Jharkhand High Court
Rajesh Modi vs The State Of Jharkhand And Anr on 8 October, 2015
Author: Prashant Kumar
Bench: Prashant Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
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W. P. (Cr.) No. 146 of 2014
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Rajesh Modi . . . . Petitioner.
Versus
1. State of Jharkhand
2. The Commercial Taxes Officer, Investigation Bureau,Hazaribagh
Division, Hazaribagh . . . . Respondents.
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CORAM : HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Petitioners : Mr. Sumeet Gadodia
For the State : M/s Bhawesh Kumar,SC-II, Pran Pranay,
Kumar Harsh.
Reserved on 10.08.2015 Delivered on 08/10 /2015
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Prashant Kumar,J. This writ application has been filed for quashing the
entire criminal proceeding, including the First Information Report of the
Mufassil P.S. case no. 305 of 2014 corresponding to the G.R.No. 1897 of
2014, registered under sections 468/471/472 of the Indian Penal Code
and section 84 of the Jharkhand Value Added Tax Act 2005 ( hereinafter
referred as the VAT Act) pending in the court of S.D.J.M. Giridih.
2. It appears that on 04.06.2014, a team of the officers of the
Commercial Tax Department carried out an inspection in the factory
premises of the M/s Bir Steel Private Limited, situated at Tundi Road,
Giridih. In course of the inspection, the team found certain documents and
seals in the premises. The inventory of the aforesaid documents and
seals prepared and handed over to the petitioner with a direction that the
documents and seals will be examined on the next date i.e. 05.06.2014. It
appears that on 05.06.2014 again the aforesaid officers came at the
factory premises of the M/s Bir Steel Private Limited and examined the
documents and seals and prepared inspection report. On that day, one of
the members of the team, namely, Commercial Tax Officer, Investigation
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Bureau, Hazaribagh Division, Hazaribagh seized the aforesaid
documents and seals and prepared seizure-list. It further appears that
copy of the said seizure-list handed over to the petitioner. Thereafter, a
written information given to the police by the Commercial Tax Officers,
Investigation Bureau, Hazaribagh Division, Hazaribagh. On the basis of
the said written information, Giridih ( Mufassil) P.S.case no. 305 of 2014
registered under section 468/471/472 of the Indian Penal Code and
section 84 of the VAT Act. In this writ application petitioner challenged the
entire criminal proceeding instituted on the basis of aforesaid F.I.R.
3. It is submitted by learned counsel for the petitioner that alleged
search and seizure in the factory premises of the petitioner is without
jurisdiction. Thus, the FIR lodged on the basis of aforesaid search and
seizure is illegal, therefore, liable to be quashed. It is submitted that that
as per Notification issued by the State Government on 30.03.2006 under
sub-section (2) of Section 4 and sub-section (1) of Section 69 of the VAT
Act, 2005, the officers who conducted search and seizure in the factory
premises of the petitioner have no jurisdiction to conduct such search and
seizure. It is submitted that as per aforesaid Notification Deputy
Commissioner, Commercial Taxes, Adityapur Circle, Jamshedpur,
Assistant Commissioner, Commercial Taxes. Singhbhum Circle,
Jamshedpur, Assistant Commissioner, Commercial Taxes, Adityapur
Circle, Jamshedpur, Assistant Commissioner, Commercial Taxes,
Jamshedpur Circle, Jamshedpur, Commercial Tax Officer, Investigation
Bureau, Jamshedpur Circle, Jamshedpur have no jurisdiction to enter in
the factory premises of the petitioner for search and seizure, therefore, the
search and seizure carried out by the aforesaid officers is without
jurisdiction. Consequently, the First Information Report lodged on the
basis of aforesaid search and seizure is unsustainable. It is further
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submitted that as per Sub-rule (2) of Rule 39 of the Jharkhand Value
Added Tax Rules, 2006 , it is necessary for the officers to follow the
procedure of search prescribed in the Code of Criminal Procedure, 1973.
It is submitted that while conducting the search in the factory premises of
the petitioner, the officers have not followed the procedure provided under
section 165 of the Code of Criminal Procedure, therefore, the aforesaid
search is illegal. It is further submitted that the offence alleged is covered
by a special Act, namely, VAT Act and, therefore, general provisions
under the Indian Penal Code has no application. Thus, institution of case
under section 468/471/472 of the Indian Penal Code is liable to be
quashed.
4. On the other hand, learned SC-II submits that the team of the
officers have been authorised to conduct inspection in the factory
premises of the M/s Bir Steel Private Limited by the order of
Commissioner passed under Sub-rule (4) of Rule 39 of Jharkhand Value
Added Tax Rules, 2006. Thus, officers have jurisdiction to enter in the
factory premises of the petitioner and carry out inspection. It is further
stated that seizure has been made by the Commercial Tax Officers,
Investigation Bureau, Hazaribagh Circle, Hazaribagh, who has power of
seizure under the Notification issued by the State Government on
30.03.2006. Therefore, seizure of the documents and seals from the factory premises of the petitioner is legal and valid. It is further submitted that Sub-rule (2) of Rule 39 of the Jharkhand Value Added Tax Rules, 2006 applies only to the case of search, it has no application in case of inspection and seizure.
5. Learned SC-II, further submits that from perusal of inspection report and other documents available on the record, it is clear that the officers had not conducted search in the factory premises of M/s Bir Steel -4- Pvt. Ltd. Thus, question of violation of Section 165 of the Cr. P.C. does not arise. It is further submitted that from the factory premises of the petitioner, certain documents of other dealers as well as seals of the Commercial Tax Department seized. Learned Standing Counsel further submitted that the aforesaid seals are being used by the petitioner for making forged documents with a view to evade Commercial Tax. Therefore, Section 468/471/472 of the Indian Penal Code added in the F.I.R. It is submitted that there is no provision in the VAT Act for punishment of the offence of forgery, therefore, there is no illegality in the institution of the present F.I.R.
6. Having heard the submissions, I have gone through the records of the case.
7. From perusal of Annexure-B to the supplementary affidavit filed on behalf of the informant, it appears that the Secretary-cum-Commissioner, Commercial Tax Department, Govt. of Jharkhand, Ranchi has constituted different teams of the officers for conducting inspection in different factory premises of steel manufacturer. It appears that a team of Sri Ramchandra Prasad Barnwal, Deputy Commissioner, Commercial Tax, Adityapur Circle, Jamshedpur, Sri Jitendra Kumar Jha, Asstt. Commissioner, Commercial Tax, Singhbhum Circle, Jamshedpur, Sri Sushil Khusar, Assistant Commissioner, Commercial Tax, Adityapur Circle, Jamshedpur, Sri Jagdish Sahu, Assistant Commissioner, Commercial Tax, Jamshedpur Circle, Jamshedpur, Sri Manoj Kumar, Commercial Tax Officer, Investigation Bureau, Jamshedpur Circle, Jamshedpur and Sri Rajesh Kumar Singh, Commercial Tax Officer, Investigation Bureau, Hazaribagh Sub-division, Hazaribagh constituted for conducting inspection in the factory premises of M/s Bir Steel Pvt. Ltd. Giridih. In the above order the teams were directed to carry out inspection in the factory premises on -5- 04.06.2014 and onward. It then appears from the Inspection Report ( Annexure-II to the F.I.R.) that on the basis of aforesaid direction of the Commissioner, the aforesaid team conducted inspection in the factory premises of the petitioner on 04.06.2014 and made inventory of different items and handed over the same to the petitioner with a direction that the inspecting team will again visit the factory premises on 05.06.2014 and continue the inspection work. It appears that on 05.06.2014, the inspecting team made further inspection and found that the petitioner, with a view to evade commercial tax, had committed irregularities in the account etc. The team further suspected that the seals found in the factory premises of the petitioner are being used by the petitioner for illegal purpose, with a view to evade commercial tax. It appears that the respondent no.2 seized the aforesaid articles and prepared seizure list (Annexure-III to the F.I.R).
8. Thus, from perusal of the F.I.R. coupled with the Inspection Report, it is clear that the team of aforesaid officers had not conducted search in the factory premises of M/s Bir Steel Pvt. Ltd., rather they conducted an inspection. It is worth mentioning that for conducting inspection in the factory premises of M/s Bir Steel Pvt. Ltd. , the Secretary-cum- Commissioner, Commercial Tax Department, Govt. of Jharkhand, Ranchi had authorised the team. The Rule 39 (4) of the Jharkhand Value Added Tax Rules, 2006 empowers the Commissioner to authorise any officer by an order in writing to conduct inspection, search or seizure. As noticed above, Annexure-D shows that the team of the above officers authorised to conduct inspection in the factory premises of M/s Bir Steel Pvt. Ltd. on 04.06.2014 and onward. Under the aforesaid circumstance, I find that the team of officers, who conducted inspection in the factory premises of M/s Bir Steel Pvt. Ltd. had power to do so, -6- therefore, the contention of the learned counsel for the petitioner that the aforesaid inspection is without jurisdiction is rejected.
9. Rule 39(2) of the Jharkhand Value Added Tax Rules, 2006 provides that if any officer conducts search in the premises of any tax payer, then he is require to follow the procedure prescribed under section 165 of the Cr.P.C. In the instant case, as noticed above, the team constituted by the Commissioner had not conducted any search in the premises of the petitioner, rather they carried out inspection. Under the said circumstance, the procedure laid down under section 165 of the Cr.P.C. has no application in this case. Thus, the submission made by the learned counsel for the petitioner is not acceptable.
10. Now, coming to the third contention raised by learned counsel for the petitioner that the police had wrongly instituted the case under sections 468/471/472 of the Indian Penal Code, it is relevant to mention that it is alleged that during the inspection, the team found the Tax Invoice A/c of Baba Boothnath Traders, Tundi Road, Mohanpur, Giridih, Tax Invoice Volume of M/s Hanuman Enterprises, Ambadih, Mohanpur, Giridih, Transport Builty Volume of M/s Sri Nivas Road Carrier, Ranchi- Patna Road, Barhi, Tax Invoice Volume Loose of M/s Arihant and Company, Tundi Road, Giridih.It is also stated that during the inspection five seals were found. It is alleged that the aforesaid documents and seals have been mis-used by the Director of M/s Bir Steel Pvt. Ltd. namely, Rajesh Modi with a view to evade tax. Thus, there is direct allegation against the petitioner that he used to prepare false and forged documents for evading commercial tax. In the VAT Act, there is no provision for punishing a person for the offence of forgery. Under the aforesaid circumstance, I find that there is no illegality if all the offences under the Indian Penal Code as well as VAT Act are being investigated -7- and tried together. Therefore, third contention of the learned counsel for the petitioner is also not acceptable.
11. In view of the discussions made above, I find no merit in this writ application. Accordingly the same is dismissed.
( Prashant Kumar,J.) Raman/