YOGESHBHAI NAGINBHAI VORA Versus STATE OF GUJARAT

[1] By way of this petition, the petitioner challenges the order dated 22nd July 2022 passed by the learned Sessions Judge, Jamnagar in riminal Revision Application No.64 of 2022, whereby, the Criminal Revision Application preferred by the respondent No.2 herein – State Tax Officer – original complainant came to be partly allowed by quashing and setting aside the order dated 6th July 2022 passed by the learned Chief Judicial Magistrate, Jamnagar passed in S.G.S.T. File No.1 of 2022 rejecting the remand application and the order passed by the learned Sessions Judge ordering seven days remand of the petitioner – original accused.

[2] Brief case of the prosecution can be stated as under: 

[2.1] The petitioner – original accused is facing the criminal prosecution for the offences punishable under Section 132(1)(c) of the Gujarat Goods and Services Tax, 2017. It is alleged that on the basis of spot visit from time to time and on the basis of the information available on GSTN portal, it is brought to the notice that the petitioner along with mastermind accused namely Mohammad Abbas Rafikali Meghani have created bogus firm, through which, without transportation of any goods and only by issuing of invoices and duty bills, passed on the Input Tax Credit and indulged into the economic offences. It is further alleged that the petitioner – accused, in connivance with other co-accused, have operated the bogus firm and credited bogus invoices / bills to the extent of Rs.74,07,63,818/- and thereby, has caused loss to the government treasury to the extent of Rs.11,29,97,870/-. It is further alleged that the accused has admitted that he has got the bills/invoices from the certain firms for the purpose of showing purchase. 

[3] Thus, the petitioner came to be arrested on 6th July 2022 and produced before the concerned learned Magistrate, Jamnagar on the same day with an application for seeking remand for 14 days to find out the real truth and from where the petitioner – accused got bogus invoices / bills and with a view to unearth the big racket of economical offence, the custodial interrogation of the petitioner is required. However, the learned Magistrate, Jamnagar, vide its order dated 6th July 2022 rejected the said application. 

[4] Being aggrieved by the aforesaid, the State Tax Department approached the learned Sessions Judge, Jamnagar on 8th July 2022 by way of Criminal Revision Application No.64 of 2022, which came up for hearing before the learned Sessions Judge, who, vide its order dated 22nd July 2022, has partly allowed the said Criminal Revision Application by granting seven days remand of the petitioner. 

[5] Being aggrieved and dissatisfied with the aforesaid, the petitioner – original accused, by way of this Special Criminal Application, approached this Court for quashing and setting aside the order passed by the learned Sessions Judge dated 22nd July 2022. 

[6] I have heard Mr. Jal Soli Unwala, learned Senior Counsel assisted by Mr. Vijay H. Patel, learned advocate for the petitioner and Mr. Mitesh Amin, learned Public Prosecutor for the respondent – State of Gujarat. 

[7] Mr. Unwala, learned Senior Counsel has mainly contended that the order passed by the learned Sessions Judge, Jamnagar is not tenable in law in the eyes of law inasmuch as the same was passed after completion of the initial period of 15 days of arrest. Mr. Unwala submitted that the petitioner was arrested on 6th July 2022 and the order granting remand came to be passed on 22nd July 2022 by the learned Sessions Judge, which is clearly beyond the initial period of 15 days. According to Mr. Unwala, the petitioner – accused cannot be remanded to police custody after expiry of the period of 15 days from the date of arrest. He further submitted that the police custody can only be given for initial period of 15 days and beyond that period, the custody can only be a judicial custody. According to Mr. Unwala, the learned Sessions Judge could not have passed an order granting remand, when, in the interregnum period, the initial period of 15 days is over. Mr. Unwala, to substantiate his submissions, has heavily relied upon the decision in the case of Kantibhai Devsibhai Patel vs. State of Gujarat reported in (2016) 1 GLR 139. 

[8] By making the above submissions, Mr. Unwala, learned Senior Counsel for the petitioner has prayed this Court to allow the petition as prayed for. 

[9] Per contra, Mr. Mitesh Amin, learned Public Prosecutor has vehemently opposed the present petition contending, inter alia, that the order passed by the learned Sessions Judge is perfectly justified and within the four corners of the provisions of Section 167 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”), and thereby, Mr. Amin requested this Court not to interfere with the order passed by the learned Sessions Judge. Mr. Amin submitted that the order dated 6th July 2022 not granting police custody was challenged within one day i.e. on 8th July 2022 and the said application was fixed on 11th July 2022 and on that date, the matter was partly heard and then, adjourned to 15th July 2022. Mr. Amin submitted that on 15th July 2022, again, the matter was heard and the State Tax Officer submitted his written submissions and thereafter, on request of both the sides, the matter was adjourned to 20th July 2022. On 20th July 2022, the matter was finally heard and was kept for orders on 22nd July 2022. Mr. Amin, accordingly, submitted that the State has not wasted any undue time and acted promptly and precipitated the matter almost day-to-day, therefore, merely because the order passed after completion of initial period of 15 days of arrest would not take away the crucial right of the investigation to investigate the matter effectively and would not preclude the Investigating Officer to ask for police remand. Mr. Amin further submitted that it is not the case that the State has not acted promptly, thus, merely because for one or another reason, the initial period of 15 days is over, it would not take away the right of the investigation to investigate the case effectively. Mr. Amin further submitted that the present case pertains to economical offence, and thereby, relevant information, documents and transaction are known to the present petitioner only, and therefore, with a view to investigate the economical offence effectively, the police custody of the present petitioner is much needed. 

[10] Mr. Amin has heavily relied upon the decision in the case of Gopalbhai Chaturbhai vs. State of Gujarat reported in (2005) 4 GLR 3103. [11] By making the above submissions, Mr. Amin has prayed this Court to dismiss the present petition. 

[12] I have heard learned advocates for the respective parties and have gone through the materials produced on record in details. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties, except what are stated hereinabove. 

[13] Having heard the submissions of the learned advocates for the respective parties and having gone through the materials on record, the only question that falls for consideration of this Court is whether the police custody / remand of the petitioner – accused can be ordered by the Court pending adjudication and in an interregnum time, when the initial period of 15 days is over?

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