Sangtei Enterprise and Anr. Vs. The State of Assam and Ors. – Gauhati High Court

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(2019) taxcode.in 118 HC

IN THE HIGH COURT OF GAUHATI

Sangtei Enterprise and Anr.
v.
The State of Assam and Ors.

WP(C) 7081/2019 and Ors.
Decided on 25-Oct-19

Mr. Justice N. Kotiswar Singh

Add. Info:

For Appellant(s): Dr. A. K. Saraf, Sr. Advocate, Mr. A. Goyal, Mr. A. Choudhury

For Respondent(s): Mr. D. Saikia, Sr. Advocate, Mr. B. Choudhury, Standing Counsel, Taxes

---

Judgment/Order:

JUDGMENT & ORDER (CAV)

Heard Dr. A. K. Saraf, learned senior counsel assisted by Sri A. Goyal, Advocate, for the petitioners and Sri D. Saikia, learned senior counsel assisted by Mr. B. Choudhury, learned Standing Counsel, Taxes for the State respondents.

2. These petitions are taken up together, considering the commonality of the issues raised in these petitions.

3. Apparently a routine seizure of certain trucks by the police on suspicion of carrying articles without valid documents has spawned an important question of law by alleging that the police have acted without jurisdiction by usurping the role and jurisdiction of other law enforcing agencies.

4. Since the issues raised are primarily legal in nature, only the minimal facts may be adverted to.

5. In these petitions, most of the petitioners claim to be primarily proprietorship firms carrying on the business of sale and supply of areca-nuts (betel nuts). All the petitioner firms are registered under the Assam Goods and Services Tax Act, 2017 and according to them, they had been paying the necessary tax as required under the rules.

6. According to the petitioners, since the petitioner firms had paid the necessary tax under the Assam Goods and Service Tax Act, 2017, (AGST Act, 2017) seizure of the trucks and areca-nuts carried therein by the Assam Police, who have nothing to do with the taxation regime, is plainly illegal, and accordingly, these petitions have been filed seeking quashing of the illegal seizures and release of the seized goods.

7. The response of the State Respondents is that on 21.08.2019, the police officers of the Jalukbari Police Station received certain credible information about movement of trucks carrying areca nuts from Cachar towards West Bengal without proper documentations. Based on the said information, the police detained 25 trucks. Thereafter, the police authorities forwarded the tax documents to the State Tax Department for verification. On the next day on 22.8.2019, a police team proceeded to Cachar and Karimganj districts to enquire about the details of the said trucks. It is alleged that on enquiry, the real identity of the consignors could not be ascertained and many were not traceable and that it appeared that the firms were fictitious. It has been alleged that on making local verification as stated above, it appeared that there were manipulations of records and forgery of documents in the entire process. Thereafter, on the basis of the report submitted by the said team, an FIR was registered on 3.9.2019 as Jalukbari PS Case No. 1362/2019 u/s 120 (B)/420/468/471 IPC.

8. Since, the genesis of the police action lay in the complaint and FIR, and the consequential police actions are questioned as mentioned above, the relevant portions of the FIR are reproduced herein below:

“On 21.8.2019 an information was received from source that a number of trucks with areca nuts were proceeding from Cachar towards West Bengal side without having valid documents. On the basis of the information I along with OC Jalukbari PS Inspector……………. and his staff (vide Jalukbari PS GDE No. 697 dated 21.8.2019) set up a naka on NH37 near Radisson Blu Hotel. During naka checking 25 nos. of trucks carrying areca nuts (supari) were detained and they were kept at ISBT campus near Gurchuk Police Station for verification/enquiry. The detained vehicles are:

1. …….  

2. ……  

……………….

………………..

25………

The tax documents submitted by the truck drivers were sent to the State Tax Department for verification. However after verification by the Tax Department it suggested to keep the following vehicles under detention for further verification:

1……….

2……….

………..

……………

10. ….  

On 27.8.2019, as per Memo No. DCP/West Ghty/Reserve/2019/747 dated 26.8.2019 of police team headed by me proceeded to Cachar to make a detail enquiry on the basis of the Challan/E way Bill submitted by the truck drivers. The police team visited all the points from where the areca nuts well loaded and dispatched as mentioned in the Challan.

After physical verification of the various loading points under Cachar and Karimganj Districts following anomalies are found:

Cachar District

1. M/s Sarada………… , Cachar.
(GSTIN No………… )
Vehicle No. …………..  (Silchar to Varanasi, UP)

The police team arrived at the address of M/s Sarada ,……, Dholai Bazar, and found Mr. ….. is the owner of M/s Sarada and on being enquired about the detained trucks carrying areca nuts he expresses his ignorance of the matter. However he admitted that the said GSTIN No……… is registered in his name. Sri….. in the state alleged that his nephew….. has prepared GST paper in his name under M/s Sarada…. but for what purpose… used those Tax papers was not known to him. He has also said that he is aware of the fact that….. along with……. and… runs betel nut business and they do not have any godown at Bhaga Bazar and Dholai Bazar area etc.

2………………………….

…………………….

6. …………..  

Karimganj

1. Ali Trading………
(GSCTIN…….. )
(Vehicle No…… )

After thorough search and local enquiry the consignor address could not be found. The GP President of that area i.e., Krishnagar….. was also discussed with and he also said there was no such entity in that area.

2. A.M……………
(GSCTIN…….. )
(Vehicle No…… )

This point too could not be found after local enquiry.

In view of the above reasonable doubts as to the authenticity of the documents provided and moreover the none existence of any offices/godowns at most of the dispatched points and the absconding of the consignor during search indicates that there exist some amount of criminal conspiracy.

Apart from this balance vehicles as mentioned in the report submitted by the Tax Department nine numbers of vehicles were despatched (as mentioned in the Challan) from above mentioned points. The documents submitted on behalf of M/s Sarada …….  and …. are suspected to be manipulated and forged.

In such circumstances you are requested to register a case under appropriate section of law.

Sd/-
(…… )
ACP
Jalukbari Division Guwahati (West)”

9. On the basis of the aforesaid report, the FIR referred to above was registered. In the meantime the police authorities also wrote to the Revenue Intelligence Department to verify the said 25 trucks detained. The Revenue Intelligence officials submitted a report that the aforesaid areca nuts seem to have been illegally imported from Myanmar through Champhai in Mizoram, which amounts to smuggling and as such these trucks would be liable to be seized under Sec. 110 and for confiscation under Sec. 111 of the Customs Act, 1962 and immediate action is required to be taken as prescribed under the Customs Act. It was also informed that further investigation may be necessary, requiring multi agencies as it has cross-border implications.

10. It has been, accordingly, submitted on behalf of the State that the detention of the trucks cannot be said to be without jurisdiction and the petitioners would be at liberty to approach the concerned Court for custody of the seized articles under Sec. 451/457 of CrPC as had been done by some of the truck owners. As such, these petitions are not maintainable.

11. It has been, accordingly, submitted that the Assam Police had jurisdiction and authority as provided under Sec. 4 CrPC to register the FIR case and to detain and seize the trucks carrying areca nuts smuggled from a foreign country by the petitioners by manipulating and forging documents, by invoking Sec. 120 B, 420, 468 and 471 IPC.

12. Learned senior counsel for the State submits that as provided under section 4(2) of CrPC, Assam Police has the power and authority to investigate even if the offences are also relatable to a different statute. As a corollary, the police has power to seize goods even if it relates to another statute, viz., Customs Act. Learned senior counsel submits that it has been provided under Sec. 102(1) CrPC that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may have been found under circumstances which creates suspicion of the commission of “any offence”. Therefore, when the statute itself empowers the police officer to seize any property on the suspicion of commission of “any offence,” the police had authority to seize the trucks carrying areca nuts on the basis of forged documents. According to the learned senior counsel, the words “any offence” is of wide connotation including any offence under the Penal Code or any special law including Customs Act. Hence, the police will have power and jurisdiction to seize the trucks for having committed any offence, even if pertains to Customs Act.

13. It has been submitted that when the said trucks and areca nuts were seized, the police initially did not have any idea that the goods were smuggled and would be liable to be seized under the Customs Act and in fact, it was only after the Department of Revenue Intelligence submitted their report about the possibility of the said goods being smuggled from Myanmar and not through legitimate channel, that it was realised that the provisions of Customs Act would be attracted in the present case. According to the State, however, the fact remains that the documents recovered from the petitioners were prima facie found to be forged, in which event, Sec 467/471 IPC would be attracted, which are within the domain of the state police to investigate as provided under Section 5 of the IPC. Section 5 of the IPC specifically provides that nothing in the Indian Penal Code (IPC) shall affect the provisions of any special or local law. Accordingly, it has been submitted that as offences under IPC have been made out, investigation and seizure under the IPC will not be affected in spite of applicability of Customs Act.

14. The core of the submission of learned counsel for the State is that even if provisions of Customs Act are attracted and the goods were found to have been smuggled from Myanmar by forging and manipulating documents, this will not preclude the State police from investigating the offence of forgery and manipulation of documents and ancillary offences which are offences under Sec. 468, 471 and 420, 120-B of IPC, in which event the state police will also have the power to seize articles relatable to such acts of forgery, cheating, manipulation of records and criminal conspiracy.

15. The aforesaid submission of the learned senior counsel for the State is countered by the learned senior counsel for the petitioners by contending that under our constitutional scheme, different agencies created under special enactments have been assigned and empowered to deal with offences coming under the special laws and the State police cannot encroach upon the jurisdiction of other agencies and usurp their power, as otherwise, it would lead to a chaotic situation where the police would continue to investigate an offence which is supposed to be investigated by another agency, thus leading to multiplicity of investigations by different agencies on the same crime. He submits that if according to the Assam Police, as informed by the Department of Revenue Intelligence, the areca nuts transported by the trucks were smuggled from Myanmar without following the legal channel in violation of the provisions of the Customs Act, it is the customs authorities, and not the Assam Police which can investigate and seize the goods and the trucks.

16. Learned senior counsel for the petitioners submits that Section 4(2) of the CrPC provides that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions of CrPC, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiry, trying or otherwise dealing with such offences.

It has been submitted that if it is the case of the Assam Police that the petitioners have committed an offence under the Customs Act, since there are specific provisions for investigation under the Customs Act empowering the officers mentioned under the Act, the normal provisions of CrPC have to give way to the special provisions under the Customs Act as provided under Sec. 4(2) CrPC for investigation and prosecution.

17. Learned senior counsel for the petitioners submits that the Customs Act is a comprehensive and self-contained Act which provides for various kinds of offences, specific investigating authorities and independent power of investigation conferred upon them relating to the offences mentioned under the Act.

For example, under the Customs Act, a person can be prosecuted for making false declaration or using false documents which would include forgery of documents, which offence the Assam Police is seeking to investigate in the present case by invoking provisions of the IPC. Since the aforesaid offence is also covered under the Customs Act under Section 132 of the Customs Act and since the allegation of the Assam Police is that the said offences have been committed by the petitioners while smuggling areca nuts, the said offence of forging documents can be investigated by the authorised person officers under Customs Act and not by the police.

Sec. 132 of the Customs Act provides that whoever makes, signs or uses, or causes to be made, signed or used any declaration, statements or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

It has been submitted that it is the aforesaid offence which the police had alleged the petitioners have committed.

18. It has been submitted that the Customs authorities have the power of searches, seizure and arrest also as provided under Chapter XIII of the Customs Act.

Under Section 100 of the Customs Act of Chapter XIII, suspected persons entering or leaving can be searched.

Section 101 empowers search of persons suspected of secreting banned goods.

Section 104 empowers the Customs authorities to arrest a person suspected of committing offence under Section 132 etc.

Power to search premises is given under Section 105.

Section 106 empowers stopping and search of conveyance.

Under Section 107 power is given to examine persons.

Under Section 110 goods, documents which are liable to be confiscated can be seized.

Other ancillary powers for investigation are also conferred to the Customs authorities.

19. It has been further submitted on behalf of the petitioners that as the police initially suspected the petitioners of fudging the documents relating to tax, such offences are covered by the Central Goods and Services Act, 2017 and the cognate State Act, the Assam Goods and Services Act, 2017.

It has been submitted that CGST Act, 2017 is also a comprehensive and self-contained Act, which empowers the Commissioner to authorise any officer of Central Tax to arrest the person who is believed to have committed any offence as specified under Sec. 132 of the Act.

The power of inspection, search, seizure and arrest of persons under the aforesaid Act is to be found under Chapter XIV thereof.

Sec. 67 empowers the proper officer, not below the rank of Joint Commissioner to inspect, search, seize and arrest of persons in respect of offences committed under the aforesaid Act.

Sec. 68 empowers the proper officer to inspect goods in movement for verification of the documents.

Under Sec.69 of the CGST Act, where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of Section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub­section (2) of the said section, he may, by order, authorise any officer of Central tax to arrest such person.

Similar powers are given to the State Tax authorities under Section 67 to 72 under chapter XIV of the Assam Goods and Services Tax Act, 2017.

Accordingly, it has been submitted by learned senior counsel for the petitioners that adequate and sufficient powers are conferred upon the proper officers under the CGST Act and AGST Act to discharge similar investigative powers as given to the police officers under the CrPC to investigate offences committed under these Special Acts. As a consequence, if the Assam Police alleges that the petitioners have manipulated tax documents, the petitioners can be proceeded under the AGST Act by the competent officers by way of seizure etc. In other words, the powers conferred upon the police under the CrPC are also conferred upon the competent officers under the CGST Act, 2017 and AGST Act, 2017 in which event, the Assam Police cannot have any jurisdiction to seize the trucks on the ground of violation of CGST Act or the AGST Act.

20. Accordingly, it has been submitted by learned senior counsel for the petitioners that the aforesaid actions of the Assam Police amount to usurpation of the jurisdiction of the authorities under the Customs Act and CGST Act or the Assam GST Act, and as such the seizure of the areca nuts and trucks is illegal.

21. Learned senior counsel for the petitioners also has alleged that since the Assam police have acted without authority and jurisdiction, this petition is maintainable in the light of the decision rendered by the Hon’ble Supreme Court in State of Tripura Vs. Manoranjan Chakraborty, (2001) 10 SCC 740, wherein it was held in para 4 thereof, that where gross injustice has been done, or where the impugned act is palpably illegal, a writ would lie, even if alternative remedies are available, as follows:

“4. For the reasons contained in the said decisions, we hold that the impugned provisions are valid. It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against a high­handed or palpable illegal order which may be passed by the assessing authority.”

It has been submitted that in the present case, the Assam police have acted with gross illegality by seizing the trucks, though there is no irregularity in payment of taxes or any other irregularity so as to be intervened by the police and if there be any irregularity or illegally that would pertain to other statutes as referred to above regarding which the police have no jurisdiction. Accordingly, the petitioners are not under obligation to apply for release of the goods by invoking provisions of CrPC and can avail this writ jurisdiction for quashing the illegal act of seizure by the state police.

22. Learned senior counsel for the petitioners also has alleged that what the state police is doing is to go for a fishing enquiry. What the police is doing is to first detain and seize the vehicles on the ground of suspicion of transporting goods without valid documents and thereafter investigate the case to find out if any offences has been committed and also continue to prove whether offences under other statutes also have been committed. Thus, by seizing the goods and looking for offences suspected to have been committed by the petitioners, the State Police is seeking to improve upon their case based on reports from other agencies which is not permissible as held by the Supreme Court in Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405.

Learned senior counsel accordingly, submits that if this approach of the state police is given countenance to, the state police would then have also the authority to investigate whether the petitioners also have committed the offences under Income Tax, Customs Act, Central and State Goods and Services Tax Acts, Motor Vehicles Act and plethora of statutes and take over the role of the investigating agencies under the aforesaid special laws. If such act of the state police is not precluded, it will lead to misuse of police power leading to harassment, and under such circumstances would also inhibit free trade and transactions which will be inimical to freedom of trade and commerce and economy of the country.

23. As evident from the facts as put forth by the learned senior counsel for the state government and pleadings on record, it seems the case of the police is that petitioners have committed the offence of forging documents and using these documents as genuine ones which are covered by the offences as defined under Sections 468 and 471 IPC and also for committing offence of cheating by entering into a criminal conspiracy which are covered by Sections 420 and 120 B of IPC.

It also the case of the State that on further investigation, as new offences under other special laws are brought to the notice of the authorities, the petitioners can be also proceeded under the special laws, but this will not prevent or divest the police of the power to investigate offences distinctly covered by IPC. Thus, the police has ample jurisdiction and power to investigate the case against the petitioners in the present case.

On the other hand, the case of the petitioners is that if the offence alleged are covered by the special laws and can be investigated by the competent officers under the special laws, to that extent, the police cannot have any jurisdiction to investigate on the same offence under the IPC or the CrPC, as otherwise, the constitutional scheme will breakdown.

24. From the rival contentions of the parties in the context of the facts narrated above, the real issue seems to be to whether the state police has power to investigate and effect seizure of goods for alleged forgery of documents in connection with certain transactions which can be relatable either to taxation statutes or Customs Act.

The power, scope and jurisdiction of the police in investigating offences which may be covered by more than one statute or by special statute are matters of consideration before this Court.

25. The stand of the State government is that irrespective of whether the petitioners have committed offences under other statutes, if there is prima facie evidence showing commission of offence covered by IPC, the police would have jurisdiction to investigate and also effect seizure of the goods connected with the said offence.

On the other hand, the position maintained by the petitioners is that if the petitioners have been alleged to have committed offences under the Customs Act or any taxation statute, only the concerned authorities under the relevant statute would have jurisdiction to investigate and effect seizure of goods under the relevant statute and by not the state police. As otherwise, the constitutional scheme of providing for investigation and prosecution separately by different agencies under special laws would be frustrated, if the police under the general power of investigation under the CrPC takes over the role of other agencies to investigate commission of offences under the special laws.

26. While examining the rival contentions of the parties under the aforesaid factual background, this Court felt that perhaps the clue to the solution will lie under Sections 4 and 5 of CrPC, Section 5 of the IPC as well as Section 26 of the General Clauses Act which are reproduced as under.

Section 4 of the Code Of Criminal Procedure, 1973:

Sec. 4. Trial of offences under the Indian Penal Code and other laws: (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Section 5 of the Code Of Criminal Procedure, 1973

Section 5: Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Section 5 of the Indian Penal Code:

Sec. 5. Certain laws not to be affected by this Act.— Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.

Section 26 of the General Clauses Act:

Sec. 26. Provision as to offences punishable under two or more enactments.— Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

27. The Code of Criminal Procedure, 1973 is the basic law providing the procedures to be followed in dealing with offences under the Indian Panel Code as mentioned under Sec. 4(1) CrPC.

Sub-section (2) to section 4 CrPC further provides that all offences under any other law shall be also investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. What sub-section (2) provides is that provisions of the Code will be applicable in respect of offences under any other law also. The exception is where such special enactment makes for any special provision relating to the manner or place of investigation etc. to deal with such offence. In other words, if there be any special procedure for investigation etc. in the said special enactment, the procedure provided therein shall be followed.

Section 5 of the Cr.P.C. is the clarification of Section 4 of the Code.

28. The scope of Section 4 CrPC has been clarified by the Hon’ble Supreme Court in State of W.B. v. Narayan K. Patodia, (2000) 4 SCC 447 as follows:

“11. So far as the offences under the Indian Penal Code are concerned sub-section (1) mandates that they can be investigated into and tried according to the provisions of the Code. When we go to sub-section (2) which concerns the offences “under any other law” it is again the rule that such offences shall also be investigated and tried according to the provisions of the Code itself, but with a rider that such investigation or trial shall be subject to the regulation regarding “the manner or place of” such investigation or trial prescribed in any enactment for the time being in force.

12. In Mirza Iqbal Hussain v. State of U.P.1 a two-Judge Bench of this Court (Chandrachud, C.J. and Chinnappa Reddy, J.) considered the contention that in a trial of offences under the Prevention of Corruption Act the Special Court has no power to confiscate any property in view of Section 4(2) of the Code which excludes powers under the Code while dealing with offences under laws other than the Indian Penal Code. After extracting Section 4(2) of the Code learned Judges observed as follows: (SCC p. 518, para 2)

“It is clear from this provision that insofar as the offences under laws other than the Indian Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provisions made by the law under which the offence is investigated or tried.”

13. The Constitution Bench which decided A.R. Antulay v. Ramdas Sriniwas Nayak has cautioned that the Code is the parent statute which provides for investigations, inquiry into, and trial of cases and unless there is a specific provision in another statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced. Taking a cue from the said ratio this Court held recently in Gangula Ashok v. State of A.P.3 while interpreting Section 4(2) of the Code as follows: (SCC pp. 509-10, para 13)

“A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions (sic provision) would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby.”

1. (1982) 3 SCC 516

2. (1984) 2 SCC 500

3. (2000) 2 SCC 504

29. In the said case of Narayan K. Patodia (supra) the Hon’ble Supreme Court was dealing with the case involving offences committed under the Indian Penal Code and the West Bengal Sales Tax Act, 1994. A complaint was made alleging that the respondent submitted applications to the State Sales Tax by impersonating himself on the basis of which an FIR was registered. The respondent filed an application seeking quashing of the aforesaid FIR before the High Court, which was allowed by the High Court on the grounds, inter alia, that under section 7 of the West Bengal Sales Tax Act, the Bureau of Investigation constituted under the said act is the only competent authority to investigate in respect of any offence under the said Act which means no other authority can carry out investigation for all enquiry into any case of alleged or suspected evasion of tax as well as malpractices connected therewith. Hence no police officer can investigate into the offences under the Indian Penal Code or any of the Act read with offences committed under section 88 of the Sales of Tax Act.

30. The aforesaid proposition adopted by the High Court was not accepted by the Supreme Court by explaining the correct legal position as follows:

“14. We did not come across any provision in the Sales Tax Act which inhibits the powers of the police as conferred by the Code. Chapter X of the Act deals with “offences and penalties”. Section 88 falls within the said chapter. Sub-section (1)(c) reads thus:

“88. (1) Whoever—

*         *         *

(c) fails to make payment of interest payable under Section 31 or Section 32; or

*             *           *

shall be punishable with simple imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both….”

15. Sections 88(6) and (7) are also extracted below:

“88. (6) Whoever wilfully attempts in any manner to evade or defeat any tax imposed under this Act, shall, in addition to any other penalty provided by any law for the time being in force, be liable also for the offence of dishonest misappropriation of property under Section 403 of the Indian Penal Code, and shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both.”

(7) Whoever knowingly produces incorrect accounts, registers or documents, or knowingly furnishes incorrect information or suppresses material information shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both.”

16. The offence envisaged in sub-section (6) is specifically created as supplemental to any other penalty provided by any law for the time being in force. This means, offences falling under the Indian Penal Code and committed by a person while committing the offence contemplated in sub-section (6) cannot get displaced for the sole reason that the accused has committed the offence falling under sub-section (6) of Section 88.

17. Section 7(1) of the Sales Tax Act empowers the State Government to constitute a Bureau of Investigation for discharging the functions referred to in sub-section (3) thereof. It empowers the Bureau to carry on the investigation or hold inquiry into any case or alleged or suspected case of evasion of tax or malpractice created thereof and send a report of it to the Commissioner. A reading of Section 7 makes it clear that creation of a Bureau of Investigation is for the purpose of discharging the function envisaged in sub-section (3) which, of course, includes investigation also. But there is nothing in Section 7 that such investigation can be carried on “only” by the Bureau and not any other investigating agency. It is open to the Bureau to get the assistance of any other legally-constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police.

(emphasis added)

31. The Hon’ble Supreme Court, accordingly, disapproved the aforesaid reasoning adopted by the High Court by holding that if offences under the IPC and the special laws are involved, the police will also have jurisdiction to investigate offences under the IPC, and proceed to hold as follows:

“18. If the view of the learned Single Judge gets approval it would lead to startling consequences. The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under the Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorised to conduct investigation. The accused in such cases would then be well ensconced and insulated from the legal consequences of a proper and effective investigation. Criminal justice would be the serious casualty then.”

32. Provisions of Section 5 of the Indian Penal Code and Section 26 of the General Clauses Act are co-related and can be explained by the same principle.

What Section 5 of the Indian Penal Code provides is that nothing in the Code will affect the provisions of any special or local law, which means that merely because of the provisions contained in the special act, the general provisions of the Code will not be affected. Section 5 saves the operation of a special law and does not affect the punishability under the Indian Penal Code. Under the aforesaid condition, a situation may arise when both the Code and the special law can be invoked and a question may arise, as in the present case, how offences covered under both the Penal Code and the special law are to be dealt with. It is to deal with such a situation that legislature has incorporated Section 26 of the General Clauses Act. Incidentally, Sec. 26 of the General Clauses Act also incorporates the principle embedded in Article 20(2) of the Constitution of India, with which we are not concerned directly at this stage as the present situation is confined to the stage of investigation and not punishment.

33. Section 26 of the General Clauses Act provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

Thus, if the charge of committing offence “X” is made against “Mr. A” under IPC and Prevention of Corruption Act, “Mr. A” can be prosecuted and punished either under IPC or the Prevention of Corruption Act and not under both the statutes.

Further if the charge of committing “X” offence is made out against “Mr. A” under four different statutes, namely, IPC, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act, 1985, he may be prosecuted and punished under “any” one of these enactments and not all the statutes.

This section will be applicable only when the offences are same, constituted by similar ingredients, as otherwise, the offences though seemingly similar, cannot be brought within the ambit of the aforesaid section.

34. Recently, the Hon’ble Supreme Court, in Criminal Appeal No. 905 of 2010 [The State of Arunachal Pradesh Vs. Ramchandra Rabidas] decided on 4.10.2019 explained the legal position of Section 6 of the General Clauses Act in the context of applicability of Indian Penal Code and Motor Vehicles Act.

The Hon’ble Supreme Court held as follows:

“8. Section 26 of the General Clauses Act, 1897 provides, “Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

It is well settled that an act or an omission can constitute an offence under the IPC and at the same time, be an offence under any other law. The finding of the High Court that the prosecution of offenders under two statutes i.e. the M.V. Act and the IPC, is unsustainable and contrary to law, is therefore, set aside.

A similar issue arose in the case of T.S. Baliah v. T.S. Rangachari [9], wherein the appellant was prosecuted both under Section 177 of the IPC, and Section 52 of the Income Tax Act, 1922. This Court held as follows:

“6. We proceed to consider the next question arising in this case viz. whether the appellant can be prosecuted both under Section 177 of the Indian Penal Code and Section 52 of the 1922 Act [Income Tax Act, 1922] at the same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177 of the Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct. Section 26 of the General clauses Act states:

“26. Provision as to offences punishable under two or more enactments.— Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case.” [emphasis supplied]

Similarly, in State of Maharashtra v. Sayyed Hassan [10], the accused was prosecuted under Sections 26 and 30 of the Food and Safety Standards Act, 2006 as well as Sections 188, 272, 273 and 328 of the IPC for transportation and sale of prohibited gutka/pan masala. The High Court held that Section 55 of the Food and Safety Standards Act, 2006 being a specific provision made in a special enactment, Section 188 of the IPC was inapplicable.

The Supreme Court did not agree with the view of the High Court and remanded the matter to the High Court, and held that :

“8. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows:

“…………………….

……………………..”

9. In Hat Singh’s case this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While considering a dispute about the prosecution of the Respondent therein for offences under the Mines and Minerals (Development and Regulation) Act 1957 and Indian Penal Code, this Court in State (NCT of Delhi) v. Sanjay held that there is no bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offences. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point.” [emphasis supplied]

9 (1969) 3 SCR 65 : AIR 1969 SC 701 : (1969) 72 ITR 787

10 Criminal Appeal No. 1195-1207 of 2018, Decided on September 20, 2018

35. In the aforesaid case of Ramchandra Rabidas (supra) the Hon’ble Supreme Court further held that,

“9. The legislative intent of the MV Act, and in particular Chapter XIII of the MV Act, was not to override or supersede the provisions of the IPC in so far as convictions of offenders in motor vehicle accidents are concerned. Offences under Chapter XIII of the MV Act, cannot abrogate the applicability of the provisions under Sections 297, 304, 304A, 337 and 338 of the IPC. The offences do not overlap, and therefore the maxim of “generalia specialibus nonderogant” is inapplicable, and could not have been invoked. The offences prescribed under the IPC are independent of the offences prescribed under the M.V. Act. It cannot be said that prosecution of road traffic/motor vehicle offenders under the IPC would offend Section 5 of the IPC, as held by the High Court, in so far as punishment for offences, under the M.V. Act is concerned.

10…………………..

………………………….

15. In our considered view the position of law is well settled. This Court has consistently held that the M.V. Act, 1988 is a complete Code in itself in so far as motor vehicles are concerned. [13] However, there is no bar under the M.V. Act or otherwise, to try and prosecute offences under the IPC for an offence relating to motor vehicle accidents. On this ground as well, the impugned judgment is liable to be set aside.

13 National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008) 2 SCC (Cri) 99 : (2008) 1 SCC (Civ) 945; Gottumukkala Appala Narasimha Raju v. National Insurance Co. Ltd., (2007) 13 SCC 446 : (2008) 2 SCC (L&S) 662

36. Keeping the aforesaid legal principles in mind, we will proceed to examine the issues raised.

37. As mentioned above, the Assam Police have charged the petitioners under these sections of the Indian Penal Code:

i) Sec. 468 IPC

ii) Sec. 471 IPC

iii) Sec. 420 IPC and

iv) Sec. 120-B IPC.

Sec. 468. Forgery for purpose of cheating:

Whoever commits forgery, intending that the document [or electronic record] forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Sec. 471. Using as genuine a forged document or electronic record.

Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.

Sec. 420. Cheating and dishonestly inducing delivery of property:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Sec. 120-B. Punishment of criminal conspiracy:

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

38. On the other hand, as mentioned above, the case of the petitioners is that the police have been subsequently informed that the seized areca-nuts have been smuggled in violation of the Customs Act. If that is so, the petitioners have committed offence under the Customs Act and since this Act is a self-contained statute and also covers the offence of forgery, which is the main allegation of the police, others being ancillary to it, the police case is illegal and without jurisdiction as it is the Customs authorities who have the jurisdiction to investigate.

It has been submitted that the charge of forgery and using forged documents as genuine are covered under Section 132 of the Customs Act, 1962 which reads follows:

Sec. 132. False declaration, false documents, etc.— Whoever makes, signs or uses, or causes to be made, signed or used any declaration, statements or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

39. Since the Police initially intercepted and seized the trucks suspecting evasion of tax under the GST regime, and as the Central Goods and Services Act, 2017 and the corresponding State law i.e. the Assam Goods and Services Tax Act, 2017 are also comprehensive and self-contained Acts, these coercive actions could have been done by the authorities under the CGST Act or the AGST Act. The AGST Act empowers the proper officer not below the rank of Joint Commissioner to authorise any officer of State Tax to inspect, search, seize, and arrest persons as provided under Chapter XIV of the State Act.

40. The petitioners contend that the offence of forgery and using false documents as genuine, which are offences under the Penal Code are covered under the Customs Act, as referred to above and hence the petitioners can be proceeded under the Customs Act.

41. However, this Court is of the view as discussed above, that though the Customs Act or the Central Goods and Services Act, 2017 or the Assam Goods and Services Act, 2017 are self-contained Acts under which forgery or producing false documents are also offences, it cannot be said that the provisions of Indian Penal Code cannot be applicable as there is nothing under the Customs Act or the AGST Act that the provisions of the IPC cannot be invoked. There will be a bar only in respect of offences that are specifically mentioned in the special acts.

42. As regards applicability of procedural law as contained in the Code of Criminal Procedure, Section 4(2) CrPC provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions of the CrPC, but shall be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the CrPC further provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

What Sections 4 and 5 provide is that the Code shall continue to be applicable to special laws also, subject to the procedure prescribed under the special laws and if any special procedure is laid down under the special laws, such procedure would not be affected by the provisions of CrPC.

Thus, the provisions of CrPC would continue to be applicable to proceedings under Customs Act or CGST Act/AGST Act, subject to the special procedure provided therein. However, this has no relation to the applicability of the provisions of IPC for offences committed under the said Code in the light of the decisions of the Hon’ble Supreme Court referred to above.

43. For the reasons discussed above, this Court would hold that the Assam Police would have jurisdiction to investigate certain offences under the Indian Penal Code, if made out, even if these may be also offences under the CGST Act, 2017 or AGST Act or the Customs Act,1962. However, as provided under Section 26 of the General Clauses Act, no one will be liable to be punished twice for the same offence.

44. Having held so, however, the submission of the petitioners that the Police cannot conduct a roving enquiry needs consideration of the Court.

The Police set the criminal process into motion after having credible information that a number of trucks with areca nuts were proceeding from Cachar towards West Bengal without having valid documents. Based on the said information 25 trucks were detained.

The tax documents submitted by the truck drivers were sent to the State Tax Department for verification which suggested the Police to keep certain vehicles under detention for further verification. The police team also visited all the points from where the areca nuts were loaded and dispatched as mentioned in the Challan and certain irregularities and anomalies were detected. It has been alleged that in many cases, the identity of the consignors could not be established and the godowns from where the goods were allegedly loaded could not be located.

As also mentioned above, the police sought for necessary information from the Department of Revenue Intelligence, who in turn informed the police that the petitioners are suspected be involved in smuggling of areca nuts from Myanmar in violation of the Customs Act, 1962 and the goods are liable to be seized and confiscated under Section 110 of the Customs Act.

From the above, what transpires is that according to the police, these trucks were carrying areca nuts smuggled from another country illegally without valid authorisation, thus petitioners are liable under Customs Act, 1962. In other words, the principal offence seems to be illegal activity of smuggling covered by the Customs Act, 1962 and the offence of forgery of documents as alleged is a part of the larger illegal activity of smuggling. It is, therefore, apparent that if the petitioners are accused of forging documents, these are ancillary acts to accomplish the main illegal activity of smuggling areca nuts. It can, therefore, be said that the principal criminal activity engaged by the petitioners is smuggling of areca nuts from a foreign country, to accomplish which they also committed certain other offences like forgery of documents. Forgery of documents is thus an ancillary act to the principal act of smuggling areca nuts. In such an event, the customs authorities would be primarily responsible for investigation and prosecution of the petitioners.

45. Though the police have seized the trucks and goods carried along with the documents, and since the charges against the petitioners as far as the police are concerned, are essentially for forgery and use of force documents, their investigative role would be primarily confined to forgery of documents and cannot investigate as to whether these areca nuts were smuggled or not, which would be within the domain of the custom authorities under Customs Act, 1962.

Under such facts and circumstances as revealed, it would be appropriate for the police to hand over the investigation to the customs authorities as they cannot continue the investigation as far as the allegation of smuggling against the petitioners is concerned. Similarly, for the same reasons, the police authorities would have no jurisdiction and power to investigate as regards violation of the provisions of the taxation laws as the same are governed by the provisions of the CGST Act, 2017 or AGST Act, 2017 under which there are separate investigative agencies.

46. While the Police will have authority to investigate offences committed or suspected to have been committed under the Indian Penal Code, they of course cannot go for a roving enquiry or fishing enquiry. It is a different matter that in course of the investigation of an offence under the Penal Code, it may throw up certain leads to other new offences under a different special law. Once it does throw up leads to other new offences under a different statute which appears to be the main intended offence, as in the present case, the police should hand over the investigation to the appropriate authorities to investigate the new offences revealed.

After all, the power of the police to investigate an offence will commence only on getting information either under Section 154 or 155 of the Cr.P.C. Therefore, unless there is information, either during an investigation or otherwise, the police cannot go for a roving inquiry. There is no provision under the CrPC for police empowering the police to act as an intelligence gathering agency, other than as an investigative agency of an offence committed or suspected to have been committed as reported under Section 154 of 155 CrPC.

47. In the present case, apart from the allegation of committing the offence of manipulation and forgery of documents and related offences of conspiracy and cheating, no other offence under the Indian Penal Code seems to have been revealed. But in course of the investigation, it has been indicated that the petitioners are primarily involved in the offences under the Customs Act, 1962. Forgery of documents and related offences seem to be means to achieve the primary offence of smuggling. There is also no allegation that the principal offence committed by the petitioners is for forging of documents for various purposes. Thus, the offences of forgery etc are not stand alone acts but commitment acts to achieve the main offence of smuggling.

As far as the investigation for offences under the Customs Act is concerned, the police cannot investigate, but only the authorised officers as mentioned in the Act. It is a different matter if the competent officer under the Customs Act seeks the assistance of the police.

48. In the present case, unless the investigation already undertaken throws up new leads to other offences under the Penal Code as mentioned above, the Police ought not conduct a roving enquiry, otherwise, it would be susceptible to the charge of misuse of the criminal investigating power. As provided under Sections 154 and 155 of the Code of Criminal Procedure Code, the criminal justice system can be set into motion by the police on getting information as to cognisable/non cognisable offence and proceed accordingly, and not otherwise. Furnishing/availability of information of cognisable/non cognisable offence is sine qua non for initiation of investigation by the police and not otherwise. The police cannot initiate investigation on mere suspicion or in anticipation unless information is given as provided under Sections 154 and 158 of CrPC.

49. It has to be kept in mind that whenever there is information of commission of offence or suspicion of commission of offence, if the main or the principal offence is identified, the agency responsible for investigation of such principal offence ought to take over, with other agencies including the police to assist, wherever, needed or sought for. Otherwise, there could be duplication of investigation by different agencies on the same offence which is not contemplated under the law.

Further, if multiple offences of serious nature are made out during investigation under different statutes, the agencies responsible for investigation in these multiple offences should co-ordinate and if possible, investigate simultaneously and ought not to wait for one agency to complete the investigation of the offence under a particular statute and thereafter, the other agency to start investigation of offence under a different statute, so that the investigation against the accused is not unduly prolonged.

50. This Court holds so for the reason that though a person may commit offences which may be covered by different statutes with different investigating agencies operating, as far as offences committed by the person are concerned, all these are committed against the State. The community at large is the victim as far as criminal justice system is concerned and the State which represents the community prosecutes the offender and brings to justice the offender. It is the sole prerogative of the State to investigate and prosecute offenders for crimes committed against individual(s). Different investigating and prosecuting agencies are created under different statutes as specialised agencies for effective investigation and prosecution, yet all these agencies are the agents of the “State” and represent the “State”. Since it is ultimately the “State” which will prosecute the offenders to protect the interest of the “society”, the different investigating and prosecuting agencies ought to co-ordinate amongst themselves for effective and expeditious culmination of the investigation and prosecution. Different investigating agencies though are different “arms” of the “State” and these represent the same “State”. The “State” being the raison d’être for all these agencies, the agencies must act in coordination with one another to achieve the common goal of bringing the offenders expeditiously to justice. If it is the common offender in respect of multiple offences under a common and or continuous criminal transactions committed by the offender, whether under the same statute or different statutes, more is the requirement for a co-ordinated actions by the different investigative agencies. Otherwise, there may be infraction of the statutory and constitutional rights of the offender, by delaying the investigation, prosecution and trial. If the different agencies take their own time and are allowed to initiate investigations at different time period, though the necessary information for initiating investigation may be available to all the agencies at the same time, the investigations would be prolonged and accused may be subjected to prolonged incarceration, if already under custody. Thus, there could be scope for giving rise to allegations of misuse of coercive powers of the investigative agencies of the “State” to detain, arrest and seize articles multiple times and prolong the detention. In order to obviate this possibility, it would be desirable that as and when any investigating authority discovers materials or evidences of commission of offences under different statues which fall within the ambit of different investigating agencies, the concerned agencies should be intimated so that such agencies can initiate investigation without waiting for the other agency to complete its investigation.

51. It may be noted that if all the multiple and distinct offences committed by an offender during the same or interconnected transactions are covered by the Indian Penal Code, the police cannot investigate these offences separately. These have to be simultaneously investigated by the police. For, example, if a person steals a knife from a store and stabs another person to death by housebreaking, there could be three distinct offences for theft, trespassing and murder under the Indian Penal Code. But the police cannot investigate the offence of theft first, arrest him. Thereafter, on completion of 60 days of investigation for theft, start investigation for the offence of trespassing and arrest the accused again and later investigate the offence of murder separately and arrest him again on the charge of murder as three distinct offences. Such procedure is not contemplated under the law.

52. Will this norm be changed in a situation when a person commits multiple offences under different statutes including Indian Penal Code in the same transaction, where other investigating agencies in addition to the Police can also investigate these different offences coming within their respective jurisdictions?

In another imaginary scenario, a man steals a gun from his neighbour and shoots a smuggler engaged in contraband drugs because of differences over the price and runs away with the contraband drugs for selling to other drug dealers, and while fleeing fires at the crowd who try to intervene. In such a case, he may be liable for theft and attempt to murder, which are offences covered under the IPC, possessing firearm without valid licence under the Arms Act. He may be also liable under the Customs Act as well as under the Narcotics, Drugs and Psychotropic Substances Act. Had these special statutes not been enacted, only the police would have investigated the crimes under the CrPC and the IPC whereunder a person would not have subjected to multiple arrests or detentions and multiple seizures of articles.

53. This Court is accordingly, of the view that even if the different statutes permit independent and separate investigations, if such investigations involve coercive actions similar to as contemplated under the CrPC, the investigations ought to be undertaken simultaneously, otherwise, there would be a distinct possibility of infraction of the precious rights of an accused as guaranteed under Article 14, 21 and 22.

The accused will be subjected to arrest and detention multiple times for the illegal activities committed by him in a criminal transaction, even if the illegal activities may fall under different statutes. A valuable right has been conferred to an accused under Proviso to Section 167(2) CrPC, whereunder, if the investigation is not completed within sixty/ninety days as the case may be, the accused shall be released on bail if he is prepared to and does furnish bail. This period may be extended under certain special laws. Yet, these are certain benevolent provisions engrafted to safeguard the liberty of citizens, which may be rendered meaningless if multiple agencies detain and arrest the same person for the same criminal transaction involving multiple offences on different dates. One may visualise a situation where after sixty/ninety days have lapsed without completion of the investigation by an agency and though the accused would be entitled to be released on bail, another agency takes over the investigation in respect of another offence or a different statute in the same transaction and arrests him, thus the detention could be continued for another sixty/ninety days, thus frustrating the intention of the legislature that there should be a cap on the period of investigation for the purpose of consideration of bail. It is for this reason that this Court is of the view that even if the multiple investigating agencies may have right to undertake independent investigations for different offences arising out of the same illegal transaction, the multiple investigating agencies should start the investigations simultaneously as far as possible.

54. In the present case, under the facts and circumstances as revealed in the pleadings, apart from the offences under the Indian Penal Code concerning which the police have already filed the FIR and started the investigation, there is no other offence disclosed, other than the offence alleged under the Customs Act, 1962, which also seems to be main and principal offence as far as the petitioners are concerned. Since the seized areca nuts and the trucks essentially pertain to the main offence of smuggling coming within the purview of Customs Act, 1962, which are liable to be seized and confiscated under the Customs Act, these ought to be handed over the Customs authorities for their investigation. If the allegations of the police are to be accepted, the offences under Penal Code pertaining to forgery and using false documents as genuine, seem to be the subsidiary crimes committed in aid of the principal crime of smuggling from a foreign country. Under such a situation, once the relevant documents are seized by the police and investigations revealed commission of the principal offence under the Customs Act, it would be appropriate to hand over the investigation to the Customs authorities for further investigation under the Customs Act along with the seized goods and trucks.

55. For the reasons discussed above, this Court would hold that the initial seizure of areca nuts and the trucks by the Assam Police cannot be said to be without authority. But in view of the subsequent disclosures that these areca nuts were smuggled and transported by the trucks, the Customs authorities under the Customs Act, 1962 would now be the proper authorities to investigate the alleged offences and accordingly the police should hand over the seized areca nuts and the trucks to the Customs authorities for further investigation. If the Customs authorities need the help and assistance of the police, nothing prevents them from doing so. Since, the matter is at the stage of investigation, this Court is refraining from making any observation about the merit of the case, other than the issues decided in this petition.

In the result, no interference is called for at this stage and these petitions are disposed of with the above observations and directions.

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Original judgment copy is available here.