Jharkhand High Court

Deepu Sahu @ Pradeep Sahu vs The State Of Jharkhand on 17 November, 2022

                                    1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr.M.P. No. 2065 of 2017

Deepu Sahu @ Pradeep Sahu                             ...... Petitioner
                         Versus
1.The State of Jharkhand
2. Deputy Commissioner of Commercial Taxes, Gumla Circle, Gumla, Jharkhand
                                         ...... Opposite Parties

      CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------

For the Petitioner : Ms. Amrita Sinha, Advocate Ms. Madhavi Nikunj Horo, Advocate For the State : Mrs. Nehala Sharmin, A.P.P.

..........

7/Dated: 17/11/2022 Heard Ms. Amrita Sinha, learned counsel for the petitioner and Mrs.

Nehala Sharmin, learned counsel for the State.

2. This petition has been filed for quashing of the entire criminal

proceeding including the order dated 20.07.2017 whereby the discharge

petition has been rejected in connection with Jaldega (Bansjor) P.S. Case No.

25/2016, corresponding to G.R. Case No. 269/2016 registered under sections

467, 468, 471, 420, 120B of the Indian Penal code, pending in the Court of

learned S.D.J.M., Simdega.

3. The F.I.R. has been instituted alleging therein that the petitioner at

the border of Jharkhand in Birmitrapur (Orissa) helped the drivers of the trucks

in filing online forms including JVAT 508 (Transit Permit) by using three mobile

numbers mentioned in the F.I.R. itself. According to Jharkhand Value Added Tax

Rules, 2006 the mobile number of driver of truck carrying goods must be filed

in form No. JVAT 508 and on the said mobile number One Time Password

(OTP) is being generated and the said OTP is used for verification and

accordingly Transit Permit JVAT 508 is generated on line. It is alleged that the

petitioner has generated total 187 JVAT 508 Forms through his three different

mobile nos. 7749874120, 9937679011 and 8895454813. Accordingly, it has

been alleged that thus there is a breach of Rule with an intention to evade tax.

In short allegation is that the transit pass has been generated by illegal manner

which should be stopped so that there may not be evasion of tax.

4. Ms. Amrita Sinha, learned counsel for the petitioner submits that

admittedly out to out permits under section 72 (11) of Jharkhand Value

Added Tax Act, 2005 (hereinafter referred to Act, 2005) read with Rule 43(2)

the goods were moving from one State to another State and while such

movement they crossed the State of Jharkhand and for crossing the State of

Jharkhand Form 508 is required to be filled up and producing the same vehicles

are allowed to move through the State of Jharkhand. She further submits that

there is procedure of filling up Form 508 and there are several columns in the

said form and after filling up the same it is being submitted on a particular

mobile number whereby OTP is provided on the said mobile number for

generating Form 508 and pursuant thereto Form 508 is being issued and the

vehicles are allowed to move through the State of Jharkhand. She submits that

petitioner is owner of Cyber Cafe and drivers who used to pass through the

said Cafe for generating Form 508, used the mobile number of the petitioner

and being the owner of Cyber Café, the petitioner helped in generating the

said OTP. She submits that entire allegation is with regard to sections of I.P.C.

are not made out whereas there are provision under the said Act, 2005. She

submits that in the in section 84(11) of the Act, 2005 there is provision that if

the total amount of tax evaded or attempted to be evaded is less than two

thousand rupees during the period of a year, punishment is prescribed for

minimum six months. She submits that assessment has not been made

however, bald allegation has been made against the petitioner that State

Exchequer has lost revenue. She further submits that there are provision in the

said Act of the establishment of check post. She further submits that in the

impugned order, learned court by way of relying on several sections of the

said Act has rejected the discharge petition and has not disclosed how the

I.P.C. are made out against the petitioner. She submits that if the special Act is

there, sections of I.P.C. are not attracted. To buttress her argument, she relied

in the case of "Raj Kapoor Vs. Laxman" reported in (1980) 2 SCC 175. She

referred para 7 of the said judgment which is quoted here-in-below:-

"7. Indeed, the Penal Code is general, the Cinematograph Act is special. The scheme of the latter is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed. No doubt, the cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to anti-social objectives. The freedom of expression, the right to be equally treated and the guarantee of fair hearing before heavy investments in films are destroyed belong to Indian citizens under the Constitution. But all freedom is promise, not a menace and, therefore, is subject to socially necessary restraints permitted by the Constitution. Having regard to the instant appeal of the motion picture, its versatility, realism, and its coordination of the visual and aural senses, what with the art of the cameraman with trick photography, vistavision and three dimensional representation, the celluloid art has greater capabilities of stirring up emotions and making powerful mental impact so much so the treatment of this form of art on a different footing with pre-censorship may well be regarded as a valid classification, as was held in K.A. Abbas [K.A. Abbas v. Union of India, (1971) 2 SCR 446 : (1970) 2 SCC 780] . Maybe, art cannot be imprisoned by the bureaucrat and aesthetics can be robbed of the glory and grace and free expression of the human spirit if governmental palate is to prescribe the permit for exhibition of artistic production in any department, more so in cinema pictures. So it is that a special legislation viz. the Act of 1952, sets-up a Board of Censors of high calibre and expertise, provides hearings, appeals and ultimate judicial review, pre-censorship and conditional exhibitions and wealth of other policing strategies. In short, a special machinery and processual justice and a host of wholesome restrictions to protect State and society are woven into the fabric of the Act. After having elaborately enacted such a legislation can it be said that a certificate granted under it by expert authority can be stultified by a simple prosecution or a shower of prosecutions for an offence under Section 292 IPC, driving the producer to satisfy a "lay" Magistrate that the certificate of the Board of Censors notwithstanding, the film was offensive? The Board under Section 5-B has to consider, before certification, all the points Section 292 IPC prescribes. Indeed, neither the Penal Code nor the Cinematograph Act can go beyond the restrictions sanctioned by Part III of the Constitution and once the special law polices the area it is pro tanto out of bounds for the general law. At least as a matter of interpretation, Section 79 IPC resolves the apparent conflict between Section 292 IPC and Part II of the Act relating to certification of films If the Board blunders, the Act provides remedies. We are sure the public-spirited citizen may draw the attention of the agencies under the Act to protect public interest."

5. She submits that no liability can be fastened upon the petitioner.

She submits that no sale and purchase occurred within the State of Jharkhand.

There is no liability under the said Act. On these grounds she submits that

entire proceeding is bad in law and fit to be quashed.

6. On the other hand, Mrs. Nehala Sharmin, learned counsel for the

State by way of referring counter-affidavit submits that chargesheet has been

submitted in this case. She submits that witnesses have supported the case of

prosecution and 54 transit permit in one mobile number of the petitioner and

77 transit permit in other mobile number of the petitioner have been issued

which has come in the investigation. She further submits that there is loss of

Rs. 98 lakhs and odd to the state exchequer.

7. In view of submission of learned counsel for the parties the Court

has gone through the materials on record and finds that admittedly the case

was instituted alleging therein that mobile number of the petitioner was used

for generating Form 508. The procedure to generate Form 508 is noted above

in the argument of the learned counsel for the petitioner, has not been denied

by the learned counsel for the respondent-State. It is an admitted fact that

there is process for generating form on the basis of OTP for that purpose only

mobile of the petitioner has been used for generating OTP by the drivers of the

trucks taking the consignment to one State to another. Consignment in

question was not the subject matter of sale and purchase in the State of

Jharkhand. Only requirement was to comply the Form 508 to the vehicles to

pass through the State of Jharkhand and consignment to deliver in another

State. There are provision of prosecution under section 84 onwards of the said

Act and penalty is prescribed under Chapter-X of the said Act. It is well settled

that if Special Act is there, Sections of I.P.C. are not attracted. Reference may

be made to the case of " Raj Kapoor" (supra).

8. Although in the counter-affidavit it has been stated that loss has

been occurred to the Sate. The question remains when there is no transaction

in the State of Jharkhand delivery or taking over goods in question how

prosecution has come to the conclusion that loss of Rs. 98 lakhs and odd has

occurred to the State of Jharkhand. Mobile in question was only used to

generate OTP for different transactions. It is an admitted fact that if the

Special Act is there sections of I.P.C. are not attracted. For general breach, Rule

66 of the Jharkhand Value Added Tax, Rules speaks as under:-

"66. Punishment for Bench of Rules [Any person contravening any provision of these rules shall be punishable with a penalty, which may be imposed by an authority appointed under Section 4 of the Act, after allowing the person concerned an opportunity of being heard, nor exceeding [ five thousand] rupees and where the contravention is a continuing, with a daily penalty of a sum not exceeding rupees twenty five subject to a limit of rupees [ ten thousand ] in a year during the continuance of contravention and for this purpose a notice shall be

issued in JVAT 302."

9. Looking into the said rule it is crystal clear that for the general

breach, punishment is prescribed therein. Thus if Special Acts and Rules are

there , I.P.C. are not attracted. There is no assessment under the said Act.

10. In view of aforesaid facts, reasons and analysis, the entire criminal

proceeding including the order dated 20.07.2017 whereby the discharge

petition has been rejected in connection with Jaldega (Bansjor) P.S. Case No.

25/2016, corresponding to G.R. Case No. 269/2016 registered under sections

467, 468, 471, 420, 120B of the Indian Penal code, pending in the Court of

learned S.D.J.M., Simdega, are hereby quashed.