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TMI Blog2020 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... st ₹ 2 crores along with interest. The condition of payment of ₹ 1,94,78,017/- along with interest is set aside. The bail bonds of ₹ 50 lakhs with one surety are reduced to ₹ 25 lakhs which shall be in the form of immoveable property, to the satisfaction of the Ilaqa/Duty Magistrate, Panipat. The order of the Addl. Sessions Judge dated 08.04.2020 (Annexure P-2) is, accordingly, modified, whereas the other conditions shall remain intact. Petition allowed. - CRM-M-14856-2020 - - - Dated:- 21-8-2020 - HON BLE MR. JUSTICE G.S.SANDHAWALIA Present: Mr. Parminder Singh, Advocate, for the petitioner. Mr. Saurabh Mohunta, DAG, Haryana. G.S. SANDHAWALIA, J . Present petition, filed under Section 482 of Cr.P.C., seek quashing of the condition in order dated 08.04.2020 (Annexure P-2), passed by the Addl. Sessions Judge, Panipat whereby, while granting bail to the petitioner, he has been directed to furnish bail bonds of ₹ 50,00,000/- with one surety of like amount, to the satisfaction of the Learned Ilaqa Magistrate/Duty Magistrate. Similarly, he has been directed to pay the outstanding liability of ₹ 1,94,78,017/- along with in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the fact that there was a non-existent firm in the name of M/s Maa Karni Yarns due to which tax had been evaded of ₹ 1,94,78,017/-. The details were also given as to how the petitioner had shown purchases from fake firms along with other accused, in support of the order, to submit that it would protect the interest of the Exchequer and the prosecution. After hearing arguments advanced from both sides, this Court is of the opinion that the condition is onerous and is liable to be set aside, for the reasons given hereunder. It is not disputed that the petitioner was arrested after logding of the FIR on 06.09.2019 and he is in custody since then and a period of almost a year has gone by. The Addl.Sessions Judge, Panipat rightly came to the conclusion that the offences punishable when the amount of input tax credit or refund of tax does not exceed ₹ 500 lakhs, the offences are cognizable and non-bailable. It was noticed that vide order dated 24.06.2019, there was authorization to effect his arrest. It was noticed that FIR No.571 had already been lodged against the petitioner for the creation of 18 fake firms and the liability beyond ₹ 5 crores would be subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no application for extension of time to complete investigation had also been filed in the said case though the petitioners had been arrested on 12.07.2018. Thus, they were effectively granted the benefit of bail without the onerous conditions, after 5 months. Unfortunately, these facts were not placed before the Trial Court. As noticed above, the Apex Court in Sreenivasulu Reddy (supra) has held that directing to deposit a sum of ₹ 35 crores out of ₹ 50 crores by a bail order should not be a condition which would lead to effect recovery from the accused. Similarly, it was noticed in Sandeep Jain s case (supra) by the Apex Court that deposit of ₹ 2 lakhs along with the furnishing of bonds of ₹ 50,000/- by 2 sureties was unreasonable. In Sheikh Ayub (supra), ₹ 2,50,000/- was to be deposited which was the amount misappropriated by the accused which order was also set aside. Similarly, in Shyam Singh (supra) payment of ₹ 1,00,000/- per month was to be made for being released on bail which was also set aside. In Amarjit Singh s case (supra), ₹ 15 lakhs had to be put in the form of FDR with the Trial Court which was also held to be unreas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on bail or otherwise, have the same powers and be subject to the same provisions as an officer-in-charge of a police station. 132. (1) Whoever commits any of the following offences , namely: (a) supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax; (b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax; (c) avails input tax credit using such invoice or bill referred to in clause (b); (d) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due; (e) evades tax, fraudulently avails input tax credit or fraudulently obtains refund and where such offence is not covered under clauses (a) to (d); (f) falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information with an intention to evade payment of tax due unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. (3) The imprisonment referred to in clauses (i), (ii) and (iii) of subsection (1) and sub-section (2) shall, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, be for a term not less than six months. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), all offences under this Act, except the offences referred to in sub-section (5) shall be non-cognizable and bailable. (5) The offences specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section shall be cognizable and non-bailable. (6) A person shall not be prosecuted for any offence under this section except with the previous sanction of the Commissioner. Explanation .- For the purposes of this section, the term tax shall include the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or refund wrongly taken under the provisions of this Act, the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, Sub-section (8) provides that penalty equivalent to 25% of the tax can be levied reads as under: 74. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty equivalent to the tax specified in the notice. (2) The proper officer shall issue the notice under sub- section (1) at least three months prior to the time limit specified in sub-section (10) for issuance of order. Xxxx xxxx xxxx (8) Where any person chargeable with tax unde subsection (1) pays the said tax along with interest payable under Section 50 and a penalty equivalent to twenty five percent of such tax within thirty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the case of the State also, in that context. Thus, keeping in view the above factors, this Court is of the opinion that since the maximum punishment which can be awarded is upto 5 years and the petitioner has almost undergone a period of one year having been arrested on 06.09.2019. The onerous conditions would thus violate Article 21 of the Constitution of India as the liberty of the petitioner is being deprived. It is settled principle that bail is the rule and jail is the exception and mere seriousness of the charge is not a factor to be taken into account while denying the valuable right of liberty. The basic principle being the man is innocent till he is found guilty. The factum of the investigation being complete and enquiry having been completed and the relevant documents being in possession of the prosecution, the petitioner thus cannot be detained during the trial only on account of the fact that a bail order in the form of a recovery proceedings has been passed against him to pay the outstanding worth almost ₹ 2 crores along with interest. The Apex Court in Sanjay Chandra Vs. CBI 2012 (1) SCC 40 , whereby the accused was charged under Section 120B, 468 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 15) In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is `the seriousness of the charge . The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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