JUDGMENT Imtiyaz Murtaza and Amar Saran, JJ.
1. We have heard Sri A.B.L. Gaur for the petitioner, and the learned A.G.A representing the State and persued the record.
2. This writ petition has been filed for quashing of an FIR under Sections 420, 424, 467, 468, 471, 120B IPC and Section 28 of Vyapar Kar Adhiniyam in connection with case Crime No. 607 of 2003 at PS Kotwali, District Ghaziabad.
3. The allegations in the said FIR were that the petitioner, who was the sole proprietor of M/s. United Traders India, had obtained two No Objection Certificates (for short, NOC) from the Central Warehousing Corporation (for short, CWC), New Delhi bearing Nos. 744 dated 22.1.2003 and 890 dated 17.2.2003 for import of two lots of Tulsi brand Vanaspati Ghee of 200 metric tonnes each from Nepal, which was made to pass through the customs, barrier at Virat Nagar and Jogbani after paying export duty and on obtaining customs clearance certificate. The petitioner Abhishek Jain even furnished information about this import on his letter pad on 17.2.2003 to the CWC. The said NOCs were obtained and the imports were effected after obtaining the sale contract note of Sri Ram Refined Oil Products Pvt. Ltd, Virat Nagar, Nepal. According to the said sale contract note the destination of the imported Vanaspati Ghee from Nepal was Ghaziabad, but it appears to have been diverted elsewhere as the petitioner did not give any information about this import of 400 metric tonnes Vanaspati Ghee to the Trade Tax department nor did he obtain the registration certificates for trade of the said ghee. He, thereby, evaded deposit of trade tax on the said consignments to the tune of Rs. 29 lakhs. Oh departmental enquiry, his place of work was found closed and no one was found residing at the address furnished by the petitioner. According to the CWC, New Delhi, the papers filed disclosed that the firm's bank account number was 4796 in the Corporation Bank, Connaught Circus, New Delhi, and the petitioner's local address in New Delhi was M-11, II Floor, Greater Kailash I, New Delhi. He also had a bank account in Vaisya Bank, Navyug Market, Ghaziabad, where the account number was 30641. In this manner, Abhishek Jain, the petitioner, had obtained NOCs from the CWC, New Delhi, for importing Vanaspati Ghee for which trade tax payable in the State of U.P. was not paid. In this case, the petitioner's father, J.K. Jain and uncle Arun Kumar were also made co-accused for having jointly imported the Vanaspati Ghee from Nepal in pursuance of a conspiracy for causing revenue loss to the State exchequer.
4. The learned counsel for the petitioner has raised the following submissions:
a) As the petitioner had already got the registration of his firm cancelled as he was suffering losses with retrospective effect from 31.3.2002 by means of an application dated 2.12.2002 which was moved before the Trade Tax Officer, Section 5, hence there was no question of the petitioner importing the said consignment, but a false import has been shown in the name of his firm because of the Trade Tax Department's hostility towards him.
b) As the petitioner was admittedly dealing in electronic items and electronic goods, there was no question of his having been granted an NOC for importing Vanaspati Ghee from Nepal.
c) The NOCs from the CWC, New Delhi, mentioned in the FIR were numbered as 744 (dated 22.1.2003) and 890 (dated 17.2.2003} whereas in an order of the Assistant Commissioner (Trade Tax) dated 29.11.2003 under Section 7(3) of the Trade Tax Act (which was filed by the petitioner as Annexure 6), the NOC numbers were mentioned as 778 (dated 29.1.2003) and 891 (dated 17.2.2002) and in Section 7(3) proceedings with respect to another firm of one Arun Kumar, M/s. Vardhman Udyog, Ghaziabad the NOC numbers issued by the CWC, were mentioned as No. 778 dated 29.1.2003 and 891 dated 17.2.2002) and, because of this variance in the numbers of the NOCs no import of Vanaspati had in fact been effected by the petitioner and a false liability was being imposed on him with mala fide intention, by the Trade Tax Department and the entire transactions were either imaginary, or liability for paying Trade Tax of goods imported by another party is being fastened on the petitioner.
d) In case the Appeal from the order of the Assistant Commissioner, Trade Tax, is eventually allowed, then the petitioner would be free of any criminal liability, hence no action should he taken against the petitioner in pursuance of the present FIR.
5. It may be mentioned here that all the arguments raised by the petitioner pertain to his defence and cannot be considered in proceedings under Article 226 of the Constitution of India. These are questions of fact which are to be probed during the investigation and in the trial whether the petitioner had got his business wound up and moved the application dated 2.12.2002 intimating the Trade Tax Officer of the closure of his business from 31.3.2002 in a bona fide or in a mala fide manner. Also, whether the Vanaspati was actually imported or not by the petitioner or an imaginary import of the same was shown for some ulterior reasons by the Trade Tax authorities are matters to be probed in the investigation and trial of this case.
6. It may be significant to note here that in the FIR itself the contract sale note from the Nepal supplier of Tulsi Brand Vanaspati ghee, Sri Ram Refined Oil Products Pvt. Ltd, Virat Nagar, Nepal to the petitioner's firm, the customs clearance receipts, letters to the CWC, New Delhi, informing them about the payment of export duty by the petitioner, bank account numbers of the petitioner at New Delhi and Ghaziabad facilitating his obtaining the NOCs from the CWC, New Delhi, have been detailed. Furthermore, greater details of the imports and vehicle numbers of Tulsi brand Vanaspati Ghee are mentioned in the order of the Assistant Trade Commissioner, Trade Tax, dated 29.11.2003 (which has been filed as Annexure 6) and in this light it will be for the investigating agency and the trial court to ascertain whether in fact any imports were actually effected by the petitioner or the same have only been concocted by the Trade Tax department in a mala fide manner or imports by another party unconnected to the petitioner have been fastened on him for unauthorizedly realizing trade tax from the petitioner. This fact is undeniable that it was the petitioner who was to be the beneficiary of the imports as it was in the name of his firm that the imports were effected.
7. Even so far as the confusion in the numbers of the NOCs are concerned, it is also not clear at this stage whether the numbers of the NOCs relate to the same imports of Tulsi brand Vanaspati from Nepal or whether they relate to entirely different imports or the whole matter is imaginary as it was being sought to be argued by the learned Counsel. It is also not clear whether Arun Kumar of Varuhman Udyog orders in whose case in the order of the Assistant Commissioner, Trade Tax, Ghaziabad and the Joint Commissioner (Appeal) II, Trade Tax, which have been filed as annexures 7 and 8 to the writ petition, is the same Arun Kumar who is a co-accused in the present ease or is some relative of the petitioner, as he is described as Arun Kumar son of S.S. Jain, of Vardhman Industries resident of Ghaziabad in Annexure 7, or wheter he is a completely independent and unconnected person. There are some reasons to suspect that the said Arun Kumar is connected with the petitioner as the modus operandi of his imports as described in the Section 7(3) proceedins is similar. He also claims to have given a cerificate like the petitioner of having closed his business in 1999 to the Trade Tax Department, then to have obtained NOCs for importing 200 metric tonnes of the same brand of Vanaspati Ghee, Tulsi Brand from the same Nepal supplier, Sri Ram Oil Products Pvt. Ltd, Viratnagar, by means of contract notes as in the petitioner's case, valued at Rs. 72,50,000, evading Trade Tax to the tune of Rs. 14,50,000 (in the petitioner's case the value of 400 metric tonnes of imported Vanaspati was 1,20,00,000). In case this Arun Kumar is connected with the petitioner as the aforesaid facts suggest, then the confusion in the NOCs numbers would be partly explainable. In any case this matter about the confusion in the numbers of the NOCs can only be clarified during the investigation and trial of the case. One fact however that is being suggested by the documents filed by the petitioner's counsel is that the scale of operations in which the Trade Tax payable is being evaded is even far greater than what has been indicated even in the present FIR.
8. Learned counsel for the petitioner, although he raised this submission, but he has not shown us any provision which would restrict a dealer in electronics and auto parts is importing Vanaspati Ghee from Nepal. We also do not know what representation about the Firm's name, status and activities were made before the CWC, New Delhi and whether they were informed about the closure of the firm as per the petitioner's letter to the Trade Tax Officer Ghaziabad dated 2.12.2002 (vide Annexure 3). Even the bald submission of the learned counsel that the FIR has only been lodged against him because there was some dispute with the trade tax authorities and he had in fact committed no offence has not been substantiated by any material on record and prima facie at this stage it cannot be said that for no rhyme or reason the trade tax authorities are involving the petitioner for this very substantial imports of Vanaspati from Nepal in pursuance of a complex criminal conspiracy and his failure to pay the trade tax for the same in the State of U.P.
9. So far as the argument of the learned Counsel as to what what would happen if an Appeal preferred by the petitioner against the order of the Assistant Commissioner Trade Tax Under Section 7(3) is finally allowed, for such an unforseen eventuality if prima facie the facts disclose the commission of a criminal offence, the FIR cannot be quashed at this stage.
10. In this view of the matter, there is no force in this writ petition, which is accordingly dismissed.
11. If the petitioner, however, appears before the court concerned within 15 days from today and applies for bail, the same shall be disposed of in accordance with the directions of the Full Bench in the case of Smt. Amarawati and Anr. v. State reported in 2004(57) ALR 390.
12. Copy of the order may be given to the learned Counsel for the petitioner within 48 hours on the payment of usual charges.