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Judgment
M.R. Shah, J.—Rule. Mr. L.R. Pujari, learned Additional Public Prosecutor waives service of notice of Rule on behalf of the Respondents in Criminal Misc. Application No. 8466/2010 and Mr. K.P. Rawal, learned Additional Public Prosecutor waives service of notice of Rule on behalf of Respondents in Criminal Misc. Application No. 8859/2010.
In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, both these applications are taken up for final hearing today.
As common question of law and facts arise in both these applications, both these applications are decided and disposed of by this common Judgment.
In both these applications u/s 482 of the Code of Criminal Procedure, respective applicants have prayed for an appropriate writ, order and/or direction to quash and set aside the impugned complaints/ FI Rs being C.R. No. II-284/2010 as well as C.R. No. II-281/2010 respectively registered with Jamnagar City "B" Division Police Station, Jamnagar filed by Respondent No. 2 herein - Sales Tax Officer, Jamnagar for the offences punishable under Sections 75(1)(a) of the Sales Tax Act and 47A(1)(iii) of the Gujarat Sales Tax Act,1969.
It appears that the aforesaid complaints have been lodged by the Sales Tax Officer, Jamnagar against the respective applicants for the aforesaid offences alleging inter alia that the respective applicants were doing the business of "Lottery Tickets" without obtaining any licence under the Gujarat Sales Tax Act. Being aggrieved by and dissatisfied with the aforesaid complaints/ FI Rs, the respective applicants have preferred the present applications u/s 482 of the Code of Criminal Procedure to quash and set aside the impugned complaints.
Mr. Premal Rachh, learned advocate appearing on behalf of the respective applicants have submitted that as such earlier penalty order is already passed against the respective applicants u/s 45(2)(a) of the Sales Tax Act for not registering as required u/s 29 of the Gujarat Sales Tax Act and, therefore, considering Section 75(3) of the Gujarat Sales Tax Act, prosecution irrespective of the said offence, for which the penalty has been imposed by the Commissioner, is not permissible and maintainable. Even otherwise, the applicants are not required to obtain any licence for doing business of "Lottery Tickets" as the tax cannot be levied on selling of lottery tickets as the same cannot be termed as "goods" within the meaning of Sales Tax Act. He has relied upon the decision of the Hon''ble Supreme Court in the case of Sunrise Associates v. Government of NCT of Delhi (2006)145 STC 576 as well as in the case of State of U.P. and Anr. v. Sugal and Damani (2007)8 VST 469 (SC) in support of his above submission.
It is further submitted that in fact the impugned complaints / FI Rs have been filed after a period of 12 years in respect of the alleged offence of the year 1997-1998. Therefore, it is submitted that filing of the aforesaid complaints/ FI Rs are nothing but with a view to give harassment to the applicants and abuse the process of Court and law and, therefore, it is requested to dismiss the impugned complaints / FI Rs in exercise of power u/s 482 of the Code of Criminal Procedure and to quash and set aside the impugned complaints/ FI Rs.
Mr. L.R. Pujari and Mr. K.P. Rawal, learned Additional Public Prosecutors appearing on behalf of the respective Respondents in respective applications have produced on record communication dated 23/11/2010 addressed by Commercial Tax Officer, Ghatak 99, Jamnagar to the office of the Government Pleader, Gujarat High Court pointing out that a penalty has been imposed upon the respective applicants i.e. Rishita Enterprise and Rishita Agency u/s 45(2)(a) of the Act for not registering as required u/s 29 of the Gujarat Sales Tax Act. The same is further confirmed by Mr. B.S. Trivedi, Sales Tax Officer, who is personally present in the Court. Thus, it appears that penalty has already been imposed by the Commissioner u/s 45(2)(a) of the Gujarat Sales Tax Act for non registration as required u/s 29 of the Gujarat Sales Tax Act.
The impugned complaints / FI Rs have been filed against the respective applicants for the offence punishable under Sections 75(1)(a) of the Sales Tax Act and 47A(1)(iii) of the Gujarat Sales Tax Act,1969. However, considering Section 75(3) of the Gujarat Sales Tax Act, no prosecution for the offence under the said Act has been instituted in respect of the same facts, on which penalty has been imposed by the Commissioner under any Act. Therefore, when a penalty has been imposed by the Commissioner upon the respective applicants u/s 45(2)(a) of the Gujarat Sales Tax Act for not registering as required u/s 29 of the Gujarat Sales Tax Act, thereafter, the impugned complaints / FI Rs for the same facts is not maintainable. Under the circumstances on the aforesaid ground alone when no prosecution action is maintainable u/s 75(3) of the Gujarat Sales Tax Act, both these FI Rs deserves to be quashed and set aside as complaints / FI Rs are not maintainable at all, in view of the earlier penalty imposed by the Commissioner on the same facts. Under the circumstances, this is a fit case to exercise the power u/s 482 of the Code of Criminal Procedure and to quash and set aside the impugned complaints/ FI Rs.
In view of the above and for the reasons stated hereinabove, both these applications are succeed. The impugned complaints / FIR being C.R. No. II-284/2010 as well as C.R. No. II-281/2010 respectively registered with Jamnagar City "B" Division Police Station, Jamnagar are hereby quashed and set aside. Rule is made absolute in each of the applications.