Point of Law: Section 132 of the Act lists 12 offences that are punishable with imprisonment and/or a fine. The terms of imprisonment and the amount of fine, is dependent on the amount involved in the offence, or in some cases, the act committed by the offender.

JUDGMENT :

1. This anticipatory bail application under Section 438 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") has been filed by the applicants M/s V.K. Traders/ applicant No. 1 and Vipin Kumar/ applicant No. 2 (added as an applicant in pursuance of order dated 25.11.2021 of the court) before this Court directly without approaching the Sessions Judge with the following prayer:

“It is, therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and grant anticipatory bail to the applicant under Section 132(1)(a)(b)(c)(d)(i) of the Central Goods and Service Tax Act, otherwise applicant shall suffer irreparable loss and injury.

And/or pass such other further order which this Hon'ble Court may deem fit and proper in the circumstances of the case.”

2. Heard Sri Rakesh Pande, learned Senior Advocate assisted by Ms. Vishakha Pande, learned counsel for the applicants, Sri Dileep Chandra Mathur, learned counsel for the opposite party no. 3/ Directorate General, Goods and Services Tax Intelligence, Meerut Zonal Unit, Meerut through its Senior Intelligence Officer, Sri Suresh Kumar Maurya, Advocate holding brief of Sri Krishna Agarawal, learned counsel for the opposite party nos. 2/ Chief Commissioner, CGST, Meerut Zone, Meerut and 4/ Assisstant Commissioner, CGST, Meerut and perused the material on record.

3. No one appears on behalf of the opposite Party No.1/ Union of India.

4. Sri S.B. Maurya, learned State counsel is also present.

5. Learned counsel for the applicants states that he does not intend to file any rejoinder affidavit to the counter affidavit filed on behalf the opposite party no. 3 for which he was granted time on 12.2.2022.

The Court thus proceeds to hear the matter.

6. At the very outset, learned counsel for the applicants has stated that the dispute in the present matter relates to an amount of Rs.1,80,86,343/- which is stated to be prima facie availed by M/s V.K. Traders the applicant no. 1 as an inadmissible Input Tax Credit (ITC). It is argued that the applicant no. 1 is the proprietorship firm of which the applicant no. 2 is the sole proprietor. It is argued that since in para-28 of the counter affidavit it has specifically been mentioned that all the offences in which tax evasion is less than Rs. 5 crore remain bailable and only most grave offences involving tax evasion above Rs. 5 crore have been made non-bailable and cognizable offences and, as such, the amount in the present dispute is much less than Rs. 5 crore, and, hence the offences are bailable. It is argued that as such the applicant is entitled to be granted anticipatory bail.

7. Per contra, learned counsel appearing for the opposite party no. 3 opposed the prayer for anticipatory bail and argued that the present anticipatory bail application under Section 438 Cr.P.C. is not maintainable inasmuch as the amount involved, which has been availed by M/s V.K. Traders the applicant no. 1 and is an inadmissible Input Tax Credit is Rs.1,80,86,343/- which is much less than the amount which would make the offence non-bailable and cognizable.

8. This Court without going into the merits of the case proceeds to examine the following question which arises before it for its adjudication :

“Whether an application under Section 438 Cr.P.C. would lie and is maintainable for an offence which has been declared by the concerned statute as a bailable offence ?”

9. Section 438 of the Code of Criminal Procedure, 1973 as introduced in the State of Uttar Pradesh on 06.06.2019 reads as follows :-

“438. Direction for grant of bail to person apprehending arrest. –

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:—

(i) th