2024 (11) TMI 191 - HC - GST

Challenge to condition imposed on the petitioner while granting bail - operating bogus and non-existing firms and creation of fake invoices/inadmissible Input Tax Credit - HELD THAT - Considering that the petitioner was arrested on 25.11.2019 at the initial stage of investigation and was admitted on bail vide order dated 12.12.2019, the learned Trial Court rightly put the condition that the petitioner shall not leave the country without prior permission of the Court since that could have hampered the further investigation. However, five years have been taken by the Department to complete the investigation which has led to filing of the complaint now in the year 2024. It is undisputed that the right to travel abroad is a fundamental right and cannot be curtailed in a casual manner. Even though the Courts are empowered to put an appropriate condition so as to ensure the presence of the petitioner during the course of trial, however, the petitioner has already shown his bona fide by not misusing the liberty and has always come back by taking the permission to travel abroad. This Court is of the opinion that continuing with such condition would be onerous. In regard to the impounding of passport, the Hon ble Apex Court in SURESH NANDA VERSUS C.B.I 2008 (1) TMI 876 - SUPREME COURT observed ' It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edn., p. 133). This principle is expressed in the maxim generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the court under Section 104 CrPC though it can impound any other document or thing.' The present petition is allowed and the condition imposed by the learned Trial Court to the extent that the petitioner would need permission of the learned Trial Court is set aside.

Summary

Issues:
1. Condition imposed on petitioner while granting bail regarding travel restrictions and surrendering passport.

Analysis:
The petitioner was granted bail in an investigation by the respondent Department involving allegations of operating bogus firms and creating fake invoices. One of the conditions imposed was that the petitioner shall not leave the country without prior permission and surrender his passport upon return. The petitioner, engaged in import-export business, argued that he needs to travel abroad frequently for business purposes and has complied with all conditions, traveling on six occasions without any misuse of liberty.

The prosecution's incomplete investigation led to delays, with the complaint filed in 2024 despite the arrest in 2019. The Court acknowledged the petitioner's cooperation, noting that he always returned as per the approved itinerary. While the right to travel abroad is a fundamental right, the Court recognized the need for conditions to ensure the petitioner's presence during trial. However, considering the petitioner's compliance and business requirements, the Court deemed the travel restriction condition burdensome and unnecessary.

Regarding the impounding of the passport, the Court referred to the Supreme Court's ruling in Suresh Nanda v. CBI, stating that impounding a passport falls under the Passports Act, a special law, and not under CrPC. Therefore, the Court allowed the petition, setting aside the travel restriction condition and the requirement to surrender the passport. Instead, the petitioner must inform the Court before every trip abroad by filing an affidavit detailing his itinerary and place of residence during travel.