1. Heard Sri Kaustubh Srivastava, learned counsel for the applicant, Sri B.K. Singh Raghuvanshi, learned counsel for the opposite party no. 2 and learned A.G.A. for the State.

2. This anticipatory bail application has been filed praying for grant of anticipatory bail to the applicant with reference to summon/notice dated 30.01.2020 issued by Superintendent (A.E.) C.G.S.T. & Central Excise, Agra u/s 70 of the C.G.S.T. Act, 2017 r/w Section 174 of the C.G.S.T. Act, 2017 during the pendency of the case before the C.G.S.T. & Central Excise, Agra.

3. Learned counsel for the applicant has submitted that u/s 70 (1) of the Central Goods and Services Act, 2017, (hereinafter referred to as the ''C.G.S.T. Act'), the proper officer has power to summon a person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure , 1908. Section 70 (2) of the C.G.S.T. Act provides that every such inquiry referred to in sub-section (1) of Section 70 shall be deemed to be "judicial proceedings" within the menaing of Section 193 and Section 228 of the Indian Penal Code. He has submitted that the applicant has been summoned and he is ready to appear before the Proper Officer, C.G.S.T. Department, Agra to record his statement and to produce all documents but he is under apprehension that when he goes for the same, he may be detained and sent to jail. The apprehension is covered u/s 41 (A) of Cr.P.C. The maximum punishment u/s 132 (1) (b) of C.G.S.T. Act is 5 years. The applicant will cooperate with the inquiry but he will be definitely arrested and sent to jail. He will furnish reliable sureties, if granted anticipatory bail, as per the direction of this Court before the C.G.S.T. Department. He has been falsely implicated in this case on account of business rivalry on the allegation that he is running fake firms and from his possession, bogus invoices are alleged to have been recovered.

4. Learned counsel for the applicant has relied upon the judgement of the Punjab and Haryana High Court passed in C.W.P. No. 24195 of 2019 (O & M), Akhil Krishan Maggu & Anr. Versus Deputy Director, Directorate General of GST Intelligence & Ors., wherein the High Court directed that inquiry against the petitioners will continue but they will not be taken into custody without prior approval of the Court. Another judgement of the Gujarat High Court passed in R/Special Civil Application No. 13679 of 2019, Vimal Yashwantgiri Goswami Versus State of Gujarat, has been relied upon wherein the applicant was accused of evasion of taxes and the Court, relying upon the judgement of the Apex Court in the case of D.K. Basu Versus State of West Bengal, 1997 (1) SCC 416, granted interim stay of arrest to the applicant.

5. Learned counsel appearing on behalf of the C.G.S.T. Department, has vehemently opposed the prayer of applicant for grant of anticipatory bail. He has submitted that in the instant case, G.S.T. evasion of more than Rs. 100 crores is involved. It is a cognizable and non-bailable offence as per Section 132 (1) (i) of the C.G.S.T. Act, 2017 r/w Section 132 (5) of the C.G.S.T. Act. During search of the applicant's premises, number of incriminating documents were recovered which prove his involvement in G.S.T. evasion of more than 100 crores. Hence, notice u/s 70 of the C.G.S.T. Act was issued to the applicant. The inquiry is still in progress and 111 fake firms, have been found and bogus invoices numbering 373 have been recovered. The applicant is the mastermind of the entire fraud. The goods were sold on paper only without any actual production or supply. He has relied upon the Division Bench judgement of this Court in Criminal Misc. Writ Petition No. 2703 of 2018, Saurabh Kumar Pandey Versus State of U.P. and 3 Ors., wherein summons were issued to the petitioners u/s 14 of the Central Excise Act and the writ petition was dismissed with the observation that no case is made out for prohibiting the arrest of the petitioners. Reliance has also been place upon an order of High Court of the State of Telangana, Hyderabad, passed in Criminal Petition No. 5967 of 2020, refusing to grant regular bail to such an offender. He has finally submitted that despite service of several summons, applicant did not appeared before the Proper Officer for recording of his statement. After grant of interim order by this Court, he appeared before him but on account of his threatening and presence of his local advocates and family members, his statement could not be recorded. Again notices were issued for his appearance on 17.12.2020. It is a financial fraud of more than 100 crores and if he is allowed to move around, he will manipulate the entire evidence. Hence, the applicant may be directed to appear before the Proper Officer for recording of his statement and cooperate in inquiry. He has further submitted that the applicant is not entitled to invoke the jurisdiction of this Court u/s 438 Cr.P.C. because the inquiry by the Proper Officer, C.G.S.T. Department is not a criminal proceeding but it is a judicial proceeding.

6. This Court after going through the judgement of the Punjab and Haryana High Court in the case of Akhil Krishan Maggu (supra) finds that the Court has considered the relevant judicial pronouncements from paragraph no. 7 onwards which are as follows :-

7. Before adverting to present controversy, it would be profitable to look at judicial pronouncements relating to the issue involved. The provisions of CGST Act, 2017 qua arrest and prosecution are para materia with provisions of Finance Act, 1994 (Service Tax). While dealing with power of arrest prior to determination of tax liability, Delhi High Court in the case of Make My Trip Vs. Union of India 2016 (44) STR 481 (Del.) has thoroughly examined scheme of the Act and concluded in Para 116 as below:

Delhi High Court in Para 80-82 has carved out exceptions where power of arrest may be resorted. Para 80-82 are extracted below:

81. In Technomaint Contractors Ltd. v. Union of India- 2014 (36) S.T.R. 488 (Guj.), the Gujarat High Court held that Section 73C of the FA cannot be activated for making a recovery even before adjudication.

82. In the context of the provisions for arrest under the Central Excise Act, 1944 , the DGCEI has published a Manual in 2004 containing guidelines to the CE Officers on when and in what circumstances resort should be had to the coercive step of arrest. In Chapter X Para 7 of the said Manual, it is stated that arrest can be made prior to the issue of an SCN but only "where fraudulent intent is clear (prima facie there is evidence of mens rea) or where the evidence is enough to secure a conviction or where the person is likely to abscond, tamper with evidence or influence the witnesses if left at large. Arrest at the investigation stage should be resorted to only when it is unavoidable."

(Emphasis supplied) Concededly, Hon'ble Supreme Court vide order dated 23.01.2019 has upheld aforesaid decision of Delhi High Court.

7.1 Relying upon decision of Delhi High Court, in the case of Jayachandran Alloys (P) Ltd. Vs. Superintendent of GST & C. Ex., Salem 2019 (25) G.S.T.L. 321 (Mad.), Madras High Court has concluded, in the relevant Paras as below:

(Emphasis Supplied ) 7.2 Gujarat High Court in the case of VIMAL YASHWANTGIRI GOSWAMI Vs STATE OF GUJARAT 2019-TIOL-1746-HC-AHM- GST has concluded in relevant Para as below:

7.3. Gujarat High Court in the case of CLEARTRIP PVT LTD MUMBAI & ORS Vs THE UNION OF INDIA 2016-TIOL-863-HC- MUM-ST has concluded in relevant para as below:

7.4 Hon'ble Supreme Court in the case of C. PRADEEP Petitioner(s) VERSUS THE COMMISSIONER OF GST AND CENTRAL EXCISE SELAM & ANR. Special Leave to Appeal (Crl.) No(s). 6834/2019 has passed interim order as below:

8. The judgement cited on behalf of the learned counsel for the department has not considered any of the relevant authorities on the point. Respondents had found from the documentary evidence that the company has collected service taxes for number of years amounting to Rs. 4.80 crores but the same was not deposited. Therefore, the writ petition was dismissed. There was evidence of prior tax evasion against the petitioner. In the present case, there is no such allegation against the applicant. In that case, the petitioner was avoiding notice u/s 14 of the Central Excise Act, 1944 and was also having proven record of tax evasion. Therefore, this Court rightly dismissed the writ petition filed praying for direction to not to arrest the petitioner on his appearance before the Proper Officer in the inquiry for alleged evasion of service tax in violation of Section 89 (1) (ii) of the Finance Act, 1944 r/w Section 174 of the C.G.S.T. Act, 2017. In the judgement of the High Court for the State of Telangana, Hyderabad, relied upon by the learned counsel for the department, it was a case of regular bail and not anticipatory bail and the petitioner was already arrested.

9. Relying upon the judgement of the Punjab and Haryana High Court, in the case of Akhil Krishan Maggu (supra), this Court finds that the applicant has no prior criminal antecedents brought on record. His implication can be made under cognizable and non-bailable offences u/s 132 (5) of the C.G.S.T. Act, if the allegations are found to be correct. The applicant has not given any statement in inquiry till date due to fear of arrest. As disclosed above, the personal liberty guaranteed under Article 21 of the Constitution of India is a fundamental right and in every case, arrest is not necessary. Under Section 438 Cr.P.C., where the implication of a person is for a non-bailable offence, he can apply for anticipatory bail. If the applicant cooperates with the inquiry, there is no requirement of his arrest. The applicant is having his own address of residence and business. He can give surety ensuring his appearance. He does not appears to be habitual offender, prosecuted or convicted earlier. Therefore, he deserves to be granted limited protection for the purpose of conclusion of inquiry by the Proper Officer.

10. The applicant, Nitin Verma, shall be enlarged on anticipatory bail for a period of six weeks or till the inquiry is concluded by the Proper Officer under Section 70 (1) of the C.G.S.T. Act, whichever is earlier, on execution of a personal bond of Rs. 5,00,000/- and two sureties of the like amount before the Proper Officer concerned on the following conditions :-

If any unforeseen circumstances arise, the Proper Officer would be at liberty to file appropriate application before this Court for cancellation of anticipatory bail granted to the applicant.

The Proper Officer will continue with the inquiry and will not be affected by any observation made in this order.

Order Date :- 05.01.2021 KS