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2019 Supreme(Gau) 643
IN THE HIGH COURT OF GAUHATI
Achintya Malla Bujor Barua, Nelson Sailo, JJ.
Md. Omar Mohd Laskar – Appellant
Versus
State of Assam and Ors., Rep. by Commissioner and Secretary to Govt. of Assam - Respondent
Writ Appeal No. 299 of 2019
Decided On : 25-11-2019
A. Saraf, Advocate
Proper officers must have reasons to believe before initiating search, seizure, or confiscation under the AGST Act and Customs Act, and prescribed procedures must be followed.
Headnote:
Customs Act - Seizure of Areca Nuts - Sections 67, 100, 101 of AGST Act and Customs Act 1962 - Summary of Acts and Sections
Fact of the Case:
Police detained 25 trucks carrying areca nuts based on suspicion of evasion of GST dues and forgery of documents. Appellants filed a writ petition seeking release of the goods, contending that the seizure was illegal.
Finding of the Court:
The court held that the police had jurisdiction to investigate offences under the Indian Penal Code, but for violations of the Customs Act and AGST Act, the investigation should be handed over to the customs and GST authorities respectively. The court also emphasized the need to follow prescribed procedures for search, seizure, and confiscation under the respective acts.
Issues: Jurisdiction of police to investigate offences under GST Act and Customs Act, legality of seizure of goods, and bio-security concerns related to the seized areca nuts.
Ratio Decidendi: The court emphasized the need for proper officers to have reasons to believe before initiating search, seizure, or confiscation under the AGST Act and Customs Act. It also highlighted the importance of following the prescribed procedures under the respective acts.
Final Decision: The court directed the authorities to take appropriate decisions within seven days on how to proceed with the detained/seized goods, failing which the detention and seizure would be declared illegal and unsustainable.
JUDGMENT :
A.M. Bujor Barua, J.
Heard, Dr. A Saraf, learned senior counsel for the appellants. Also heard Mr. D. Saikia, learned senior counsel for the respondents No.1, 4, 5, 6 and 7 and Mr. B Choudhury, learned counsel for the respondents No.2 and 3 as well as Mr. S.C Keyal, learned ASGI for the Customs Department.
2. Considering the conclusion of the learned Single Judge in the judgment and order dated 25.10.2109 in WP(C)No.7081/201 and the other connected writ petitions that the investigation revealed the commission of the principal offences under the Customs Act of 1962 (in short Customs Act) and the consequential direction to hand over the investigation to the customs authorities, along with the seized goods and trucks for further investigation, we required the presence of the authorities under the Customs Department to respond in this writ appeal. Accordingly, Mr. Sujithkumar P. Sompur, Joint Director, DRI Guwahati Zonal Unit and Mr. SC Keyal, learned ASGI representing the Customs Department are present and heard.
3. As all the appeals are based on a common set of facts, involving the same question of law, and more so considering the aspect that the learned Single Judge also passed a common judgment and order in the writ petitions, all the appeals are being heard and given a final consideration together.
4. On 21.08.2019, the police officials of the Jalukbari Police Station upon receiving certain information that trucks carrying areca nuts from Cachar district were moving without proper documents, had detained 25 Nos. of trucks. Subsequently one more truck was detained.
5. On 22.08.2019, a team of police officials proceeded to Cachar and Karimganj districts to enquire about the details of the trucks. But upon enquiry, the identity of the consignors could not be ascertained and some of the consignor firms were also found to be fictitious. According to the police officials, their investigation revealed certain manipulation of records and forgery of documents in the entire process. In the resultant situation, the ejahar dated 03.09.2019 was lodged by Sanjit Kumar Roy, Inspector and Officer-in-Charge of the Jalukbari Police Station. The ejahar stated in detail as regards the particulars of the various owners of the seized trucks and centered around the aspect that in respect of most of the truck owners certain discrepancies were found. One of the core allegation made in the ejahar was that the documents pertaining to payment of goods and service tax (GST) were not found in order and, therefore a view was formed that the appellants were involved in evasion of GST dues. Another allegation in the ejahar was that the documents submitted by them were not genuine and were forged with fake signatures. The allegations made in the ejahar dated 03.09.2019 if taken at its face value, would entail a proceeding against the appellants under the GST laws for the purported evasion of the GST dues and with regard to the allegation that the documents were not genuine and were forged with fake signatures, it would entail a prosecution under the Code of Criminal Procedure (for short CrPC) for having committed an offence under the Indian Penal Code (for short IPC).
6. In the said circumstances, the WP(C)No.6762/2019 was preferred for a declaration that the seizure/detention dated 21.08.2019 be declared to be illegal, without jurisdiction, with a further direction to the respondent authorities, more particularly the police officials of Jalukbari Police Station to forthwith release the said goods and to allow the goods to move to its scheduled destination.
7. The appellant took the stand that under Section 67 of the Assam Goods and Services Tax Act, 2017 (for short, AGST Act 2017), the search and seizure can be made only upon the proper officer, being not below the rank of Joint Commissioner, having reason to believe that tax input credit has been claimed in excess of the entitlement under the Act or there has been an evasion of tax payable under the Act
