Kishan Lal Soni S/O Mathura Ram Soni vs. Directorate Of Revenue Intelligence
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The petitioner, Kishan Lal Soni, proprietor of Shree Ambe Shree M.r. Jewellers, filed an anticipatory bail application under Section 438 Cr.P.C. apprehending arrest in connection with DRI File No.DRI/DZU/JRU/19/INT-52/2022 for offences under Section 135(1)(A)(B) of the Customs Act, 1962. The petitioner claimed false implication, stating that the gold was recovered from a co-accused, Rounak Soni, whose recovery value was below Rs. 1,00,00,000, making the offence bailable. The petitioner also asserted no direct or indirect role in the alleged activities. The Directorate of Revenue Intelligence (DRI) countered that the petitioner failed to appear despite multiple summons and did not cooperate with the investigation. The DRI argued that the anticipatory bail application was not maintainable as no case or complaint had been filed against the petitioner under Section 135 of the Customs Act.
Held
The Court held that an anticipatory bail application under Section 438 of the Criminal Procedure Code, 1973, cannot be invoked when a person is summoned under Section 69 of the CGST Act, 2017, for the purpose of recording their statement, and no First Information Report (FIR) or complaint has been registered against them. The Court relied on the Supreme Court's decision in The State of Gujarat Etc. vs. Choodamani Parmeshwaran Iyer & Anr., which clarified that at the stage of summons, a person cannot invoke Section 438 Cr.P.C. The reasoning is that no FIR is registered before the power of arrest under Section 69(1) of the CGST Act is invoked, and in such circumstances, the summoned person cannot seek anticipatory bail. The appropriate remedy, as per the Apex Court, is to invoke the jurisdiction of the High Court under Article 226 of the Constitution. Since no case was registered under the Customs Act against the petitioner, the Court found no grounds to entertain the anticipatory bail application. The operative direction was the dismissal of the application.
Key Issues
1. Whether an anticipatory bail application under Section 438 of the Criminal Procedure Code, 1973, is maintainable when a person is summoned under Section 69 of the CGST Act, 2017, for recording a statement, and no First Information Report (FIR) or complaint has been registered against them under the Customs Act, 1962? Petitioner's arguments: The petitioner contended that he had been falsely implicated, the gold was recovered from a co-accused, the value of recovered gold made the offence bailable, and a co-accused had already been granted bail. The petitioner also argued he had no role in the alleged loading, unloading, or examination of containers. Respondent's (DRI) arguments: The DRI argued that the petitioner failed to appear despite summons and did not cooperate with the investigation. Crucially, the DRI argued that the anticipatory bail application was not maintainable under Section 438 Cr.P.C. because neither a case nor a complaint had been filed against the petitioner under Section 135 of the Customs Act, 1962. The DRI relied on the Supreme Court judgment in The State of Gujarat Etc. vs. Choodamani Parmeshwaran Iyer & Anr.
Sections Cited
Section 135, Section 69, Section 438, Article 226
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Cause title — parties, addresses and appearances
Order 29/04/2024
Apprehending the arrest in connection with DRI File No.DRI/DZU/JRU/19/INT-52/2022 for the offence(s) under Section 135(1)(A)(B) of Customs Act, 1962, the petitioner has preferred this anticipatory bail application under Section 438 Cr.P.C.
Learned counsel for the accused-petitioner submits that petitioner has falsely been implicated in this case. He further submits that accused-petitioner is an innocent person and has not committed any offence. The gold has already been recovered from the other co-accused Rounak Soni and not from the present accused-petitioner. The value of gold recovered from co-accused Rounak Soni is below Rs.1,00,00,000/-, which makes the offence bailable as per the Customs Act. The other co-accused Rounak
[2024:RJ-JP:19998] (2 of 4) [CRLMB-469/2024] Soni has already been enlarged on bail. Learned counsel further argues that accused-petitioner has no direct or indirect role in loading, unloading or examination of containers, therefore, the anticipatory bail application of the accused-petitioner may be allowed.
Per contra, learned counsel appearing on behalf of Directorate of Revenue Intelligence (hereinafter referred to as “DRI”) submits that accused-petitioner has been summoned several times to render the statement before the DRI but despite several notices, petitioner did not appear before the concerned officer. He further submits that petitioner did not respond to the summons issued by the DRI and also did not co-operate with the investigation initiated against the other accused Rounak Soni. Learned counsel further submits that the application for anticipatory bail filed by the accused-petitioner is not maintainable under Section 438 of Cr.P.C. as neither any case booked against the accused-petitioner nor any complaint have been filed under Section 135 of the Customs Act, 1962. 4. Learned counsel for DRI places his reliance upon the judgment passed by the Hon’ble Apex Court in the matter of The State of Gujarat Etc., vs. Choodamani Parmeshwaran Iyer & Anr. SLP (Crl.) No.4212-4213 of 2019 decided on 17.07.2023. 5. Heard and perused the reply filed by the DRI and also the law laid down in the matter of The State of Gujarat Etc., vs. Choodamani Parmeshwaran Iyer & Anr. (supra).
The Hon’ble Apex Court at para No.16 of its order has held as under:-
[2024:RJ-JP:19998] (3 of 4) [CRLMB-469/2024] “Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the juri iction of the High Court under Article 226 of the Constitution of India. Undoubtedly, this is exactly what the respondents did in the present case. What the respondents sought by filing two criminal applications under Article 226 of the Constitution before the High Court was the direction to the appellant herein not to arrest them in exercise of the power conferred by Section 69(1) of the GST Act, 2017. This, in essence, is key to prayer for anticipatory bail. However, as we have explained aforesaid, at the stage of summons, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure.”
Thus, from the law laid down by the Hon’ble Apex Court, it is apparent that powers under Section 438 of Cr.P.C., cannot be invoked as no complaint or FIR has been registered against the accused-petitioner under Section 135 of the Customs Act.
Therefore, considering the above facts, I am not inclined to entertain the present anticipatory application of the accused- petitioner under Section 438 of Cr.P.C., as no case has been registered under the Customs Act, against the accused-petitioner.
[2024:RJ-JP:19998] (4 of 4) [CRLMB-469/2024]
In view of the above, the present criminal miscellaneous bail application is hereby dismissed. (PRAVEER BHATNAGAR),J 60-Rahul/Yogesh
Reproduced from the public record of the Rajasthan High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.