1 IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CRIMINAL REVISIONAL JURISDICTION PRESENT: THE HON’BLE DR.JUSTICE AJOY KUMAR MUKHERJEE CRR 468 of 2024 Abhishek Kumar Kashyap Vs The State of West Bengal With CRR 469 of 2024 CRAN 1 of 2025 Bikash Shaw Vs. The State of West Bengal With CRR 471 of 2024 CRAN 1 of 2025 Raja Mandal & Anr. Vs. The State of West Bengal For the petitioners : Mr. Rajdeep Mazumder, Sr. Adv. Mr. Uday Shankar Sarkar Ms. Arushi Rathore Mr. Soumya Raha For the State : Mr. Joyjit Chowdhury, Ld. AAG Mr. Nilay Chakraborty, Ld. APP Heard on : 10.03.2025 Judgment on : 28.04.2025 2 Dr.Ajoy Kumar Mukherjee, J. 1. The instant Case has been initiated pursuant to an information that few miscreants were carrying huge quantity of betel nuts/areca nuts by procuring fake documents for their wrongful gain and accordingly the vehicle being registration No. HR 38 AE 6010 for the instant proceeding and two other vehicles for the other two proceedings were intercepted near Ghoshpukur at around 18.50 hrs on 06.10.2024. On query the drivers and helpers disclosed their identity and they further disclosed that the truck is loaded with betel nuts from Assam. The above mentioned two persons submitted one E way bill vide tax invoice dated 03.10.2024 and one tax invoice cum challan dated 03.10.2024 but could not allegedly produce any other document pertaining to the ownership and authorization of vehicle as well as authenticity and ownership of the goods in transit. In the said tax invoice cum challan the name of the consigner is written as KK Enterprise (GSTIN/UIN: 18NYEPK 4248 DZ6) and the consignee is VRIDHI Enterprises (GSTIN/UIN: 07AAYFV4561 H2ZG). On verification it was found from GST Online Portal that KK Enterprises was dealing in Goods and Services of clothing articles, which raised suspicion about the genuineness of the documents produced with the goods. Subsequently the vehicles along with goods were seized under seizure list and the persons were arrested and the aforesaid proceeding under section 318(4)/336(3)/340(2)/3(5) of Bhartiya Nyay Sanghita 2023 (BNS) was started on the same date. 2. Thereafter the accused persons were enlarged on bail on 07.10.2024. the accused petitioner through their learned Advocate made a prayer for 3 releasing the vehicle as well as the seized goods before the court of ACJM, Siliguri on the strength of the power of attorney dated 14.10.2024, executed in Kolkata along with authority letter from one Lokinder Singh in favour of the accused. The said letter of authority was executed at Gaziabad on 14.10.2024. However, the trial court did not release the seized goods on the ground that the ownership of seized betel nuts/areca nuts is yet to be ascertained but the truck was released in favour of the owner Lokinder Singh upon compliance of the formalities mentioned in the order. Thereafter by an order dated 10.12.2024, on the basis of the prayer of the IO, Court below directed for disposal of the seized betel nuts /areca nuts in terms of section 505 of the Bharatiya Nagarik Surkha Sanhita, 2023 (in short BNSS- 2023) 3. Being aggrieved by the aforesaid order as well as the impugned proceeding, Mr. Rajedeep Mazumder learned counsel appearing on behalf of the petitioner submits that the instant proceeding has been maliciously instituted against the petitioners despite the fact that the petitioner was carrying valid legal documents for the goods that were being transported by them. Three drivers of the vehicle in connection with three instant applications were in possession of the valid tax invoice as per section 31 of The Central Goods and Services Tax Act, 2017, (in short CGST Act 2017), E way bill as per section 68 read with rule 138 of the CGST Act, and a valid GST registration number as per section 25(6) of the CGST Act, when the said goods were confiscated by the investigating agency. The HSN (Harmonized System of nomenclature) code no. 0802 was also rightfully issued to the petitioner which shows the petitioner’s company was 4 authorized to deal with areca nuts badam and betel nuts which are commonly used trade descriptions. Such facts further goes on to prove that the transaction between the consigner and the consignee was genuine and there was no irregularity or illegality by the petitioner for initiating instant criminal proceedings. He further submits that the documents like E way bill, Tax Invoice, GST registration which were in possession of the petitioner while in transit were statutory documents in terms of the CGST Act 2017. No goods can be transported inter-state without those statutory documents and said documents are of sterling quality and such fact negates the possibility of any forgery and also negates any allegation of theft. In support of petitioners contention that court can rely upon such documents of sterling quality, Mr. Majumder relied upon the ratio laid down in Rajiv Thapar and others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330 4. He further submits that section 302 (2) /317(2)/317(5) have no manner of application in the instant case. In order to constitute offence of theft, it is required to be established that the accused removed the movable property within the possession of another person without his consent and he did so with a dishonest intention. Accordingly in the instant case where the accused is in lawful possession of the goods on the material date, it does not amount to theft. A charge of committing theft can be lodged when the thing said to be stolen is recovered from the possession of the accused. Similarly, in order to bring home the guilt against a person with the allegation of receiving stolen property dishonestly, he is required to prove that the stolen property was in possession of the accused and that some other persons, other than the accused was in possession of the property, 5 before the accused got possession thereof and that the accused possessed the property with the knowledge that the property is stolen and he got possession of the property dishonestly. Accordingly dishonest intention is the sine qua non of that offence. Mr. Mazumder strenuously argued that the ingredients of the aforesaid offences under which the accused persons are booked is completely absent in the instant cases which is evident from the written complaint. 5. Mr. Mazumder further argued that the prosecuting agency has wrongfully initiated the instant proceeding alleging that the seized articles are stolen property without mentioning in the complaint as to how and when the theft was committed. The complaint also lacks particulars as to time and place of theft or the person who has committed theft. On the contrary when the truck drivers of instant three applications were apprehended with the goods they had legitimate documents and tax invoices of the goods that were being transported but despite producing valid documents, the goods and conveyance were wrongly seized the and the truck drivers of three trucks were arrested. 6. The next limb of argument made by Mr. Mazumder is that under settled principle of law, the special law i.e. CGST Act shall always prevail over the general laws and the BNSS-2023 does not affect any special or local laws, special jurisdiction or special forms of procedure under section 5 of the BNSS. Since CGST Act 2017 is a special law carving out a special jurisdiction, providing special powers and a special form of procedure for offence relating to CGST, it is amply clear that CGST Act, 2017 would prevail over the BNS and the search and seizure needs to be conducted in 6 accordance with the provisions of GST Act. Accordingly he submits the prosecuting agency cannot prosecute GST offences under BNS without invoking penal provisions of GST Act. The GST Act is a complete Code which provides procedure to be adopted by GST authorities, penalties in case of breach and punishment for offences committed under GST Act. 7. In the present case search and seizure operations could only be conducted by the commissioner or any officer of central tax, authorized by him as per section 69(1) of the CGST Act 2017 and at best a case could be made out for commission of offence punishable under section 132 of the CGST Act., 2017. Accordingly where the CGST Act being a special statute is applicable, the provisions of Indian Penal Code or BNS cannot be invoked and as a result registration of FIR at the instance of the prosecuting agency under the provisions of the BNS without invoking penal provisions under CGST Act is bad in law and the consequential proceedings are liable to be set aside. 8. He further argued that under section 25(6) of the CGST Act, every person shall have a PAN No issued by the Income Tax Authority, in order to be eligible for grant of registration. The petitioner herein has lawfully obtained CGST No. in accordance with said section. Section 68 of the GST Act read with rule 138 was also rightfully complied with by the petitioners herein. Moreover, E way bill is an electronic document generated with common portal evidencing movement of goods of consignment valued more than Rs. 50,000/-. Referring the CGST Act Mr. Mazumder further argued that if the commissioner has reason to believe that a person has committed an offence under section 132, he may by order authorize any officer of 7 central Tax to arrest such person. Section 71 of the Act provides that any officer under the Act not below the rank of Joint Commissioner shall have access to any place of business of a registered person to inspect books of accounts, documents, computers etc. and such other things as he may require for the purpose of carrying out any audit, scrutiny, verification and checks as may be necessary to safeguard the interest of revenue. 9. Mr. Mazumder accordingly submits that the seized goods i.e. betel nuts /areca nuts are permissible in nature and must be returned to the petitioner being the rightful claimant of the said goods . In this context he relied upon the judgment of SunderBhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283 and further contended that the said seized property must be returned to its original owner at the earliest, particularly in the cases like present one, where the property concerned is subject to speedy or natural decay. Mr. Mazumder further relying upon the judgment of Dipak Babaria and another Vs. State of Gujarat and others reported in (2014) 3 SCC 503 contended that where CGST Act provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. 10. In reply to prosecutions submission that the GST No. of VRIDHI Enterprises who is a consignee in the instant case was suspended, Mr. Mazumder submits that the GST No. of VRIDHI Enterprises has been suspended temporarily because the goods in transit have been seized by the investigating agency and therefore could not reach its final destination. But fact remains that VRIDHI enterprises was possessing valid GST No. when the accused persons were apprehended and the goods were seized on 8 06.10.2024, whereas the GST No. of VRIDHI Enterprises was suspended only on 20.11.2024. Accordingly Mr. Mazumder has prayed for setting aside the impugned order and quashing the instant three impugned proceedings. 11. Ld. Counsel for the petitioner placed reliance upon the following judgments:- (i) Rajiv Thapar & others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330. (ii) State of Haryana & others Vs. Bhajanlal & others, reported in 1992 supp (1) SCC 335. (iii) Deepak Singhal Vs. Union of India reported in 2024 SCC Online MP 5580. (iv) Parbati Shankar Nandi Vs. State of West Bengal and another reported in CRR No. 3527 of 2018. (v) Dipak Babaria & another Vs. State of Gujarat & others, reported in (2014) 3 SCC 503. (vi) Sunder Bhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283. 12. The prosecution agency submitted a report stating the development in investigation through officer in charge phansidewa P.S., which discloses that during physical verification by the investigating agency it has been found that consignor KK Enterprises did not conduct any business from the registered address shown in the portal at the time of GST registration. Moreover, it has also been found that the logistics/transport provider i.e. A.M. Logistics having its address at Janak Pur, Kahilpara, Assam is also forged and fabricated. On physical verification it was found that there is no 9 existence of the said logistics and the GST IN No. of such logistics is in active from the portal of GST authorities. 13. Ld. P.P. Submits that on scrutinizing the documents received from the GST authorities it is found that the documents that were uploaded for obtaining registration certificate showing the registered place of business was manufactured, forged and fraudulently obtained with dishonest intention for the purpose of cheating, using the same as a genuine one, for the purpose of transportation of huge quantities of betel nuts /areca nuts which is of foreign origin and thereby attracts the ingredients of the offences of forgery, forgery for the purpose of cheating and also using as genuine a forged document which are all cognizable offences under the BNS-2023 and the police authorities are empowered to investigate into such cognizable offences. He further submits that the petitioner/consignor has only brought on record tax invoice and e way bill but has never produced the purchase bill/invoice or the source of origin of the seized produces and the genuinity of the purchase of the betel nuts /areca nuts. Thus, in the absence of such documents the genuineness of the seized goods are yet to be investigated. Further no proof of filing GSTR-2A or GSTR-2B in terms of rule 60 of GST rules has been brought on record nor the GST authority could provide any information in this context in terms of the query made by prosecution through a letter dated 06.02.2025. Ld. P.P. further submits though the petitioner failed to produce any document in support of ownership of the goods but the accused on the strength of forged and fake power of attorney and without producing valid document regarding ownership of seized goods 10 made prayer for its release, in which the trial court had reason to believe that the said power of attorney was not a genuine one. 14. In reply to the argument made on behalf of the petitioner learned public prosecutor on behalf of state submits that the provisions of CGST Act will come into play, if it transpires that any Tax payer has supressed any transaction or has claimed input tax credit in excess for the purpose of evasion of tax. In the instant case the consignor and the consignee both have committed offence under the provision of BNS, which amounts to cheating, forgery of documents, using forged documents as genuine, deception and other offences, which have far reaching consequences. He further submits that it is well settled that police have authority to investigate a complaint if it discloses cognizable offence in view of the land mark judgment of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1. He further submits that since mere production of Tax Invoice and E- way bill which is under close scrutiny in investigation, are not alone proof of ownership of the goods and as such learned Trial Court has not committed any mistake in rejecting the petitioner’s prayer for return of the seized goods and also for making direction for disposal of the same and as such the order impugned does not call for interference by this court. 15. I have considered submissions made by the both the parties. 16. Section 67(1) of the Act provides that where the proper officer not below the rank of joint commissioner has reason to believe that there is any violation or evasion of tax under the GST Act, he may authorise in writing any other officer of the department to inspect any of the places of business of the taxable persons and under section 67(2), where such officer either 11 pursuant to an inspection, carried out under section 67(1) or otherwise has reason to believe that any goods liable for confiscation or any document or books or things which in his opinion shall be useful for all relevant to any proceeding under the Act are secreted in any place, he may authorise in writing any other officer for search and seizure, of such goods or documents and it also provides that prior to such inspection or search or seizure a recording of reasons by the proper officer for such relief, is required and only thereupon the process of search seizure or confiscation can take place. 17. In the instant proceeding although the ownership in respect of the seized articles namely betel nuts/areca nuts are in question but save and except the tax invoice, E way bill and GST registration, the petitioner failed to produce any authentic document in support of ownership. On the contrary it came out during investigation that the alleged consignor namely KK enterprise does not conduct any business from the registered address shown in the portal at the time of GST registration. It further reveals during investigation as reported by the prosecutor that the logistics transport provider namely AM Logistics having its address at Janak Pur Kahilipara, Assam is also forged and fabricated, as also appearing from the statement recorded during investigation. Police also reported that no existence of the said logistics or the GST IN no. of such logistics are found active from the portal of GST authorities. Accordingly the reporting as made by the investigating agency therein raises serious doubt over the authenticity of the documents, which the petitioners relied. Obviously such suspected documents are subject to scrutiny. In this context ld. Counsel appearing on behalf of the State submits that the documents that have been relied by the 12 petitioner in support of his prayer for quashing and also in support of his return of the seized goods are fabricated manipulated and has been used at the behest of other persons indulging in illegal business of betel nuts /areca nuts by using the documents in the name of the petitioner. 18. Ld. Magistrate while rejecting the prayer made by the petitioner made a clear observation that the ownership of the seized betel nuts has not been ascertained as yet and it is further reported that there is no physical existence of consignor and consignee in the address mentioned in the documents. He further observed that section 503 of BNSS has laid down the procedure for disposal of the seized property and in such cases the magistrate has power to pass order for disposal in favour of the persons who is entitled to get possession. But in the present case the court below clearly observed that on perusal of the materials available in the record so far, it cannot be said that the petitioner is entitled to get possession of the seized property. 19. It is settled Principe of law that as the seizure of the property by a government servant amounts to a clear entrustment of the property to a government servant, and the idea is that the property should be restored to the original owner after the necessity to retain it ceases. In Basavva kom Dyamangouda patil Vs. State of Mysore and another, reported in (1977) 4 SCC 358 the Hon’ble Supreme Court held that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any enquiry or trial particularly where the property concerned is subject to speedy or natural decay and there may other compelling reasons also which may be justified the disposal of the property 13 to the owner or otherwise in the interest of justice and for that it is not must for the investigating agency to produce the seized articles before the court. In SunderBhai Ambalal Desai Vs. State of Gujarat, reported in (2002) 10 SCC 283 Hon’ble Supreme Court held that the power under section 451 Cr.P.C. should be exercised expeditiously and judicially and the court is to see that the owner of the article would not suffer because of its remaining as unused or by its mis appropriation as the court or the police would not be required to keep the articles in safe custody and if proper Panchnama before handing over possession of article is prepared then such documents can be used as evidence. 20. In the instant case the documents made available on the record so far it relates to violation of the provisions of GST Act are not being relied upon by the prosecution to indicate any such violation under the provision of GST Act but what is contended is that some such documents are either fraudulent or it contains forged signature, resulting offence under sections 318(4)/336(3)/340(2)/303(2)/317(2)/317(5) of BNS with the specific allegation that the petitioners were involved in fraud and forgery as regards certain documents related to GST. Accordingly if the investigating agency is of the view that the accused persons are to be proceeded with allegation of fraud and forgery simpliciter which on it’s own may be an offence under the BNS then the police authorities has right to proceed against them strictly by following the required procedure prescribed under the BNSS., and bring it to its logical conclusion and in such view of the matter, I do not find any substance in the petitioners argument that since CGST Act 2017 is special law carving out a special jurisdiction, providing special powers, it would 14 prevail over the provision of Indian Penal Code/BNS or the search and seizure of the alleged offence can only be conducted in accordance with the provision of the GST Act. 21. Moreover, even if there is a violation of customs Act and GST Act as well, there would be no bar to hand over the Investigation to the customs authority so far as it relates to the allegations of smuggling is concerned. Similarly, for the violation of the taxation or loss under the GST Act, the investigation ought to be undertaken simultaneously and as such the seizure of the betel nuts/areca nuts and the trucks by the police authorities cannot be said to be without authority. Accordingly even if the present complaint relates to violation of some of the provisions of GST Act but it also appears that simultaneous, allegation of fraud and forgery could also be detected in the tax documents as relied by the accused persons and as such it would also be an offence under the relevant provisions of BNS and as such a seizure is permissible under the BNSS-2023. Investigation further reveals that during interrogation drivers of the offending vehicle made contradictory statement and on prolonged interrogation admitted that some persons are running this business for their wrongful gain. Moreover, till date no one produced any valid document in respect of purchase of seized betel nuts and as such there is reasonable suspicion that the nuts was transporting in illegal way and has been procured in illegal manner. 22. Now so far as return of seized goods to the petitioner is concerned, learned counsel for the state opposed the prayer contending that it is a case of smuggling and the petitioners failed to produce any valid documents in support of the ownership of seized article and as such custody of the goods 15 cannot be given to the petitioners only on the basis of E way bill and the tax invoice etc., which does not establish the ownership. 23. The report relating to investigation raises serious doubt over the authenticity of the documents, the petitioner relied. The suspected documents are subjected to scrutiny in the investigation conducted by police, where the specific allegation is that the documents are fabricated, manipulated and has been used at the behest of other persons indulging in illegal business of betel nuts/areca nuts, using documents in the name of planted persons. Therefore, custody of seized article cannot be given to the petitioner right now as he has not yet proved that he is owner or entitled to get possession of the same for the reasons stated above. Petitioner is also not entitled to get benefit and direction under Sunder Bhai Ambala case (Supra) as under that judgment seized article can be given to it’s owner and not any other unauthorised person. Moreover, if auction is conducted, there would be no loss to the petitioner as in that case it would be deposited in refundable fund and if petitioner succeeds to establish his ownership in trial, the entire amount may be directed to be transferred to his account. The learned trial court has rightly appreciated the real aspect of the matter and there appears no irregularity in the order impugned, which can call for interference by this court, invoking court’s inherent jurisdiction. 24. In such view of the matter CRR 468 of 2024 is dismissed. 25. In view of the dismissal order of said application, the other applications being CRR 469 of 2024 and CRR 471 of 2024 along with all connected applications are also dismissed on the same ground. 16 Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities. (DR. AJOY KUMAR MUKHERJEE, J.)