ED wants to conduct a fu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....used seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non- bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non- bailable warrants." 21. The Hon'ble Apex Court in the case of Vikas (supra) has observed as under:- "17. In the legislative history for the purposes of bail, the terms "bailable" and "non-bailable" are mostly used to formally distinguish one of the two classes of cases viz. "bailable" offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non-bailable offences to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodised by analogy, disciplined by system and subordinated to the primordial necessity of order i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 62 has observed as under:- "59. This court finds that time and again the Apex Court has laid down the law that economic offences are required to be dealt with strict approach as these offences affect the economy of the whole Nation and economic offences are committed with a pre-meditated design. This court finds that the economic offences stand on a different footing and they constituent a class apart and need to be visited with a different approach. The economic offences have deep rooted conspiracies and involving huge loss of public funds and thus, need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. The Apex Court in the case of Y.S. Jagan Mohan Reddy Vs. CBI reported in (2013) 7 SSC 439 has considered the nature of economic offences and the relevant portion of the judgment is quoted hereunder:- "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed serious....
X X X X Extracts X X X X
X X X X Extracts X X X X
....350;र्पित करें। इस एक माह की अवधि तक याचीगण के विरूद्ध जारी गिरफ्तारी वारण्ट के निष्पादन की कार्यवाही स्थगित रहेगी । याचीगण द्वारा एक माह की अवधि में स्वयं को विचारण न्यायालय के समक्ष समर्पित नहीं किया जाता ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....#2352; निस्तारण करें " 24. Learned Special Public Prosecutor in support of his submissions has also referred the judgment delivered by the Hon'ble Apex Court in the case of Sharif Ahmed & Anr. Vs. State of Uttar Pradesh & Anr., reported in 2024 SCC OnLine SC 726 and submitted that the non-bailable warrants can be issued in the matters where the accused is charged with the heinous crime. He has also submitted that the present case is covered under the category of heinous offence as it relates to evasion of huge amount of GST. 25. In the case of Tarsem Lal (Supra), the Hon'ble Apex Court has deprecated the practice that after filing of the complaint, the accused appears in compliance with the summons, he is taken into custody and forced to apply for bail that too in a peculiar fact that before filing of the complaint the accused is not arrested. In the present case also the accused petitioner was not arrested before filing the complaint, though he appeared before the Investigating Officer and got recorded his statements. 26. In the case of Sharif Ahmed (supra) referred by the learned Special Public Prose....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 21.08.2024 and other connected matters. In the case of Piyush Jain (supra), the Coordinate Bench of this Court in paras 15 and 16 has observed as under:- "15. तरसेम लाल के मार्गदर्शक निर्णय तथा बिजय केतन व नलिनी पृष्टि के मामले में पश्चात्वर्ती पारित आदेशों से यह स्पष्ट है कि जहां अभियुक्तगण को अनुसंधान अधिकारी द्वारा धारा 19 " अधिनि&....
X X X X Extracts X X X X
X X X X Extracts X X X X
....81;वारा अभियुक्तगण को विचारण के दौरान उनकी नियमित उपस्थिति हेतु बंधपत्र निष्पादित करने का जो आदेश दिया है वह जमानत आदेश की श्रेणी में नहीं आता है, अतः ऐसी स्थिति में धारा 437, 439 व 439 (2) दण्ड प्रक्रिया संहिता के प्रावध&....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; प्रवर्तन निदेशालय के अनुसार इतना गंभीर था और उनके पास शुरू से सुदृढ़ साक्ष्य व सामग्री अभियुक्तगण के विरुद्ध रही तो उन्हें अनुसंधान के दौरान गिरफ्तार नहीं करने का निर्णय क्यों लिया गया इसका कोई स्पष्टी&....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uch situation has observed that "the Court is supposed to take into consideration along- with the seriousness of the crime the fact that the accused is likely to evade the process of law or tamper/ destroy the evidence". On consideration of the facts of the case and the averments made in the plaint and there being no allegation of tampering/ destroying with the evidence and further the fact that the accused petitioner is giving assurance to join the process of law and more particularly the fact that the accused petitioner before filing of the complaint appeared before the Investigating Officer and got recorded his statements. The Court feels that the court below while dismissing the application for conversion of non-bailable warrants into the bailable warranats has not appreciated the complete material and also the settled law. 35. The learned court below while dismissing the application for conversion of non-bailable warrants into the bailable warrants vide impugned order dated 31.01.2025 has observed that after the order of taking cognizance dated 03.08.2024 and issuance of non-bailable warrants for securing the presence of the accused petitioner, there is no substantial chang....