9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (4) TMI 781 - HC - GSTForged tax invoices - Grant of Regular Bail - non-existent ghost business entities - commission of offence u/s 132(1)(b)(c) (l) of the OGST Act - wrongfully availing Input Tax Credit (ITC) without physical receipt and supply of goods - Tests for grant or refusal of bail - right to speedy trial - Violation Of fundamental right as guaranteed under Article 21 of the Constitution of India - HELD THAT - Keeping in view the core values of personal liberty, when the present case is tested, it appears that there is allegation of wrongfully availing Input Tax Credit of Rs. 316 crores against the petitioners and others. Out of the eight accused persons against whom PR was submitted, the present petitioners are in custody since 06.07.2022. However, the petitioner Niku @ Chhatar Singh was released on interim bail by the order of the learned trial Court and by the order of learned Addl. Sessions Judge for a total period of 81 days and he has surrendered to custody after expiry of interim bail on each occasion. It is also not disputed that the offence alleged against the petitioners is punishable up to five years, meaning thereby, the petitioners can be sentenced to a maximum period of five years in case of their conviction, but it is not sure as to whether the petitioners would be sentenced to the maximum imprisonment, even if on their conviction as the same is the discretion and domain of trial Court which can impose sentence by taking into relevant consideration in this case. As per the report of the learned trial Court and the affidavit filed on behalf of the petitioner Niku @ Chhatar Singh, 13 out of 23 PR witnesses have already been examined in this case, but the trial is yet to be concluded even after one year nine months of the custody of the petitioners. It is also clarified by the learned counsel for the CT, GST that out of the 10 remaining witness, one has already been expired and the whereabouts of another is not available and 3 out of the remaining 8 witnesses are official witnesses and rest are private witnesses and therefore, how much time would be required to complete the trial is eventually a guess in this situation. In the peculiar facts and circumstances of the situation, especially when the prolong custody of the petitioners which frustrates the right to speedy trial and the maximum punishment that is provided for the offence is five years, out of which one year nine months has already been suffered by the petitioners as a pretrial detention and taking into account a hypothetical consideration that the personal liberty of the petitioners cannot be restored back if the prosecution fails to bring home the charge against them on the face of the prolong incarceration generally militates against the most precious fundamental right as guaranteed under Article 21 of the Constitution of India and already 13 witnesses having examined in this case and the decision of the case revolves around documentary evidence and thereby, further detention of the petitioners in custody reasonably may not be in the interest of justice. Important tests for grant or refusal of bail is the tripod test which prescribes three tests; (i) whether the accused poses a flight risk? (ii) whether the accused is capable of influencing prosecution witnesses and lastly (iii) whether the accused is capable of tampering prosecution evidence? In this case, the petitioners appears to be resident of different place of Sundargarh District and their apprehension of posing flight risk can be curtailed by imposing appropriate conditions by directing them to surrender Passport or in the event, they are not having any Passport, they may be asked to file an affidavit before the trial Court. Additionally, the petitioner Niku @ Chhatar Singh having surrendered to custody on earlier occasions after expiry of interim bail granted to him also indicative of his not posing any flight risk to some extent. Further, examination of 13 witnesses without any adverse report against the petitioners for tampering their evidence, the apprehension of tampering of evidence can be prima facie ruled out at this stage. Similarly, prosecution report having already been submitted, there is hardly any question of influencing witnesses by the petitioners. Further, the grant of bail to an accused pending trial should not be confused with his acquittal of the criminal charges, which is of course to be decided by the criminal Court on appreciation of evidence tendered by the witnesses on conclusion of trial, but grant of bail to an accused is a process of transfer of custody of accused from the custody of law to the custody of surety on certain terms and conditions and the surety certainly has a duty to ensure appearance of the accused before the trial Court till conclusion of trial. In view of the undisputed logical sequitur of the discussions made hereinabove on the face of conspectus of materials placed on record including the long pretrial detention of the individual petitioners, which have punitive content, vis- -vis the maximum punishment prescribed for the offence alleged against the petitioners being not beyond five years, this Court is persuaded to take a lenient view in favour of the personal liberty of the petitioners to exercise its discretion to grant bail to the petitioners. Hence, the bail applications of the petitioners stand allowed and the petitioners namely Subash Kandulna, Chhatar Singh @ Niku Singh, Ram Bharose Shaw and Dhanman Shaw are allowed to go on bail on furnishing an unencumbered property surety of Rs. 50,00,000/- (Rupees Fifty Lakhs) each, in addition to bail bonds in the sum of Rs. 5,00,000/- (Rupees Five Lakhs) each with two solvent sureties for the like amount to the satisfaction of the learned Court in seisin of the case, on such terms and conditions as deem fit and proper. Accordingly, the BLAPL stand disposed of.
Issues Involved:
1. Bail applications u/s 439 of Cr.P.C. 2. Allegations of offences u/s 132(1)(b)(c) & (l) of the OGST Act. 3. Examination of assessment orders and records. 4. Consideration of personal liberty and right to speedy trial. 5. Application of the tripod test for bail. Summary: Issue 1: Bail applications u/s 439 of Cr.P.C. The petitioners filed bail applications u/s 439 of Cr.P.C. in connection with 2(c) CC Case No. 27 of 2022 arising out of CT & GST Enforcement Unit, Rourkela PR No. 3/2022-23 for offences u/s 132(1)(b)(c) & (l) of the OGST Act. All four bail applications were heard together and disposed of by a common order. Issue 2: Allegations of offences u/s 132(1)(b)(c) & (l) of the OGST Act The prosecution alleged that the petitioners, including Directors and Ex-Directors of three companies, wrongfully claimed, utilized, and passed bogus input tax credit (ITC) using forged documents from non-existent entities. The petitioners were accused of issuing invoices without physical supply of goods, leading to wrongful availment of ITC and defrauding the State Exchequer of significant amounts. Issue 3: Examination of assessment orders and records Petitioners Ram Bharose Shaw and Dhanman Shaw requested the Court to call for assessment orders in Form GST DRC 07 and assessment case records of the business entities, arguing that the allegations against them were unfounded as the entities were registered and assessed under the OGST Act. The Court, however, found it undesirable to call for these records at the bail stage to avoid affecting a fair trial. Issue 4: Consideration of personal liberty and right to speedy trial The Court emphasized that personal liberty is a fundamental right under Article 21 of the Constitution. The petitioners were in custody for one year and nine months, and the maximum punishment for the alleged offence was five years. The Court noted that prolonged pretrial detention would frustrate the right to a speedy trial and considered the impact on personal liberty. Issue 5: Application of the tripod test for bail The Court applied the tripod test, considering whether the accused posed a flight risk, could influence prosecution witnesses, or could tamper with evidence. The Court found no substantial risk of flight or tampering with evidence, given the petitioners' cooperation and the nature of the evidence being mostly documentary. Conclusion: The bail applications were allowed, and the petitioners were granted bail on furnishing an unencumbered property surety of Rs. 50,00,000/- each and bail bonds of Rs. 5,00,000/- each with conditions to ensure their presence during the trial and cooperation with further investigation. The Court retained the liberty to cancel bail if conditions were violated or if subsequent involvement in similar offences was found.
|
