Devendra Dwivedi v. Union of India & Ors
[Citation -2021-LL-0107-54]

Citation 2021-LL-0107-54
Appellant Name Devendra Dwivedi
Respondent Name Union of India & Ors.
Relevant Act CGST
Date of Order 07/01/2021
Judgment View Judgment
Keyword Tags preponderance of probability • constitutional validity • recording of reasons • money laundering • burden of proof • investigation • ultra vires • service tax • mens rea

1 ITEM NO.29 Court 5 (Video Conferencing) SECTION X SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Writ Petition(s)(Criminal) No(s).272/2020 DEVENDRA DWIVEDI Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) (WITH IA No. 92998/2020 - CLARIFICATION/DIRECTION) WITH W.P.(Crl.) No. 273/2020 (X) (WITH IA No. 93254/2020 - APPROPRIATE ORDERS/DIRECTIONS) W.P.(Crl.) No. 276/2020 (X) (WITH IA No. 94891/2020 - GRANT OF INTERIM RELIEF) W.P.(Crl.) No. 298/2020 (X) (WITH IA No. 100496/2020 - GRANT OF INTERIM RELIEF) Date : 07-01-2021 These petitions were called on for hearing today. CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MS. JUSTICE INDIRA BANERJEE HON'BLE MR. JUSTICE SANJIV KHANNA For Petitioner(s) Mr. Mukul Rohatgi, Sr. Adv. Mr. Bijendra Chahar, Sr. Adv. Mr. Amit Bhandari, Adv. Mr. Kumar Shashank, Adv. Mr. Purushottam Sharma Tripathi, AOR Mr. Abhishek Tripathi, Adv. Mr. Mukesh Kumar Singh, Adv. Mr Vijay Aggarwal, Adv. Mr Mudit Jain, Adv. Mr Yugant, Adv. Mr. Akbar Siddique, AOR For Respondent(s) Mr K K Venugopal, Attorney General For India Signature Not Verified Mr. Tushar Mehta, Solicitor General Mr. S.V. Raju, ASG Digitally signed by Sanjay Kumar Date: 2021.01.07 19:04:34 IST Reason: Mr. Zoheb Hossain, Adv. Mr. Kanu Agarwal, Adv. Mr. B. Krishna Prasad, AOR 2 UPON hearing counsel Court made following ORDER W.P.(Crl) No.272/2020, 273/2020 and 276/2020 1 Mr Mukul Rohatgi, learned Senior Counsel appearing on behalf of petitioners, seeks permission of Court to withdraw petitions with liberty to move High Court in appropriate proceedings. 2 writ petitions are dismissed as withdrawn with liberty as prayed. W.P.(Crl.) No. 298/2020 1 Invoking jurisdiction of this Court under Article 32 of Constitution, following reliefs have been sought by petitioners in these proceedings: 1. Issue appropriate Writ, order(s) or direction(s) declaring Sections 69 & 132 of Central Goods Service Tax Act, 2017,as unconstitutional and ultra vires to Article 21 of Constitution of India and hence unconstitutional, illegal and unenforceable; 2. Issue appropriate Writ, order(s) or direction(s) to Respondent to comply with mandatory procedure under Chapter XII of Code of Criminal Procedure, 1973 including Section 154, 157, 167, 172 etc for valid commencement of investigation into any offence qua petitioner. 3. Declare entire investigations erroneously commenced by Respondents qua Petitioner as non est, illegal, void ab initio for not following mandatory procedure under Chapter XII of Code of Criminal Procedure, 1973 and therefore violative of "procedure established by law". 4. Issue appropriate Writ, order(s) or direction(s) declaring Section 70( 1) of Central Goods Service Tax Act, 2017, as unconstitutional and ultra vires to Article 20(3) of Constitution of India and hence unconstitutional, illegal and unenforceable; 3 5. Issue appropriate Writ, order(s) or direction(s) declaring Section 67 (1) and S. 69 of CGST Act are ultra vires and violative of principles of natural justice, as said Section does not provide for recording of reasons to believe in writing, unlike other statutes such as Prevention of Money Laundering Act, 2002 6. Issue appropriate Writ, order(s) or direction(s) declaring provisions of Section 137 of CGST Act 2017 contrary to settled principles of law, which provide that there can be no fastening of vicarious liability for criminal offence requiring mens rea, without there being active role being proved by prosecution. 7. Issue appropriate Writ, order( s) or direction( s) declaring provisions of Section 135 of CGST Act, 2017, unconstitutional as it requires Accused to disprove reverse burden of proof not by preponderance of probability but beyond reasonable doubt. 2 above reliefs would indicate amalgam of: (i) challenge to constitutional validity of certain provisions of Central Goods Service Tax Act 2017; (ii) direction for compliance with procedure for investigation enunciated in Chapter XII of Code of Criminal Procedure 1973; and (iii) Declaring investigations which have been instituted against petitioner as illegal. 3 During course of hearing, it has been urged on behalf of petitioner that it would be necessary for this Court to entertain present proceedings under Article 32 of Constitution having regard to some earlier orders issuing notice, where similar issues have been involved. It has been submitted that having regard to these orders and constitutional issues which have been raised, it would be appropriate for Court to consider challenge both to 4 constitutional validity of statute and determine legality of investigation which has been commenced. It is urged that right to life under Article 21 of Constitution is engaged in challenge. 4 These submissions which have been urged by Mr Vijay Aggarwal have been opposed by Mr K K Venugopal, learned Attorney General for India and Mr Tushar Mehta, learned Solicitor general. 5 From proceedings before this Court, we find that on 10 April 2019, Bench of three-Judges declined to entertain Writ Petition (Crl) Nos 107 and 108 of 2019. record also indicates that several other petitions which were instituted under Article 32 of Constitution have eventually been withdrawn, including following: (i) Writ Petition (Crl) No 260 of 2020 withdrawn on 28 October 2020; (ii) Writ Petition (Crl) No 167 of 2020 withdrawn on 7 August 2020; (iii) Writ Petition (Crl) No 241 of 2020 withdrawn on 9 September 2020; and (iv) Writ Petition (Crl) No 157 of 2020 withdrawn respectively on 14 July 2020 and 20 July 2020 in relation to two petitioners. earlier petition under Article 32 was withdrawn before this Court today after submissions were urged. 6 petitioners have efficacious remedy in form of proceedings under Article 226 of Constitution to challenge constitutional validity of provisions of statute which are placed in issue. Following this course of action is desirable, for this Court will then have benefit of considered view emanating from High Court. Though Counsel for petitioners invokes 5 Article 21, this is case involving essentially challenge to revenue legislation. Undoubtedly, jurisdiction of this Court under Article 32 is salutary constitutional safeguard to protect fundamental rights of citizens. Court must be solicitous in exercising it where breach of fundamental human rights is in issue. But equally, whether recourse to jurisdiction under Article 32 should be entertained in particular case is matter for calibrated exercise of judicial discretion. There is regime of well-established remedies and procedures under laws of criminal procedure. Revenue legislation also provides its own internal discipline. Short circuiting this should not become ruse for flooding this court with petitions which can, should and must be addressed before competent fora. Hence we are of view that it would be appropriate to relegate petitioner to remedy of petition under Article 226 so that this Court has benefit of considered view of jurisdictional High Court. 7 While it has been pointed out that in certain cases, notice was issued by this Court, learned Attorney General for India has, on other hand, submitted that this was at initial stage of hearing and, as indicated above, three- Judge Bench of this Court has declined to entertain petitions under Article 32 by order dated 10 April 2019. 8 Following orders of three-Judge Bench of this Court in above cases, we are of view that petitioners must be relegated to pursue remedies in accordance with law. Besides fact that constitutional challenge can be addressed before High Court, grievance in regard to conduct of investigation can appropriately be addressed before competent forum, either in exercise of jurisdiction under Article 226 or, as case may be, Section 482 or analogous provisions of Code of Criminal Procedure 1973. 6 9 On these grounds, we are not inclined to entertain writ petition under Article 32. petition is accordingly dismissed. However, we clarify that we have left it open to petitioners to pursue remedies which are available in law in respect of reliefs which have been sought in these proceedings. 10 Pending application, if any, stands disposed of. (SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER Devendra Dwivedi v. Union of India & Or
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