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TMI Blog2020 (8) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner-Kishore Wadhwani. Shri Vikramjit Banerjee, learned Additional Solicitor General along with Shri Prasanna Prasad, learned senior counsel for the respondent/Union of India. Shri P. C. Nair, learned Counsel for the objector. A file containing 107 pages is supplied by the respondent in sealed cover O R D E R 1. This is the first application under section 439 of the Cr.P.C. in crime no.23/2020 registered under section 132(1)(a) (i) of the Goods and Services Tax Act (hereinafter referred to as GST Act ), Ss. 409, 467, 471, 120-B of the IPC by the Department of Revenue Intelligence and Directorate General of Goods and Services Tax Intelligence Central Excise Office, District Indore (here-in-after referred to as the Department ). 2. The learned Senior Counsel for the petitioner began with the arguments that the only fault of the petitioner is that he is the landlord of the premises where his tenant, who runs a factory, allegedly evaded the tax by clandestine sale of Pan Masala. The petitioner is neither a Partner of his tenant M/s Vishnu Essence nor in any other way concerned with it. But, he has been posed as if he is the only responsible perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unter that the arrest of the petitioner is contrary to the powers and procedure prescribed by the law. 6. It is not disputed that the petitioner is one of the Director of media company Dabang Duniya but it is contended that neither they are concerned nor are responsible for unauthorized use of any sticker or ID card by any vehicle or driver found indulged in clandestine transportation of any taxable goods. 7. Pendency of investigation is also taken as a ground for dismissing the petition, which is countered on the ground that no further custodial interrogation is requested by the department and the respondent is bound to file the chargesheet within 60 days of the arrest of the petitioner and as per date of arrest i.e. 13.06.2020 sixty days have been completed on 12.08.2020. If still the charge-sheet is not filed, the petitioner is entitled for default bail under Section 167 of the Cr.P.C. 8. It is averred that release of the petitioner would hamper the investigation. To bolster this contention, the learned ASG pointed out that a group of persons assaulted the officials when they tried to search of the house of the petitioner following the due process of the law. A separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured by M/s Vishnu Essence, Sanwer Road, Indore. The truck drivers also confirmed clandestine transportation of Pan Masala. Information extracted from the mobile of an employee of Aashu Roadlines Mr. Sameer Khan, indicated that the firm M/s Vishnu Essence had procured large quantities of raw material and packing material from Ahmadabad clandestinely and had supplied the finished goods in the same manner to M/s AAA Enterprises, Indore. The petitioners Amit Bothara and Ashok Daga are partners of the firm M/s Vishnu Essence. They were called and interrogated. They confessed in their statements recorded under Section 70 of the GST Act that their firm had supplied Vimal brand Pan Masala worth ₹ 320 crores clandestinely and has evaded payment of the GST to the tune of ₹ 225 crores. Subsequent search of various places and statements of various persons further confirmed the aforesaid tax evasion. Following the due process, the petitioners were taken into custody and booked in the aforementioned crime. 4. Refuting all the allegations made by the prosecution, it is submitted by the learned senior counsel for the petitioners that the firm M/s Vishnu Essence is duly re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioners have been falsely implicated in the case. The officials have acted maliciously. The allegation made against them is vague. There is no incriminating evidence or supporting documents qua the petitioners. Details of alleged tax evasion have not been supplied to them. Their custody is illegal as there is no evidence to show that the officials were having reasons to believe that their custody was necessary. The department has not sought their police remand. This shows that there detention was unnecessary and illegal. The sole basis of their arrest is their statements recorded by the officials, but the same were recorded under threat and pressure and have been retracted immediately. Procedure prescribed under Ss. 67, 69, 74, 134,136, 138 of the GST Act and S.41A of Cr.P.C. for arrest, recording of statement, search and seizure has not been followed. The dispute is entirely covered under Section 132 of the G.S.T. Act. Initially the offence was also registered under the same Section. Offences under Sections 409, 467, 471 and 120-B IPC are not made out. Record shows that these offences have been added by the officials at a later stage merely with intent to harass th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they be not granted bail. 14. It is submitted that during the course of investigating very clinching and cogent evidence has been unearthed which indicates that in connivance with each other, the petitioners as well as other wrongdoers have adopted a peculiar modus operandi for clandestine manufacturing and sale of pan masala. The petitioners are not merely benefactors of illegal activities, but had a very proximate nexus with the entire band of persons involved in the said syndicate. Investigation revealed that Mr. Vijay Kumar Nair of M/s. AAA Enterprises is the front man of Kishore Wadhwani. Kishore Wadhwani is the kingpin of the entire illegal procurement, production and supply chain of pan masala clandestinely. Investigation has further revealed that the petitioners had procured raw materials of pan masala and packing material from Ahmadabad and various other cities in Gujarat in clandestine manner and supplied manufactured pan masala to M/s. AAA Enterprises without invoices and payment of G.S.T. 15. Sale and distribution of pan masala has been completely banned across the country due to pandemic induced lockdown from 25th March, 2020 considering its risk in spread o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On careful consideration of nature and gravity of the allegation made against the petitioners and the specific evidence collected in respect of these allegations, elaborate discussion of which would not be apt as it may adversely affect the interest of either party, the specific facts put-forth by the learned senior counsels for the petitioners and their reply and other facts and circumstances of the case, in the considered opinion of this court, the case for granting bail is made out. Therefore, without commenting on the merits of the case, both the petitions stand allowed. 22. It is directed that the petitioners Amit S/o Shri Shubhkaran Ji Bothara and Ashok Daga S/o Shri Ghawarchand Daga be released from custody on their furnishing a personal bond in the sum of ₹ 5,00,000/- (Rupees Five Lakhs Only) each with separate sureties to the satisfaction of the Trial Court for their appearance before it as and when required further subject to the following conditions :- (i) The petitioners shall co-operate with the trial and shall not seek unnecessary adjournments on frivolous grounds to protract the trial.; (ii) The petitioners shall not directly or indirectly allure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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