1. Heard learned counsel for parties and perused the record.

2. Application for anticipatory bail has been file by applicants Hardeep Singh Banga, Gambhir Singh Banga, Satinder Singh Banga, Amitbir Singh, Harbir Singh Banga, Neeraj Bajaj and Pramod Kathuria seeking grant of anticipatory bail with reference to summons dated 25.3.2021, 26.3.2021, 30.3.2021 and 9.4.2021 issued by the Opposite Party No.5-Senior Intelligence Officer GST Intelligence, Zonal Unit Ghaziabad, under Section 70 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the “GST Act) during pendency of proceedings / inquiry before respondents.

3. The submission of learned counsel for the applicants is that under Section 70 of GST 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 inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). Section 70(2) of the GST Act provides that every such inquiry referred to in sub-section (1) of Section 70 of GST Act shall be deemed to be “judicial proceedings” within the meaning of Section 193 and 228 of the Indian Penal Code (hereinafter referred to as “IPC”). He has submitted that the applicants have been summoned and they are required to appear before the Proper Officer of Central Goods and Services Tax Department, Ghaziabad (hereinafter referred to “GST Department”) to record his statement and to produce all documents but they are under apprehension that when they go for the same, they may be detained and sent to Jail. The apprehension is covered under Section 41 (A) of Criminal Procedure Code (hereinafter referred to as “Cr.PC”). The maximum punishment under Section 132(1)(b) of GST Act is 5 years. The applicants will cooperate with the inquiry but they will be definitely arrested and sent to Jail. They are ready to furnish reliable sureties, if granted anticipatory bail, as per the direction of this Court before the GST Department. They have been falsely implicated in this case on account of business rivalry on the allegations that they have been found in possession of bogus invoices as alleged.

4. Learned counsel for applicants further submits that they are cooperating with the inquiry initiated by DGGSTI, Ghaziabad, Unit and till date it is not the case of respondents that applicants are not providing the required documents or they are not making communications through Video Conferencing. It is further submitted that terms and conditions laid down in interim order have been complied with and nothing adverse have been reported by the respondents. Applicants have their world-wide business, therefore, world-wide movement is required to promote their business and fulfillment of the contracts. They are required to move abroad also. He further submits that the case of respondents as stands GST amount of ₹ 34 crore has to be paid by company (though not determined till date). Applicants are ready to furnish indemnity bond of ₹ 27 crore before DGGSTI, Ghaziabad, to secure their apprehended amount.

5. Learned counsel for the applicants have relied upon the judgement of the Karnataka High Court, passed in CWP No. 2419 of 2020 dated 11.6.2021 in Hanumanthappa Pathera Lakshmana v. Respondent State, wherein, appellant had sought anticipatory bail. Court held that offences are not punishable with death or imprisonment for life. There is no statutory bar in GST Act for granting anticipatory bail in exercising of powers under Section 438 of the Cr.P.C.

6. Learned counsel for appllicants further relied upon the judgment of Punajb and Haryana High Court in Abhisekh Modgil v. State, in Criminal Misc. No. 14113 of 2020, decided on 12.6.2020, wherein anticipatory bail was allowed.

7. Learned counsel for the applicants further relied upon the judgment of Puanjab and Haryana High Court passed in CWP No. 24195 of 2019 (O & M), Akhil Krishan Maggu & Another v. Deputy Director, Directorate General of GST Intelligence & Others, 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 v. 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 v. State of West Bengal, 1997 (1) SCC 416, granted interim stay of arrest to the applicant.

8. In the present case, team of GST department visited the premises of applicants and found the documents relating to M/s Maiden Foreign Private Limited, Ghaziabad, which is a manufacturer of iron and steel product. It is pertinent to note here that the said firm is one of suppliers of raw materials to M/s Victoria Auto Private Limited and M/s Victoria Automotive Inc. belonging to the applicants. Authority raised evasion of taxes to the tune of ₹ 27 crore, which is still not determined and is under inquiry. Applicants are cooperating in the investigation through submission of documents and data sought by the GST Department. They are following the interim direction of this Court by complying the summons through virtual mode and they deposited a sum of ₹ 2.0 crores to prove their bona fide cooperation in the investigation. Court granted interim protection from arrest which is effective till date. Applicants were having an export turnover of more than ₹ 3600 crore over last four years, whereas the respondents claimed alleged availment of inadmissible input tax credit of ₹ 27 crore over the last four years. Within the span of last four years, more than ₹ 300 crore IGST has been paid by the applicants’ company on export and said alleged inadmissible availment is yet to be determined.

9. Learned counsel appearing on behalf of the GST Department, has vehemently opposed the prayer of applicants for grant of anticipatory bail. He has submitted that in the instant case, GST evasion of about ₹ 27 crore is involved but in one paragraph evasion of ₹ 50 crore is stated in the counter affidavit. It is a cognizable and nonbailable offence as per Section 132(1)(i) of the GST Act read with Section 132(5) of the GST Act. During search of the applicants’ premises, number of incriminating documents were recovered which prove their involvement in GST evasion of more than ₹ 27 crore. Hence, notice under Section 70 of the GST Act was issued to the applicants. The inquiry is still in progress and applicants were required cooperation by furnishing the required documents and one to one interrogation of each and every applicants is also must but they are trying to avoid the proceedings which is pending on Gaziabad Unit. Summons issued by the office of the respondents are not being complied with in letter and spirit. Anticipatory bail plea is vehemently opposed. Learned counsel for respondents relied upon the judgment in Radhe Shyam Kejriwal v. State of West Bengal and others, (2011) 3 SCC, 58 and another judgment passed by Punjab and Haryana High Court in Hema Garg and Another v. State of Haryana and Another, decided on 12.08.2021 and judgment passed by Allahabad High Court in application u/s 482 No. 13923 of 2021, Sanjay Garg v. Union of India and Others, decided on 13.8.2021.

10. The issue before the Supreme Court in case of Radhey Shyam Kejriwal (supra) was related to the offence under the Foreign Exchange Valuation Act, 1973 and in case of Sanjay Garg (supra) application under Section 482 was filed for quashing the cognizance order dated 27.4.2021 passed on the complaint under Section 132 of GST Act, which was filed by the department after full inquiry and investigation, whereas, in the present case against the applicants, inquiry is still pending and going on and in case of Hema Garg (supra) issue was not similar to the present case.

11. Learned counsel have invited the attention of the court that they have complied with all the letters / summons issued by the respondents. They never avoided them.

12. Sole submission of learned counsel for the applicants before the court is that they may be allowed anticipatory bail during pendency of enquiry and to appear through Video Conferencing instead of physical appearance to avoid the apprehension of arrest and they may be allowed to submit their documents, as required by GST Department, online in terms of interim order.

13. Upon considerations of rival submissions of learned counsel for parties, Court finds that inquiry under Section 70(1) of GST Act is pending against the applicants before the DGGSTI, Gaziabad Unit and apprehension of applicants is that they will be arrested any time even without consideration their documents which has been furnished or about to furnish pursuant to notices issued from the office of respondent No.5. Evasion of GST to the tune of ₹ 27 crore is subject matter of inquiry. Applicants have deposited ₹ 2.0 crore in compliance of interim order dated 1.5.2021 passed by this Court, therefore, chance of non-cooperation of applicants in inquiry does not exist. Inquiry is roaming around the evasion of GST to the tune of ₹ 27 crore as indicated by respondents. Indemnity bond in respect of that amount may also be taken from the applicants.

14. Considering the entire facts and circumstances of the case and keeping in view the fact that inquiry under section 70 of GST Act against the applicants is still pending and going on before the respondents and applicants are having a good business and social status in society. In view of discussion made above, this Court finds that the applicants have no prior criminal antecedents brought on record. Their implication can be made under cognizable and non-bailable offences under Section 132 (5) of the GST Act, if the allegations are found to be correct. The applicants could not give 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. Where the implication of a person is for a non-bailable offence, he can apply for anticipatory bail under Section 438 Cr.PC. If the applicants cooperate with the inquiry, there is no requirement of their arrest. The applicants are having their own address of residence and business and they are having a good status in society. They can give surety ensuring their appearance. They do not appear to be habitual offender, prosecuted or convicted earlier. Therefore, They deserve to be granted protection for the purpose of conclusion of inquiry by the Proper Officer of the GST Department.

15. The applicants Hardeep Singh Banga, Gambhir Singh Banga, Satinder Singh Banga, Amitbir Singh, Harbir Singh Banga, Neeraj Bajaj and Pramod Kathuria shall be enlarged on anticipatory bail till the inquiry is concluded by the Proper Officer of GST Department under Section 70 (1) of the GST Act, on their execution of a personal bond of ₹ 5 crore and Indemnity bond to the tune of ₹ 25 crore on behalf of applicants before the Proper Officer concerned on the following conditions :-

(i) The applicants shall make themselves available for Online interrogation by the proper officer as and when required;

(ii) The applicants shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the Court or any officer;

(iii) In case, the applicants fail to comply the conditions enumerated above or 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 applicants.

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