HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL MISC. BAIL APPLICATION No. - 10225 of 2026 Court No. - 68 HON'BLE ASHUTOSH SRIVASTAVA, J. Heard Shri Avijit Saxena, learned counsel for the applicants, Shri Arimardan Yadav, learned AGA for the State and perused the records. The instant bail application on behalf of the applicants- Ankit Johri and Shiva Johri has been filed seeking enlargement of applicants in Case Crime No. 296 of 2025, under Sections 61 (2), 3 (5), 340 (2), 336 (3), 338, 318 (4) of Bharatiya Nyaya Sanhita, 2023, Police Station Jaswant Nagar, District Etawah, during the pendency of the trial before the Court below. The bail application in the Court below was rejected by the learned Special Judge, SC/ST (PA) Act/Addl. Sessions Judge, Court No. 2, Etawah vide order dated 7.3.2026 and the applicants are languishing in jail since 3.2.2026. Learned counsel for the applicants while pressing the bail plea has vehemently argued that the applicants are entirely innocent and have been falsely implicated in this very case crime number for ulterior motives. The FIR giving rise to the case crime number, in question, was lodged nominating one Sudip Kumar Proprietor of M/s Bharat Building Material with the allegation that the firm is involved in GST evasion by claiming Input Tax Credit of approx Rs 99,41,957/- in its returns by filing fictitious inward supply invoices received from Kanpur based firm M/s Lam Enterprises without any goods movement resulting in revenue loss to the State to the extent of Rs.2,01,30,000/-. It is argued that the applicants are not named in the FIR. Their names have been introduced after 5-1/2 Versus Counsel for Applicant(s) : Avijit Saxena Counsel for Opposite Party(s) : G.A. Ankit Johri And Another .....Applicant(s) State of U.P. .....Opposite Party(s) months of the lodging of the FIR merely on the basis of inadmissible statements of co-accused persons. It is argued that the applicants are freelance GST service providers and tax compliance assistants who aid small traders and businessman in procedural filing of returns on the GST portal. The role of the applicants is strictly confined to that of a scribe or data entry operator who merely upload figures on the GST portal as dictated by these proprietors for a nominal fee. No mens rea is present to commit the crime as alleged. The complicity of the applicants is sought to be established on the strength of the confessional statements of the applicants and that of co-accused Mohd. Zeeshan. No incriminating material has been received from the applicants so as to implicate them in the instant case crime numbers. No money trail has been traced to the applicants. Learned counsel appearing for the applicants has vehemently argued that the allegations levelled against the applicants i.e. issuing invoices without supply and availing input tax credit falls squarely within the precincts of Section 132 (1)(b) and (c) of the CGST Act, 2017. The CGST Act, 2017 being a self contained fiscal code, the invocation of general penal law (BNS) solely to bypass the statutory safeguards of the special statute is nothing but colourable exercise of power. Reliance is placed on the decision of the Apex Court in the case of Sharat Babu Digumarti versus Government of NCT of Delhi reported in 2017 (2) SCC 18 as also a decision of the Hon'ble Madhya Pradesh High Court in the case of Deepak Singhal versus Union of India (WP No. 21641 of 2024). It is argued that where a Special Act governs a specific field and sets out a comprehensive scheme of penalties and procedures, the provisions of the general penal code cannot be invoked merely to bypass the procedural safeguards of the Special Act. Learned counsel for the applicants has next argued that the applicants are respected persons of the society. They have no prior criminal antecedents, however, the Police have maliciously implicated the applicants in three other ongoing criminal cases in which also the applicants are not named but have been arrested. Their criminal antecedents have been explained in Para 31 of the bail application. The applicants undertake to cooperate in BAIL No. 10225 of 2026 2 the trial and shall not misuse the liberty of bail, if released on bail. Hence, bail has been prayed for. Per contra, learned AGA has vehemently opposed the bail plea by submitting that though the applicants have not been named in the FIR their complicity has been established during the investigation. Investigation has revealed that the applicants in collusion with the named accused Sudip Kumar were instrumental in setting up a fictitious firm M/s Bharat Building Materials using his Aadhar card and PAN card. They also set up another firm Lam Enterprises Kanpur and have shown fictitious inward flow of cement into M/s Bharat Building Materials and have obtained ITC to the tune of two crores one lacs and thirty thousand and are guilty of committing crime under Sections 61 (2), 3 (5), 340 (2), 336 (3), 338, 318 (4) of BNS. Their bail application is liable to be rejected out-rightly. I have heard the learned counsel for the parties and have given my anxious consideration to the respective submissions. So far as the submission of learned counsel for the applicants that the allegations against the applicants i.e. issuing invoices without supply and availing ITC falls squarely within the precincts of Section 132 (1)(b) and (c) of the CGST Act, 2017 and the CGST Act being a special statute shall exclude the invocation of the general penal provisions under Sections 61 (2), 3 (5), 340 (2), 336 (3), 338, 318 (4) of BNS is concerned, the Court is of the opinion that the precise issue was dealt with by a Division Bench of this Court in the case of Govind Enterprises versus State of U.P. and 4 others, neutral citation 2019:AHC:99189-DB, which holds the field and has not been set aside. Learned counsel for the applicant has tried to argue that the said decision is per incuriam and distinguishable inasmuch as, it does not consider the binding decision of the Apex Court in Sharat Babu Digimati (supra). It is otherwise distinguishable as independent acts of forging i.e. bogus address, fabricated rent documents, undisclosed bank accounts constituting distinct IPC ingredients were involved unlike in the case at hand where there is no allegation of forgery of non GST documents, no BAIL No. 10225 of 2026 3 identity theft etc. The entire allegations pertain to filing of GST returns, controlled by the proprietor's OTP authentication placing the dominant conduct squarely within the GST regime. The Court is not impressed by the submissions of the learned counsel for the applicant. In the opinion of the Court, the ratio of the decision of the Apex Court in Sharat Babu Digimati (supra) would not apply to the case at hand in view of the express provisions of Sections 131, 132 of the U.P. GST Act, which itself permits registration of FIR. The phraseology of Sections 131 and 132 clearly suggests that the provisions of the Act are without prejudice to the provisions of the Code. The Division Bench of this Court in Govind Enterprises (supra) after meticulously considering all aspects of the matter arrived at a conclusion, which is being reproduced hereunder:- "Upon careful consideration of the rival submissions, the decisions noticed above, the relevant provisions of the U.P. Act as also the Penal Code and the Code, we find that Sections 69, 134, and 135 of the U.P. Act are applicable in respect of offences punishable under the U.P. Act. They have no application on offences punishable under the Penal Code. Further, there is no provision in the U.P. Act, at least shown to us, which may suggest that the provisions of the U.P. Act overrides or expressly or impliedly repeals the provisions of the Penal Code. There is also no bar in the U.P. Act on lodging an FIR under the Code for offences punishable under the Penal Code even though, for the same act/ conduct, prosecution can be launched under the U.P. Act. Rather, section 131 of the U.P. Act impliedly saves the provisions of the Penal Code by providing that no confiscation made or penalty imposed under the provisions of the Act or the rules made thereunder shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of the U.P. Act or under any other law for the time being in force. The argument of the learned counsel for the petitioner that except for offences specified in sub-section (5) of section 132, sub-section (4) of section 132 of the U.P. Act renders all offences under the U.P. Act non cognizable, therefore no FIR can be lodged, is not acceptable, because BAIL No. 10225 of 2026 4 sub-section (4) speaks of offences under the U.P. Act and not in respect of offences under the Penal Code. It is noteworthy that section 135 of the U.P. Act makes a significant departure from general law by providing that in any prosecution for an offence under the U.P. Act, which requires a cuplable mental state on the part of the accused, the court shall presume the existence of such mental state. The same does not hold true for offences punishable under the Penal Code. Hence, to prove mensrea, which is one of the necessary ingredients of an offence punishable under the Penal Code, the standard of proof would have to be higher to prove commission of an offence punishable under the Penal Code than what would be required to prove an offence punishable under the U.P. Act. As such, the offences punishable under the Penal Code are qualitatively different from an offence punishable under the U.P. Act." The Division Bench decision of this Court still holds the field and is binding upon this Court. The decision of the Hon'ble Madhya Pradesh High Court, however, has only persuasive value and is not a binding precedent. In the case at hand, the culpability of the applicants in the commission of crime stand established prima facie from the material collected during investigation. The applicants along with co-accused Sudip Kumar utilizing his Aadhar Card and PAN card created M/s Bharat Building Materials a fictitious, non existing bogus firm and by showing false e-way inward bills from another bogus firm created using the Broad Band Internet Connection of Ankit Johri, namely, M/s Lam Enterprises showing outward E-way bills for supply of cement without the goods being transferred in physical form and tax to the time of Rs.two crores one lacs thirty thousand has been evaded. In view of the above, the Court is not inclined to release the applicants on bail at this staged. Rejected. April 16, 2026 Ravi Prakash BAIL No. 10225 of 2026 5 (Ashutosh Srivastava,J.) Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad