2022 (11) TMI 836 - HC - GST

Seeking grant of Regular Bail - intent to evade tax / gst - cyclic transactions was tracked in Business Analytics and Fraud Analysis module BIFA - umbrella of 16 fake firms has been created with an intent to evade tax - HELD THAT - There is no denial to the fact that the economic offences constitute a separate class of their own, but trite it is that presumption of innocence is one of the bedrocks on which the criminal jurisprudence rests. Time and again, Apex Court has reiterated the need to integrate the right of investigating agencies to have effective interrogation of the accused with the right of liberty of the accused. Coming to the facts of the present case the investigation stands concluded and the challan stands presented. Thus, there cannot be any apprehension that the petitioner shall tamper with the evidence. The maximum sentence prescribed under the Act for the offence, the petitioner has been booked is 05 years. Though non issuance of show cause notice for adjudication of the evaded tax under Section 74 of the PGST Act cannot be a solitary ground for grant of bail, but in the present case, this fact has assumed significance in the background of the conduct of the agency having failed to lead pre-charge evidence for 06 months. Considering the cumulative effect of all these circumstances, the Court finds that the petitioner cannot be kept behind bars for indefinite period. The petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned - petition allowed.

Issues Involved:
1. Grant of regular bail under Section 439 Cr.P.C.
2. Allegations of tax evasion under Section 132(1)(a)(b)(c) of the PGST Act.
3. Compliance with Section 74 of the GST Act.
4. Consideration of bail in light of economic offences.
5. Examination of pre-charge evidence and judicial custody duration.
6. Application of legal precedents and constitutional rights.

Issue-wise Detailed Analysis:

1. Grant of Regular Bail under Section 439 Cr.P.C.:
The petitioner sought regular bail under Section 439 Cr.P.C. in a criminal complaint alleging tax evasion under the PGST Act. The court considered the petitioner's prolonged custody since 09.03.2022 and the completion of the investigation with the challan presented on 07.05.2022. The court emphasized the principle that detention should not extend indefinitely, referencing the judgment in 'Manoranjana Singh @ Gupta vs. Central Bureau of Investigation' and the necessity of balancing the seriousness of charges with the right to liberty under Article 21 of the Constitution.

2. Allegations of Tax Evasion under Section 132(1)(a)(b)(c) of the PGST Act:
The petitioner was accused of creating a network of 16 firms to evade tax by engaging in cyclic transactions tracked through Business Analytics and Fraud Analysis (BIFA). The complaint detailed that these firms dealt with iron and steel scrap or manufactured items, and the transactions led to tax evasion amounting to crores. The allegations were corroborated by the Harmonised System of Nomenclature Code (HSN) analysis, indicating discrepancies between inward and outward supplies and the improper generation of e-way bills.

3. Compliance with Section 74 of the GST Act:
The petitioner's counsel argued that before accusing someone of tax evasion, the authorities must determine the evasion under Section 74 of the GST Act. The court acknowledged this argument but noted that the non-issuance of a show cause notice under Section 74 alone could not be a solitary ground for bail. However, in this case, the failure of the prosecution to lead pre-charge evidence for six months added significance to this argument.

4. Consideration of Bail in Light of Economic Offences:
The court referred to several precedents, including 'State through CBI vs. Amaramani Tripathi' and 'Sanjay Chandra v. CBI', to outline the parameters for granting bail, especially in economic offences. The court reiterated that while economic offences are serious, they do not automatically preclude bail. The court must consider factors like the nature of the offence, severity of punishment, risk of absconding, and potential for tampering with evidence.

5. Examination of Pre-charge Evidence and Judicial Custody Duration:
The court noted that the petitioner had been in custody for six months without the prosecution presenting pre-charge evidence. The trial court's order dated 11.11.2022 highlighted the lack of progress in leading pre-charge evidence, which influenced the decision to grant bail. The court emphasized that prolonged custody without trial commencement violates Article 21 of the Constitution.

6. Application of Legal Precedents and Constitutional Rights:
The judgment extensively cited precedents, including 'Satender Kumar Antil vs. Central Bureau of Investigation' and 'Suresh Kalmadi vs. CBI', to emphasize the principles of bail jurisprudence. The court underscored the presumption of innocence and the need to balance the right to liberty with the need for effective investigation. It highlighted that bail should be the rule and refusal the exception, even in economic offences, unless there are compelling reasons to deny bail.

Conclusion:
The court granted the petitioner regular bail, considering the completion of the investigation, the lack of pre-charge evidence, and the need to uphold constitutional rights. The petitioner was ordered to furnish bail/surety bonds and comply with conditions, including surrendering the passport and undertaking not to alter any documents or contact information related to the investigation. The court emphasized that detention should not be punitive and must respect the right to a fair trial.

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