Punjab-Haryana High Court
Pritpal Singh vs State Of Punjab And Another on 5 March, 2012
Criminal Misc. M 26116 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
Criminal Misc. M 26116 of 2010
Date of decision: 05.03.2012
Pritpal Singh ........ Petitioner
Versus
State of Punjab and another .......Respondent(s)
Coram: Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. Munish Singla, Advocate
for the petitioners
Mr. Hardev Singh, Asstt. Advocate General, Punjab
for the respondent- State
-.-
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Nirmaljit Kaur, J.
This is a petition under Section 482 Cr.P.C. seeking quashing of FIR No. 74 dated 24.06.2010 (P1), under section 420, 120-B, 186, 34 of Indian Penal Code, Police Station Khuian SWR, District Ferozepur.
Brief facts of the case are that complainant/respondent No. 2 got registered the aforesaid FIR against the present petitioner as well as one Ashok Sidana on the allegations that Ashok Sidana is habitual of transporting the goods in Punjab from Rajasthan through Achriki and evades the tax. On 24.06.2010, one vehicle Mahindra Pickup PB 05P 9922 loaded with provisional material and belonging to Ashok Sidana was also Criminal Misc. M 26116 of 2010 2 coming and on the basis of secret information, a secret naka was put and when the Jeep was just to reach near the naka, then one Alto Car No. RJ 13 CA 0362 overtook the Jeep and stopped the Jeep and returned back the same. Jeep entered in Rajasthan but car itself was stopped at Punjab Boarder and the complainant side apprehended the car to whom the petitioner was driving and on asking from the petitioner, the petitioner told that he was returned back the Jeep because he wanted to save Ashok Sidana.
While praying for quashing of the said FIR, learned counsel for the petitioner contended that no offence under the Indian Penal Code was made out and secondly, even if the allegations as levelled in the FIR are taken to be true, no criminal offence can be said to be made out as if anybody enters in Punjab State from any other State through unauthorized passage that too evade tax, then only penal provisions are of penalty etc. as provided under the VAT Act and that too if the person is apprehended at the spot along with the goods. At the best, it is a case of civil nature as provided under the Punjab VAT Act. As per the provisions of Punjab Vat Act, a person without the documents or with no genuine documents carrying the articles in the goods vehicle, is liable to be punished with penalty of 30% of the value of the goods.
Reliance was placed on the judgment rendered by the Apex Court in the case of Dilawar Singh v. Parvinder Singh @ Iqbal Singh and another reported as 2005(4) RCR(Criminal) 855.
Reply by way of affidavit of Malwinder Singh Dhillon, Excise and Taxation Officer, Mobile Wing, Bathinda, District Bathinda on behalf of respondent No. 2 has been filed. The only objection taken by the State in Criminal Misc. M 26116 of 2010 3 the said reply is that the petitioner was found cheating the Government by evading the payment of tax. It is further admitted that the Punjab VAT Act provides for payment of penalty. The allegation against the present petitioner is that he has assisted the main accused in evading the tax by telling him to change the route. Hence, he has been proceeded against under the Indian Penal Code.
Heard.
Allegation against the present petition is that he was driving the Car in question and by over taking the Truck, he stopped the same and told the said Truck to go back. On an inquiry from him, he admitted that he wanted to save the vehicle from the tax Officer and therefore, by stopping the vehicle, he has sent the same to Ganga Nagar.
Thus, the petitioner is neither the owner of the said truck nor is stated to have anything to do with the goods. He is stated to have assisted the main accused in evading the tax Section 51(4) of the Punjab Value Added Tax Act reads as under:-
(4) The owner or person Incharge of a goods vehicle entering the limits or leaving the limits of the State, shall stop at the nearest check posts or information collection centre as the case may be, and shall furnish in triplicate a declaration mentioned in sub section (2) along with the documents in respect the goods carried in such vehicle before the officer Incharge of the check post or information collection centre. The officer Incharge shall return a copy of the declaration duly verified by him to the owner or person Incharge of the goods vehicle to enable him to produce the same at the time of subsequent Criminal Misc. M 26116 of 2010 4 checking, if any.
Provided that where a goods vehicle bound for any place outside the State passes through the State, the owner or person Incharge of such vehicle shall furnish, in duplicate, to the officer Incharge of the check post or information collection centre, a declaration in respect of his entry into the State in the prescribed form and obtain from him a copy thereof duly verified. The owner or person Incharge of the goods vehicle, shall deliver within forty eight hours the aforesaid copy to the officer Incharge of the check post or information collection centre at the point of its exit from the State, failing, which he shall be liable to pay a penalty to be imposed by the Officer Incharge of the check post or information collection centre equal to fifty per cent of the value of the goods involved.
A perusal of sub Section (4) of Section 51 of the VAT Act makes out the provisions of penalty of 50% of the value of the goods involved if the driver has failed to deliver within forty eight hours the transit receipt to the Officer Incharge of the check post or information Collection Centre.
Section 51 (7) (a) and (b) of the Punjab Value Added Tax Act reads thus:-
(7) (a) The officer detaining the goods under sub section (6) shall record the statement, if any, given by the consignor or consignee of the goods or his representative or the driver or other person Incharge of the goods vehicle and shall require him to prove the genuineness of the transaction before him in his office within the period of seventy two hours of the detention.
The said officer, shall, immediately thereafter, submit Criminal Misc. M 26116 of 2010 5 the proceedings along with the concerned records to the designated officer for conducting necessary inquiry in the matter.
(b) The designated officer shall, before conducting the inquiry, serve a notice on the consignor or consignee of the goods detained under clause (a) of sub section (6) and give him an opportunity of being heard and if, after the inquiry, such officer finds that there has been an attempt to avoid or evade the tax due or likely to be due under this Act, he shall, by order, impose on the consignor or consignee of the goods, a penalty, which shall be equal to thirty percent of the value of the goods. In case, he finds otherwise, he shall order release of the goods and the vehicle, if not already released, after recording reasons in writing and shall decide the matter finally within a period of fourteen days from the commencement of the inquiry proceedings.
A perusal of sub section (7) (a) of Section 51 of the VAT Act lays down the provisions for penalty of 50% of the value of the goods if the vehicle is going without any documents. Sub section (7) (b) of Section 51 of the VAT Act, makes out the provisions of penalty when the vehicle is going without any proper or genuine document to be 30% of the value of the goods.
Thus, there is no provision of registration of FIR in such like matters of evading the tax. The provisions provide for the mandatory penalty. It is well settled proposition of law that if a special provision has been made qua particular subject, the said subject is excluded from the general provisions.
Hon'ble the Supreme Court in the case of Dilawar Singh Criminal Misc. M 26116 of 2010 6 (supra) held that the Prevention of Corruption Act, 1988 was a special Act and, therefore, in the facts of the case it would apply, which means that co- accused cannot be summoned under Section 319 Cr.P.C. in the absence of sanction. Para 8 of the said judgment reads as under:-
8. The contention raised by learned counsel for the respondent that a Court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence under Section 190 Cr.P.C. The observations made by this Court in Raghubans Dubey v. State of Bihar (supra) were also made in that context. The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim Generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Venkateshwar Rao v. Govt. of Andhra Pradesh AIR 1966 SC 828, State of Bihar v.
Yogendra Singh AIR 1982 SC 882 and Maharashtra State Board of Secondary Education v. Paritosh Bhupesh Kumar Sheth AIR 1984 SC 1543).
Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.P.C. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr.P.C. if no sanction has been granted by the appropriate authority for Criminal Misc. M 26116 of 2010 7 prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person."
Thus, the only allegation in the said FIR that the petitioner helped the main accused to evade the tax under no circumstances invite the offence of Section 420 of IPC, in case, the person is found guilty of evading the tax. The Punjab Value Added Tax Act provides for payment of penalty. The provisions of the said VAT Act are sufficient and equipped to deal with the matters where an attempt is made to evade the tax. Thus, the registration of the FIR in such like matters is totally an abuse of process of law. Once an FIR cannot be registered against a person who evaded the tax, no FIR can be registered against a person who is stated to have assisted and the person who has attempted to evade the tax.
In view of the above discussion as well as facts, the present petition is allowed and FIR No. 74 dated 24.06.2010 (P1), under section 420, 120-B, 186, 34 of Indian Penal Code, Police Station Khuian SWR, District Ferozepur and subsequent proceedings arising out of the same are hereby quashed.
(Nirmaljit Kaur) Judge 05.03.2012 mohan