2021 (6) TMI 232 - DSC - GST

Pre-trial detention of accused - recovery of weapon/equipments / documents used in the alleged crime - tampering of evidences - presumption of innocence of the accused - HELD THAT - In the criminal jurisprudence prevailing in all common law countries, every person is presumed to be innocent until proved to the contrary. The consequence that logically follows is that an accused ought not to be detained or imprisoned, that the personal liberty even of an accused should not be interfered with, until he is convicted by due process of law. Several offences are notified as being bailable and even in the remainder, that is non-bailable offences, the accused can be enlarged on bail by orders of the Court. Bail is the rule; Jail is the exception. This is what Sections 437/439 of the Cr.PC in terms postulate, viz. that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained he may be released on bail. However, an exception has simultaneously been prescribed, namely, that such a person shall not be so released unless it appears to the Court, on reasonable grounds, that he has been guilty of an offence punishable with death or imprisonment for life. The presumption of the innocence of an accused can easily be defeated if the investigation is not constrained by time, is open-ended and protracted. It is for this reason that the legislature has wisely provided that the investigation of an accused should reach its culmination by the filing of a Chargesheet/complaint within sixty days, or ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. The accused has already remained in judicial custody for 28 days since 21.09.2020. No further custodial interrogation is required. Ld Sr SPP has stressed upon that the applicant/accused is the mastermind of the alleged evasion. However, it is noted that accused was previously searched on 06.03.2020 and despite lapse of more than 07 months there are no allegations that accused has attempted to flee the country to thwart the course of justice - The quantum of alleged fraudulent claim by accused is yet to be adjudicated. It is also noted that no inquiry/investigation has been cited against accused Sudhir Gulati by Customs Department in respect of exports on which he has claimed ITC. Accused Sudhir Gulati is entitled to bail as not only he has joined the investigation at the first summons but has further been examined while in judicial custody since 21.09.2020. The investigation of DGGI will take considerable time and it is highly unlikely that complaint will be filed soon as the adjudication proceedings are yet to commence - accused Sudhir Gulati, S/o late. Sh. Ram Narian Gulati is admitted to bail on furnishing bail bond in the sum of ₹ 1 Lac with one surety of like amount subject to the conditions that he shall join the investigation / inquiry on summons / intimation issued by the investigating officer and shall not leave the country without permission of the court.

Issues Involved:
1. Application under Section 437 CrPC for grant of bail.
2. Medical conditions and susceptibility to COVID-19.
3. Allegations of fraudulent availment of Input Tax Credit (ITC).
4. Cooperation with investigation.
5. Legal principles governing bail in economic offences.
6. Considerations for granting bail.

Issue-wise Detailed Analysis:

1. Application under Section 437 CrPC for Grant of Bail:
An application was moved on behalf of the accused for bail under Section 437 CrPC. The accused argued that he should be granted bail due to his age, medical conditions, and the fact that co-accused had been granted bail. The prosecution opposed the bail, citing the accused's involvement in a significant economic offence and the need for further investigation.

2. Medical Conditions and Susceptibility to COVID-19:
The accused, aged 62, had undergone heart bypass surgery and suffered from diabetes and high blood pressure, making him more susceptible to COVID-19. His wife was diagnosed with cancer and required his care. The prosecution questioned the relevance of these medical conditions, as no recent medical records were provided. However, the court acknowledged the accused's age and medical history, noting these factors made him vulnerable.

3. Allegations of Fraudulent Availment of ITC:
The prosecution developed intelligence indicating that M/s Anmol Tradex Pvt. Ltd. was involved in fraudulent availment of ITC, amounting to ?29 Crore. The ITC was allegedly availed through a network of companies controlled by Rakesh Kumar Goyal, engaged in circular trading. The accused was linked to these fraudulent activities, and the prosecution argued that he masterminded the scheme.

4. Cooperation with Investigation:
The prosecution claimed the accused was non-cooperative, giving evasive replies and refusing to see documents during interrogation. However, the court noted that despite these claims, no videographic evidence of non-cooperation was provided. The accused had joined the investigation on the first summons and had been in judicial custody since his arrest, indicating his willingness to cooperate.

5. Legal Principles Governing Bail in Economic Offences:
The court emphasized that pre-trial detention in economic offences aims to prevent tampering with evidence, track the money trail, and ensure the accused does not influence witnesses or commit similar crimes. However, personal liberty is a fundamental right, and bail should be granted unless there are compelling reasons to deny it. The court referred to various Supreme Court judgments outlining considerations for granting bail, such as the nature of the offence, evidence, likelihood of absconding, and potential to tamper with evidence.

6. Considerations for Granting Bail:
The court considered the accused's age, medical conditions, lack of previous criminal history, and the fact that he had a fixed residence in Delhi. The accused had already spent 28 days in custody, and the investigation was likely to take considerable time. The court found no substantial risk of the accused fleeing or tampering with evidence. Therefore, the accused was granted bail on furnishing a bail bond of ?1 Lac with one surety of like amount, subject to conditions including joining the investigation on summons and not leaving the country without court permission.

Conclusion:
The court granted bail to the accused, emphasizing the principles of personal liberty and the presumption of innocence. The accused was required to comply with conditions to ensure his availability for the investigation and trial.

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