Facts of the Case

Vivek Kumar Gupta approached the Gauhati High Court under Section 438 CrPC apprehending arrest in connection with a police case registered under Sections 120(B)/419/420/468/471 IPC. The FIR was lodged by an Assistant Commissioner of State Tax, Guwahati, alleging that during December 2022 to March 2023, one Naba Kumar Deka induced several proprietors to accept fake invoices from a firm called M/s Deepak Enterprise, and, in connivance with the applicant (proprietor of M/s Sab Trading and M/s North East Enterprise), claimed illegal input tax credit against invoices for which no actual movement of goods took place.

Issues Involved

  1. Whether the applicant, not named in the FIR but implicated through a co-accused's disclosure statement, was entitled to pre-arrest bail.
  2. Whether custodial interrogation was necessary given the document-centric nature of the investigation.
  3. Whether the fact that the case was registered under the IPC rather than the GST Act itself was relevant to the bail plea.

Petitioner's Arguments

  • The applicant's name does not appear in the FIR; he was implicated only through the disclosure statement of a co-accused, Atish Kumar Tiwari, who has already been granted bail.
  • The relevant documents sought by the Investigating Officer have already been furnished by the applicant.
  • The alleged offence relates to defrauding of GST, and under Section 122 of the GST Act, offences involving amounts below five crore are bailable; the case was registered under the IPC only to make it non-bailable.
  • The applicant is willing to cooperate with the investigation.

Respondent's Arguments

  • The Additional Public Prosecutor opposed the petition, submitting that the applicant has not been absconding is not the only consideration — custodial interrogation was necessary to unearth the larger conspiracy.
  • Sufficient incriminating material had already been collected against the applicant, as reflected in the case diary.

Court Order / Findings

  • The Court perused the case diary and found that the investigation had achieved substantial progress and that the entire matter related to documents which the Investigating Officer had already collected.
  • It specifically noted that although the allegation relates to defrauding of GST, the case has not actually been registered under the GST Act, but under the IPC.
  • Custodial interrogation was held to be unwarranted, and pre-arrest bail was granted on furnishing a bond of Rs. 50,000 with one surety, subject to standard conditions (cooperation with investigation, no inducement/threat to witnesses, no leaving jurisdiction without permission).

Important Clarification

This is a bail order, not a verdict on the GST fraud allegations. The Court expressly avoided commenting on the merits of the fake-invoice/fake-ITC allegations; it only assessed flight risk and the need for custodial interrogation. The observation that the case was booked under IPC rather than the GST Act — where such offences below Rs. 5 crore are bailable under Section 122 — is a notable practical point for anyone facing similar prosecutorial strategy, but it is not a finding that the underlying tax fraud allegations are true or false.

Sections Involved

  • Central Goods and Services Tax Act, 2017 — Section 122 (offences and penalties, bailability threshold)
  • Indian Penal Code, 1860 — Sections 120(B), 419, 420, 468, 471
  • Code of Criminal Procedure, 1973 — Section 438 (anticipatory bail)

Decision – In Favour of

Disposed of in favour of the applicant/petitioner to the limited extent of granting pre-arrest bail; no finding was recorded on the GST fraud allegations themselves.

Case Details

  • Court: Gauhati High Court (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
  • Case No.: AB/3208/2023
  • CNR/Reference: GAHC010210662023
  • Coram: Hon'ble Mr. Justice Robin Phukan
  • Date of Order: 26.09.2023

Link to Download the Order

Click here to view/download the full order

Disclaimer

This content is shared strictly for general information and knowledge purposes only. Readers should independently verify the information from reliable sources. It is not intended to provide legal, professional, or advisory guidance. The author and the organisation disclaim all liability arising from the use of this content. The material has been prepared with the assistance of AI tools.