2020 (9) TMI 1025 - DSC - GST

Grant of Bail - power to re-arrest if the amount of tax evaded goes up during the investigation - Accused is already on bail in the same case - availment of ineligible ITC to the tune of ₹ 24 Crore - pre-trial detention - custodial interrogation - HELD THAT - It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidences. If there is no prima facie case there s no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evident. The above decision makes it abundantly clear that even if any new case is made out after release of the accused on bail ipsofacto, the Court or the police/department will not get a right to take the accused to the custody unless the bail originally granted is cancelled for any substantial reasons. There must overwhelming circumstances are necessary for cancellation of bail. Therefore it is clear that the right of a person once he has been granted by the competent authority shall be safeguarded with utmost respect to the said order passed by the competent court. 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 - 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 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. No doubt the department has moved an application for examination of accused in terms of section 70 of CGST Act which was allowed. However, the said examination cannot be termed as custodial interrogation as claimed in the rep to the bail application. Section 70 CGST Act empowers the proper officer to sum any personwhose attendance he considers necessary either to give evidence or to produce document or any other thing in any inquiry in the same mariner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908 and such inquiry shall be deemed to be a judicial proceedings within the meaning of section 193 and section 228 of the Indian Penal Code. The said examination is never meant to be a custodial interrogation and therefore such averments are rejected. Accused Parag Garg is entitled to bail as not only he was arrested in pursuance to a ongoing further investigation conducted by DGGI but also the fact that accused has prima facie shown that he has secured around 40% of the alleged tax evasion amount. The adjudication proceedings are yet to commence by the department as their investigation is not concluded and the complaint is not likely to be filed very soon. Bail application allowed subject to certain conditions.

Issues Involved:
1. Application under Section 437 CrPC for grant of bail.
2. Allegations of fraudulent availment of Input Tax Credit (ITC) and GST evasion.
3. Compliance with previous bail conditions.
4. Investigation and cooperation with authorities.
5. Legal precedents and principles regarding bail.

Issue-wise Detailed Analysis:

1. Application under Section 437 CrPC for Grant of Bail:
The accused moved an application under Section 437 CrPC for bail, arguing compliance with previous bail conditions and substantial cooperation with the investigation. The court noted that the accused had previously been granted bail after securing the interest of revenue to the tune of ?26.66 Crores.

2. Allegations of Fraudulent Availment of ITC and GST Evasion:
The accused was alleged to have fraudulently availed ITC amounting to ?24 Crores initially, which later escalated to ?93 Crores upon further investigation. The department claimed that the accused was involved in large-scale fraudulent ITC claims through various firms either owned or controlled by him.

3. Compliance with Previous Bail Conditions:
The accused was previously granted bail on the condition of depositing ?1 Crore and other securities, which he complied with. However, the department argued that the accused failed to join the investigation despite multiple summons, thereby violating bail conditions.

4. Investigation and Cooperation with Authorities:
The department contended that the accused was non-cooperative and provided evasive replies during the investigation. They argued that his release could hamper the ongoing investigation, especially given his alleged role as the mastermind in the fraudulent activities. The accused countered by asserting his cooperation and substantial compliance with financial obligations, securing about 44% of the alleged tax evasion amount.

5. Legal Precedents and Principles Regarding Bail:
The court referred to several judgments, including C. Pradeep vs. The Commissioner of GST and Central Excise, and KJS Cement (I) Limited & Anr vs. DGGST, which emphasized that arrest should not precede the adjudication of liability. The court also considered principles laid down in Gurucharan Singh and others v. State, stressing that bail should be the norm and jail the exception, with detention justified only under extraordinary circumstances.

Conclusion:
The court concluded that the accused is entitled to bail, noting that he was arrested as part of an ongoing investigation rather than a separate one. The accused had also demonstrated substantial compliance by securing around 40% of the alleged tax evasion amount. The court granted bail to the accused on furnishing a bail bond of ?1 Lac with one surety of like amount, subject to conditions including cooperation with the investigation and restrictions on leaving the country.

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