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TMI Blog2020 (9) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... lear 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moved on behalf of accused / applicant Parag Garg. 2. Ld. Counsel for the applicant submits that accused was earlier arrested by the respondent department on 07.11.2019 on allegations of availment of ineligible ITC to the tune of ₹ 24 Crore. However, the applicant was granted regular bail by the Ld. Predecessor of this court vide order dated 14.11.2019 after considering that the applicant had secured the interest of revenue to the tune of ₹ 26.66 Crores. 3. He further submits that the applicant has responded to each and every summons issued by the department and the allegations of the department at Para 16 of the judicial remand application dated 14.09.2020 that the applicant was not joining investigation is absolutely misconceived. 4. He also argued that the department does not require any other document / appearance of the applicant is also clear from the final notice to show cause dated 05.03.2020 and with the sole objective of browbeating the applicant, the department directed the applicant to again join investigation on 02.09.2020 and filed a reply dated 27.08.2020 to the travel abroad application stating that : Para : Subsequent to this bail and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IO, which makes It clear that sole motive to keep the applicant behind bars is to browbeat him and extract false confessions. He further submits that the applicant undertakes not to tamper with any evidence or Influence any witness and undertakes to join investigation as and when directed. 9. On the other hand, Ld. Sr. SPP submits that the investigation conducted so far revealed large scale fraudulent availment of ITC and fraudulent availment of refund by M/s Aadhaar India and it is revealed that Parag Garg, Proprietor of M/s Aadhaar India has masterminded and played active role in the evasion of taxes and he is the main beneficiary of entire evasion of GST. He submits that the amount of fraudulently availed ITC and fraudulently claimed refund by M/s Aadhaar India is computed to the tune of ₹ 14.24 Crore approx. He further submit that the applicant had been granted bail previously subject to conditions, but he failed to comply with these conditions as he did not join inquiries despite repeated summons as detailed below issued to him for his appearance in relation to cases against various firms/ companies: SI. No. Date of summons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be made prior to adjudication of liability . The department and its counsel have gone through the said order - Annexure-13 to the bail application, not once but twice but could not find any such sentence in the order of the Hon'ble Court, This is nothing but misquoting the order of Hon'ble High Court. 13. He submits that the inquiry against M/s Gaia Overseas was initiated on 11.09.2009 and searches of premises related to the firm were carried out on 11.09.2019. During the course of investigation of case of M/s Gaia Overseas, it was observed that various suppliers of M/s Gaia Overseas, were either not working in their registered premises or the addresses was found to be incomplete/ not correct. 14. He also argued that accused Parag Garg remain non-cooperative during the course of investigation, he was arrested on 07.11.2019 under Section 69 (1) of CGST Act, 2017 and has deposited part payment of his GST liability before the Hon'ble Court and also submitted property papers to Hon'ble Court during the course of hearing of his bail application. He was granted regular bail on 14.11.2019 with conditions. He further submits that accused Parag Garg has also floate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of IGST from the Govt. by showing utilization of fraudulently availed ITC towards export. Further investigation is underway and the amount of fraudulently availed ITC and fraudulently claimed refund by M/s Aadhaar India is computed to the tune of ₹ 14.24 Crore approx. 18. Heard. Perused. 19. The object of pre trial detention of art accused is threefold. Firstly, accused could be detained in custody if some recovery of weapon / equipments / documents used in the alleged crime are to be recovered and there is apprehension if released on bail, accused may hamper the investigation and recovery thereof. The other consideration is that some co-accused are to be arrested who are absconding and if accused is allowed to be released on bail, he may forewarn them. Another object Is that accused has previous criminal antecedents and he/she is a habitual offender which increases chances of committing similar offences which endangers life and property of the public at large. 20. In economic offences the object of keeping an accused in pre trial detention is to ensure that the accused has no opportunity to tamper with the documentary/ electronic evidence which may reveal the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after convictions, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earlier times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that accused persons should be held in custody pending trial to secure\ their attendance at the trial, but in such case 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the constitution that any persons should be 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 under Article 21 of the Constitution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng thwarted by grant of bail, Balance between the rights of the accused and the larger interest of the Society/State, Any other factor relevant and peculiar to the accused. 26. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, but if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. 27. Furthermore, in the landmark judgment of Gurucharan Singh and others v. State (AIR 1978 SC 179) , it was held that there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the courts. It was further held that there cannot be any inexorable formula in the matter of granting bail. It was further held that facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. It was further held that such question depends upon a variety of circumstances, cumulative effect of which must enter into the judicial verdict. Such judgment itself mentioned th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheikh Mohd. Abdullah, Chief Minister, J K others, three Judges Bench of Hon'ble Apex Court has observed thus - Accused enlarged on bail by court - Held, cannot be rearrested soon thereafter without apprising such court especially when no disclosure was made to that court before it granted bail that investigation for any other offence was then pending against the accused. 33. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Act, 1944. 37. Chapter-XXXIII of the Cr.PC enables him to apply for bail even during the pendency of the investigation. The presumption of innocence for this period Is not totally eclipsed but is in a penumbral state. When any accused Is brought before Court his personal liberty can be restored provided adequate safeguards for ensuring his presence at the Trial are put in place, In the form of bail bonds, and sound sureties etc, and he does not interfere with or impede the investigation. The exception is in the case of a person's alleged involvement in a heinous offence punishable with death or imprisonment for life, in which case such person shall not be released if there appears reasonable grounds for believing in his involvement. 38. In Sreenivasulu Reddy v. State of Tamil Nadu VII (2000) CCR 96 the accused had already deposited a sum of ₹ 35 crore out of the ₹ 50 crore imposed in the Bail Order. Their Lordships had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.PC, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. These condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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. 42. Ld Sr SPP has stressed upon that the applicant / accused is the mastermind of the alleged evasion. However, it is noted that accused was previous arrested on 07.11.2019 and despite lapse of more than 10 months the department had failed to file the complaint and admittedly the further investigation is going on against accused Parag Garg which includes the investigation in respect of M/s. Gaia Overseas, M/s. Aadhar India, M/s SSAPP Overseas, M/s Manpar Exim Inc and M/s Sanskniti Exim Pvt. Ltd., and in all likelihood, complaint will not be filed soon. It is noted that DGGI is yet to file a single complaint for offences under section 132 of CGST Act. 43. Ld. Sr. SPP also stressed that despite multiple summons issued against him, accused failed to join the investigation and therefore, he was arrested on 14.09.2020. It is noted that bail order dated 14.11.2019, one of the bail conditions that he shall join the investigation with the 10 as and when required. Had the investigati ..... 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