Amit Joshi v. Commissioner of CEST & ST, CGST (East) & Anr
[Citation -2020-LL-0320-49]

Citation 2020-LL-0320-49
Appellant Name Amit Joshi
Respondent Name Commissioner of CEST & ST, CGST (East) & Anr.
Court HIGH COURT OF DELHI AT NEW DELHI
Relevant Act CGST
Date of Order 20/03/2020
Judgment View Judgment
Keyword Tags investigation • tax evasion


* IN HIGH COURT OF DELHI AT NEW DELHI % Judgment dated: 20.03.2020 + W.P.(CRL) 766/2020 & CRL. M.A. 5730/2020 AMIT JOSHI ..... Petitioner Through: Mr. Ramakant Gaur, Mr. Rakesh Chitkara, Ms. Sneha Arya, Ms. Shubhakriti Gaur, Ms. Prerna Agarwal & Ms. Harshi Gaur, Advocates. versus COMMISSIONER OF CEST & ST, CGST (EAST) & ANR. ..... Respondents Through: Mr. Harpreet Singh, Sr. Standing Counsel with Ms. Suhani Mathur & Ankit Singh. HON'BLE MR. JUSTICE BRIJESH SETHI JUDGMENT BRIJESH SETHI, J (ORAL) W.P.(CRL) 766/2020 1. This is petition filed by petitioner under Article 226 of Constitution of India for issuance of writ to safeguard right to life, liberty, dignity & fair investigation and to examine illegal acts of CGST officials and to monitor investigation of case. Signature Not Verified Digitally Signed W.P.(CRL) 766/2020 & Crl. MA no. 5730/20 Page 1 of 7 By:PRADEEP SHARMA Signing Date:18.08.2020 15:54:08 2. Ld. Counsel for petitioner has prayed that records of investigation be called from office of respondents and court should examine same on touchstone of law relating to fair investigation. He has further prayed that Court should monitor investigation of case till issuance of Show Cause Notice and/ or till filing of complaint and further direct respondents to give bi-monthly reports to this Court about progress of investigation. 3. Notice. 4. Ld. Sr. Standing counsel for respondents accepts notice on behalf of respondents and seeks time to file status report. 5. Let status report be filed two days before next date of hearing i.e. 18.05.2020. CRL. M.A. 5730/2020 1. interim application has also been filed for issuance of direction to respondents to conduct investigation without use of any coercive means along with video recording of statements of applicant and to allow presence of Lawyer at visible yet inaudible distance of applicant. Signature Not Verified Digitally Signed W.P.(CRL) 766/2020 & Crl. MA no. 5730/20 Page 2 of 7 By:PRADEEP SHARMA Signing Date:18.08.2020 15:54:08 2. Ld. Sr. Standing counsel for respondents seeks time to file reply to said application. However, Ld. Counsel for petitioner insists for immediate issuance of directions to respondents. 3. Ld. Counsel for petitioner has submitted that applicant was picked up on 07.03.2020 and was kept in illegal detention for three consecutive days. He has been beaten ruthlessly and was coerced to write incriminating statement. It is submitted that investigation by respondents is not being conducted in accordance with law. He has, therefore, prayed that presence of Advocate be allowed at visible yet inaudible distance of applicant. 4. Ld. Sr. Standing counsel for respondents has submitted that investigation is being conducted as per law. petitioner is not subjected to any torture during interrogation. So far as submission of Ld. Counsel for petitioner regarding presence of lawyer at time of interrogation is concerned, he has relied upon judgment titled Pool Pandi vs. Superintendent, Central Excise and Ors. 1992 AIR 1795 (SC) as well as judgment of this Signature Not Verified Digitally Signed W.P.(CRL) 766/2020 & Crl. MA no. 5730/20 Page 3 of 7 By:PRADEEP SHARMA Signing Date:18.08.2020 15:54:08 Court titled Sudhir Kumar Aggarwal vs. Directorate General of GST Intelligence, W.P. (Crl.) 2686/2019 dt. 06.11.19. 5. I have considered rival submissions. Ld. Counsel for petitioner has relied upon judgment of Hon ble Supreme Court titled Senior Intelligence Officer vs. Jugal Kishore Samra, Crl. Appl No. 1266/2011 (Arising out of SLP (Crl.) No. 628/2008) decided on 05.07.2011. I have gone through said judgment. It was passed because of special facts and circumstances of said case as respondent i.e. accused Jugal Kishore Samra was suffering from heart disease and his medical condition was considered by Ld. Sessions Judge while passing order. said case is, thus, distinguishable on basis of facts and circumstances stated therein. Hon ble Supreme Court in case titled Pool Pandi vs. Superintendent, Central Excise and Ors. 1992 AIR 1795 (SC) , has categorically held that presence of lawyer cannot be allowed during questioning under Customs Act and relevant para runs as follows; 11. We do not find any force in arguments of Mr. Salve and Mr. Lalit that if person is called away from his own house and questioned in atmosphere of customs office without assistance of his lawyer or his friends his Signature Not Verified Digitally Signed W.P.(CRL) 766/2020 & Crl. MA no. 5730/20 Page 4 of 7 By:PRADEEP SHARMA Signing Date:18.08.2020 15:54:08 constitutional right under Article 21 is violated. argument proceeds thus : if person who is used to certain comforts and convenience is asked to come by himself to Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in position to afford luxuries on lavish scale of which honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be ground for holding that he has constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his arguement with reference to comfort part, but continued to maintain that appellant is entitled to company of his choice during questioning. purpose of enquiry under Customs Act and other similar statutes will be completely frustrated if whims of persons in possession of useful information for departments are allowed to prevail. For achieving object of such enquiry if appropriate authorities be of view that such persons should be dissociated from atmosphere and company of persons who provide encouragement to them in adopting non-cooperative attitude to machineries of law, there cannot be any legitimate objection in depriving them of such company. relevant provisions of Constitution in this regard have to be construed in spirit they were made and benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at cost of public exchequer. Applying `just, fair and reasonable test' we hold that there is no merit in stand of appellant before us. (Emphasis supplied). Signature Not Verified Digitally Signed W.P.(CRL) 766/2020 & Crl. MA no. 5730/20 Page 5 of 7 By:PRADEEP SHARMA Signing Date:18.08.2020 15:54:08 6. Thus, Hon ble Supreme Court in Pool Pandi s judgment (Supra), has categorically held that presence of lawyer cannot be allowed during examination/ interrogation by Customs Officer. It was held that relevant provisions of Constitution in this regard have to be construed in spirit in which they were made and benefit thereunder should not be extended to exploiters engaged in Tax Evasion at cost of public exchequer. submission of petitioner regarding presence of lawyer in interrogation was, therefore, declined by Hon ble Supreme Court. 7. petitioner in present case has been summoned by Officers under GST Act who are not Police Officers and who have been conferred with power to summon any person whose attendance they consider necessary to give evidence or to produce document. presence of lawyer, therefore, is not required during examination of petitioner as per law laid down by Hon ble Supreme Court in Pool Pandi s case (Supra). So far as apprehension of petitioner that he may be physically assaulted or manhandled is concerned, this Court is of opinion that it is well settled law now that no inquiry/ investigating officer has right Signature Not Verified Digitally Signed W.P.(CRL) 766/2020 & Crl. MA no. 5730/20 Page 6 of 7 By:PRADEEP SHARMA Signing Date:18.08.2020 15:54:08 to use any method which is not approved by law to extract information from witness/ suspect during examination and in case it is so done, no one can be allowed to break law with impunity and has to face consequences of his action. 8. Ld. Sr. Standing Counsel for respondents on other hand has categorically stated at Bar that interrogation/ investigation of petitioner would be conducted as per law and respondents will not adopt any such method which is not permissible by law. 9. In view of above submission made by Ld. Sr. Standing Counsel for respondents and also in view of judgment of Hon ble Supreme Court in Pool Pandi s case (Supra), no grounds are made out to allow presence of Advocate while questioning or examination by officers of respondents. present application is, therefore, dismissed and stands disposed of accordingly. BRIJESH SETHI, J. March, 20, 2020/ (Amit) Signature Not Verified Digitally Signed W.P.(CRL) 766/2020 & Crl. MA no. 5730/20 Page 7 of 7 By:PRADEEP SHARMA Signing Date:18.08.2020 15:54:08 Amit Joshi v. Commissioner of CEST & ST, CGST (East) & Anr
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