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2019 Supreme(Gau) 811
IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
M/S Sangtei Enterprise And Another - Appellants
Vs.
State of Assam And Ors. - Respondents
Writ Petition (Civil) No. 7081 of 2019, 7082 of 2019, 7086 of 2019, 7091 of 2019, 7443 of 2019, 7083 of 2019, 6762 of 2019, 7096 of 2019, 7098 of 2019, 7088 of 2019, 7089 of 2019, 7095 of 2019, 7094 of 2019, 7092 of 2019, 7085 of 2019, 6766 of 2019
Decided On : 25-10-2019
A.K. Saraf, Adv., A. Goyal, Adv., A. Choudhury, Adv., D. Saikia, Adv., B. Choudhury, Adv.
Headnote:
Goods and Services Tax Act, 2017 – Section 67, 72– Customs Act, 1962 – Sec. 111, Sec. 110, Section 104, Section 132, Section 105, 106, 107, 110 – Code Of Criminal Procedure, 1973 – Sec. 451/457, Sec. 4 CrPC, Sec. 102(1) CrPC – Indian Penal Code – Section 120 (B), 420, 468, 471, 5, 403 – General Clauses Act – Section 26 Sales of Tax Act – Section 88, 7(1) – Constitution of India – Article 20(2), 14, 21, 22 – Prevention of Corruption Act – Narcotic Drugs and Psychotropic Substances Act, 1985 –Food and Safety Standards Act, 2006 – Sections 26, 30 – Mines and Minerals (Development and Regulation) Act 1957 – Cheating – Dishonestly – Delivery of property – Punishment – Criminal conspiracy – Illegal seizures – These petitions are taken up together, considering commonality of issues raised in these petitions – Apparently a routine seizure of certain trucks by police on suspicion of carrying articles without valid documents has spawned an important question of law by alleging that police have acted without jurisdiction by usurping role and jurisdiction of other law enforcing agencies – Since issues raised are primarily legal in nature, only minimal facts may be adverted to – In these petitions, most of petitioners claim to be primarily proprietorship firms carrying on business of sale and supply of arecanuts – All petitioner firms are registered under Assam Goods and Services Tax Act, 2017 and according to them, they had been paying necessary tax as required under rules – According to petitioners, since petitioner firms had paid necessary tax under Assam Goods and Service Tax Act, 2017, seizure of trucks and areca-nuts carried therein by Assam Police, who have nothing to do with taxation regime, is plainly illegal, and accordingly, these petitions have been filed seeking quashing of illegal seizures and release of seized goods – Held, under facts and circumstances as revealed in pleadings, apart from offences under Indian Penal Code concerning which police have already filed FIR and started investigation, there is no other offence disclosed, other than the offence alleged under Customs Act, 1962, which also seems to be main and principal offence as far as petitioners are concerned – Since the seized areca nuts and trucks essentially pertain to main offence of smuggling coming within purview of Customs Act, 1962, which are liable to be seized and confiscated under Customs Act, these ought to be handed over Customs authorities for their investigation – If allegations of police are to be accepted, offences under Penal Code pertaining to forgery and using false documents as genuine, seem to be subsidiary crimes committed in aid of principal crime of smuggling from a foreign country – Under such a situation, once relevant documents are seized by police and investigations revealed commission of principal offence under Customs Act, it would be appropriate to hand over investigation to Customs authorities for further investigation under Customs Act along with seized goods and trucks – Petitions are Dismissed
JUDGMENT :
N. Kotiswar Singh, J.
Heard Dr. A. K. Saraf, learned senior counsel assisted by Sri A. Goyal, Advocate, for the petitioners and Sri D. Saikia, learned senior counsel assisted by Mr. B. Choudhury, learned Standing Counsel, Taxes for the State respondents.
2. These petitions are taken up together, considering the 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 of the seized goods.
7. The response of the State Respondents is that on 21.08.2019, the police officers of the Jalukbari Police Station received certain credible information about movement of trucks carrying areca nuts from Cachar towards West Bengal without proper documentations. Based on the said information, the police detained 25 trucks. Thereafter, the police authorities forwarded the tax documents to the State Tax Department for verification. On the next day on 22.8.2019, a police team proceeded to Cachar and Karimganj districts to enquire about the details of the said trucks. It is alleged that on enquiry, the real identity of the consignors could not be ascertained and many were not traceable and that it appeared that the firms were fictitious. It has been alleged that on making local verification as stated above, it appeared that there were manipulations of records and forgery of documents in the entire process. Thereafter, on the basis of the report submitted by the said team, an FIR was registered on 3.9.2019 as Jalukbari PS Case No. 1362/2019 u/s 120 (B)/420/468/471 IPC.
8. Since, the genesis of the police action lay in the complaint and FIR, and the consequential police actions are questioned as mentioned above, the relevant portions of the FIR are reproduced herein below:
"On 21.8.2019 an information was received from source that a number of trucks with areca nuts were proceeding from Cachar towards West Bengal side without having valid documents. On the basis of the information I along with OC Jalukbari PS Inspector ......... and his staff (vide Jalukbari PS GDE No. 697 dated 21.8.2019) set up a naka on NH37 near Radisson Blu Hotel. During naka checking 25 nos. of trucks carrying areca nuts (supari) were detained and they were kept at ISBT campus near Gurchuk Police Station for verification/enquiry. The detained vehicles are:
1. .........
2. .........
.........
.........
25. .........
The tax documents submitted by the truck drivers were sent to the State Tax Department for verification. However after verification by the Tax Department it suggested to keep the following vehicles under detention for further verification:
1. .........
2. .........
.........
.........
10. .........
On 27.8.2019, as per Memo No. 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 ar
